Administrator Member
| 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. |
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| 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. |
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| Posts: 14 | Location: Austin | Registered: August 20, 2012 |  
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| 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.
Amos L. Barton District Attorney 198th Judicial District Serving Kerr, Kimble, Mason, Menard, and McCulloch Counties
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| Posts: 2 | Location: Texas | Registered: February 06, 2009 |  
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