Opinion
NO. 02-15-00295-CR
05-05-2016
ROBERT CUTLER APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-1983-F MEMORANDUM OPINION
I. INTRODUCTION
After a trial, the court found Appellant Robert Cutler guilty of assault family violence enhanced by a prior felony and assessed Cutler's punishment at thirteen years' confinement. See Tex. Penal Code Ann. §§ 12.42(a), 22.01(a)(1), (b)(2)(A) (West Supp. 2015). The sole issue presented by Cutler in his two points on appeal is whether the trial court abused its discretion by denying Cutler's request, made Monday morning before trial, to withdraw the jury waiver he had signed the Thursday before at his pretrial conference. Because the trial court did not abuse its discretion, we will affirm.
II. PROCEDURAL BACKGROUND
Cutler was charged with assault family violence. At his pretrial hearing, Cutler informed the trial court that he did not want a jury trial but instead "want[ed] to proceed with trial by Judge." The trial court admonished Cutler at length about waiving his right to a jury trial and asked Cutler numerous questions to ensure that he was competent to make such a decision and that his decision was made knowingly and voluntarily. The trial court also provided Cutler's trial counsel—who had advised Cutler against proceeding with a bench trial—the opportunity to further explain to Cutler the importance of his right to a jury trial and to ensure that Cutler's waiver of his right to trial by jury was knowingly and voluntarily made. Finally, the trial court asked Cutler:
Trial Court: And understanding all that, it's still your desire to waive a jury, not have 12 citizens selected during a jury selection process to hear evidence and decide guilt or innocence or punishment but, instead, just have this Court hear evidence and decide guilt or innocence and punishment?As the prosecutors were assembling the waiver paperwork, the trial court stated:
Cutler: Yes, sir, trial by Judge.
Before you sign that, I should also clarify that once the right to a jury trial is waived, you may not—you may or may not be permitted to subsequently invoke that right. That is, if you change your mind
tomorrow or over the weekend between now and Monday, the Court may or may not allow you to change your mind. And that depends very much on whether or not it would cause an unnecessary delay in the case.Cutler executed a written jury waiver stating that he "waive[s] the right to trial by jury" and "requests to have a trial by the Court." The State's attorney and the trial court signed and approved Cutler's jury waiver.
But on Monday morning, after Cutler had signed the jury waiver on Thursday, Cutler for the first time expressed a desire for a jury trial. Cutler's attorney asked the trial court "to revisit and ensure that the defendant still wishes to proceed without a jury." When the trial court then asked Cutler if he preferred to have a jury, Cutler responded that he wanted a jury trial. The trial court took a recess to inquire from jury services whether a jury panel could be convened that day to accommodate Cutler's trial-day request for a jury. The trial court learned that it was impossible to get a jury for his court that day. The State explained that it had five witnesses present at the courthouse and ready to testify that day.
Citing Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App. 1996), the trial court denied Cutler's request to withdraw his jury waiver. The trial court explained:
I'm sorry, just to be clear: The withdrawal of the waiver of the right to a jury trial which was made intelligently and knowingly and voluntarily would not be possible without interfering with the orderly administration of the Court's business, as well as the business of two other courts, that it would result in unnecessary delay and inconvenience to witnesses, and that it would be prejudicial to the State, and therefore, I'm not going to permit the withdrawal of the waiver, and you're going to proceed to trial.The trial court conducted a bench trial, found Cutler guilty of the offense of assault family violence, assessed Cutler's punishment at thirteen years' confinement, and sentenced him accordingly.
III. WAIVER OF TRIAL BY JURY
A. The Law
The Texas Constitution states that "[t]he right of trial by jury shall remain inviolate." Tex. Const. art. I, § 15. The United States Constitution also protects the right to trial by jury. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ."). Because of the "inviolate" nature of the right to trial by jury, Texas law requires that a waiver of the right to a jury trial be made in person in writing in open court. Tex. Code Crim. Proc. Ann. art. 1.13(a) (West Supp. 2015).
Once a defendant waives his right to a jury trial, "he does not have an unfettered right to reassert that right." Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). Instead, a defendant has the burden to show "the absence of adverse consequences" from granting the withdrawal. Id.; Marquez, 921 S.W.2d at 223. The defendant must establish on the record that his request to withdraw his jury waiver was made sufficiently in advance of trial such that granting the request will not: (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the State. Hobbs, 298 S.W.3d at 197-98; Marquez, 921 S.W.2d at 223. "A silent record does not mean that the state, witnesses, and trial court did not in fact suffer prejudice; it merely means that proof was not offered on the issue." Marquez, 921 S.W.2d at 223 n.7.
We review a trial court's decision to deny a request to withdraw a jury waiver for an abuse of discretion. Hobbs, 298 S.W.3d at 198; Marquez, 921 S.W.2d at 223. A trial court abuses its discretion when it acts without reference to guiding rules and principles or, in other words, when it acts arbitrarily or capriciously. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh'g). If the defendant's claims are rebutted by the State, the trial court, or the record itself, the trial court does not abuse its discretion in refusing to allow withdrawal of the jury waiver. Hobbs, 298 S.W.3d at 198; Marquez, 921 S.W.2d at 223.
B. Application of the Law to the Facts
In his first point, Cutler argues that the trial court denied him his right to a jury trial. The record reflects, however, that Cutler had executed a jury waiver in person, in writing, and in open court. See Tex. Code Crim. Proc. Ann. art. 1.13(a). Prior to executing that waiver, the trial court admonished Cutler at length about the right of a jury trial and asked numerous questions to ensure that Cutler was competent and that his decision to waive a jury was made knowingly and voluntarily. The trial court also gave Cutler's trial counsel the opportunity to further explain the importance of the right to a jury trial and to further ensure that Cutler was knowingly and voluntarily waiving that right. Based on this record, we hold that Cutler executed a valid waiver of his right to a jury trial. See id.
Although Cutler later requested a jury on the morning of trial—essentially seeking to withdraw his jury waiver—the record established that a jury panel was not available that day and that the State had five witnesses present and ready to testify. The trial court concluded that allowing a withdrawal of Cutler's jury waiver would interfere with the orderly administration of the court's business, would result in unnecessary delay and inconvenience to witnesses, and would prejudice the State. Cutler—who had the burden of showing the absence of adverse consequences—did not establish that allowing a withdrawal of his jury waiver would not interfere with the orderly administration of the court's business, would not result in unnecessary delay and inconvenience to witnesses, and would not prejudice the State. See Hobbs, 298 S.W.3d at 197; Marquez, 921 S.W.2d at 223. Indeed, Cutler's trial counsel stated that "[w]e understand that it's an inconvenience to the Court . . . to change at this late time." Based on this record, the trial court acted well within its discretion by refusing to allow Cutler to withdraw his jury waiver. See Hobbs, 298 S.W.3d at 197; Marquez, 921 S.W.2d at 223. We overrule Cutler's first point.
In his second point, Cutler argues that the trial court denied him his right to a jury trial at the punishment phase of trial. Relying on Smith v. State, 223 S.W.3d 690, 693 (Tex. App.—Texarkana 2007, no pet.), Cutler argues that even if he did waive his right to a jury at the guilt/innocence phase of trial, he did not waive his right to a jury trial on punishment. In Smith, the defendant executed a jury waiver that read, in pertinent part, "I give up and waive my right to a jury, both as to my guilt and assessment of my punishment." Id. at 693. In Smith, notably, the defendant struck out the words "and assessment of my punishment" prior to executing the waiver. Id. Because the waiver language as to punishment was stricken, the Texarkana Court of Appeals held that the jury waiver applied only to the guilt/innocence phase and that the trial court erred by deciding the issue of punishment. Id. at 694-95.
The facts in Smith are distinguishable from the present facts. Here, Cutler's jury waiver states that Cutler "waive[s] the right to trial by jury" and "requests to have a trial by the Court." Unlike the stricken punishment language in Smith's jury waiver, Cutler's jury waiver contains no language—stricken or otherwise—indicating Cutler intended the jury waiver to apply only to the guilt/innocence phase of trial. Moreover, immediately before Cutler executed the waiver, the trial court asked Cutler whether he wanted to "just have this Court hear evidence and decide guilt or innocence and punishment?" Cutler responded, "Yes, sir, trial by Judge." Based on this record, we hold that Cutler waived his right to a jury trial as to both the guilt/innocence phase and the punishment phase of trial. See Clark v. State, No. 14-07-00276-CR, 2008 WL 4007502, at *1 (Tex. App.—Houston [14th Dist.] Sept. 2, 2008, pet. ref'd) (mem. op., not designated for publication) (holding jury waiver stating "I waive the right of trial by jury" sufficient to waive right of jury to hear punishment); Edwards v. State, 663 S.W.2d 142, 143-44 (Tex. App.—Houston [1st Dist.] 1983, no pet.) (holding that defendant's waiver of his "right to have a trial by jury in this case" waived his right to have a jury assess guilt and punishment). We overrule Cutler's second point.
IV. CONCLUSION
Having overruled Cutler's two points, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: DAUPHINOT, GARDNER, and WALKER, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 5, 2016
See Tex. R. App. P. 47.4.