stating that “[a] silent record does not mean that the state, witnesses, and trial court did not in fact suffer prejudice; it merely means that proof was not offered on the issue”
How later courts described this case
- stating that “[a] silent record does not mean that the state, witnesses, and trial court did not in fact suffer prejudice; it merely means that proof was not offered on the issue”
- canvassing cases and adhering to “the prevailing trend to permit withdrawal of the waiver so long as it is in good faith and there are no adverse consequences” that would “prejudice the state, delay the case, impede justice, or inconvenience the witnesses”
- concluding no error occurred where the defendant failed to show that granting the withdrawal would not result in adverse consequences
- “The control of the business of the court is vested in the sound discretion of the trial judge.”
Written by the judges who cited it.
The opinion
BAIRD, Judge,
dissenting.
For the reasons stated post, I believe defendants should not bear the burden of establishing they are entitled to withdraw their jury waivers. Instead, like Judge Maloney, I believe, due to the inviolate nature of the right to trial by jury, the trial judge’s discretion to permit the withdrawal of a jury trial waiver should be viewed in favor of permitting the waiver to be withdrawn. Post at 226. Accordingly, I join Judge Maloney’s dissent. However, I write separately to address a matter not addressed by either the majority or the dissent.
Because of the fundamental and inviolate nature of the right to trial by jury, any waiver of that right must be knowing and voluntary. The most important consideration in whether to waive a jury trial is knowing which particular judge will be trying the case if a jury is in fact waived. Consequently, if a defendant has waived the right to trial by jury and on the scheduled trial day, the particular judge who the defendant reasonably believed would try the case is not available and the case is to be tried by a different judge who is objectionable to the defendant, the defendant has an unqualified right to withdraw the jury trial waiver.
The instant case was assigned to the 147th Judicial District Court of Travis County. Appellant executed his jury trial waiver on June 28,1993. On that date, the judge of the 147th District Court was the Honorable Wilford Flowers. On the day of trial, July 1, 1993, Judge Flowers was not available to try appellant’s case. Instead, the case was tried by the Honorable Mace B. Thurman, Jr., a visiting judge. However, appellant did not contend then and does not contend now that Judge Thurman was objectionable. Consequently, appellant did not have an unqualified right to withdraw his jury trial waiver.