


 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-76,916


In re the State of Texas, ex rel. Jennifer A. Tharp, Relator





ON RESPONDENT'S MOTION FOR REHEARING OF STATE'S PETITION
FOR A WRIT OF MANDAMUS IN CAUSE NO. CR2011-325 IN THE 
433RD DISTRICT COURT OF COMAL COUNTY


 Meyers, J., filed a statement dissenting to the denial of Respondent's
Motion for Rehearing.

DISSENT



	Article 37.07, Section 2(b), provides that punishment shall be assessed by the
judge unless the defendant elects jury assessment in writing before the commencement of
the voir dire examination of the jury panel.  This was not the case when Rojas v. State,
404 S.W.2d 30 (Tex. Crim. App. 1966) was decided.  Back then, a defendant could
request that the jury assess punishment after the jury returned a guilty verdict.  Therefore,
Rojas really does not apply to this case and should not have been relied upon by the
majority.  Additionally, because we have no case law indicating that the defendant's
waiver of his right to jury-assessed punishment was improper, the State failed to
demonstrate a clear right to the mandamus relief it sought.  Therefore, I would grant 
Respondent's motion for rehearing and reconsider our holding in this case.  
	I respectfully dissent to the majority's denial of the motion for rehearing. 



Filed: February 27, 2013
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