HELP!! I had a UCW case where the defense wanted to argue the traveling presumption applied. He didn't understand when I tried to explain to him that the presumption was not a suppression issue, but a fact issue, and so he went to the judge and first tried to get the case dismissed (small towns are great, aren't they?) and when that didn't work requested a suppression hearing.

After a few back and forths with me and how we were going to decide if the presumption applied, the defense got a special setting he requested from the judge for bench trial. (My first--live and learn). No written waiver of jury trial was signed--but since he requested it and I prosecuted it, it seems as though we agreed to do it. (The defendant testified, but I don't think he was ever asked on the record whether he was waiving a jury trial).

A bench trial was heard to the judge. The judge waited to rule (refused to render a verdict although the defense requested to go ahead and hear punishment evidence the same day) and when we came back to hear the verdict and have sentencing a couple of weeks later, the judge sua sponte said "no written waiver of jury trial, defendant would you like a mistrial?" to which of course the answer was yes.

Do I have any recourse? Some case law says written waivers are not required if no harm is found and intelligent waiver is shown. Does the special setting requested by defense for bench trial show that? I certainly consented to bench trial, agreed to the time and date of the setting--but not in writing. But even if that is the case, can I appeal without a verdict? Do I even have a right to appeal?

I don't see what you have to appeal. From what I can tell, there was never a ruling, much less one that you could appeal. Gear up to try it again. (And don't waive a jury trial - this judge sounds squirrely).

P.S. If he had been convicted and then appealed saying he had not filed a written waiver of a jury trial, yeah, the fact that he had requested a bench trial would have done in that argument. See Jackson v. State, 76 S.W.3d 798 (Tex. App. -- Corpus Christi 2002, no pet.) which had a similar fact scenario.

The State can't appeal from a mistrial, just an order granting a new trial. Since you never had a verdict, this is just a mistrial and you're stuck with what the judge orders. I agree with Cynthia, though -- go for the jury trial after these weird dealings, and be sure to get any future "understandings" in writing and on the record.

Incidentally, let us know what the result on the traveling presumption is! I've been trying to follow cases where that is actually an issue at trial.

I will let you know, thanks for the input. This one should hopefully not be too difficult--an illegal knife was in plain view during a routine traffic stop, then 3 other illegal weapons were found in an inventory. Then again, I thought the bench trial would be a quick, simple resolution!

Suzanne check your private topics.