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IN THE
TENTH COURT OF APPEALS
 

No. 10-92-234-CR

     MARK BASDEN,
                                                                                              Appellant
     v.

     THE STATE OF TEXAS,
                                                                                              Appellee
 

From the 52nd District Court
Coryell County, Texas
Trial Court # 12,749
                                                                                                    

O P I N I O N
                                                                                                    

      On July 16, 1992, a jury convicted Mark Basden of aggravated assault on a correctional
officer and assessed punishment at fifty years imprisonment.  See Tex. Penal Code Ann. §
22.02(a)(2) (Vernon Supp. 1993).  The court "stacked" this sentence on a prior conviction.  See
Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 1993).  In his sole point, Basden
complains of the court's order cumulating his sentence.
      At the time Basden committed this aggravated assault, he was serving time on a fifty-year
sentence for aggravated robbery.  While incarcerated for the robbery, but prior to this aggravated
assault, Basden committed attempted capital murder.  The relevant dates are:
Attempted capital murder (15 years):
Date offense committed:  December 8, 1989
Date of conviction:  January 22, 1991
Date of sentencing:  January 22, 1991
Aggravated assault (50 years):
Date offense committed:  October 10, 1990
Date of conviction:  July 16, 1992
Date of sentencing:  July 17, 1992
The fifteen-year sentence assessed for the attempted capital murder was ordered to run
consecutively to the original fifty-year aggravated robbery sentence.  The second fifty-year
sentence was ordered to run consecutively to the fifteen-year sentence—giving Basden three
consecutive sentences of fifty, fifteen, and fifty years.  Basden's sole point is that the court erred
in ordering the second fifty-year sentence to run consecutively to the sentence for attempted capital
murder, because he was not yet serving time on it when he committed the aggravated assault.
      Article 42.08 of the Code of Criminal Procedure governs the cumulation or "stacking" of
sentences:
(a)  When the same defendant has been convicted in two or more cases, judgment and
sentence shall be pronounced in each case in the same manner as if there had been but one
conviction.  Except as provided by Sections (b) and (c) of this article, in the discretion of the
court, the judgment in the second and subsequent convictions may either be that the sentence
imposed or suspended shall begin when the judgment and the sentence imposed or suspended
in the preceding conviction has ceased to operate, or that the sentence imposed or suspended
shall run concurrently with the other case or cases, and sentence and execution shall be
accordingly . . . .
 
(b)  If a defendant is sentenced for an offense committed while the defendant was a prisoner
in the Department of Corrections and the defendant has not completed the sentence he was
serving at the time of the offense, the judge shall order the sentence for the subsequent offense
to commence immediately on completion of the sentence for the original offense.
Tex. Code Crim. Proc. Ann. art. 42.08(a), (b).
      Basden argues that the language in section (b) mandates that the court order the sentence to
run consecutively with the only sentence he was serving at the time of this offense—the fifty-year
sentence for aggravated robbery.  He argues that, on the date he committed the aggravated assault,
October 10, 1990, he was serving time on the aggravated robbery sentence and had not yet been
convicted of the attempted capital murder.  Therefore, he argues, section (b) requires that the new
sentence run consecutively to his "current" fifty-year sentence, instead of consecutively to the
fifteen-year sentence.
      The State argues that such an interpretation of section (b) would give inmates with severe
discipline problems license to continue committing additional crimes while incarcerated because
the additional convictions would necessarily be served concurrently with each other.  Thus, these
inmates serving lengthy "original" sentences would have no incentive to behave.  
      The Fourteenth Court, in dicta, stated:  "The obvious intent of the legislature in passing
article 42.08(b) was to deter criminal activity by those individuals who are already serving time. 
Neither the constitution nor public policy sanctions a result whereby individuals can commit
crimes with impunity simply because they are in prison."  Cruz v. State, 838 S.W.2d 682, 687-88
(Tex. App.—Houston [14th Dist.] 1992, pet. ref'd) (defendant argued article 42.08(b) violated
Eighth Amendment).  
      We agree.  Section (a) of article 42.08 allows the court discretion in ordering subsequent
sentences to be served consecutively or concurrently.  Tex. Code Crim. Proc. Ann. art.
42.08(a).  Section (b) gives the court no such discretion, mandating that the court "shall" order
consecutive sentences.  Id. 42.08(b).  Clearly, the purpose of the statute is to require consecutive
sentences when offenses are committed in prison.  Thus, the court did not err in ordering the
punishment in this case to run consecutively to the punishment assessed in the attempted capital
murder.  We overrule the point and affirm the judgment.
 
                                                                                 BILL VANCE
                                                                                 Justice

Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed August 25, 1993
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221;  Id. at 175 (quoting
Whitten v. State, 587 S.W.2d 156, 158 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh’g));
accord Carranza v. State, No. 0931-95, slip op. at 8, 1998 WL 812903, at *4 (Tex. Crim. App.
Nov. 25, 1998) (article 26.13 error is “non-constitutional error”).  We adopted the harmless error
analysis used by the federal courts in assessing harm flowing from admonishment errors. 
Rachuig, 972 S.W.2d at 175-76.
      The federal and state requirements for a written jury waiver are substantially identical. 
Compare Fed. R. Crim. P. 23 with Tex. Code Crim. Proc. Ann. art. 1.13(a).  As article 26.13
is designed to insure the constitutional requirement that an accused’s guilty plea be knowing and
voluntary, the written jury waiver requirement is designed to insure an accused’s constitutional
right to a jury trial.  For this reason, we consider the absence of a written jury waiver from the
record to be a statutory error.
      The federal courts employ the following rule when reviewing cases where no written waiver
appears in the record:
A defendant may not effectively waive his right to a jury trial without meeting Rule
23's “in writing” requirement.  The only exception is where the record clearly reflects
that the defendant “personally gave express consent in open court, intelligently and
knowingly.”

United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir. 1985) (quoting United States v. Reyes,
603 F.2d 69, 71 (9th Cir. 1979)); accord United States v. Lockwood, 604 F.2d 7, 8 (5th Cir.
1979).  Henceforth, we shall follow this rule.  Thus, if the record contains no written jury waiver,
we will find that the defendant’s “substantial rights” have been affected unless “the record clearly
reflects that the defendant ‘personally gave express consent in open court, intelligently and
knowingly.’” Saadya, 750 F.2d at 1420; see also Tex. R. App. P. 44.2(b).
      In the case before us, the record in no way reflects that Johnson personally and expressly
waived his right to a jury trial in open court.  Accordingly, we conclude that his “substantial
rights” have been affected.  Tex. R. App. P. 44.2(b).  We sustain his sole point.
      We reverse the judgment and remand this cause for a new trial.
 
                                                                               REX D. DAVIS
                                                                               Chief Justice


Before Chief Justice Davis
            Justice Cummings and
            Chief Justice McDonald (retired)
            (Chief Justice McDonald dissenting)
Reversed and remanded
Opinion delivered and filed December 23, 1998
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