As I read 26.14 & 1.13, the State has a right to a jury trial--either on guilt (with a not guilty plea) or on punishment (with a guilty plea). What is confusing is that 26.14 references 37.07 in discussing the defendant's waiver of a jury, yet 37.07 doesn't seem to deal with jury waivers. The only place it seems to fit is in 37.07 Sec 2(b) where it says that the defense can change election to the court with the consent of the state. Can anyone tell me why 26.14 references 37.07?

Does anyone have a brief on the issue of the State's right to a jury trial regardless of the defendant's plea?

Thanks for your assistance in this.

Juries are essentially the default factfinder and punisher. A defendant can waive his right to have a jury perform either or both functions (except in the punishment phase of a death penalty case, in which a jury cannot be waived by either party). However, the State only has a right to waive (or refuse to waive) a jury during the guilt/innocence phase. The defendant alone determines his sentencer, and if a defendant waives jury sentencing (regardless of plea), the State cannot overrule that request or impose jury sentencing. The State does have a veto over a defendant's attempt to change his initial election, but that's it; there is no original State's right to jury punishment if a defendant initially waives it.

Well, the interplay of 26.14 and 37.07 has been construed to prevent defendants from pleading guilty to the jury and then going to judge on punishment. So if a defendant refuses to execute a jury waiver, and persists in pleading guilty, it has to be a slow plea, i.e. jury punishment. Your appellate division and the district court staff atty have a memo on it.

[This message was edited by JohnR on 12-06-07 at .]

Check out In re State ex rel O'Connell, 976 S.W.2d 902 (Tex. App.--Dallas 1998). That case holds that 37.07 2(b) (which allows for a punishment election by the defendant) only applies to situations where a defendant pleads not guilty. When he pleads guilty, 26.14 seems to require a jury unless waived.

[This message was edited by David Newell on 12-05-07 at .]

Cases such as Entz, 711 S.W.2d at 310 say that the issue of guilt is never submitted to a jury when a defendant enters a plea of guilty. "The jury does not return a verdict in such a situation." Other cases, such as Thomas, 2000 Tex.App. LEXIS 1136 at *4 say it becomes the jury's duty to assess punishment and that it is improper for the jury to deliberate as to guilt (even if told to return a guilty verdict). See also Cantu, 2000 Tex.App. LEXIS 6023 at *4.

O'Connell clearly says 37.07 sec. 2(b) applies only to pleas of not guilty to a jury.

But, in Henjy, 2006 Tex.App. LEXIS 8186 at *17, it is held that the trial court can force a defendant to be subject to the the requirment that a jury consider punishment. It is strange to think that art. 26.14 does not apply when the State withholds consent under art. 1.13, but does apply when it is the court that exercises its privilege under 1.13. Of course, the idea that 26.14 trumps 37.07 sec. 2(b) was not really at issue in Hengy, so that opinion could easily be wrong. The safe conclusion would seem to be that whenever a jury is waived as to guilt, 37.07 specifies who determines punishment. In other words: State consents to waive jury, judge assesses punishment. State does not consent to waive jury under 1.13, Defendant still has option to "waive" jury as to punishment by failing to elect that same jury assess punishment under 37.07 (which takes no action or consent on the part of the court or the State).

We recently had the strangest of all scenarios under these statutes. Parties each waived trial by jury, but judge would not consent. Therefore a jury was impaneled. But, Court did recognize waiver under 37.07 sec. 2(b), so jury was instructed to find guilt, quickly deliberated, and then the punishment evidence (actually all of the evidence) was presented to the court.

But if Entz says that the jury doesn't find the defendant guilty after he has pled guilty, why would you apply the election part of 37.07(2)(b) to those cases? Section (2)(b) starts "...if a finding of guilty is returned" the judge sets punishment unless the defendant elects the jury.

Thanks for everyone's input--I've been thinking about this for a few days now and I am still befuddled as to why 26.14 references 37.07 at all.

John R,


Would you please share your brief on this issue? I have a case where I want the jury to set the punishment.

Thanks for the help

Martha, I think you mean this mandamus petition when a judge tried to do a TBC over our objection.

blackburn.mandamus.pet.doc (93 Kb, 21 downloads)

Also look at Brinson v. State, 570 S.W.2d 937, 940 (Tex. Crim. App. [Panel Op.] 1978).

A topical decision from the CCA this morning:

In re State of Texas ex rel Tharp

yeah, how about that for timing, huh?

Outstanding job by Sammy McCrary and crew! I'm dealing with a strikingly similar scenario. My Judge refused to empanel a jury, took the D's open plea over my objection, and set the matter for sentencing. I am now wondering after Mandamus, if the D is entitled to withdraw his plea of guilty, or if the State can now compel the jury to assess punishment (by asserting 1.13 then convert the proceeding to a unitary proceeding) by entrance of the D's judicial confession/plea.

Perfect timing for my case set right after our Elected Conference. Thanks for the help John with the briefs etc. It would be tempting to hide behind the log and leap out after a guilty plea to the Jury with the Defense thinking they were going to the Judge for punishment. Alas that's why we are the Good Guys and Gals wearing white hats and seeking Justice. It also avoids the ineffective assistance claims on Appeal.This site is so important for every young prosecutor to be reading regularly. Actually remembered this was an issue from the 07 posted question and discussion. Why not take advantage of all of the best prosecutors in the State helping each other!!!