Ex Parte James Earl SADBERRY
No. 71761
Court of Criminal Appeals of Texas, En Banc.
Nov. 3, 1993
541, 542, 543, 544, 545, 546
Brown is distinguishable from the instant case. In Brown the name of the complainant was changed, whereas in the instant case the name of the defendant was changed. The change of the complainant‘s name may be an amendment to the indictment under art. 28.10. See, Ward v. State, 829 S.W.2d 787 (Tex.Cr.App.1992); and, Brown v. State, 843 S.W.2d 709 (Tex.App.—Dallas 1992) (opinion on remand). However, correcting the indictment to reflect the true name of the defendant does not constitute an amendment, Kelley, 823 S.W.2d at 302, rather such a correction is a ministerial act under
For these reasons, appellant‘s sole ground for review is overruled and the judgment of the Court of Appeals is affirmed.
Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
MALONEY, Judge.
This is a post-conviction application for writ of habeas corpus filed pursuant to
Applicant contends that his conviction is invalid because he never executed a written waiver of jury as required by
[Trial judge]. Do you also understand that you have the right to have a trial by jury in this case both as to your guilt or innocence and as to the punishment to be assessed, if any?
[Applicant]. Yes, sir.
Q. And you waive that right?
A. Yes, sir.
The trial court entered a finding of fact that applicant “knowingly waived his right to a jury but failed to sign a written waiver.” Applicant did not raise the issue of his failure to sign a jury waiver until this writ application. This application presents the issue of whether we will grant post-conviction habeas corpus relief for an applicant‘s failure to sign a jury waiver.
In Ex parte Collier, 614 S.W.2d 429, 434 (Tex.Crim.App.1981), we addressed whether relief was available by post-conviction writ of habeas corpus on the grounds that the State‘s attorney, though consenting to the jury waiver, had failed to sign the written form as required by article 1.13.2 We held that
in the absence of a showing of harm a valid conviction may not be set aside by habeas corpus or collateral attack merely because the State fаiled to sign the jury waiver of a defendant as required by Article 1.13, V.A.C.C.P., where the evidence does show that the State did in fact agree to such waiver.
Id. This conclusion is consistent with the underlying purpose to be served by the availability of post-conviction writ of habeas corpus. Use of the writ has traditionally been restricted to instances where the trial court‘s judgment is vоid, and cannot be invoked for mere irregularities in the proceedings below. See, e.g., Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Crim.App.1989) (habeas corpus available only to review jurisdictional defects or denials of fundamental or constitutional rights); Ex parte Watson, 601 S.W.2d 350, 352 (Tex.Crim.App.1980) (habeas corpus review only available for questions of jurisdictional defect or denials of fundamental or
Habeas corpus lies only to review jurisdictional defects or denials of fundamental or constitutional rights.
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When a defect in the conduct of a proceeding is challenged, a collateral attack by habeas corpus may be invoked only where the error renders the proceedings absolutely vоid. [citations omitted] Defects in a proceeding designated as irregularities, consisting of the want of adherence to some prescribed rule or mode of proceeding, either in omitting to do something that is necessary for the orderly conduct of a suit or doing it at an unreasonable time or in an improper manner do not render the proceeding void. [citations omitted]
Shields, 550 S.W.2d at 675. This case does not involve a question of constitutional dimension; it involves an irregularity in the proceedings in the trial court. Neither the federal nor the state constitution require that a trial by jury be waived in writing. Rather, the legislature has chosen to observe careful regulation of that constitutional right by specifying how that right may be waived. Sеe Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App.1993). Applicant does not contend that he was denied his constitutional right to a trial by jury or that he did not agree to waive that right; rather, he claims his conviction should be set aside because his signature does not appear on the statutorily prescribed jury waiver form. While we do not sanction noncompliance with procedural rules designed to sаfeguard constitutional rights, the writ was not intended to provide for relief for such noncompliance where the record is otherwise clear on the rights to which the procedural formalities pertain. Accordingly, we hold that where the applicant does not claim he desired and was deprived of his constitutional right to a trial by jury, that he did not intend to waivе a jury trial or that he was otherwise harmed, and the record reflects that the applicant agreed to the waiver, we will not set aside a conviction by habeas corpus or collateral attack due to the applicant‘s failure to sign a written jury form pursuant to article 1.13.3 By so holding, we overrule Ex parte Felton, 590 S.W.2d 471 (Tex.Crim.App.1979), to the extent that it holds relief is available by post-conviction writ of habeas corpus for the failure of a defendant to sign the written jury waiver form where the record reflects that the defendant agreed to the waiver and does not claim he desired and was deprived of a trial by jury, or that he was otherwise harmed.4
CLINTON, Judge, dissenting.
The majority holds applicant‘s claim that his conviction should be overturned because his waiver of jury trial was not in writing, as required by Articles 1.13 and 1.15, V.A.C.C.P., is not cognizable in an application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P. It is not cognizable, the majority holds, because neither the United States Constitution nor the Constitu-
I.
In Ex parte Banks, supra, at 540, we reiterated the “traditional” view of cognizability, viz: that “habeas corpus is available only to review jurisdictional defects or denials of fundamental or constitutional rights.” It seems to me that what the Court identified in Ex parte Felton, supra, was, if not a jurisdictional defect, at least an error of fundamental, albeit not constitutional, dimension. The applicant in Felton claimed that the absence of his signature on the jury waiver form rendered his conviction “void.” Id., at 471. While not expressly agreeing that this was so, the Court nevertheless invoked the clear language of both Articles 1.13 and 1.15, supra, mandating, respectively, that a jury waiver “must be made in person by the defendant in writing[,]” and that “[n]o person can be convicted of a felony” without such a waiver “in writing[,]” to hold that Felton was entitled to the relief he sought. The judgment was set aside. Cf. Boyd v. State, 660 S.W.2d 820 (Tex.Cr.App.1983) (collateral attack upon prior conviction used for enhancement allowed on the basis that no written jury waiver was obtained); Lopez v. State, 708 S.W.2d 446 (Tex.Cr.App.1986) (claim that сonviction was unsupported by written jury waiver entertained, albeit rejected, even though raised for the first time in petition for discretionary review). Unless it is to hold that Felton was mistaken thus to identify failure of the State to secure a jury waiver in writing as error of a fundamental nature,* the majority cannot even overrule it consistently with Ex parte Banks, much less on authority of Banks. The majority errs even under the regime of cognizability of claims on post-conviction collateral attack presently in place.
II.
Over the past several years in a number of separate opinions I have advocated a somewhat different view of post-conviction habeas cognizability. As it has evolved, probably the most prominent feature of this view of cognizability is an insistence that the State‘s legitimate interest in the finality of convictions ought to be the linchpin of cognizability analysis. Because I believe Articles 1.13 and 1.15 represent a legislative declaration that the State has no legitimate interest in the finality of a judgment of conviction obtained without a jury if there was no written jury waiver, I would hold applicant‘s claim here cognizable.
Prior to the “advent of the Substantial Federal Question” in post-conviction habeas corpus, this Court limited its review to the question whether a claimed defect was such as to render the underlying conviction void, rather than merely voidable. Ex parte Crispen, 777 S.W.2d 103, 106 (Tex.Cr.App.1989); Ex parte Banks, supra, at 545-47 (Clinton, J., dissenting). Indulging the fiction that any error of federal constitutional dimension was sufficient to render a conviction “void,” in recent decades this Court has entertained countless applications for writ of habeas corpus raising any manner of such claim. Ex parte Crispen, supra. This is true even though we have held that error arising under our own state constitution must be such as to render a conviction void to be cognizable under Article 11.07, supra, and that any er-
To stem the tide, in recent years I have suggested that we limit cognizability оf federal constitutional claims to those that are “exceptional;” that is to say, those implicating rights or requirements of such a “character or magnitude that we are obliged to say that our interest in rectifying [them] overcomes [the State‘s] otherwise compelling finality interests.” Ex parte Goodman, 816 S.W.2d 383, 388 (Tex.Cr.App.1991) (Clinton, J., concurring). By and large a federal constitutional claim is of this chаracter if the right or requirement it implicates is so fundamental to the fair operation of the system as to be 1) immune from procedural default, 2) not subject to a harm analysis, and 3) fully retroactive in application. Id. I would also adopt a doctrine of excuses, entertaining any federal constitutional claim recognized as of the time of trial but fоr which a record could not have been made, despite due diligence of the accused, in time to preserve the error for direct appeal. Ex parte Dutchover, supra, at 79 (Clinton, J., concurring); Ex parte Goodman, supra, at 387-88.
It is not just constitutional claims, however, that may be of sufficient import as to defeat otherwise legitimate finality interests. In Marin v. State, 851 S.W.2d 275 (Tex.Cr. App.1993), we recognized that “the system ... includes a number of requirements and prohibitions which are essentially independent of the litigants’ wishes.” Id., at 279. Such “absolute” or “systemic” requirements may be creatures of statute alone, but they are nevertheless subject to neither forfeiture nor even express waiver, and at least in some cases they cannot be subjected to harmless error review. Id., at 280, 279 & 281-82, respectively. It is evident to me from the plain language of Articles 1.13 and 1.15, see Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App. 1991), that the Legislature meant to enact a fundamental systemic requirement that any waiver of jury be executed in writing before a judgment of conviction may be predicated thereon, whether or not the accused asked for it—indeed, even if he expressly eschewed it. Moreover, we have already held, on authority оf Marin, supra, that this requirement is not subject to a harm analysis under
It is true we have held that claims that other requirements of Articles 1.13 and 1.15, supra, have beеn violated are not cognizable in post-conviction collateral attack, at least absent a showing of harm. E.g., Ex parte Collier, 614 S.W.2d 429 (Tex.Cr.App.1981) (requirement that “consent and approval of the attorney representing the State” to the defendant‘s waiver of jury trial be “in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.“); Ex parte Aaron, 691 S.W.2d 680 (Tex.Cr.App.1985) (requirement that trial court give written approval to defendant‘s waiver of confrontation rights and consent to stipulate evidence). Indeed, we have apparently held that the absence of the prosecutor‘s written consent is not even a defect which the accused can claim on direct appeal. Shaffer v. State, 769 S.W.2d 943 (Tex.Cr.App. 1989), aff‘d on rehearing, 780 S.W.2d 801. Moreover, the requirement that thе accused execute any waiver of his right to a jury trial in writing is neither a state nor federal constitutional prescription.
Nevertheless, as the Court pointed out in Meek, supra at 870, the requirement of a written jury waiver, albeit statutory, was intended to preserve the inviolability of the accused‘s constitutional right to a jury trial, as per the mandate of Article I, §§ 10 and 15 of the Texas Constitution that the Legislature “pass such laws as may be needed to
Because the majority does not, I respectfully dissent.
Antoine Delano CAW, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 369-93, 370-93.
Court of Criminal Appeals of Texas, En Banc.
Nov. 3, 1993.
John D. Nation, Dallas, for appellant.
John Vance, Dist. Atty., Michael J. Sandlin & Mary Miller, Asst. Dist. Attys., Dallas, Robert Huttash, State‘s Atty., Austin, for State.
ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
Appellant‘s petition for discretionary review refused.
DISSENT TO REFUSAL OF APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MALONEY, Judge, dissenting.
Because the Court of Appeals’ opinion in this case is in conflict with Cole v. State, 839 S.W.2d 798 (Tex.Crim.App.1992) (op. on reh‘g), and its resolution under Garcia v. State, No. 1095-92 slip op., 1993 WL 366511 (Tex.Crim.App. Sept. 22, 1993), is questionable, I dissent to the majority‘s decision to refuse review.
In Cole, we considered the admissibility, under Rule of Criminal Evidence 803(8)(B), of reports prepared in a Department of Public Safety Crime Laboratory, reflecting the results of tests run on blood, seminal fluid, spermatozoa, and foreign hair samples, where the conducting chemist did not testify at trial. We concluded the reports were inadmissible in thе absence of the conducting chemist:
The items upon which the tests were performed were collected as part of investigating a crime, and the reports prepared by the DPS chemist were unquestionably a product of evaluating the results of that investigation. Furthermore, and perhaps most importantly, the reports were not preparеd for purposes independent of specific litigation, nor were they ministerial, objective observations of an unambiguous factual nature. Therefore, we find that the letter reports in the instant case fail to satisfy the requirements of TRCE 803(8)(B), since they constitute “matters observed” by “other law enforcement personnel,” and are therefore inadmissible.