Affirmed and Memorandum Opinion filed May 21, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00271-CR

               GERRALD WAYNE MAULDON, JR., Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 391st District Court
                          Tom Green County, Texas
                     Trial Court Cause No. D-16-0134-SA

                    MEMORANDUM OPINION

      Appellant Gerrald Wayne Mauldon, Jr. entered a plea of guilty to the offense
of Injury to an Elderly Individual. The trial court deferred a finding of guilt and
placed appellant on community supervision.         The trial court subsequently
adjudicated appellant guilty and assessed his punishment at fifteen years’
confinement. Appellant raises one issue on appeal and argues that he was entitled
to have a jury assess his punishment. Appellant, however, waived his right to a
jury trial in writing at the time he pleaded guilty to the offense. Because we
conclude that appellant’s jury waiver was valid for all phases of this criminal
proceeding including assessment of punishment, we reject appellant’s argument
and affirm his conviction and sentence.

                                       Background

       A Tom Green County grand jury indicted appellant for the felony offense of
causing bodily injury to an elderly individual, appellant’s father, by hitting his
father with a phone.1 Appellant pleaded guilty to the charge. In connection with
his guilty plea, appellant waived his right to a jury trial, which we describe in more
detail below. The trial court deferred a finding of guilt and placed appellant on
community supervision for five years and admonished appellant that a violation of
a condition of his community supervision would result in an adjudication of guilt,
followed by an assessment of punishment as if there was no deferment.

       Before the five-year term expired, the State moved to revoke appellant’s
community supervision and adjudicate guilt, alleging that appellant had violated
certain conditions of his community supervision. Appellant pleaded true to four
alleged violations and not true to two alleged violations. After a hearing, the trial
found that appellant had violated the terms of his community supervision and
adjudicated appellant guilty of the charged offense of causing bodily injury to an
elderly individual. Appellant was sentenced to fifteen years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice.




       1
         The charged offense, normally a third-degree felony, was enhanced to a second-degree
felony due to a prior conviction.

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                                            Analysis2

       Appellant argues that he did not voluntarily waive his right have a jury
assess punishment and that he is entitled to have a jury assess punishment, and he
requests a remand for new punishment proceedings.

       A defendant in a criminal prosecution has an absolute right to a jury trial.
See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State.”); Tex.
Const. art. I, § 15 (“The right of trial by jury shall remain inviolate.”). The
constitutional right to a jury trial extends only to the guilt-innocence phase of trial
and does not extend to the punishment phase. See Barrow v. State, 207 S.W.3d
377, 380 (Tex. Crim. App. 2006). In Texas, however, criminal defendants who
have pleaded guilty to a felony have a statutory right to jury trial on punishment.
See Tex. Code. Crim. Proc. art. 26.14. In such cases, “if the punishment is not
absolutely fixed by law, a jury shall be impaneled to assess the punishment and
evidence may be heard to enable them to decide thereupon, unless the defendant in
accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”
Id. A waiver under article 1.13 “must be made in person by the defendant in
writing in open court with the consent and approval of the court, and the attorney
representing the State.” Id. art. 1.13.3

       If a defendant pleads guilty to a felony, a jury “shall be impaneled to assess
the punishment” unless the defendant waives that right, in which case the trial


       2
        The Supreme Court of Texas transferred this case to our court from the Third Court of
Appeals. See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court
of Appeals precedent and that of this court on any relevant issue. See Tex. R. App. P. 41.3.
       3
          As appellant acknowledges in his brief, article 37.07 is not relevant in cases of a guilty
plea, as here. See Tex. Code Crim. Proc. art. 37.07, § 2(b) (governing assessment of punishment
following a finding of guilt by a jury)

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judge will assess punishment. A knowingly, intelligently, and voluntarily executed
waiver of a defendant’s right to a jury trial waives the defendant’s article 26.14
statutory right to have a jury assess punishment. See, e.g., Edwards v. State, 273
S.W.3d 919, 921-22 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that
signed written plea waiving right to trial by jury coupled with signed written
admonishments waiving “all rights given to [appellant] by law” and the “right to a
jury trial in this case” constitutes valid waiver of article 26.14 right to have jury
assess punishment); Clark v. State, No. 14-07-00276-CR, 2008 WL 4007502, at *1
(Tex. App.—Houston [14th Dist.] Sept. 2, 2008, pet. ref’d) (mem. op., not
designated for publication) (same); Richard v. State, No. 14-07-00076-CR, 2008
WL 123873, at *1-2 (Tex. App.—Houston [14th Dist.] Jan. 15, 2008, pet. ref’d)
(mem. op., not designated for publication) (same).

      This case involves a slightly different procedural posture than cases in which
a defendant pleaded guilty and proceeded directly to an assessment of punishment,
either by a jury or judge. Here, appellant pleaded guilty; he signed a waiver of
several rights including the right to trial by jury; the trial court deferred
adjudication and placed appellant on community supervision; the State later moved
to adjudicate guilt because appellant allegedly violated conditions of community
supervision; and the court then adjudicated appellant’s guilt. By statute, once the
trial court adjudicates a defendant’s guilt, “all proceedings, including assessment
of punishment . . . continue as if the adjudication of guilt had not been deferred.”
Tex. Code Crim. Proc. art. 42A.110(a). As appellant correctly observes, “once a
judge sets aside the order deferring adjudication of a defendant’s guilt and
proceeds to judgment, that defendant by virtue of Art. 42A.110(a) is in the same
shoes as a defendant who has pled guilty but never been on community supervision
because he has not yet been sentenced.” The question, then, is whether appellant’s


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waiver of a jury trial, signed at the same time he pleaded guilty, applies to the
sentencing proceedings occurring after the trial court adjudicated his guilt. We
hold that it does.

      In connection with his guilty plea, appellant signed and initialed a written
waiver of his right to a jury trial. The waiver read:

      I understand that I have a right to enter a plea of not guilty, or any
      other plea authorized by law, and to have the case tried before a
      jury. . . . I have the right to enter a plea of guilty or nolo contendere
      before a jury and have the jury assess punishment. I have the right to
      have the jury determine guilt, and if found guilty I have the option of
      having either the Court or the Jury assess punishment. Knowing all of
      this I WAIVE all rights to a jury trial and I request that the entire case
      by [sic] tried before the Court.
      The waiver’s text “is sufficiently plain to inform [appellant] of his right to a
jury,” including as to punishment following a guilty plea, and of his knowing
waiver of that right. Delatorre v. State, 358 S.W.3d 280, 285 (Tex. App.—
Houston [1st Dist.] 2011, no pet.). Appellant waived “all rights to a jury trial” and
requested “that the entire case” be tried to the trial court, not a jury. Because the
word “case” “is most commonly understood to encompass all hearings and parts of
a trial,” id., we conclude that appellant’s waiver of a jury trial and request to have
“the entire case” be tried to the court applies to both the guilt and punishment
phases. See, e.g., id. at 284-85 (waiver stating “I waive and give up my right to a
jury in this case” was waiver of jury for all parts of trial, including punishment
assessed after revocation of community supervision and adjudication of guilt); see
also Edwards, 273 S.W.3d at 921-22; Clark, 2008 WL 4007502, at *1; Richard,
2008 WL 123873, at *1-2. Nothing in this record indicates that appellant’s waiver
was limited to an adjudication of guilt or did not apply to punishment following a
guilty plea. Cf. Smith v. State, 223 S.W.3d 690, 693-94 (Tex. App.—Texarkana


                                           5
2007, no pet.) (because defendant crossed out the words referring to the assessment
of punishment in the jury waiver, court of appeals held that a jury should have
been impaneled for sentencing).

      Further, appellant was aware of the consequences of waiving his right to a
jury. See Hall v. State, 843 S.W.2d 190, 193 (Tex. App.—Houston [14th Dist.]
1992, no writ) (“If a defendant is to waive the right to a jury trial, the court should
at a minimum insure that the defendant is aware of his right and the consequence
of his waiver of that right.”). Appellant acknowledged in written admonishments
that a violation of any condition relating to his deferred adjudication community
supervision might result in an adjudication of guilt and that, if an adjudication of
guilt is made, the assessment of punishment would continue as if there had been no
deferment and punishment would be assessed by the judge. See Tex. Code Crim.
Proc. art. 42A.110(a) (once the trial court adjudicates a defendant’s guilt, “all
proceedings, including assessment of punishment . . . continue as if the
adjudication of guilt had not been deferred”).         Given these admonishments,
appellant made a voluntary and informed decision to waive his right to a jury
during sentencing. See Delatorre, 358 S.W.3d at 284 (when no uncertainty exists
about the consequences of a jury waiver, then a pre-trial waiver is valid for all
proceedings in the case).

                                     Conclusion

      The facts of this case do not suggest that appellant acted involuntarily or
without knowledge regarding the consequences of his plea, including the waiver of
a jury trial. We therefore hold that his waiver was valid and applied to all parts of
his criminal prosecution, including the assessment of punishment following an
adjudication of guilt. Because appellant waived his right to a jury for “the entire


                                          6
case,” the trial court did not err by failing to impanel a jury to assess punishment.
We therefore overrule appellant’s sole issue and affirm the trial court’s judgment.




                                       /s/       Kevin Jewell
                                                 Justice


Panel consists of Justices Jewell and Bourliot and Retired Justice Marc W. Brown,
sitting by assignment.
Do Not Publish — Tex. R. App. P. 47.2(b).




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