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


                                  OPINION

      Appellant, Charles Lee Farris, Jr., without an agreed punishment

recommendation from the State, pleaded guilty to the felony offense of murder.1

After finding true the allegation in an enhancement paragraph that he had been

1
      See TEX. PENAL CODE ANN. § 19.02(b), (c).
previously convicted of a felony offense, the trial court assessed his punishment at

confinement for forty years. In his sole issue, appellant contends that the trial court

erred in accepting his guilty plea because “the Texas Constitution requires a jury

trial in all criminal prosecutions.”

      We affirm.

                                       Background

      A Harris County Grand Jury issued a true bill of indictment, alleging that

appellant, on or about November 15, 2016, “did then and there unlawfully,

intentionally and knowingly cause the death of [the complainant], . . . by shooting

the complainant with a firearm” and “did then and there unlawfully intend to cause

serious bodily injury to [the complainant], . . . and did cause the death of the

[c]omplainant by intentionally and knowingly committing an act clearly dangerous

to human life, namely shooting the complainant with a firearm.”

      Subsequently, appellant signed and filed a “Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession” in which he pleaded guilty to the

felony offense of murder and admitted that he committed the acts as alleged in the

indictment. Appellant’s trial counsel also signed the “Waiver of Constitutional

Rights, Agreement to Stipulate, and Judicial Confession,” affirming that she

believed that appellant had entered his guilty plea knowingly, voluntarily, and after




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a full discussion of the consequences of his plea. Trial counsel also affirmed that

she believed that appellant was competent to stand trial.

      Appellant further signed written admonishments,2 informing him that he had

been indicted for the felony offense of murder and of the punishment range for that

offense. And appellant signed a “Statement and Waivers of Defendant,”3 affirming

that he was mentally competent; understood the nature of the charge against him, the

trial court’s admonishments, and the consequences of his plea; and freely and

voluntarily pleaded guilty. Moreover, appellant represented that he had consulted

with his trial counsel about his plea; he “waive[d] and g[a]ve up any time provide[d]

[to him] by law to prepare for trial”; he was “totally satisfied with the representation

provided by [his] counsel and [he had] received effective and competent

representation”; he “g[a]ve up all rights given [to him] by law, whether of form,

substance or procedure”; he “waive[d] and g[a]ve up [his] right to a jury in th[e] case

and [his] right to require the appearance, confrontation and cross[-]examination of

the witnesses”; he “consent[ed] to [the] oral or written stipulations or evidence in

th[e] case”; and he had “read the indictment and [he had] committed each and every

element alleged.” Appellant thus requested that the trial court accept his guilty plea.




2
      See TEX. CODE OF CRIM. PROC. ANN. art. 26.13.
3
      See id.

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      The trial court found sufficient evidence of appellant’s guilt and that appellant

had entered his guilty plea freely, knowingly, and voluntarily. And it admonished

appellant of his legal rights, accepted his guilty plea, and ordered a presentence

investigation.

      At the conclusion of appellant’s sentencing hearing, at which the State and

appellant both presented evidence, the trial court found appellant guilty of the felony

offense of murder, found true the allegation in an enhancement paragraph that

appellant had been previously convicted of a felony offense, and sentenced appellant

to confinement for forty years.

                                  Right to a Jury Trial

      In his sole issue, appellant contends that the trial court erred in accepting his

guilty plea because “the Texas Constitution requires a jury trial in all criminal

prosecutions.”

      Two provisions of the Texas Constitution address the concept of trial by a jury

in a criminal case.4 Article I, section 10 of the Texas Constitution, titled “Rights of

accused in criminal prosecutions,” states: “In all criminal prosecutions the accused

shall have a speedy public trial by an impartial jury.” TEX. CONST. art. I, § 10.

Article I, section 15 of the Texas Constitution states: “The right of trial by jury shall



4
      Article V, section 10 of the Texas Constitution addresses the right to trial by a jury
      in a civil case. See TEX. CONST. art. V, § 10.

                                            4
remain inviolate.” TEX. CONST. art. I, § 15.          Section 15 also authorizes the

Legislature to “pass such laws as may be needed to regulate the same[, i.e., the right

to trial by a jury], and to maintain its purity and efficiency.” Id.; see e.g., TEX. CODE

CRIM. PROC. ANN. art. 1.13 (“Waiver of trial by jury”). The Sixth Amendment to

the United States Constitution provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed . . . .” U.S. CONST. amend. VI.

      Appellant asserts that the language contained in Article I, section 10 of the

Texas Constitution “does not say [that] a criminal defendant has a ‘right’ to a jury

trial,” rather the wording of the provision “creates an absolute requirement” and

“actually mandates a jury trial in every criminal prosecution.” In other words,

“nothing . . . permit[s] a criminal defendant to waive th[e] [jury trial] requirement”

found in Article I, section 10; it is not optional. In regard to Article I, section 15 of

the Texas Constitution and the Sixth Amendment to the United States Constitution,

however, appellant concedes that he waived his right to a jury trial provided for by

those provisions. Thus, appellant relies solely on the language contained in Article

I, section 10 to assert that he could not have waived “the absolute requirement of a

jury trial in all criminal prosecutions” provided for by the Texas Constitution. See

TEX. CONST. art. I, § 10.




                                           5
      The Texas Court of Criminal Appeals has stated that “there is no significant

textual difference between” Article I, section 10 of the Texas Constitution and the

Sixth Amendment to the United States Constitution that “indicate[s] that different

standards of protection should be applied” to criminal defendants under either

constitution. See Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018)

(emphasis added) (internal quotations omitted); see also Jones v. State, 982 S.W.2d

386, 391 (Tex. Crim. App. 1998). Although the people of Texas do have the

authority to provide greater protections to criminal defendants than those provided

for by the federal constitution,5 as to a trial by a jury in criminal cases, they have not

chosen to do so. See Jacobs, 560 S.W.3d at 210; Jones, 982 S.W.2d at 391; see also

Niles v. State, 555 S.W.3d 562, 577 n.12 (Tex. Crim. App. 2018) (Yeary, J.,

dissenting) (“We have said before that there is no difference in scope between the

Sixth Amendment’s right to a jury trial and that of Article I, Section 10, of the Texas

Constitution.”). In other words, “the right in the [Texas] [C]onstitution is no greater

than that recognized in the Sixth Amendment.” Uranga v. State, 330 S.W.3d 301,

304 (Tex. Crim. App. 2010); see also Marquez v. State, 725 S.W.2d 217, 243 & n.9

(Tex. Crim. App. 1987) (quoting language of Article I, section 10 and Sixth



5
      See Olson v. State, 484 S.W.2d 756, 762 (Tex. Crim. App. 1972) (federal
      constitutional safeguards are applicable to states, but they establish only minimum
      standard; states may go further and provided greater safeguards); Yarborough v.
      State, 981 S.W.2d 846, 848 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).

                                            6
Amendment and clarifying “[t]here is no significant textual difference between the

two constitutional provisions which would indicate that different standards of

protection should be applied”), overruled on other grounds by Moody v. State, 827

S.W.2d 875 (Tex. Crim. App. 1992). And appellant does not appear to dispute that

the Sixth Amendment right to trial by a jury may be waived. See Boykin v. Alabama,

395 U.S. 238, 243 (1969); McCarthy v. United States, 394 U.S. 459, 466 (1969); Ex

parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016); Davison v. State,

405 S.W.3d 682, 686 (Tex. Crim. App. 2013); State v. Morales, 253 S.W.3d 686,

697 (Tex. Crim. App. 2008); see also Ex parte Ross, 522 S.W.2d 214, 222 (Tex.

Crim. App. 1975) (“There exists no federal constitutional provision which prohibits

an accused from knowingly and intelligently waiving his right to trial by jury in a

felony prosecution.”), abrogated by Ex parte McCain, 67 S.W.3d 204 (Tex. Crim.

App. 2002). Instead, appellant concedes that he waived his Sixth Amendment right

to a jury trial in this case.

       Further, in regard to Article I, section 10, specifically, the Texas Court of

Criminal Appeals has explained:       “[W]e have not held . . . [that] despite [the]

mandatory language in [Article I, section 10], that an impartial jury is an inflexible

constitutional imperative which cannot be . . . consciously waived. Rather, we have

recognized it to be a right of the accused . . . .” Delrio v. State, 840 S.W.2d 443,

445 (Tex. Crim. App. 1992) (emphasis added) (internal footnote omitted); see also


                                          7
Jones, 982 S.W.2d at 391 (Article I, section 10 “recognizes the right to trial by

jury”). And although Article I, section 10, which “provides that ‘the accused shall

have a . . . trial by an impartial jury,’” is “expressed in mandatory terms as an

indispensable feature of the system, the [c]ourt [has] held [that] th[e] provision

conferred a right to the accused which could not be impaired without his consent, as

authorized by the Legislature.” Id. at 445 n.2 (first alteration in original) (emphasis

added) (quoting TEX. CONST. art. I, § 10); see also State v. Waters, 560 S.W.3d 651,

662 & n.10 (Tex. Crim. App. 2018) (Article I, section 10 confers “[a] right to a

determination of guilt or innocence by a jury”).

      Moreover, the Court of Criminal Appeals has previously addressed

appellant’s exact argument on appeal, i.e., that although Article I, section 15 of the

Texas Constitution “makes a jury trial a ‘right’ which might be waived,” Article I,

section 10 creates “an absolute requirement of trial by jury in all criminal

prosecutions.” See Dabney v. State, 60 S.W.2d 451, 451 (Tex. Crim. App. 1933).

In Dabney, the court explained that if the criminal defendant was correct in his

assertion that Article I, section 10 mandated a jury trial in every criminal

prosecution, “then all legislative acts permitting a waiver of [a] jury . . . [would be]

void, as being in conflict with the constitution[].” Id. And the court made clear that

it did not agree with the defendant’s position. Id. Rather, it explained that Article I,




                                           8
section 10 and section 15 “must be considered together,”6 and when the court did so,

it determined that the criminal defendant’s assertion that Article I, section 10

mandated a jury trial in every criminal prosecution was incorrect. Id.; see also

Moore v. State, 22 Tex. Ct. App. 117, 118–20, 2 S.W. 634, 635–36 (1886)

(considering both Article I, section 10 and section 15 and holding statute which

allowed waiver of jury trial for misdemeanor offenses did not conflict with

aforementioned constitutional provisions).7

      Although appellant takes issue with the Court of Criminal Appeals’ analysis

and conclusions in the aforementioned cases, we, as an intermediate appellate court,

are bound in criminal cases to follow the decisions of the Court of Criminal Appeals.

See State of Tex. ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App.



6
      See Clapp v. State, 639 S.W.2d 949, 951–52 (Tex. Crim. App. 1982) (“[T]he
      [Texas] Constitution is to be construed as a whole, so as to give effect to every
      provision, and, if possible to harmonize them. Different sections, amendments, or
      provisions of a constitution which relate to the same subject matter should be
      construed together and considered in light of each other.” (internal citations
      omitted)), overruled on other grounds by Comer v. State, 754 S.W.2d 656 (Tex.
      Crim. App. 1986); see also Vinson v. Burgess, 773 S.W.2d 263, 265 (Tex. 1989)
      (“No provision in the [Texas] [C]onstitution should be read or construed in
      isolation.”).
7
      See, e.g., Grady v. State, 35 S.W.2d 158, 158 (Tex. Crim. App. 1931) (relying on
      Moore and stating “[t]he [Texas] Constitution recognizes the right of one
      accused . . . to waive a jury . . . .”); Lee v. State, 215 S.W. 856, 856–57 (Tex. Crim.
      App. 1919) (citing Moore and explaining Court of Criminal Appeals had
      “uniformly . . . construed” Texas Constitution to allow waiver of jury); Schulman v.
      State, 173 S.W. 1195, 1195 (Tex. Crim. App. 1915) (citing Moore and stating
      criminal defendant can “waive a jury”).

                                             9
1971) (“The Court of Criminal Appeals is the court of last resort in this [S]tate in

criminal matters. This being so, no other court . . . has authority to overrule or

circumvent its decisions, or disobey its mandates.”); Ervin v. State, 331 S.W.3d 49,

53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (“As an intermediate court of

appeals, we are bound to follow the precedent of the [C]ourt of [C]riminal

[A]ppeals.”); see also TEX. CONST. art. V, § 5(a); Mason v. State, 416 S.W.3d 720,

728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“When the Court of

Criminal Appeals has deliberately and unequivocally interpreted the law in a

criminal matter, we must adhere to its interpretation under the dictates of vertical

stare decisis.”).

       Finally, we note that appellant relies on our decision in Yarborough v. State,

981 S.W.2d 846 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d), to support his

assertion that the jury trial provided for in Article I, section 10 is mandatory and

cannot be waived. We find appellant’s reliance misplaced. In Yarborough, after the

criminal defendant was convicted of violating a “trash ordinance,” a municipal court

assessed a $500 fine against him. 981 S.W.2d at 847. The defendant then appealed

to county court and requested a jury trial. Id. The county court refused the criminal

defendant’s request and proceeded with a bench trial. Id. On appeal, the criminal

defendant, relying on the Texas Constitution, argued that the county court erred in

overruling his request for a jury trial. Id. at 847. We agreed, and in doing so, noted


                                         10
that “[A]rticle I, section 10 of the Texas Constitution[] and article 1.05 of the Texas

Code of Criminal Procedure . . . provide[:] ‘In all criminal prosecutions, the accused

shall have a speedy public trial by an impartial jury[.]’” Id. at 847–48 (quoting TEX.

CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05). However, we also

explained that these provisions, in addition to Article I, section 15 of the Texas

Constitution, afforded a “defendant in a misdemeanor case . . . the same right to a

trial by jury as a defendant charged with a felony [offense].” Id. at 847–48 (emphasis

added). And we certainly did not state that a jury trial could not be waived by a

criminal defendant or that Article I, section 10 mandated, irrespective of any waiver,

a jury trial in every criminal prosecution. Instead, we held that the county court

erred in denying the criminal defendant his right to a jury trial which the Texas

Constitution guaranteed him.8 See id. at 847–48.

      Based on the foregoing, we hold that the trial court did not err in accepting

appellant’s guilty plea.

      We overrule appellant’s sole issue.




8
      Notably, the criminal defendant did not waive his constitutional right to a jury trial
      in Yarborough.

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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Julie Countiss
                                             Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Goodman, J., dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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