                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00086-CR
        ______________________________


          DERRICK NORMAN, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 188th Judicial District Court
                Gregg County, Texas
             Trial Court No. 39,858-A




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                            OPINION

       Derrick Norman was charged with two counts of injury to a two-year-old child. The State

requested, as to each charge, that there be an affirmative finding that he used a deadly weapon,

―hot liquid.‖ Norman waived his right to a jury trial and pled not guilty. He has now been

convicted in a bench trial and sentenced to life imprisonment on each count. On appeal, Norman

argues that the trial court erred in failing to advise him ―that he had a right to a jury trial on the

punishment issue of whether or not ‗hot liquid‘ was a deadly weapon,‖ claiming that the jury trial

waiver did not apply to the punishment phase of trial. We affirm the judgment of the trial court

because no such admonishment was required.

       ―In Texas, the right of the accused for a jury to assess punishment is purely statutory in

nature.‖   Smith v. State, 223 S.W.3d 690, 692–93 (Tex. App.—Texarkana 2007, no pet.).

Bifurcation is authorized by Article 37.07 of the Texas Code of Criminal Procedure.

       The bifurcation statute provides, ―In all criminal cases, other than misdemeanor
       cases of which the justice court or municipal court has jurisdiction, which are tried
       before a jury on a plea of not guilty, the judge shall, before argument begins, first
       submit to the jury the issue of guilt or innocence of the defendant of the offense or
       offenses charged, without authorizing the jury to pass upon the punishment to be
       imposed.‖ The bifurcation statute ―is applicable only to pleas of not guilty before
       a jury.‖ The statute ―ha[s] no application to a trial before the court on a plea of not
       guilty.‖

Barfield v. State, 63 S.W.3d 446, 449–50 (Tex. Crim. App. 2001) (citations omitted); see TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 2(a) (West Supp. 2011).




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          ―A bench trial is a unitary trial, and the decision of the court is not fixed until it renders

judgment on guilt and punishment after all the evidence and arguments are heard.‖1 Prihoda v.

State, 352 S.W.3d 796, 807 n.2 (Tex. App.—San Antonio 2011, no pet.) (citing Barfield, 63

S.W.3d at 451). Because the guilt and punishment stages are not bifurcated in a bench trial, there

was no requirement for additional admonishment by the trial court with respect to waiver of a jury

trial. Barfield, 63 S.W.3d at 449–50; Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim. App.

2006).2

          We affirm the judgment of the trial court.



                                                                 Josh R. Morriss, III
                                                                 Chief Justice

Date Submitted:            February 7, 2012
Date Decided:              February 8, 2012

Publish




1
 ―[E]ven if a trial court employs procedures characteristic of bifurcation, a bench trial remains a unitary trial
punctuated by a recess in the middle.‖ Ferguson v. State, 313 S.W.3d 419, 424 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (citing Barfield, 63 S.W.3d at 450–51).

2
 Norman relies on our opinion in Smith, in which we found that the right to a jury trial on punishment is ―waivable
only.‖ 223 S.W.3d at 695. Smith is distinguishable from this case. The defendant in Smith pled guilty, triggering
Article 26.14 of the Texas Code of Criminal Procedure, which provides, ―Where a defendant in a case of felony
persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a
jury shall be impaneled to assess the punishment . . . unless the defendant in accordance with Articles 1.13 or 37.07
shall have waived his right to trial by jury.‖ TEX. CODE CRIM. PROC. ANN. art. 26.14 (West 2009). Thus, whereas
Smith retained a statutory right to trial by jury during punishment, Norman did not.

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