
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

 

ON REMAND
 


NO. 3-93-458-CR


FRANCISCO D. MARQUEZ,

	APPELLANT

vs.



THE STATE OF TEXAS,

	APPELLEE


 

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0930667, HONORABLE MACE B. THURMAN, JUDGE PRESIDING
 



PER CURIAM
	The district court found appellant guilty of indecency with a child and assessed
punishment, enhanced by a previous felony conviction, at imprisonment for seven years.  Tex.
Penal Code Ann. § 21.11 (West 1989).  In two points of error, appellant contends he was denied
the right to trial by jury guaranteed by the United States and Texas constitutions. (1)

	The record contains a written waiver of trial by jury signed by appellant and his
attorney, and approved by counsel for the State and the district court.  Tex. Code Crim. Proc.
Ann. art. 1.13(a) (West Supp. 1994).  The waiver was filed on June 28, 1993.  The cause was
called for trial on appellant's plea of not guilty on July 1, 1993.  After the State announced ready,
defense counsel stated:


MR. JONES:  Your Honor, for greater purposes we realize that we have filed a
request to have this case tried before the court, but just a little while ago my client
informed me that he wishes to retract that and have a jury trial in this matter.

THE COURT:  He's waived a jury trial, so if he's not ready for this case, then it's
too late now to change.

MR. JONES:  Okay.


Appellant argues that the record makes it clear that, at the time of his trial, appellant did not
desire to waive his right to a jury.  Appellant further argues that there is nothing in the record to
show that the withdrawal of the jury waiver would have resulted in an unreasonable delay,
inconvenience to the witnesses, or prejudice to the State.  Appellant concludes that, under the
circumstances, the district court's refusal to permit the withdrawal of the jury waiver denied him
his state and federal constitutional right to trial by jury.
	The Sixth Amendment provides that in all criminal prosecutions, "the accused shall
enjoy the right to a speedy and public trial, by an impartial jury . . . ."  U.S. Const. amend. VI. 
The Texas Constitution provides that "[t]he right of trial by jury shall remain inviolate," and
authorizes the legislature to "pass such laws as may be needed to regulate the same, and to
maintain its purity and efficiency."  Tex. Const. art. I, § 15.  The legislature has provided that
a criminal defendant may waive the right to trial by jury, provided that such waiver must be made
in person by the defendant in writing in open court with the consent and approval of the court and
the prosecutor.  Art. 1.13(a).  
	Although appellant has asserted his federal and state constitutional claims under
separate points of error, his arguments and authorities under each point are essentially identical. 
Appellant makes no effort to demonstrate that the Texas Constitution affords a criminal defendant
any greater right to withdraw a prior waiver of trial by jury than does the United States
Constitution.  With regard to the question presented by this appeal, we believe the two
constitutional provisions are identical.
	Appellant relies on two opinions, neither of which is directly on point.  Wilson v.
State, 698 S.W.2d 145 (Tex. Crim. App. 1985); Collins v. State, 642 S.W.2d 80 (Tex. App.--Fort
Worth 1982, no pet.).  In Wilson, the defendant appeared before a magistrate, waived his right
to trial by jury, and entered a plea of no contest.  After hearing evidence, the magistrate found
the defendant guilty and the case was reset to allow the preparation of a presentence report.  When
the defendant later appeared before the district court, the court refused to accept the plea because
of exculpatory statements made by the defendant to the probation officer who prepared the
presentence report.  The district court advised appellant, "your alternative then is to put twelve
people in the jury box and they get to decide . . . ."  698 S.W.2d at 146.  One month later,
however, the district court refused to permit the defendant to withdraw his jury waiver and, after
a bench trial, found him guilty.  The Court of Criminal Appeals held that under the circumstances,
the defendant's jury waiver was revoked when he changed his plea.  


It is very clear that in this case the court intended to return the appellant to his
same status prior to his plea of nolo contendere (more specifically, the right to
have a jury trial).

	The trial court's actions in this case clearly revoked all the prior
proceedings before the magistrate.


Wilson, 698 S.W.2d at 147.  
	Unlike the defendant in Wilson, appellant did not waive his right to trial by jury
in conjunction with a plea of guilty or no contest.  The waiver form is styled "waiver of jury trial
on plea of not guilty" and states that "the defendant will plead not guilty to said charge."  The
procedural law governing a trial before the court on a plea of guilty has evolved on the basis of
different policy considerations than that governing a trial before the court on a plea of not guilty. 
Wilson, 698 S.W.2d at 147.  Moreover, unlike the district court in Wilson, the court below never
indicated that appellant would be permitted to withdraw his jury waiver.  Wilson is both factually
and legally distinguishable from the cause before us.
	In Collins, the defendant signed a waiver of jury trial but the prosecutor refused
to consent to the waiver.  When, at a later hearing, the prosecutor indicated that he then was
willing to agree to the jury waiver, the defendant stated that he wished to withdraw his waiver. 
The district court refused to permit the withdrawal of the waiver and proceeded to try the
defendant.  The court of appeals held that the district court's approval of the jury waiver in the
face of the defendant's declaration that the waiver was withdrawn constituted a denial of the
defendant's right to trial by jury.  642 S.W.2d at 83.  The court also noted that a jury panel was
available and that a withdrawal of the waiver would not have resulted in unreasonable delay of
trial or inconvenience to witnesses.  Id. at 83-4.
 Collins is also distinguishable from the cause before us.  Collins's jury waiver was
approved by the prosecutor and district court in the face of his protestation that the waiver was
withdrawn.  In effect, no waiver of jury trial in accordance with article 1.13(a) was accomplished. 
Appellant's jury waiver, on the other hand, was approved and signed by both the prosecutor and
the district court three days before appellant sought to withdraw it.  Appellant sought to withdraw
a jury waiver that fully complied with article 1.13(a).  Moreover, there is nothing in the record
to indicate that a jury panel was immediately available to try this cause.
	The right to trial by jury is a valuable one.  But like any valuable right, the right
to trial by jury cannot be manipulated for the purpose of delay.  We hold that when the accused
waives trial by jury in the manner prescribed by article 1.13(a), and the waiver is approved by
the prosecutor and the court as required by that statute, a subsequent request by the accused to
withdraw the jury waiver is addressed to the discretion of the trial court.  The trial court's ruling
will not be disturbed on appeal absent a clear showing that it abused its discretion.
	Appellant sought to withdraw his jury waiver at the very moment the bench trial
on his plea of not guilty was to begin.  Immediately after the request to withdraw the waiver was
denied, an interpreter was sworn, the indictment was read, and appellant entered his plea.  The
State then called the first of its eleven witnesses.  There is nothing in the record to indicate that
a jury panel was available, and we infer that a grant of appellant's request would have necessitated
resetting appellant's trial to a later date.  On this record, the district court has not been shown to
have abused its discretion by overruling appellant's request to withdraw his jury waiver.  Points
of error one and two are overruled.
	The judgment of conviction is affirmed.

Before Justices Powers, Jones and Kidd
Affirmed
Filed:   August 17, 1994
Publish
1.        In an unpublished opinion dated February 2, 1994, we overruled these points of error on
the ground that they were not preserved for review.  On petition for discretionary review, the
Court of Criminal Appeals ruled that the points were properly preserved and remanded the cause
for further consideration.  Marquez v. State, No. 266-94 (Tex. Crim. App. May 18, 1994) (not
designated for publication).  In response to an inquiry by the Clerk, counsel for appellant declined
the opportunity to file a supplemental brief on remand.
