We have a case in which a defendant wants to waive his right to a jury (and is asking us to do so as well) so that deferred adjudication might be ordered by the trial court.

I have two questions about this:

(1) If we refuse to waive our right to a jury trial and the defendant nonetheless pleads guilty in front of a jury and is instructed to find the defendant guilty, is the defendant nonetheless eligible for deferred adjudication from the trial court even after the jury verdict of guilty?

and

(2) Does the plea of guilty to the jury then convert the proceedings into a unitary proceeding in which the jury must assess punishment (even if the defendant previously elected for the trial court to assess punishment)?

I am mindful of the case State v. Wilcox, 993 S.W.2d 848 (Tex. App.--Austin 1999, pet. dism'd., improvidently granted) in which the Third Court of Appeals held that the State does not have the authority to appeal because deferred adjudication, even after a jury finding of guilty is received, is not a "sentence." However, any other help on the issue would be greatly appreciated.

This thread might be helpful to you.

If you refuse to waive your right to a jury, then the defendant has two choices: plead NG (to either judge or jury) or plead guilty to the jury. If he pleads guilty to the jury, then the proceeding is transformed into a slow plea because the only decision for the jury is to assess punishment. He cannot plead guilty to the jury and then go to the judge for punishment.

Answer to first question: no, the judge may not grant deferred adjudication after a jury finds him guilty. (I have been in a court trial, however, during which the judge strongly recommended that the defendant change his plea from not guilty to guilty so that the judge could give deferred adjudication.) Defendant took the hint.