We're currently in trial- jury in the box, one witness has already testified. During scheduling conference before lunch the judge asks what the time frame for the remaining witnesses is. It's at this point that defense counsel decides to broach the subject of punishment election to the defendant, who immediately replies in open court that he wants the jury to assess punishment. No election was filed, neither side voir dired on punishment. It's a class A misdemeanor case so it's not as worrisome about the voir dire not happening, but... What to do now? As I see it we've got 3 options:
1) Hold the course, and if the defendant gets convicted, insist (rightly) that there is no other option than the judge to assess punishment. Wait for the defendant to file his appeal, and counsel to be held as per se ineffective [Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998), among others]. Then redo punishment with another jury.
2) Force the defendant to go to the judge, then come up with a sweetheart agreed plea deal that would include the defendant waiving his right to appeal. Since I'm currently waiting on the disposition of an appeal involving this particular defendant, I don't know that's a realistic option.
3) Waive objection and let the defendant file an untimely election. I don't, however, see any statutory provision that would allow the judge to accept election late. I'm not a big fan of committing error of my own for the sake of getting along, and since the judgement can effect the defendant's right to have a hunting license, I don't want to build in grounds for collateral attack.
Any other ideas?
I've run into a similar situation in the past. I waived objection and let the defendant file an untimely election. My judge insisted I put my waiver into the record but he, otherwise, did not take any issue with it.
On the other hand, you can do no wrong by going with the law and the evidence. The law in this case says go to the judge for punishment. Maybe the embarrassment of being per se ineffective will be a wake up call to the Defense attorney who seems to be phoning one in.
Ineffective is the judge. What kind of judge starts a trial before jury selection without getting an election from the defendant? Shame on the judge.
I realize that this is a non-issue now as I’m sure the trial has concluded. However, I’m not certain why this would be error, on your part, as CCP Article 37.07 section 2(b) has a provision that states:
If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.
I don't see why you wouldn't let the defendant change his election to avoid having to do the punishment phase again on a retrial.
Suppose you have a juror who has ethical problems setting a sentence, or ethical problems with the punishment range? You have not voir dired on punishment issues, so he has never been asked these questions. You and the defense agree to let the def. opt for a jury sentence. If the defendant is found guilty, this juror will be in a very uncomfortable place: he can either violate his own ethical code, or he can violate his oath to the court.
The chances this will happen in a misd. case are somewhat reduced, but if it were a felony, I would diffidently want to be able to voir dire the panel on punishment, before proceeding with the trial.
I would think that this scenario usually happens where the defendant goes from a jury election to electing to go to the judge rather than vice versa, especially since it's likely that neither side voir dired the jury panel on punishment in that scenario. That said, even though the default election is punishment to the judge, I always make the defense state their election on the record prior to jury selection.
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