Marquez v. State

MEYERS, Judge,

concurring.

The majority proposes a rule that allows a defendant to withdraw a jury trial waiver absent evidence in the record showing undue *224 delay of the judicial process or detrimental effect to the State or witnesses. As the opinion correctly notes, the courts of other states have adopted similar rules in their respective jurisdictions. Of course, I agree that the right to trial by jury is extremely important and that a defendant should be able to withdraw a jury trial waiver under circumstances like those outlined by appellant’s proposed rule. In fact, if the Texas legislature were voting on such a rule I would most probably support it. However, I cannot find a statute in Texas that provides defendants with the right to withdraw a jury trial waiver nor can I find such a right implicit within either our constitution or the United States Constitution. Perhaps, therefore, the majority relies not on statutory or constitutional law in advancing its rule, but, instead, on some inherent power this Court has to pass rules that seem “just” or “right”. They, however, never explicitly articulate the source of their holding, nor do any of their possible sources accord defendants the right to withdraw a jury trial waiver.

I.

As to the right of jury trial, whether constitutional or statutory, we may, of course, identify additional rights that flow from that “inviolate” right. See Tex. Const, art. I, § 15 and the Tex.Code Crim.Proc.Ann. art. 1.12. As we recognized in Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993), a defendant has a right to waive his right to a jury trial. This right logically follows from the right to trial by jury in that true possession of a right includes the power to control it. As such, a defendant should be able to give up his prerogative to trial by jury free from outside interdictions since such prohibitions would be an usurpation of control over the right. In fact, if another entity prohibits a defendant from waiving his right to trial by jury, the “right” may become a requirement. See Id. at 279 (describing those things that are independent of the litigant’s wishes as “requirements”). Thus, the liberty to waive a jury trial is part and parcel of the right to trial by jury guaranteed in both our constitutional and statutory law.

The right to a trial by jury, however, “enjoy[s] special protection in [our] system”. Id. at 278 . Thus, a defendant cannot relinquish it unless “he says so plainly, freely, and intelligently, sometimes in writing and always on the record”. Id. at 280 . Our law ensures the sanctity oí this right by providing stringent guidelines that do not allow for quick inferences of waiver. Such exacting protections of the right are consistent with the right’s description in our constitution as “inviolate”. They are also consistent with the fact that once effectively waived, the right to trial by jury no longer exists. The majority fails to recognize this consistency and, instead, apparently rests its analysis on the assumption that the right to a jury trial exists even after an effective waiver. After all, the majority’s argument cannot work without this assumption. If an effective waiver truly extinguishes a defendant’s right to a jury trial then this right, inviolate or not, from which the majority infers the right to withdraw, no longer exists. I cannot find any support for the argument that the right to trial by jury exists subsequent to an effective and explicit waiver. 1 Accordingly, once *225 the defendant effectively waives his right to a jury trial, he cannot demand that it be given back under either the Texas Constitution, the United States Constitution or art. 1.12 because it is no longer his.

II.

Since no constitutional or statutory right to withdraw a jury trial waiver exists, I am befuddled as to the source of the majority’s rule. Perhaps the majority believes that the “general rule” they adopt makes sense or is the “right” result. It is not our job, however, to determine what is right or wrong as a matter of policy, but rather, to conduct constitutional and statutory analysis and interpretation. In fact, the defendant doesn’t even ask us to do this; he claims only that we should grant him relief pursuant to the United States Constitution, our constitution and art. 1.12. Of course, the right to a jury trial cannot be taken from a defendant, either by force or coercion. Only the defendant can relinquish that right, and as discussed above, he must do so knowingly and on the record. But once the defendant does effectively waive his right, he has given it up entirely and no concept of justice to which I can subscribe demands that we let him take it back. In the end, we should not confuse the unfortunate nature of the defendant’s predicament with questions of justice.

Like the majority, then, I would affirm the Court of Appeals’ decision. But unlike the majority, I do not reach the conclusion that the trial court could have, but did not, abuse its discretion in not allowing the defendant to withdraw his jury trial waiver. Rather, since no law exists giving the defendant the right to withdraw an effective jury trial waiver, the trial court could not have, and therefore did not, abuse its discretion in not allowing him to do so. Therefore, I concur only in the judgment of the Court.

. The Supreme Court has stated that “[ejven were we to assume, without deciding, that a State may constitutionally exact ... the waiver of a constitutional right, we would be unable to find any justification for denying the right to withdraw it.” Stevens v. Marks, 383 U.S. 234, 243-44 , 86 S.Ct. 788, 793 , 15 L.Ed.2d 724 (1966). Recognizing this language as a general proposition applicable to all constitutional rights, the Fifth Circuit has held that a trial judge may, upon a defendant's request, vacate an order granting change of venue and, in fact, must do so "when there is no justification” to deny such a request. United States v. Marcello, 423 F.2d 993, 1005 (5th Cir.1970). Although couched in broad language, the holding in Stevens does not necessarily extend to all constitutional rights. If it did, one. would expect that both Justice Marshall and Justice Stewart, when separately forwarding arguments similar to those in today’s majority opinion, would cite to Stevens in support of their positions. They, however, do not. See Dukes v. Warden, Connecticut State Prison, 406 U.S. 250 , 92 S.Ct. 1551 , 32 L.Ed.2d 45 (1972) (Stewart, J., concurring) (Marshall, J., dissenting); Santobello v. New York, 404 U.S. 257, 266-69 , 92 S.Ct. 495, 501-02 , 30 L.Ed.2d 427 (1971) (Marshall, J., concurring in part and dissenting in part).

The right to "withdraw” the waiver of a constitutional right ought to depend on the nature of the right waived. The pre-trial privilege against self-incrimination, at issue in Stevens , fundamentally differs from the right to trial by jury at issue *225 in this case. The pre-trial privilege against self-incrimination, unlike the right to a jury trial, attaches at every pre-trial point in a criminal proceeding. A waiver of the privilege at one point during that process in no way constitutes a waiver at all points. Thus, the desire of a defendant, who has previously waived his privilege, to cease communications with governmental authorities may be best characterized not as a withdrawal of the previous waiver, but rather as an assertion of the privilege from that point forward.