Opinion
NO. 01-18-00863-CR
08-08-2019
Charles Lee FARRIS, Jr., Appellant v. The STATE of Texas, Appellee
Appellant, Charles Lee Farris, Jr., without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of murder. After finding true the allegation in an enhancement paragraph that he had been previously convicted of a felony offense, the trial court assessed his punishment at confinement for forty years. In his sole issue, appellant contends that the trial court erred in accepting his guilty plea because "the Texas Constitution requires a jury trial in all criminal prosecutions."
See Tex. Penal Code Ann. § 19.02(b), (c).
We affirm.
Background
A Harris County Grand Jury issued a true bill of indictment, alleging that appellant, on or about November 15, 2016, "did then and there unlawfully, intentionally and knowingly cause the death of [the complainant], ... by shooting the complainant with a firearm" and "did then and there unlawfully intend to cause serious bodily injury to [the complainant], ... and did cause the death of the [c]omplainant by intentionally and knowingly committing an act clearly dangerous to human life, namely shooting the complainant with a firearm."
Subsequently, appellant signed and filed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" in which he pleaded guilty to the felony offense of murder and admitted that he committed the acts as alleged in the indictment. Appellant's trial counsel also signed the "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," affirming that she believed that appellant had entered his guilty plea knowingly, voluntarily, and after a full discussion of the consequences of his plea. Trial counsel also affirmed that she believed that appellant was competent to stand trial.
Appellant further signed written admonishments, informing him that he had been indicted for the felony offense of murder and of the punishment range for that offense. And appellant signed a "Statement and Waivers of Defendant," affirming that he was mentally competent; understood the nature of the charge against him, the trial court's admonishments, and the consequences of his plea; and freely and voluntarily pleaded guilty. Moreover, appellant represented that he had consulted with his trial counsel about his plea; he "waive[d] and g[a]ve up any time provide[d] [to him] by law to prepare for trial"; he was "totally satisfied with the representation provided by [his] counsel and [he had] received effective and competent representation"; he "g[a]ve up all rights given [to him] by law, whether of form, substance or procedure"; he "waive[d] and g[a]ve up [his] right to a jury in th[e] case and [his] right to require the appearance, confrontation and cross[-]examination of the witnesses"; he "consent[ed] to [the] oral or written stipulations or evidence in th[e] case"; and he had "read the indictment and [he had] committed each and every element alleged." Appellant thus requested that the trial court accept his guilty plea.
See Tex. Code of Crim. Proc. Ann. art. 26.13.
See id.
The trial court found sufficient evidence of appellant's guilt and that appellant had entered his guilty plea freely, knowingly, and voluntarily. And it admonished appellant of his legal rights, accepted his guilty plea, and ordered a presentence investigation.
At the conclusion of appellant's sentencing hearing, at which the State and appellant both presented evidence, the trial court found appellant guilty of the felony offense of murder, found true the allegation in an enhancement paragraph that appellant had been previously convicted of a felony offense, and sentenced appellant to confinement for forty years.
Right to a Jury Trial
In his sole issue, appellant contends that the trial court erred in accepting his guilty plea because "the Texas Constitution requires a jury trial in all criminal prosecutions."
Two provisions of the Texas Constitution address the concept of trial by a jury in a criminal case. Article I, section 10 of the Texas Constitution, titled "Rights of accused in criminal prosecutions," states: "In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury." TEX. CONST. art. I, § 10. Article I, section 15 of the Texas Constitution states: "The right of trial by jury shall remain inviolate." TEX. CONST. art. I, § 15. Section 15 also authorizes the Legislature to "pass such laws as may be needed to regulate the same[, i.e., the right to trial by a jury], and to maintain its purity and efficiency." Id. ; see e.g. , TEX. CODE CRIM. PROC. ANN. art. 1.13 ("Waiver of trial by jury"). The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. CONST. amend. VI.
Article V, section 10 of the Texas Constitution addresses the right to trial by a jury in a civil case. See Tex. Const. art. V, § 10.
Appellant asserts that the language contained in Article I, section 10 of the Texas Constitution "does not say [that] a criminal defendant has a ‘right’ to a jury trial," rather the wording of the provision "creates an absolute requirement" and "actually mandates a jury trial in every criminal prosecution." In other words, "nothing ... permit[s] a criminal defendant to waive th[e] [jury trial] requirement" found in Article I, section 10 ; it is not optional. In regard to Article I, section 15 of the Texas Constitution and the Sixth Amendment to the United States Constitution, however, appellant concedes that he waived his right to a jury trial provided for by those provisions. Thus, appellant relies solely on the language contained in Article I, section 10 to assert that he could not have waived "the absolute requirement of a jury trial in all criminal prosecutions" provided for by the Texas Constitution. See TEX. CONST. art. I, § 10.
The Texas Court of Criminal Appeals has stated that "there is no significant textual difference between" Article I, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution that "indicate[s] that different standards of protection should be applied" to criminal defendants under either constitution. See Jacobs v. State , 560 S.W.3d 205, 210 (Tex. Crim. App. 2018) (emphasis added) (internal quotations omitted); see also Jones v. State , 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). Although the people of Texas do have the authority to provide greater protections to criminal defendants than those provided for by the federal constitution, as to a trial by a jury in criminal cases, they have not chosen to do so. See Jacobs , 560 S.W.3d at 210 ; Jones , 982 S.W.2d at 391 ; see also Niles v. State , 555 S.W.3d 562, 577 n.12 (Tex. Crim. App. 2018) (Yeary, J., dissenting) ("We have said before that there is no difference in scope between the Sixth Amendment's right to a jury trial and that of Article I, Section 10, of the Texas Constitution."). In other words, "the right in the [Texas] [C]onstitution is no greater than that recognized in the Sixth Amendment." Uranga v. State , 330 S.W.3d 301, 304 (Tex. Crim. App. 2010) ; see also Marquez v. State , 725 S.W.2d 217, 243 & n.9 (Tex. Crim. App. 1987) (quoting language of Article I, section 10 and Sixth Amendment and clarifying "[t]here is no significant textual difference between the two constitutional provisions which would indicate that different standards of protection should be applied"), overruled on other grounds by Moody v. State , 827 S.W.2d 875 (Tex. Crim. App. 1992). And appellant does not appear to dispute that the Sixth Amendment right to trial by a jury may be waived. See Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ; McCarthy v. United States , 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) ; Ex parte Palmberg , 491 S.W.3d 804, 807 (Tex. Crim. App. 2016) ; Davison v. State , 405 S.W.3d 682, 686 (Tex. Crim. App. 2013) ; State v. Morales , 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) ; see also Ex parte Ross , 522 S.W.2d 214, 222 (Tex. Crim. App. 1975) ("There exists no federal constitutional provision which prohibits an accused from knowingly and intelligently waiving his right to trial by jury in a felony prosecution."), abrogated by Ex parte McCain , 67 S.W.3d 204 (Tex. Crim. App. 2002). Instead, appellant concedes that he waived his Sixth Amendment right to a jury trial in this case.
See Olson v. State , 484 S.W.2d 756, 762 (Tex. Crim. App. 1972) (federal constitutional safeguards are applicable to states, but they establish only minimum standard; states may go further and provided greater safeguards); Yarborough v. State , 981 S.W.2d 846, 848 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd).
Further, in regard to Article I, section 10, specifically, the Texas Court of Criminal Appeals has explained: "[W]e have not held ... [that] despite [the] mandatory language in [ Article I, section 10 ], that an impartial jury is an inflexible constitutional imperative which cannot be ... consciously waived. Rather, we have recognized it to be a right of the accused ...." Delrio v. State , 840 S.W.2d 443, 445 (Tex. Crim. App. 1992) (emphasis added) (internal footnote omitted); see also Jones , 982 S.W.2d at 391 ( Article I, section 10 "recognizes the right to trial by jury"). And although Article I, section 10, which "provides that ‘the accused shall have a ... trial by an impartial jury,’ " is "expressed in mandatory terms as an indispensable feature of the system, the [c]ourt [has] held [that] th[e] provision conferred a right to the accused which could not be impaired without his consent, as authorized by the Legislature." Id. at 445 n.2 (first alteration in original) (emphasis added) (quoting TEX. CONST. art. I, § 10 ); see also State v. Waters , 560 S.W.3d 651, 662 & n.10 (Tex. Crim. App. 2018) ( Article I, section 10 confers "[a] right to a determination of guilt or innocence by a jury").
Moreover, the Court of Criminal Appeals has previously addressed appellant's exact argument on appeal, i.e., that although Article I, section 15 of the Texas Constitution "makes a jury trial a ‘right’ which might be waived," Article I, section 10 creates "an absolute requirement of trial by jury in all criminal prosecutions." See Dabney v. State , 124 Tex. Crim. 21, 60 S.W.2d 451, 451 (1933). In Dabney , the court explained that if the criminal defendant was correct in his assertion that Article I, section 10 mandated a jury trial in every criminal prosecution, "then all legislative acts permitting a waiver of [a] jury ... [would be] void, as being in conflict with the constitution[ ]." Id. And the court made clear that it did not agree with the defendant's position. Id. Rather, it explained that Article I, section 10 and section 15 "must be considered together," and when the court did so, it determined that the criminal defendant's assertion that Article I, section 10 mandated a jury trial in every criminal prosecution was incorrect. Id. ; see also Moore v. State , 22 Tex. Ct. App. 117, 118–20, 2 S.W. 634, 635–36 (1886) (considering both Article I, section 10 and section 15 and holding statute which allowed waiver of jury trial for misdemeanor offenses did not conflict with aforementioned constitutional provisions).
See Clapp v. State , 639 S.W.2d 949, 951–52 (Tex. Crim. App. 1982) ("[T]he [Texas] Constitution is to be construed as a whole, so as to give effect to every provision, and, if possible to harmonize them. Different sections, amendments, or provisions of a constitution which relate to the same subject matter should be construed together and considered in light of each other." (internal citations omitted)), overruled on other grounds by Comer v. State , 754 S.W.2d 656 (Tex. Crim. App. 1986) ; see also Vinson v. Burgess , 773 S.W.2d 263, 265 (Tex. 1989) ("No provision in the [Texas] [C]onstitution should be read or construed in isolation.").
See, e.g. , Grady v. State , 117 Tex. Crim. 115, 35 S.W.2d 158, 158 (1931) (relying on Moore and stating "[t]he [Texas] Constitution recognizes the right of one accused ... to waive a jury...."); Lee v. State , 86 Tex. Crim. 203, 215 S.W. 856, 856–57 (1919) (citing Moore and explaining Court of Criminal Appeals had "uniformly ... construed" Texas Constitution to allow waiver of jury); Schulman v. State , 76 Tex. Crim. 229, 173 S.W. 1195, 1195 (1915) (citing Moore and stating criminal defendant can "waive a jury").
Although appellant takes issue with the Court of Criminal Appeals' analysis and conclusions in the aforementioned cases, we, as an intermediate appellate court, are bound in criminal cases to follow the decisions of the Court of Criminal Appeals. See State of Tex. ex rel. Vance v. Clawson , 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) ("The Court of Criminal Appeals is the court of last resort in this [S]tate in criminal matters. This being so, no other court ... has authority to overrule or circumvent its decisions, or disobey its mandates."); Ervin v. State , 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ("As an intermediate court of appeals, we are bound to follow the precedent of the [C]ourt of [C]riminal [A]ppeals."); see also TEX. CONST. art. V, § 5 (a); Mason v. State , 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) ("When the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis.").
Finally, we note that appellant relies on our decision in Yarborough v. State , 981 S.W.2d 846 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd), to support his assertion that the jury trial provided for in Article I, section 10 is mandatory and cannot be waived. We find appellant's reliance misplaced. In Yarborough , after the criminal defendant was convicted of violating a "trash ordinance," a municipal court assessed a $500 fine against him. 981 S.W.2d at 847. The defendant then appealed to county court and requested a jury trial. Id. The county court refused the criminal defendant's request and proceeded with a bench trial. Id. On appeal, the criminal defendant, relying on the Texas Constitution, argued that the county court erred in overruling his request for a jury trial. Id. at 847. We agreed, and in doing so, noted that "[A]rticle I, section 10 of the Texas Constitution[ ] and article 1.05 of the Texas Code of Criminal Procedure ... provide[:] ‘In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury[.]’ " Id. at 847–48 (quoting TEX. CONST. art. I, § 10 ; TEX. CODE CRIM. PROC. ANN. art. 1.05 ). However, we also explained that these provisions, in addition to Article I, section 15 of the Texas Constitution, afforded a "defendant in a misdemeanor case ... the same right to a trial by jury as a defendant charged with a felony [offense]." Id. at 847–48 (emphasis added). And we certainly did not state that a jury trial could not be waived by a criminal defendant or that Article I, section 10 mandated, irrespective of any waiver, a jury trial in every criminal prosecution. Instead, we held that the county court erred in denying the criminal defendant his right to a jury trial which the Texas Constitution guaranteed him. See id. at 847–48.
Notably, the criminal defendant did not waive his constitutional right to a jury trial in Yarborough .
Based on the foregoing, we hold that the trial court did not err in accepting appellant's guilty plea.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Goodman, J., dissenting.
DISSENTING OPINION
Gordon Goodman, Justice
Article I, section 10 of the Texas Constitution declares: "In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury." This provision originated in the 1836 Texas Declaration of Rights and remains in the Texas Constitution to this day. See John Cornyn, The Roots of the Texas Constitution: Settlement to Statehood , 26 TEX. TECH. L. REV. 1089, 1096 (1995) [hereinafter Roots ]; Whitney R. Harris, Jury Trial in Civil Cases—A Problem in Constitutional Interpretation , 7 SW. L.J. 1, 2–3 & n.5 (1953).
Neither the Texas Legislature nor the Court of Criminal Appeals has directly confronted section 10's clear and absolute mandate. Instead, Texas courts have interpreted article I, section 15—the general right to trial by jury applicable to both criminal and civil proceedings—in a way that ignores section 10's distinct guarantee. That interpretation, which the majority believes requires it to reject Farris's appeal, is not faithful to its plain language, its historical purpose, or its meaning in the context of the Constitution as a whole.
I. Plain Meaning: Article I, Section 10 is an Absolute Mandate
The Court of Criminal Appeals has failed to address section 10's plain language, despite its stated adherence to the principle of interpretation—endorsed by the legislature—that courts should focus on the literal text of a provision in order to determine its meaning and resort to other means only when the literal text is unclear or its application would lead to absurd results. See Stine v. State , 908 S.W.2d 429, 431 (Tex. Crim. App. 1995) (citing Hernandez v. State , 861 S.W.2d 908, 909 (Tex. Crim. App. 1993), and Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ); see, also TEX. GOV'T CODE § 311.016 (" ‘Shall’ imposes a duty."). The rule of interpretation that the specific provision prevails over the general also requires adherence to article 1, section 10's mandate in Old Code felony cases. See, e.g. , Hatch v. State , 958 S.W.2d 813, 823 (Tex. Crim. App. 1997) (Overstreet, J., dissenting) (disagreeing with the majority's application of a Government Code provision over the Code of Criminal Procedure provision that adequately addressed the specific issue of jury composition in criminal cases).
II. Historical Purpose of Article I, Section 10
Both high Courts in this State have expressed the importance of interpreting the contours of a constitutional right by examining its origin in historical context. See Ex parte Garner , 93 Tex. Crim. 179, 246 S.W. 371, 371 (1922) (Texas Constitution's right to jury trial under article I, section 15 must be understood in historical context); accord Tex. Workers' Comp. Comm'n v. Garcia , 893 S.W.2d 504, 526 (Tex. 1995) (concluding that the right to trial by jury under article I, section 15 of the Texas Constitution applied to "those actions, or analogous actions, tried by jury when the Constitution was adopted in 1876"). "Texas courts have often noted that the primary goal in the interpretation of a constitutional provision is to ascertain and give effect to the apparent intent of the voters who adopted it," because " ‘the constitution does not derive its force from the [framers], but from the people who ratified it.’ " Lanford v. Fourteenth Court of Appeals , 847 S.W.2d 581, 585 (Tex. Crim. App. 1993) (quoting T. Cooley, CONSTITUTIONAL LIMITATIONS 66 (1868)).
A. The scope of the constitutional jury trial mandate
When the Republic of Texas came into existence, neither the Common Law nor the United States Constitution allowed an accused to waive trial by jury; the standard practice for a judge was to discourage a defendant from pleading guilty and to encourage trial by jury. See Patton v. United States , 281 U.S. 276, 306, 50 S.Ct. 253, 74 L.Ed. 854 (1930) ; see also Stephen A. Siegel, The Constitution on Trial: Article III's Jury Trial Provision, Originalism, and the Problem of Motivated Reasoning , 52 SANTA CLARA L. REV. 373, 380–81 (2012) ("There was near-universal agreement among late-nineteenth and early-twentieth century judges" that article III, section 2 of the federal constitution, providing that "trial of all crimes except in cases of impeachment shall be by jury," was an absolute mandate, and neither a prosecutor nor an accused could avoid a jury trial, whether by unilateral waiver or mutual consent.) (hereinafter Constitution on Trial ).
In the late-19th century, it was unsettled whether the jury trial requirement instilled in the Common Law tradition and imposed by the federal constitution applied to misdemeanors. See Dickinson v. United States , 159 F. 801, 805 (1st Cir. 1908). The United States Supreme Court resolved this issue under the federal constitution in Schick v. United States , holding that article 3, section 2 of the Constitution did not require a jury trial in misdemeanor prosecutions. 195 U.S. 65, 69, 24 S.Ct. 826, 49 L.Ed. 99 (1904). Relying on Blackstone's Commentaries, the Court noted that the English Common Law used the term "crimes" in two ways: generally, to mean all criminal conduct, and specifically, to mean felonies, as opposed to petty offenses. Id. Blackstone distinguished between "crimes" and "misdemeanors," using "crimes" to signify offenses of "a deeper and more atrocious dye" and "misdemeanors" to refer to "smaller faults and omissions of less consequence." Id. at 69–70, 24 S.Ct. 826 (quoting 4 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 5 (1769)). By statute, Texas followed the same rule. See Johnson v. State , 39 Tex. Crim. 625, 48 S.W. 70, 71 (1898) (relying on former TEX. CODE CRIM. PROC. art. 571, which allowed for plea of guilty in misdemeanor cases by either defendant or defense counsel, in holding that defendant's guilty plea to misdemeanor theft charge was admissible in burglary case).
At that time, Texas authorized trial courts to accept a plea of guilty to a felony charge within statutorily-imposed limits, and only if "it plainly appear[ed] that [the defendant] is sane, and is uninfluenced by any consideration of fear, by any persuasion or delusive hope of pardon, prompting him to confess his guilt." Johnson v. State , 39 Tex. Crim. 625, 48 S.W. 70, 71 (1898) (citing former Tex. Code Crim. Proc. arts. 554, 555, 570). And, even if the guilty plea met those conditions, a defendant still could not waive trial: unless the felony had a fixed punishment, a jury trial on punishment still was required. See id.
The Texas Penal Code of 1856 (commonly referred to as the "Old Code") was the State's first codification of Common Law crimes. Part II of the Old Code listed the "Offences and Punishments." Though some of the offenses listed in the Old Code are no longer part of today's jurisprudence, many of the felony crimes it lists, including aggravated assault, rape, kidnapping, and murder, are still codified as felony crimes. With respect to the felony crimes listed in the Old Code in 1876 and still codified as felony crimes today, the Texas Constitution states a mandate for conducting jury trials in their prosecution.
B. Resistance to Mexican Rule
Before 1836, while Texas was still under Mexican rule, the colonists who had emigrated from the United States, who were accustomed to Common Law rules, resisted the differences in Mexican civil law. George C. Butte, Early Development of Law and Equity in Texas , 26 YALE L.J. 699, 700 (1917). In addition, colonial Texans were frustrated with the concentration of judicial power in the local magistrates, caused in part by Texas's distance from the supreme tribunal in the Mexican state of Coahuila, which left the colonists effectively without judicial recourse in important civil and criminal cases. See Roots , 26 TEX. TECH. L. REV. at 1106. The denial of the Common Law right to trial by jury, among other reasons, provided sufficient cause for Texas to undertake its war for independence. W. Wendell Hall & Mark Emery, Texas Hold Out: Trends in the Review of Civil and Criminal Jury Verdicts , 49 S. TEX. L. REV. 539, 544 (2008) (quoting Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist. , 176 S.W.3d 746, 786 n.217 (Tex. 2005) ).
When Texas declared its independence from Mexico, the Republic's constitution was drafted with an eye toward eliminating some of the problems the Texans had with the Mexican system of government. Roots , 26 TEX. TECH. L. REV. at 1106. The Republic established Common Law district courts in 1837, and the public greeted their "[c]ourt sessions ... with great enthusiasm." James W. Paulsen, A Short History of the Supreme Court of the Republic of Texas , 65 TEX. L. REV. 237, 244 (1986). In drafting the current Texas Constitution, the delegates to the 1875 constitutional convention distanced themselves from empowered government as exemplified by the federal constitution, having "more faith that the courts, rather than other state authorities, would protect individual liberties." James C. Harrington, Framing a Texas Bill of Rights Argument , 24 ST. MARY'S L.J. 399, 405 (1993).
C. Early efforts to limit trial by jury in the American legal system
Beginning in the second half of the nineteenth century, a pronounced anti-jury trial sentiment grew among certain lawyers, legislators and reformers. See generally Andrew Kent, The Jury and Empire: the Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era , 91 S. CAL. L. REV. 375, 394–406 (2018) [hereinafter Jury and Empire ] (explaining the increase of criticism and efforts to reform the jury system, which coincided with high immigration from southern and eastern Europe and attendant concerns of "disorder and social disintegration"). A "newly positive view of the Roman-derived civil law tradition," which had minimized the use of juries, may also have played a role in the push for jury reform or abolition on a national level, though Texas's experience under Mexican rule suggests that view would not have received the same welcome here. Id. at 404 ; see Roots , 26 TEX. TECH. L. REV. at 1106.
In 1930, the United States Supreme Court first held that a defendant could constitutionally waive the right to jury trial in a felony case, despite the federal constitution's clear mandate that "the trial of all Crimes ... shall be by Jury." U.S. CONST. art. III; Patton , 281 U.S. at 306, 50 S.Ct. 253. Patton reached this result by reading the Sixth Amendment's right to jury trial as eclipsing the Article III mandate and applying a "remarkably wrong" historical analysis. Constitution on Trial , 52 SANTA CLARA L. REV. at 418 ; see Patton , 281 U.S. at 298–311, 50 S.Ct. 253.
When Patton was decided, the Texas Code of Criminal Procedure expressly prohibited waiver of a jury trial in a felony case. TEX. CODE CRIM. PROC. (1925) art 11; see Note, Criminal Procedure—Waiver of Trial by Jury , 9 TEX. L. REV. 90, 91 (1930). The following year, though, and despite article I, section 10's mandate, the Texas legislature amended the statute to permit waiver of a jury trial by a defendant upon pleading guilty to a noncapital felony. See S.B. 53, 42nd Leg., R.S., Acts 1931, ch. 43, cited in Hatch v. State , 958 S.W.2d 813, 815 (Tex. Crim. App. 1997). The Texas legislature has continued to expand the circumstances under which waiver is permitted; under the current statute, a defendant may waive a jury trial in all noncapital cases and capital cases where the prosecution does not seek the death penalty. TEX. CODE CRIM. PROC. arts. 1.13, 1.14. Neither the legislature nor the courts have offered any reasonable explanation for defying the constitutional requirement of a jury trial in Old Code felony prosecutions.
III. Article I, Section 10 in the Context of the Whole Constitution
Contrary to the current judicial interpretation of article I, section 10, which renders it a nullity, this provision complements the other sections of the Texas Constitution that speak to jury trials and mandates the use of the jury trial process for Old Code felony prosecutions. The Texas Constitution has three provisions that delineate the mandate and the right to jury trial: article I, sections 10 and 15, and article V, section 13. But research has revealed no decision by the Court of Criminal Appeals that considers the effect of article I, section 10's plain mandate in an Old Code felony prosecution, and none of the decisions cited by the majority concerns a defendant who claimed he was deprived of a jury trial; thus, none addresses the Texas Constitution's mandate of jury trials in Old Code felony cases. See Jacobs v. State , 560 S.W.3d 205, 210–11 (Tex. Crim. App. 2018) (claiming violation of right to impartial jury due to limits placed on voir dire questioning); Niles v. State , 555 S.W.3d 562, 573 (Tex. Crim. App. 2018) (agreeing with reversal of conviction for Class A misdemeanor terroristic threat, which requires finding that offense was committed against public servant, based on failure to obtain jury finding on complainant's public servant status; but holding that this was charge error and remanding to court of appeals for harm analysis); Uranga v. State , 330 S.W.3d 301, 304 (Tex. Crim. App. 2010) (claiming that violation of right to trial by impartial jury based on implied bias doctrine); Jones v. State , 982 S.W.2d 386, 391 (Tex. Crim. App. 1998) (claiming error in removal of juror for cause violated right to trial by impartial jury); Marquez v. State , 725 S.W.2d 217, 243 & n.9 (Tex. Crim. App. 1987) (challenging the exclusion of prospective jurors based on opposition to death penalty violated right to trial by impartial jury); see also Dabney v. State , 124 Tex. Crim. 21, 60 S.W.2d 451, 451 (1933) (considering effect of article I, section 10 in appeal of conviction for theft of chickens, apparently a misdemeanor, for which punishment of 60 days' confinement was assessed); Lee v. State , 86 Tex. Crim. 203, 215 S.W. 856, 856–57 (1919) (observing that Texas Constitution did not mandate jury trial for prosecution of juvenile because charged offense was not a felony); Schulman v. State , 76 Tex. Crim. 229, 173 S.W. 1195, 1195 (1915) (holding that established rule in Texas allowed defendant to waive jury or agree to jury of fewer than six jurors in misdemeanor prosecution); Moore v. State , 2 S.W. 634, 635 (Tex. Ct. App. 1886) (holding that statute allowing for waiver of jury trial in misdemeanor cases did not conflict with article I, section 10 ). As in the context of the civil jury trial right,
in spite of long judicial experiences in applying [the pertinent constitutional provisions] to cases in which the right to trial by jury has been contested, a formula of interpretation which gives full effect to the terminology and purposes of each section has yet to appear in the decisions.
Jury Trial , 7 SW. L.J. at 3 n.5.
I agree that article I, sections 10 and 15 should be interpreted together. This long line of cases, however, shows a tendency to subsume section 10 under section 15 despite the importance of its mandate and its specific application to criminal proceedings for Old Code felonies. Although article I, section 15 authorizes the legislature to pass laws to regulate the same, and to maintain its purity and efficiency, it is axiomatic that the clause "does not permit reduction of the right" of an accused to trial by jury or impairment of its substance. Ex parte Johnson , 697 S.W.2d 605, 614 (Tex. Crim. App. 1985) (Clinton, J., dissenting).
Like the majority, I recognize that the Court of Criminal Appeals has interpreted article I, section 10 as not requiring a jury trial in every felony criminal prosecution, many of which did not exist under the Old Code. I believe, however, that the interpretation is consistent with enforcing the unequivocal and specific mandate as expressed in the constitution with respect to Old Code felonies.
Conclusion
Some will argue that an acknowledgment by the Court of Criminal Appeals of the mandate contained in article I, section 10 of the Texas Constitution requiring jury trials in all prosecutions for Old Code felony crimes would be a major disruption to the Texas criminal justice system and would place Texas in a unique position among the other states in the Union—I agree on both counts. Texas is large, and Texas has never shied away from taking actions that distinguish it from other states. The fact that this striking, mandatory requirement stems from the earliest constitution of the Republic of Texas only emphasizes the importance that Texans place on the mandate for and the right to jury trials.
The defendant in this case was charged with murder, an Old Code felony crime. As to Old Code felony crimes like murder, article I, section 10 of the Texas Constitution means exactly what it says. Because he did not receive the jury trial mandated by that section, his conviction should be reversed.
For these reasons, I dissent from this court's decision to affirm the judgment of the trial court, and I would reverse and remand for trial by jury in the court below.