Dissenting opinion issued August 8, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00863-CR
                            ———————————
                   CHARLES LEE FARRIS, JR., Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Case No. 1530897


                            DISSENTING OPINION

      Article I, section 10 of the Texas Constitution declares: “In all criminal

prosecutions the accused shall have a speedy public trial by an impartial jury.” This

provision originated in the 1836 Texas Declaration of Rights and remains in the

Texas Constitution to this day. See John Cornyn, The Roots of the Texas
Constitution: Settlement to Statehood, 26 TEX. TECH. L. REV. 1089, 1096 (1995)

[hereinafter Roots]; Whitney R. Harris, Jury Trial in Civil Cases—A Problem in

Constitutional Interpretation, 7 SW. L.J. 1, 2–3 & n.5 (1953).

      Neither the Texas Legislature nor the Court of Criminal Appeals has directly

confronted section 10’s clear and absolute mandate. Instead, Texas courts have

interpreted article I, section 15—the general right to trial by jury applicable to both

criminal and civil proceedings—in a way that ignores section 10’s distinct guarantee.

That interpretation, which the majority believes requires it to reject Farris’s appeal,

is not faithful to its plain language, its historical purpose, or its meaning in the

context of the Constitution as a whole.

I.    Plain Meaning: Article I, Section 10 is an Absolute Mandate

      The Court of Criminal Appeals has failed to address section 10’s plain

language, despite its stated adherence to the principle of interpretation—endorsed

by the legislature—that courts should focus on the literal text of a provision in order

to determine its meaning and resort to other means only when the literal text is

unclear or its application would lead to absurd results. See Stine v. State, 908 S.W.2d

429, 431 (Tex. Crim. App. 1995) (citing Hernandez v. State, 861 S.W.2d 908, 909

(Tex. Crim. App. 1993), and Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.

1991)); see, also TEX. GOV’T CODE § 311.016 (“‘Shall’ imposes a duty.”). The rule

of interpretation that the specific provision prevails over the general also requires


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adherence to article 1, section 10’s mandate in Old Code felony cases. See, e.g.,

Hatch v. State, 958 S.W.2d 813, 823 (Tex. Crim. App. 1997) (Overstreet, J.,

dissenting) (disagreeing with the majority’s application of a Government Code

provision over the Code of Criminal Procedure provision that adequately addressed

the specific issue of jury composition in criminal cases).

II.   Historical Purpose of Article I, Section 10

      Both high Courts in this State have expressed the importance of interpreting

the contours of a constitutional right by examining its origin in historical context.

See Ex parte Garner, 246 S.W. 371, 371 (Tex. Crim. App. 1922) (Texas

Constitution’s right to jury trial under article I, section 15 must be understood in

historical context); accord Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d

504, 526 (Tex. 1995) (concluding that the right to trial by jury under article I, section

15 of the Texas Constitution applied to “those actions, or analogous actions, tried by

jury when the Constitution was adopted in 1876”). “Texas courts have often noted

that the primary goal in the interpretation of a constitutional provision is to ascertain

and give effect to the apparent intent of the voters who adopted it,” because “‘the

constitution does not derive its force from the [framers], but from the people who

ratified it.’” Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.

Crim. App. 1993) (quoting T. Cooley, CONSTITUTIONAL LIMITATIONS 66 (1868)).




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      A.     The scope of the constitutional jury trial mandate

      When the Republic of Texas came into existence, neither the Common Law

nor the United States Constitution allowed an accused to waive trial by jury; the

standard practice for a judge was to discourage a defendant from pleading guilty and

to encourage trial by jury. See Patton v. United States, 281 U.S. 276, 306 (1930);

see also Stephen A. Siegel, The Constitution on Trial: Article III’s Jury Trial

Provision, Originalism, and the Problem of Motivated Reasoning, 52 SANTA CLARA

L. REV. 373, 380–81 (2012) (“There was near-universal agreement among late-

nineteenth and early-twentieth century judges” that article III, section 2 of the federal

constitution, providing that “trial of all crimes except in cases of impeachment shall

be by jury,” was an absolute mandate, and neither a prosecutor nor an accused could

avoid a jury trial, whether by unilateral waiver or mutual consent.) (hereinafter

Constitution on Trial).

      In the late-19th century, it was unsettled whether the jury trial requirement

instilled in the Common Law tradition and imposed by the federal constitution

applied to misdemeanors. See Dickinson v. United States, 159 F. 801, 805 (1st Cir.

1908). The United States Supreme Court resolved this issue under the federal

constitution in Schick v. United States, holding that article 3, section 2 of the

Constitution did not require a jury trial in misdemeanor prosecutions. 195 U.S. 65,

69 (1904). Relying on Blackstone’s Commentaries, the Court noted that the English


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Common Law used the term “crimes” in two ways: generally, to mean all criminal

conduct, and specifically, to mean felonies, as opposed to petty offenses. Id.

Blackstone distinguished between “crimes” and “misdemeanors,” using “crimes” to

signify offenses of “a deeper and more atrocious dye” and “misdemeanors” to refer

to “smaller faults and omissions of less consequence.” Id. at 69–70 (quoting 4

William Blackstone, COMMENTARIES          ON THE    LAWS   OF   ENGLAND 5 (1769)). By

statute, Texas followed the same rule. See Johnson v. State, 48 S.W. 70, 71 (Tex.

Crim. App. 1898) (relying on former TEX. CODE CRIM. PROC. art. 571, which

allowed for plea of guilty in misdemeanor cases by either defendant or defense

counsel, in holding that defendant’s guilty plea to misdemeanor theft charge was

admissible in burglary case).1

      The Texas Penal Code of 1856 (commonly referred to as the “Old Code”) was

the State’s first codification of Common Law crimes. Part II of the Old Code listed

the “Offences and Punishments.” Though some of the offenses listed in the Old Code

are no longer part of today’s jurisprudence, many of the felony crimes it lists,




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      At that time, Texas authorized trial courts to accept a plea of guilty to a felony
      charge within statutorily-imposed limits, and only if “it plainly appear[ed] that [the
      defendant] is sane, and is uninfluenced by any consideration of fear, by any
      persuasion or delusive hope of pardon, prompting him to confess his guilt.” Johnson
      v. State, 48 S.W. 70, 71 (Tex. 1898) (citing former TEX. CODE CRIM. PROC. arts.
      554, 555, 570). And, even if the guilty plea met those conditions, a defendant still
      could not waive trial: unless the felony had a fixed punishment, a jury trial on
      punishment still was required. See id.
                                            5
including aggravated assault, rape, kidnapping, and murder, are still codified as

felony crimes. With respect to the felony crimes listed in the Old Code in 1876 and

still codified as felony crimes today, the Texas Constitution states a mandate for

conducting jury trials in their prosecution.

      B.     Resistance to Mexican Rule

      Before 1836, while Texas was still under Mexican rule, the colonists who had

emigrated from the United States, who were accustomed to Common Law rules,

resisted the differences in Mexican civil law. George C. Butte, Early Development

of Law and Equity in Texas, 26 YALE L.J. 699, 700 (1917). In addition, colonial

Texans were frustrated with the concentration of judicial power in the local

magistrates, caused in part by Texas’s distance from the supreme tribunal in the

Mexican state of Coahuila, which left the colonists effectively without judicial

recourse in important civil and criminal cases. See Roots, 26 TEX. TECH. L. REV. at

1106. The denial of the Common Law right to trial by jury, among other reasons,

provided sufficient cause for Texas to undertake its war for independence. W.

Wendell Hall & Mark Emery, Texas Hold Out: Trends in the Review of Civil and

Criminal Jury Verdicts, 49 S. TEX. L. REV. 539, 544 (2008) (quoting Neeley v. W.

Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 786 n.217 (Tex. 2005)).

      When Texas declared its independence from Mexico, the Republic’s

constitution was drafted with an eye toward eliminating some of the problems the


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Texans had with the Mexican system of government. Roots, 26 TEX. TECH. L. REV.

at 1106. The Republic established Common Law district courts in 1837, and the

public greeted their “[c]ourt sessions . . . with great enthusiasm.” James W. Paulsen,

A Short History of the Supreme Court of the Republic of Texas, 65 TEX. L. REV. 237,

244 (1986). In drafting the current Texas Constitution, the delegates to the 1875

constitutional convention distanced themselves from empowered government as

exemplified by the federal constitution, having “more faith that the courts, rather

than other state authorities, would protect individual liberties.” James C. Harrington,

Framing a Texas Bill of Rights Argument, 24 ST. MARY’S L.J. 399, 405 (1993).

      C.     Early efforts to limit trial by jury in the American legal system

       Beginning in the second half of the nineteenth century, a pronounced anti-

jury trial sentiment grew among certain lawyers, legislators and reformers. See

generally Andrew Kent, The Jury and Empire: the Insular Cases and the Anti-Jury

Movement in the Gilded Age and Progressive Era, 91 S. CAL. L. REV. 375, 394–406

(2018) [hereinafter Jury and Empire] (explaining the increase of criticism and efforts

to reform the jury system, which coincided with high immigration from southern and

eastern Europe and attendant concerns of “disorder and social disintegration”). A

“newly positive view of the Roman-derived civil law tradition,” which had

minimized the use of juries, may also have played a role in the push for jury reform

or abolition on a national level, though Texas’s experience under Mexican rule


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suggests that view would not have received the same welcome here. Id. at 404; see

Roots, 26 TEX. TECH. L. REV. at 1106.

      In 1930, the United States Supreme Court first held that a defendant could

constitutionally waive the right to jury trial in a felony case, despite the federal

constitution’s clear mandate that “the trial of all Crimes . . . shall be by Jury.” U.S.

CONST. art. III; Patton, 281 U.S. at 306. Patton reached this result by reading the

Sixth Amendment’s right to jury trial as eclipsing the Article III mandate and

applying a “remarkably wrong” historical analysis. Constitution on Trial, 52 SANTA

CLARA L. REV. at 418; see Patton, 281 U.S. at 298–311.

      When Patton was decided, the Texas Code of Criminal Procedure expressly

prohibited waiver of a jury trial in a felony case. TEX. CODE CRIM. PROC. (1925) art

11; see Note, Criminal Procedure—Waiver of Trial by Jury, 9 TEX. L. REV. 90, 91

(1930). The following year, though, and despite article I, section 10’s mandate, the

Texas legislature amended the statute to permit waiver of a jury trial by a defendant

upon pleading guilty to a noncapital felony. See S.B. 53, 42nd Leg., R.S., Acts 1931,

ch. 43, cited in Hatch v. State, 958 S.W.2d 813, 815 (Tex. Crim. App. 1997). The

Texas legislature has continued to expand the circumstances under which waiver is

permitted; under the current statute, a defendant may waive a jury trial in all

noncapital cases and capital cases where the prosecution does not seek the death

penalty. TEX. CODE CRIM. PROC. arts. 1.13, 1.14. Neither the legislature nor the


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courts have offered any reasonable explanation for defying the constitutional

requirement of a jury trial in Old Code felony prosecutions.

III.   Article I, Section 10 in the Context of the Whole Constitution

       Contrary to the current judicial interpretation of article I, section 10, which

renders it a nullity, this provision complements the other sections of the Texas

Constitution that speak to jury trials and mandates the use of the jury trial process

for Old Code felony prosecutions. The Texas Constitution has three provisions that

delineate the mandate and the right to jury trial: article I, sections 10 and 15, and

article V, section 13. But research has revealed no decision by the Court of Criminal

Appeals that considers the effect of article I, section 10’s plain mandate in an Old

Code felony prosecution, and none of the decisions cited by the majority concerns a

defendant who claimed he was deprived of a jury trial; thus, none addresses the

Texas Constitution’s mandate of jury trials in Old Code felony cases. See Jacobs v.

State, 560 S.W.3d 205, 210–11 (Tex. Crim. App. 2018) (claiming violation of right

to impartial jury due to limits placed on voir dire questioning); Niles v. State, 555

S.W.3d 562, 573 (Tex. Crim. App. 2018) (agreeing with reversal of conviction for

Class A misdemeanor terroristic threat, which requires finding that offense was

committed against public servant, based on failure to obtain jury finding on

complainant’s public servant status; but holding that this was charge error and

remanding to court of appeals for harm analysis); Uranga v. State, 330 S.W.3d 301,


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304 (Tex. Crim. App. 2010) (claiming that violation of right to trial by impartial jury

based on implied bias doctrine); Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim.

App. 1998) (claiming error in removal of juror for cause violated right to trial by

impartial jury); Marquez v. State, 725 S.W.2d 217, 243 & n.9 (Tex. Crim. App.

1987) (challenging the exclusion of prospective jurors based on opposition to death

penalty violated right to trial by impartial jury); see also Dabney v. State, 60 S.W.2d

451, 451 (Tex. Crim. App. 1933) (considering effect of article I, section 10 in appeal

of conviction for theft of chickens, apparently a misdemeanor, for which punishment

of 60 days’ confinement was assessed); Lee v. State, 215 S.W. 856, 856–57 (Tex.

Crim. App. 1919) (observing that Texas Constitution did not mandate jury trial for

prosecution of juvenile because charged offense was not a felony); Schulman v.

State, 173 S.W. 1195, 1195 (Tex. Crim. App. 1915) (holding that established rule in

Texas allowed defendant to waive jury or agree to jury of fewer than six jurors in

misdemeanor prosecution); Moore v. State, 2 S.W. 634, 635 (Tex. App. 1886)

(holding that statute allowing for waiver of jury trial in misdemeanor cases did not

conflict with article I, section 10). As in the context of the civil jury trial right,

       in spite of long judicial experiences in applying [the pertinent
       constitutional provisions] to cases in which the right to trial by jury has
       been contested, a formula of interpretation which gives full effect to the
       terminology and purposes of each section has yet to appear in the
       decisions.

Jury Trial, 7 SW. L.J. at 3 n.5.

                                            10
      I agree that article I, sections 10 and 15 should be interpreted together. This

long line of cases, however, shows a tendency to subsume section 10 under section

15 despite the importance of its mandate and its specific application to criminal

proceedings for Old Code felonies. Although article I, section 15 authorizes the

legislature to pass laws to regulate the same, and to maintain its purity and efficiency,

it is axiomatic that the clause “does not permit reduction of the right” of an accused

to trial by jury or impairment of its substance. Ex parte Johnson, 697 S.W.2d 605,

614 (Tex. Crim. App. 1985) (Clinton, J., dissenting).

      Like the majority, I recognize that the Court of Criminal Appeals has

interpreted article I, section 10 as not requiring a jury trial in every felony criminal

prosecution, many of which did not exist under the Old Code. I believe, however,

that the interpretation is consistent with enforcing the unequivocal and specific

mandate as expressed in the constitution with respect to Old Code felonies.

                                      Conclusion

      Some will argue that an acknowledgment by the Court of Criminal Appeals

of the mandate contained in article I, section 10 of the Texas Constitution requiring

jury trials in all prosecutions for Old Code felony crimes would be a major disruption

to the Texas criminal justice system and would place Texas in a unique position

among the other states in the Union—I agree on both counts. Texas is large, and

Texas has never shied away from taking actions that distinguish it from other states.


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The fact that this striking, mandatory requirement stems from the earliest

constitution of the Republic of Texas only emphasizes the importance that Texans

place on the mandate for and the right to jury trials.

      The defendant in this case was charged with murder, an Old Code felony

crime. As to Old Code felony crimes like murder, article I, section 10 of the Texas

Constitution means exactly what it says. Because he did not receive the jury trial

mandated by that section, his conviction should be reversed.

      For these reasons, I dissent from this court’s decision to affirm the judgment

of the trial court, and I would reverse and remand for trial by jury in the court below.




                                               Gordon Goodman
                                               Justice
Publish. Tex. R. App. P. 47.4.




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