Petition — Texas v. Samudio

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

THE STATE OF TEXAS,

Petitioner

Vv.

DANIEL P. SAMUDIO,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

JoHN B. HoLMES, JR.

District Attorney

Harris County, Texas

WINSTON E. COCHRAN, JR.

ROBERTO GUTIERREZ

Assistant District Attorneys

CALVIN A. HARTMANN

Assistant District Attorney

Chief of the Appellate Section

Counsel of Record

201 Fannin, Suite 200

Houston, Texas 77002

Tel.: 713/221-5826

Attorneys for Petitioner

Alpha Law Brief Co., Inc.—5606 Parkersburg—Houston, Texas 77036—223-3003

I

QUESTIONS PRESENTED

I.

DOES THE STATE HAVE A CONSTITUTIONAL

BURDEN OF SHOWING A DEFENDANT’S WAIVER

OF JURY TRIAL IN A MISDEMEANOR?

Il.

DOES A MISDEMEANOR TRIAL COURT HAVE

A CONSTITUTJONAL DUTY TO ESTABLISH THAT

A DEFENDANT WHO IS REPRESENTED BY COUN-

SEL HAS VOLUNTARILY WAIVED TRIAL BY

JURY?

if

TABLE OF CONTENTS

Page

RO I oi ook ee ois we cccereneaces I

TI Oe a ea on cea aes became cen Ill

I ii iin nce ce ces cues 1

TO a eee ah iciccenaweees. 2

Constitutional Provisions af Tome ...............000.0- 3

NE Oe i cua acccuewe us 3

Proceso oO: tie Titel Court 2... oo 6c cece cesess. 3

oe 4

Meme Tae CHE Te FEE ow gnc ok ne ec cc ccc ess 5

I. THE COURT OF CRIMINAL APPEALS IN-

CORRECTLY HELD THAT THE STATE OF

TEXAS HAS A CONSTITUTIONAL BURDEN

OF SHOWING A DEFENDANT’S WAIVER OF

JURY TRIAL IN A MISDEMEANOR ........ 5

Il. A TRIAL COURT HAS NO CONSTITUTION-

AL DUTY TO ESTABLISH THAT A DEFEND-

ANT WHO IS REPRESENTED BY COUNSEL

IN A MISDEMEANOR CASE HAS VOLUN-

TARILY WAIVED TRIAL BY JURY .......

To i wei nn vc cncuwces

Deceoe Gy the Lower Comrt .............6:.

ae in kide be cae cs 16

Appendices:

Opinion of the Court of Criminal Appeals of Texas .. A-1

Opinion of the Court of Appeals for the First Supreme

Te Se, OE I oo oe is eae ce cccccdeccs B-1

TABLE OF AUTHORITIES

CASES Page

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.

Ee ae eee 6, 10, 14

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.

Oe ook k cece kek cans 10, 13

Empy v. State, 571 S.W.2d 526 (Tex. Crim. App. 1978) 12

Garcia v. State, 641 S.W.2d 246 (Tex. Crim. App. 1982) 5

Griffin v. State, 554 S.W.2d 688 (Tex. Crim. App. 1977) 11

Johnson v. State, 614 S.W.2d 116 (Tex. Crim. App. 1981) 11, 12

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.

a a i ono cbc rec ck vas 6,7, 9, 82

Lamb v. State, 409 S.W.2d 418 (Tex. Crim. App. 1966) 11

Patton v. U.S., 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854

vik vvccwucs 8,15

Singer v. U.S., 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630

ae Cd... 8

CONSTITUTIONAL PROVISIONS

Amendment Six, United States Constitution ............ 3,10

Amendment Fourteen, United States Constitution ....... 3,10

STATUTES

Oe OR I or awn cei nccceccceces 2

TE TR Oe ia eer n cece sdinnccnccuss 11,13

OE oi vec kcccccccccccccs 11

Me I rec ibdbveccunwcccaauns 12

PN ik ci ckeeckcc ceca 12

WO oka ckncccccocccccuce 11

WMI Te oo oe ve hecccccsccccucccec. 11

Pe ei ir erect tnccc cet caeuwes 5,6

eae, Ue CA, I FO AE. gw nnn vic cascccccces 3

Wie, PURE COR, DOCEIOR EZ FF og ccc cceccccccccs 10

V.T.C.A., Pomel Code, Section 27.01(a)(1) ............; 3

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1982

THE STATE OF TEXAS,

Petitioner

V.

DANIEL P. SAMUDIO,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

Petitioner respectfully requests that a writ of certiorari

issue to review the decision and judgment of the Court

of Criminal Appeals of Texas in the case of The State

of Texas v. Daniel P. Samudio, number 546-82 in the

court below, which reversed Respondent’s conviction for

assault.

OPINION BELOW

The opinion of the Court of Criminal Appeals of Texas

in this cause, No. 546-82 on the docket of that court,

is reproduced in the Appendix “A”. The opinion is not

yet commercially reported. The opinion of the Court of

2

Appeals for the First Supreme Judicial District of Texas

appears at 635 S.W.2d 183, and a copy thereof appears

in Appendix “B” hereto.

JURISDICTION

The Court of Criminal Appeals rendered its decision

on the State’s petition for discretionary review on Feb-

ruary 9, 1983. The Court affirmed the decision of the

Court of Appeals for the First Supreme Judicial District

of Texas, which had reversed the Respondent’s mis-

demeanor assault conviction. The State timely filed its

motion for rehearing, accompanied by a motion for

leave to file for rehearing, as required by Texas state

appellate rules. The Court of Criminal Appeals denied

the motion for leave to file for rehearing on March 16,

1983. Thereupon the State filed a motion to stay issuance

of the mandate by the Court of Criminal Appeals. On

March 21, 1983 the Court of Criminal Appeals stayed

issuance of its mandate for a period of thirty days.

Jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257(3), which states in part that “a final judg-

ment by the highest court of a State in which a decision

could be had may be reviewed by the Supreme Court . . .

by writ of certiorari, ... where any... right...is...

claimed under the Constitution . . . of the United States.”

The opinion of the Court of Criminal Appeals stated:

“Our decision is based on what we perceive to be a

fundamental federal constitutional requirement.” The

Court of Criminal Appeals did not even discuss Texas

state constitutional principles. Clearly there was no in-

dependent state basis for decision.

3

CONSTITUTIONAL PROVISIONS AT ISSUE

The Sixth Amendment of the United States Constitu-

tion:

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, which district shall have been

previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining Witnesses in his

favor, and to have the Assistance of Counsel for his

defense.

The Fourteenth Amendment of the United States Con-

stitution, Section 1:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

I. Proceedings in the Trial Court

On September 23, 1980 the Respondent was charged

by information with Class A misdemeanor assault under

V.T.C.A., Penal Code, Section 22.01(a)(1). The penalty

for a Class A misdemeanor in Texas, according to

V.T.C.A., Penal Code, Section 12.21 is:

4

(1) a fine not to exceed $2,000;

(2) confinement in jail for a term not to exceed one

year; or

(3) both such fine and imprisonment.

The Respondent hired counsel to represent him at trial.

The docket sheet of County Criminal Court at Law

Number One of Harris County, Texas reflects that the

Respondent entered a plea of not guilty to the court and

was tried by the court on January 20, 198i. The court

found the Respondent guilty as charged and assessed

punishment of confinement in the Harris County Jail for

one year, with no fine. The Respondent filed a motion

for new trial, which was subsequently amended, but the

motion was overruled. On April 16, the court reformed

the Judgment and sentenced the Respondent to six months

in jail. The Respondent gave timely notice of appeal to

the Court of Appeals for the First Supreme Judicial Dis-

trict of Texas.

II. Appellate Proceedings

The Respondent retained different counsel to represent

him on appeal. Appellate counsel timely filed a brief

raising several grounds of error, including one ground

complaining that the record did not affirmatively reflect

that the Respondent waived trial by jury. On May 13,

1982 the Court of Appeals reversed the Respondent’s

conviction, holding that the appellate record did not show

that the Respondent waived trial by jury. The judgment

of the trial court, utilizing a form which has been used

in thousands of misdemeanor convictions in Harris County,

2

Texas, did not state that the Respondent waived jury

trial. Rather, it said “No jury having been demanded . . .””

The State of Texas timely petitioned the Court of

Criminal Appeals of Texas for discretionary review of

the decision by the Court of Appeals, and the State’s

petition was granted on September 15, 1982. On Feb-

ruary 9, 1983 the Court of Criminal Appeals affirmed

the decision of the Court of Appeals, thereby agreeing

that Respondent’s conviction should be reversed. The

Court of Criminal Appeals held that the Respondent had

a right to jury trial in this misdemeanor case as a matter

of federal constitutional law, and it held further that

the State of Texas had the burden of establishing that

the Respondent waived trial by jury.’

REASONS FOR GRANTING THE WRIT

I.

THE COURT OF CRIMINAL APPEALS INCOR-

RECTLY HELD THAT THE STATE OF TEXAS HAS

A CONSTITUTIONAL BURDEN OF SHOWING A

DEFENDANT’S WAIVER OF JURY TRIAL IN A

MISDEMEANOR.

The appellate record contains no affirmative indication

that the Respondent waived trial by jury, quite possibly

1. At the time of Respondent’s trial, Article 42.01, V.A.C.C.P.

(requisites of a judgment) did not require any statement as to a

jury waiver. Effective September 1, 1981, Article 42.01, V.A.C.C.P.

states that the judgment should reflect “whether the case was tried

before a jury or a jury was waived.”

2. Although the State had prayed in the alternative for abate-

ment of the appeal so that the record could be more fully developed,

the Court of Criminal Appeals declined to abate. This was incon-

sistent with the policy followed by the Court of Criminal Appeals in

Garcia v. State, 641 S.W.2d 246 (Tex. Crim. App. 1982).

6

because at the time of Respondent’s trial, Article 42.01,

V.A.C.C.P. did not require that the judgment reflect

such a waiver. The judgment indicates that no jury

was “demanded,” but the demand for a jury and the

waiver of a right to jury trial are not the same thing.

Thus the appellate record must be regarded as “silent”

on the question of a jury waiver, and the Court of

Criminal Appeals agreed that “in the instant case we

have only a silent record before us.” The Court of

Criminal Appeals held that waiver of trial by jury could

not be assumed from a silent record.

If trial by jury in a Class A misdemeanor in Texas

is a federal constitutional right—and Baldwin v. New

York, 399 US. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437

(1970) suggests that it is—then the next question is

where the responsibility lies for safeguarding that right.

With respect to the specific question of the waiver of the

right to jury trial, does the defendant, the State (i.e.,

the prosecution) or the trial court have the responsibility

for assuring that the defendant has made a knowing and

intelligent waiver of jury trial?

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82

L.Ed. 1461 (1938) was the seminal decision on the

waiver of the right to counsel. The Court of Criminal

Appeals reasoned by analogy from the cases dealing with

that right in resolving the issue in this cause. In Johnson

v. Zerbst, 58 S.Ct. at 1023, the Supreme Court stated:

The constitutional right of an accused to be repre-

sented by counsel invokes, of itself, the protection

of a trial court . . . This protecting duty imposes the

serious and weighty responsibility upon the trial

7

judge of determining whether there is an intelligent

and competent waiver by the accused.

This language makes it clear that the trial court bears

the responsibility for assuring a valid waiver of the right

to counsel. However, in this cause the Court of Criminal

Appeals did not hold that it was the trial court’s respon-

sibility to assure a valid waiver of trial by jury. Rather,

the Court of Criminal Appeals assigned that responsibility

to the State, i.e., to the prosecution. Consistency with

Johnson v. Zerbst dictates that the responsibility for safe-

guarding the right to a misdemeanor jury trial against an

invalid waiver (or no waiver at all) would lie with the

trial court, not with the State.

By assigning the State the responsibility of establishing

a valid waiver of jury trial, the Court of Criminal Appeals

has misconstrued the federal constitutional principles which

were the foundation for that court’s decision. In turn,

however, this raises a more important question: Does the

trial court have a duty to establish as a matter of record

that the defendant made a knowing and intelligent waiver

of trial by jury in a Class A misdemeanor?

II.

A TRIAL COURT HAS NO CONSTITUTIONAL

DUTY TO ESTABLISH THAT A DEFENDANT WHO

IS REPRESENTED BY COUNSEL IN A MISDE-

MEANOR CASE HAS VOLUNTARILY WAIVED

TRIAL BY JURY.

The Supreme Court has never held specifically that a

misdemeanor trial court has the constitutional duty of

establishing a voluntary waiver of the right to trial by

jury.

History

Trial by jury was initiated as a way of safeguarding an

accused against the oppressive power of a King or the

arbitrary or partial judgment of a court. In spite of the

fact that trial by jury was held in high regard in England,

it amounted to a privilege rather than a right. The framers

of the U.S. Constitution changed that. Trial by jury be-

came a fundamental right “(i)n all criminal prosecu-

tons... Patton v. US., 281 US. 276, 50 S.Ct. 255,

74 L.Ed. 854 (1930). The Court in Patton, supra noted

that at common law the accused was not allowed to waive

any right intended for his protection. This doctrine

stemmed from a fear that no innocent man should be con-

victed. The rule arose at a time when the accused could

not testify in his own behalf, was not allowed counsel in

felonies and not furnished counsel in any case, and if

found guilty he would be stripped of his rights of inheri-

tance. The punishment would be death or some other

grievous punishment which many times would be out of

proportion to the severity of the crime.

The court in Patton noted, however, that all these con-

ditions had changed due to the humane policy of modern

criminal law, and ruled that trial by jury could be waived.

Before such waiver could be effective, the consent of

government, the sanction of the court and the express and

intelligent consent of the accused were necessary. See also

History of Jury Trial as set out in Singer v. U.S., 380 U.S.

24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).

Decision by the Lower Court

Respondent has relied on, and the Texas Court of

Criminal Appeals has cited, rulings dealing with the

9

waiver of the right to counsel and voluntariness of a guilty

plea and applied them to the case at bai.

The lower court cites Johnson v. Zerbst, 304 U.S. 458,

464 (1938) as standing for the proposition that the high

court will indulge every reasonable presumption against

a waiver of fundamental rights and will require the State

to demonstrate “an intentional relinquishment or aban-

donment of a known right or privilege”. The Texas Court

of Criminal Appeals adds that the Supreme Court has

held that a knowing and voluntary guilty plea cannot be

presumed from a silent record because “inter alia, by

entering such a plea the accused waives his right to jury

trial.” The Texas Court of Criminal Appeals decided

“(t)he inescapable conclusion from the foregoing de-

cisions is that the United States Supreme Court applies

the same rule to the waiver of the right to trial by jury

that it does to the waiver of the right to counsel (John-

son v. Zerbst, 304 U.S. 458) in that such a waiver cannot

be presumed from a silent record.”

The reasoning of the Court of Criminal Appeals makes

two facile assumptions about federal constitutional law

which are not necessarily correct. First, that Court as-

sumed that the procedural safeguards which are applic-

able in felony trials are applicable to the same degree in

misdemeanor trials. Second that Court assumed that

waiver of jury trial is an act with consequences as severe

as the entry of a guilty plea or the waiver of the assist-

ance of counsel. These assumptions carry the cited deci-

sions of this Court far beyond their strict legal issues and

their original factual contexts.

The Court of Criminal Appeals blurred the crucial

distinction between a felony and a misdemeanor. Johnson

10

v. Zerbst was a felony case. In Boykin v. Alabama, 395

U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 253 (1969), Boy-

kin entered a guilty plea to an offense which carried the

death penalty. The State does not suggest that the court

should not be required to proceed with great care before

an accused waives his fundamental rights in a felony case.

There are serious potential consequences in a felony case,

including the possibility of long term imprisonment, loss

of voting rights, and the attachment of stigma to a con-

victed felon. Weighed against such potential damage to a

defendant, the difficulty created by a court’s independent

duty to assure that rights are not lightly waived is a

small price for society to pay.

However, a misdemeanor trial presents a different

balance of interests. Why should the United States Con-

stitution, Amendments Six and Fourteen, be read as re-

quiring a court to establish that an accused intelligently

waived jury trial in a Class A misdemeanor, when, under

Baldwin v. New York, supra, a Class B misdemeanor

defendant is not constitutionally entitled to a jury at all?

(See V.T.C.A., Penal Code, Section 12.22, which sets a

maximum penalty for Class B misdemeanors of confine-

ment in jail for 180 days and a fine of $1000.) The State

is not suggesting that jury trials should not be available

in Class A misdemeanors. Rather, the question is how

solicitous a neutral court must be of a defendant’s in-

terests. Must the court take a paternalistic role? Should

the court be required to duplicate the advisory role of

hired counsel who presumably is well aware of the avail-

ability of jury trial? The imposition of such exhaustive

responsibilities upon a misdemeanor trial judge is utterly

impractical in view of the large number of misdemeanor

cases and the relatively insignificant consequences which

result from misdemeanor convictions.

1]

Until its about-face in the decision in the case at bar,

Texas had always recognized a distinction in the pro-

cedural treatment of felonies and misdemeanors. For ex-

ample, waivers of trial by jury in capital cases are not

allowed. Waivers of jury trial for other felonies must be

in writing. Article 1.13, V.A.C.C.P. In felony guilty pleas,

evidence must be submitted for a plea to be valid. Article

1.15, V.A.C.C.P. In stark contrast, there is no equivalent

of Article 1.13, V.A.C.C.P. at the misdemeanor level

requiring that waivers of jury trial be in writing and that

the State’s attorney and the trial court agree to the waiver.

In addition, waivers in a misdemeanor case may be oral,

and the accused or his counsel may waive a jury. Article

27.14, V.A.C.C.P.; Lamb v. State, 409 S.W.2d 418 (Tex.

Crim. App. 1966). Additionally, a plea of not guilty may

be made orally by the accused or by his counsel. Article

27.16, V.A.C.C.P. Regardless of the plea, the attorney’s

plea must conform with his client’s express desire. Griffin

v. State, 554 S.W.2d 688 (Tex. Crim. App. 1977).

The decision by the Texas Court of Criminal Appeals

requiring the State to establish through the trial record a

knowing, intelligent and express waiver of jury trial by

the accused flies in the face of its own decisions. Assum-

ing that this “knowing, intelligent and express waiver”

must be established at a minimum by an admonition of

the trial court, there have not been any admonition re-

quirements even suggested for misdemeanors where there

was a guilty plea. See for example, Johnson v. State, 614

S.W.2d 116 (Tex. Crim App. 1981). The misdemeanor

courts have been required to show only that the accused

voluntarily, knowingly and intelligently waived his rights

to counsel. The Honorable Marvin Teague wrote in John-

son, supra, at p. 120 fn. 1:

12

However commendable it may be for a trial judge

to admonish one accused of a misdemeanor offense,

as he must where a person is charged with a felony,

see Article 26.13 V.A.C.C.P., hereinafter cited as

C.C.P., there is no requirement in Texas law for a

trial court to admonish an accused of anything if the

offense is classified as a misdemeanor. The only thing

we find in our Jaw in this regard is the fact that an

accused person shall be arraigned in a misdemeanor

case if the punishment calls for imprisonment, see

Article 26.04 C.C.P. As to the admonishment pro-

visions of Article 26.13, C.C.P., these apply only to

felony, not misdemeanor offenses.

(Emphasis added).

The judgment in the case at bar reflects that Respond-

ent was arraigned and that he was represented by

counsel. But even if he had not been represented by

counsel, the trial court would have been under no duty

to admonish him. Empy vy. State, 571 S.W.2d 526, 529

(Tex. Crim. App. 1978). Judge Teague’s opinion in

Johnson, supra also suggests why the Court of Criminal

Appeals’ second assumption in this case is not necessarily

correct. Why should waiver of jury trial be treated the

same as waiver of counsel or entry of a guilty plea?

If the misdemeanor courts, under Texas law, are not

required to admonish the accused in a plea of guilty

except as to right to counsel, why should they be required

to do so as to right to a jury, where he is represented by

counsel of choice and he is pleading not guilty? The

State recognizes there are practical reasons why a court

should exercise greater caution with regard to a waiver

of counsel or guilty pleas. As in Johnson v. Zerbst, 58

S.Ct. 1019, 1022, the function of counsel is to provide

specialized skill and knowledge which a layman should

13

not be expected to bring to his own defense. A defendant

lacking knowledge of criminal law and procedure would,

because of that ignorance, fail to appreciate his need

for the assistance of counsel. A court should exercise

the greatest caution in accepting a waiver of the right

to counsel. With regard to acceptance of a guilty plea,

the consequences of the act again demand caution by

the court. As pointed out in Boykin v. Alabama, supra,

the entry of a guilty plea nullifies the protective effect

of a variety of constitutional rights. 89 S.Ct. at 1712.

The consequences of waiving a jury trial in favor of

a trial to the court are far less drastic than the conse-

quences of pleading guilty or waiving the aid of counsel.

The choice between jury trial and court trial is primarily

a strategic decision for the defense. The Texas legislature

apparently recognized that the decision is a matter for

the accused and his counsel, as shown by the fact that

Article 1.13 V.A.C.C.P. requires the appointment of an

attorney for an accused without counsel before the ac-

cused may waive jury trial in a felony. Once the strategic

choice is made, an accused faces no dire consequences

merely because his case is tried to the court. The same

evidentiary rules apply, and the accused may benefit from

having the facts of his case presented to a fact finder

who understands the law better than a jury would. A

trial to the court may afford an accused a better oppor-

tunity of being acquitted, since a trial judge, accustomed

to weighing testimony and determining the credibility of

witnesses, would be less likely to convict someone before

weighing all the evidence carefully.

No doubt all of the arguments for and against a trial

by jury were weighed by the Respondent and his retained

attorney. The decision to waive a jury and proceed with

14

a trial to the court was patently decided in the knowledge

that a trial judge would not be inflamed by testimony that

Respondent had attempted to stab the complainant in the

back (and had stabbed him on the chest instead) in a

petty argument which started when someone urinated on

or near a van. Respondent and his attorney knew that

a jury would be influenced by the fact that he was on

probation for possession of heroin at the time of the

assault. A jury might have found him guilty of the assault

based on the probation, whereas an experienced trial

judge could put the probation in its proper perspective.

The case at bar does not involve a situation as in

Baldwin v. New York, supra, where a statute prohibited

a jury trial in misdemeanors even to those who demanded

it by written pretrial motions. Indeed, the record in the

case at bar is silent, perhaps because the waiver was done

orally in court before the court reporter began to take

testimony. And, in light of the lack of any requirements

of admonishments or approval by the court or State’s

attorney, is it any wonder that neither the State nor the

court sought to put this waiver in the record?

But the requirements of Baldwin, supra have been met.

Everything in the record is consistent with the fact that

the Respondent was given the opportunity for a jury

trial. Testimony was heard. Both sides presented evidence.

Respondent’s trial counsel cross-examined witnesses. It is

true the record is silent as to whether the accused waived

his right to a trial by jury orally. But it hardly seems

conceivable that Respondent and his trial counsel sat

through the entire proceedings without noticing a jury

was absent and without voicing an objection if a jury was

desired.

15

The record is devoid of any objection that Respondent

desired a jury trial but was denied an opportunity of one.

The matter was not even raised at Respondent’s motion

for new trial or at the first amended motion for new trial

or at the time the court overruled the Respondent’s mo-

tion for new trial almost three months after the case was

tried. The sentence reflects that Respondent was asked

by the court “whether he had anything to say why sen-

tence should not be pronounced against him, and he

answered nothing in bar thereof.” Neither was the issue

of waiver of trial by jury raised by a bill of exceptions.

The issue appeared for the first time on appeal. Having

been guided through the judicial process by counsel at

every stage, the “inescapable conclusion” is that Respond-

ent received what he asked for, a waiver of trial by jury

in favor of a trial “to the Court.”

In 1938, the U.S. Supreme Court, in deciding that a

trial by jury could be waived, said in Patton, supra

that thanks to “the humane policy of modern criminal

law”, the bar of waiver of rights was no longer necessary

because the reasons for it had changed. The court noted

that the accused could testify in his own behalf. If he

were too poor, he would be provided with an attorney

and his witnesses would be summoned and paid for by

the State.

Since Patton, society has changed considerably. With

the advent of television the world has grown smaller.

Millions of people, many of them unable to read or write,

have daily access to information. It is through television

that everyone, regardless of ethnic background or educa-

tion, has been able to see man walk in space and on the

moon. Through television and the numerous programs

dealing with lawyers and the law it is incredulous to

16

believe that anyone in our society does not know that

he or she has a right to a trial by jury.

If the lay person is aware of his rights to a greater

degree than ever in the history of the world, it is not too

much to presume that Respondent and his counsel dis-

cussed these rights, and then intelligently waived that

right to a trial by jury. The fact that Respondent’s trial

counsel did not object to the absence of a jury or request

a jury is mute testimony of his client’s intent. More

importantly, and the central issue herein, is that Re-

spondent has never complained that the trial court did

not admonish him that he had a right to a jury trial.

CONCLUSION

For the aforesaid reasons, the Court should grant the

petition for writ of certiorari.

Respectfully submitted,

JOHN B. HOLMES, JR.

District Attorney

Harris County, Texas

WINSTON E. CocHRAN, JR.

ROBERTO GUTIERREZ

Assistant District Attorneys

CALVIN A. HARTMANN

Assistant District Attorney

Chief of the Appellate Section

Counsel of Record

201 Fannin, Suite 200

Houston, Texas 77002

Tel.: 713/221-5826

Attorneys for Petitioner

A-1

APPENDIX A

NO. 546-82

DANIEL P. SAMUDIO, Appellant

v.

THE STATE OF TEXAS, Appellee

Petition for Discretionary Review from the Court

of Appeals, First Supreme Judicial District of Texas

(Harris County)

OPINION ON STATE’S PETITION

FOR DISCRETIONARY REVIEW

Trial was before the court upon appellant’s plea of

not guilty to assault, a Class A misdemeanor. V.T.C.A.

Penal Code, Sec. 22.01(a)(1). After finding appellant

guilty, the court assessed punishment at one year, later

reduced to six months. The conviction was reversed by

the Court of Appeals for the First Supreme Judicial Dis-

trict. We granted the State’s petition for discretionary

review in order to examine the Court of Appeals’ holding

that appellant did not waive his right to trial by jury

despite his counseled acquiescence to a non-jury proceed-

ing.

As the Court of Appeals correctly observed, a de-

fendant in a misdemeanor case has the same right to

a trial by jury as a defendant charged with a felony.

Franklin v. State, 576 S.W.2d 621. Under Art. 1.13,

V.A.C.C.P., a defendant charged with a felony less than

capital may waive his right to jury trial, but the waiver

must be made in person by the defendant in writing in

A-2

open court with the consent of the court and the State.

Waiver of jury trial in misdemeanor cases is not governed

by statute and does not have to be in writing. Lamb v.

State, 409 S.W.2d 418.

Both parties are agreed that the record contains no

evidence showing that the appellant, either orally or in

writing, expressly waived his right to a jury trial. The

judgment contains the form recitation, “No jury having

been demanded . . .” and the docket sheet states, “pled

not guilty to the Court.” Neither of these writings evi-

dences an express waiver by the appellant. The Court of

Appeals rejected the State’s argument that an oral waiver

could be inferred from appellant’s participation, without

an objection from counsel, in the non-jury proceedings.

The State also contended that in the face of a silent

record at trial there is a presumption of regularity on

appeal, and that appellant had improperly “hidden behind

the log” by failing to object to the absence of a jury until

the case reached the appellate level.

The Court of Appeals also rejected these arguments

and held that as a matter of federal constitutional law

the State must establish through the trial record a know-

ing, intelligent, and express waiver of jury trial by the

defendant.

In Duncan v. Louisiana, 391 U.S. 145, the United

States Supreme Court concluded that trial by jury in

criminal cases is fundamental to the American scheme

of justice and thus held that the Fourteenth Amendment

guarantees a right of jury trial in all criminal cases in-

volving non-petty offenses, whether the crime charged

be labeled a felony or a misdemeanor.

A-3

In Baldwin v. New York, 399 U.S. 66, the Supreme

Court held that no offense can be deemed petty for

purposes of the right to trial by jury where imprison-

ment for more than six months is authorized. In Texas,

Class A misdemeanors are punishable by a fine not to

exceed $2,000.00, confinement in jail for a term not to

exceed one year, or both. V.T.C.A. Penal Code, Sec.

12.21,

The Supreme Court has also established standards

governing waiver of the right to jury trial and other rights

essential to a fair trial. Since the Supreme Court has

made no distinction between felonies and misdemeanors

with respect to the point at which the right to a jury

attaches, we see no logical reason to make such a dis-

tinction with respect to the standards governing waiver

of the right to jury trial.

In the leading case of Patton v. United States, 281

U.S. 276, the Supreme Court stated:

“Not only must the right of the accused to a trial

by a constitutional jury be jealously preserved, but

the maintenance of the jury as a fact-finding body

in criminal cases is of such importance that, before

any waiver can become effective, the consent of

government counsel and the sanction of the court

must be had, in addition to the express and intelligent

consent of the defendant.” 281 U.S. 276 at 312

(Emphasis added).

It is extremely doubtful that consent of the court and

prosecutor remains a federal constitutional prerequisite to

effective waiver of jury trial.

In Singer v. United States, 380 U.S. 24, for instance,

the defendant challenged the constitutionality of Fed. R.

A-4

Crim. Pro. 23(a) which requires the consent of the

prosecutor and the court before an accused can waive

jury trial.

The Supreme Court cited Patton, but rather than hold-

ing that the Constitution required the rule in question

the Court found no constitutional impediment to the

federal criminal procedure.

The requirement in Patton of an express, intelligent

waiver on the part of the defendant, however, is still

intact. The great majority of state and federal cases dis-

cussing waiver of jury trial recognize Patton as the lead-

ing case on the subject. See, for example, United States

v. Baccaro, 489 F.2d 274 (10th Cir.); Taylor v. State,

Wyo., 612 P.2d 851; Short v. Commonwealth, Ky., 519

S.V".2d 828; State v. Olivera, Hawaii, 497 P.2d 1360.

While the various state and federal courts considering

the matter have developed different guidelines for deter-

mining proof of waiver, based partly on differing pro-

cedural statutes, insofar as we have researched the deci-

sions of other forums, all are agreed that waiver of jury

can never be presumed from a silent record, at least on

direct appeal. Johnson v. State, Ga. App., 276 S.E.2d

667; Countess v. State, Md. Ct. App., 408 A.2d 1302;

State v. Irving, Kan., 533 P.2d 1225; People v. Bradly,

Ill. App., 266 N.E.2d 469,

In Johnson v. Zerbst, 304 U.S. 458, 464, which in-

volved waiver of the right to counsel, the Supreme Court,

relying in part on Patton, held that to establish such a

waiver the State must demonstrate, “an intentional re-

linquishment or abandonment of a known right or privi-

lege.” The Court also noted that courts indulge every

A-5

reasonable presumption against waiver of fundamental

rights.

In Carnley v. Cochran, 369 U.S. 506, the Supreme

Court held that waiver of the right to counsel cannot be

presumed from a silent record. Our Court cited Carnley

and applied it to jailable misdemeanors in Warr v. State,

591 S.W.2d 832.

In Boykin v. Alabama, 395 U.S. 238, the Supreme

Court held that a knowing and voluntary guilty plea

cannot be presumed from a silent record because, inter

alia, by entering such a plea the accused waives his right

to jury trial.

The inescapable conclusion from the foregoing deci-

sions is that the United States Supreme Court applies

the same rule to the waiver of the right to trial by jury

that it does to the waiver of the right to counsel (Johnson

v. Zerbst, 304 U.S. 458) in that such waiver cannot be

presumed from a silent record. Carney v. Cochran, 369

U.S. 506. See Warr v. State, 591 S.W.2d 832.

The State relies on Buck v. State, 599 S.W.2d 810

where only five jurors remained after both sides exercised

their challenges in a misdemeanor case.’ Both sides agreed

in open court, with the defendant being present, that trial

would be with five jurors. We held that under these cir-

cumstances where the defendant went to trial with a jury

of five without making any objection known to the trial

court, his action constituted a waiver. Insofar as Buck

may be in conflict with the holding herein, the decisions

of the United States Supreme Court heretofore delineated

require that decision be overruled.

1. See Ballew v. Georgia, 435 U.S. 323, 98 S.Ct. 1029.

A-6

In the instant case we have only a silent record before

us. The State has failed to meet its constitutional burden

of establishing waiver of jury trial.

Our decision is based on what we perceive to be a

fundamental federal constitutional requirement.’

The judgment of the Court of Appeals is affirmed.

TOM G. DAVIS, Judge

(Delivered February 9, 1983)

EN BANC

2, Under Baldwin v. N.Y., supra, this decision applies to mis-

demeanors where imprisonment for more than six months is authoried.

B-1

APPENDIX B

Damiel SAMUDIO, Appellant,

v.

The STATE of Texas, Appellee.

No. 01-81-0267-CR.

Court of Appeals of Texas,

Houston (1st Dist. ).

May 13, 1982.

Before EVANS, C. J., and DOYLE and STILLEY, JJ.

OPINION

EVANS, Chief Justice.

As a result of a fight, during which the complaining

witness was stabbed with a knife, the appellant was

charged by information with the misdemeanor offense of

assault with intent to cause bodily injury. After a trial

to the court, the appellant was found guilty, and his

punishment was assessed at one year confinement in jail.

However, the trial court later reformed the judgment,

reducing the appellant’s punishment to six months con-

finement.

In his first two grounds of error, the appellant contends

that the trial court erred in proceeding to trial without a

jury, asserting under these points that the record does not

reflect a waiver of his right to a jury trial.

B-2

Except in certain instances not pertinent here, a de-

fendant’s right to a trial by jury in a criminal case is a

fundamental right guaranteed under the Sixth and Four-

teenth Amendments of the United States Constitution.

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20

L.Ed.2d 491, (1968), reh. den., 392 U.S. 947, 88 S.Ct.

2270, 20 L.Ed.2d 1412. This right is expressly recog-

nized by our Texas Constitution, art. 1 § 15, and in our

Texas Code of Criminal Procedure, art. 1.12. A defend-

ant in a misdemeanor case has the same right to a trial

by jury as a defendant charged with a felony offense.

Franklin v. State, 576 S.W.2d 621 (Tex. Cr. App. 1978).

The right to a trial by jury may, however, be waived

pursuant to the provisions of art. 1.13, Tex. Code Crim.

Pro. Ann., which provides:

Art. 1.13. Waiver of trial by jury. The defendant

in a criminal prosecution for any offense classified

as a felony less than capital shall have the right, upon

entering a plea, to waive the right of trial by jury,

conditioned, however, that such waiver 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. The consent

and approval by the Court shall be entered of record

on the minutes of the court, and the consent and

approval of the attorney representing the State shall

be in writing, signed by him, and filed in the papers

of the cause before the defendant enters his plea.

Before a defendant who has no attorney can agree to

waive the jury, the court must appoint an attorney

to represent him.

In a misdemeanor case, the waiver of a jury trial need

not be in writing. United States v. Smith, 523 F.2d 788

B-3

(Sth Cir. 1975); Lamb v. State, 409 S.W.2d 418 (Tex.

Cr. App. 1976). However, mere acquiescence in a non-

jury proceeding does not constitute a waiver, and unless

the defendant expressly waives the right, the trial must

be to a jury even though judgment erroneously recites that

the right was waived. Dillon v. State, 165 Tex. Cr. R.

217, 305 S.W.2d 956 (1957).

The printed form of judgment used in the case at bar

recites that, “no jury having been demanded, trial pro-

ceeded before the Court .. . ,” and a docket sheet nota-

tion also indicates that the trial was to the court. How-

ever, the record does not contain any evidence showing

that the appellant, either orally or in writing, expressly

waived his right to a jury trial.

The State, with commendable candor, admits in its

brief that the judgment recitation is not evidence of an

express waiver, and that the record is silent as to whether

the appellant orally waived his right to a trial by jury.

It is the State’s position, however, that an oral waiver

should be inferred from the fact that the appellant and

his trial counsel participated, without objection, in the

non-jury proceedings, and made no complaint regarding

the non-jury trial until the filing of this appeal. In support

of its position, the State cites Buck v. State, 599 S.W.2d

810 (Tex. Cr. App. 1980), in which the appellant con-

tended that he had been denied his constitutional and

statutory rights to a jury trial because he was tried by a

jury of five persons rather than six. In Buck, the judgment

was affirmed on the rationale that the defendants, having

agreed through their attorneys to a trial before a five-

person jury, and having participated throughout the trial

B-4

without objection, had effectively waived their right to a

six-person jury.

The State’s argument has been well presented and is

quite persuasive. However, the circumstances in the case

at bar are distinguishable from those in the Buck case

upon which the State relies to support its position. In

Buck, the defendant chose and received a trial by jury,

albeit an irregular jury, and the defendant’s counsel ex-

pressly agreed to the trial before a five-person jury. In the

case at bar, the record does not reflect that either the

appellant or his counsel expressly agreed to waive a jury

trial.

In cases involving the right to counsel, it has been

stated that the waiver of fundamental constitutional rights

should not be lightly inferred, Parker v. State, 545 S.W.2d

151 (Tex. Cr. App. 1977), and that such a waiver will

not be presumed from a silent record. Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Similarly, the right to trial by jury cannot be inferred

from mere acquiescence in a non-jury proceeding, Dillon

v. State, supra, and the record must affirmatively show a

knowing and intelligent waiver by the defendant. Schneck-

loth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973).

In the case at bar, the record does not affirmatively

show that the appellant expressly waived his right to a

trial by jury, and the appellant’s first and second grounds

of error must, therefore, be granted.

In his third ground of error, the appellant contends

that the trial court erred in finding him guilty as charged

in the information, because the evidence did not show that

B-5

the complainant and the witness at trial were the same

person, and because the witness testified that he was at-

tacked on a date different from the date alleged in the

information.

The information alleged that the appellant intentionally

and knowingly caused bodily injury to Eugene Lorenzo,

Jr., the complainant, by stabbing him with a knife on or

about August 29, 1980. At the trial, the witness testified

that his name was Eugene Lorenzo, and that during the

early morning hours of August 30, 1980, the appellant

stabbed him, and that he made complaint against the ap-

pellant because of the stabbing.

Under the evidence in the record, there is no material

variance between the name of the person alleged in the

information as the complainant and the witness who testi-

fied he was the victim of the appellant’s wrongful act.

Hardin v. State, 88 Tex. Cr. R. 495, 227 S.W. 676

(1920); Adams y. State, 300 S.W. 78, 108 Tex. Cr. R.

314 (1927). Neither is there a material variance between

the date alleged in the information and the date upon

which the complaining witness testified the attack oc-

curred. This ground of error is overruled.

The judgment of the trial court is reversed, and the

cause is remanded for a new trial.