Hatch v. State

8(c) the ef- tively amend to coincide with legislature In this situation the did indecency in the list to Art. include with a child dates of the 1993 amendment not fective ineligible 3g. offenses- when it created mandatory supervision exclusions from persons of inde- Consequently, convicted arguendo Assuming legislature 1987. 23, May child committed cency with a before indecency with a intend to 1993 did include mandatory super- 1997, be released on must eligible list of not child offenses served, plus time once their actual vision in fail mandatory supervision, its error credits, equal the sen- time good and work statute, previous amend a not in enact ing to tence assessed.4 ing provisions new which failed to effect The Texas Applicant is entitled to relief. provisions. intent of the new We believe Justice, institutional Department interpret principle applies result” “absurd division, applicant immediately release do, legislature not what it ing what the did supervision has for- mandatory unless he on do, apply and does in this situa failed to not good times for misconduct feited institutional 782, Boykin v. tion. 818 S.W.2d See that his total are less than three credits (Tex.Cr.App.1991). years. compli- Finally, the 75th has opinion Copies of this shall be sent by amending of this cated resolution matter Justice, 8(c) insti- Department of Criminal with to include offenses of murder child, parole tutional and divisions. passion indecency sudden with 23,1997, May including provi- effective but change in

so that this amendment not a “is rather

the law but confirms that inmates those ineligible

convicted of offenses are mandatory supervision, consistent

release Legislature, Reg- intent of the

with the 73rd Session, 1993,

ular evidenced the addi- 3g....”

tion of those offenses to Section (1997).3 432, 2, Leg. Tex. H.B. 75th Lynn HATCH, Appellant, Michael Although proviso appears v. Attorney approve opinion, one General’s The STATE of Texas. legislature session of the have the does not session, No. past to declare intent of a 976-96. legislative and a construction of an act Texas, Appeals Court of Criminal legislature uniformly another held to be En Banc. weight. Compa entitled to little Rowan Oil Commission, ny Employment v. Texas Dec. 1997. (1953); see Tex. Snyder Compton, 87 Tex. 28 S.W. (1894).

1061, 1062 Additionally, legislature retroactively punishment make a application good changing

more severe — Mathis, U.S. -, Lynce time laws. (1997). 891, 137 There S.Ct. L.Ed.2d

fore, proviso in H.B. retroac- are no or war- amendment failed note that Art. 42.18 4. Provided there other convictions This confinement, authorizing their was elsewhere recodified Tex. S.B. 898 rants continued parole panel §§ Gov’t.Code has not determined such as V.T.C.A. and a 508.141—508.323, endanger public the of- §§ release would but Tex. S.B. Septem- having or after amendments in other bills fense been committed on notwithstanding the recodifi- See V.T.C.A. Gov’t. would be effective ber 508.149(b). cation.

Relying on this Court’s recent decision (Tex. Hernandez, parte Ex 906 S.W.2d 931 Cr.App.1995), Appeals ap- the Court of held pellant could not waive the . 36.29(a), V.A.C.C.P.,

Article that no less than felony render a verdict ain 98, case. Hatch 36.29(a) 1996); (Tex.App.—Dallas see Article (not less than twelve can render and case). return felony a verdict in a The Court Appeals reversed the conviction and re- grant- manded the for a new trial. cause We petition discretionary ed the State’s for re- view to reexamine our decision Hernandez again question and to once reexamine the whether a defendant waive his right under Article to a twelve members. Hernandez, Court held defendant right

could not his waive to a members. 906 S.W.2d at 932. Anton, Dallas, appellant. Bruce for We based our decision Hernandez on 303, Jones 52 Tex.Crim. 106 S.W. Urbach, Lara Atty., Greer Asst. Dist. Dal- (1907) 345, 5, (op. reh’g), and Article las, Austin, Paul, Matthew Atty., State’s for 13, Constitution, Section' State. provides petit jury that a in a district court persons. shall How- ever, the State now claims that our reliance OPINION ON STATE’S PETITION FOR misplaced Hernandez on Jones was be- DISCRETIONARY REVIEW subsequent statutory developments cause of McCORMICK, Presiding Judge. that have occurred since Jones was decided. A jury appellant convicted .of Jones, agree. We this Court held a delivery offense of of cocaine and the court defendant not waive to trial could his sentence, prior assessed a enhanced two Jones, case. See felony convictions, twenty years’ confine7 decided, at 347. Jones was S.W. When ment. appel- The record reflects that after statute “defen- began, appellant lant’s trial the State and prosecution dant a criminal offense agreed proceed with eleven after it law, any right him by waive secured to was learned one was not a except by jury of trial United States citizen.1 The eleven member Jones, case.” at 347. guilty returned a unanimous verdict. decided, since Jones several appeal, appellant’s point significant statutory developments pursuant

On direct sole error claimed the had no to ren- to constitutional have occurred ader verdict because it was of less which have rendered Jones obsolete. We pro- appel- pertinent than twelve The State first set out the constitutional claimed lant jury composed waived the of visions. Article Section of the Texas Constitution, part provides that in twelve members. in relevant pro- county to vote Section 62.102 of Government Code the constitution laws sejve requirements Thus, vides the minimum threshold juror.” juror which he is to as a juror qualification. It states that a is dis- qualified in the instant case was not to serve on qualified to serve as a he ... "is a unless because she was not a citizen of the county citizen of this state and of the United States. juror;” qualified is to serve as a under "is Procedure prosecutions the accused shall felonies. See of Criminal all criminal R.S., Acts Leg., Act of 59th public impartial Revision speedy have 722; Interpretative see ch. of the Texas (Ver- Special to Article 1.15 Constitution, in Commentaries part provides relevant 1977). Subsequent legislative amend- non’s shall remain invio- culminating in Article 1.15 ments current “Legislature pass late but that the same, the consent of the permit a defendant with regulate be needed laws as to jury to waive trial in all non- prosecution a purity efficiency.” its and to maintain where the capital capital cases and cases And, 5, (Emphasis Suppled). Article Section penalty. prosecution does not the death seek 10, Constitution, part in relevant V.AC.C.P.; 1.13, Article also Article See provides in the trial in the of all causes 1.14,V.AC.C.P. Courts, plaintiff District or the defendant court, shall, upon application open made to Article has been amended Since have the jury noncapital of a in all permit waiver prose- capital felonies and felonies where had held statute This Court penalty, not seek it is a cution does the death prior to the amendments discussed herein Mackey that Arti- logical extension to hold permitted a defendant in all misdemeanor 1.15 carries with it the further to cle jury altogether to waive a car- cases which jury composed persons waive a it the further to a agree ried with to Mackey, felonies. See 151 these jury composed a trial of less than six 1, And, of Article since second sentence State, Mackey members. See 68 Tex. v. 15, statutory authorizes Section waiver 589, 802, (1912); Criara. 151 S.W. 803 Stell felonies, it jury a trial these then also (1883).2 1931, Tex.App. 59 In 14 jury composed the waiver authorizes of a amended to of a permit statute was waiver persons these felonies. See upon plea noncapi- a guilty to a McMillan, 57 S.W.2d at 125. 53, R.S., felony. Leg., tal See S.B. 42nd 1931, 43; addition, ch. see Interpretative pursuant Acts also In to the constitutional Special 1, 15, Commentaries to Article 1.15 in Article which au- Section (Vernon’s 1977). this, jury-waiver Soon after this Court thorized statute Article 1, second decided the sentence of Article carries with further 1.15 which it the 15, granting Section the Legislature agree jury composed the au- to trial a of less than thority regulate by jury, the right persons, Legislature to trial in 1985 also the 1931 permit- authorized amendment enacted Section 62.201 of the Texas Govern- upon plea pro- ted waiver of a a expressly ment Code.3 Section 62.201 guilty noncapital felony. McMillan See vides: 583, 122 Tex.Crim. in a “The district court is (1933) (under the second sentence of Article except persons, parties that the 1, 15, Section not have does agree particular a case with fewer power deny by jury, the right to trial jurors.” (Emphasis Supplied). than 12 have the provide but does for 62.201, “plain” Section right).

waiver of Code, no distinc- Texas Government makes 1965, per- the statute amended to civil criminal cases was tion between 62.201, noncapital nothing mit waiver of trial in all in Section Texas Government applied say 2. These cases Texas Code of Criminal a defendant can waive a Procedure, 22, case; Article says misdemeanor conviction predecessor to current Article V.A.C.C.P. requires of such verdict. The absence person Article no "can be con- implied for misdemeanor cases felony except upon victed of a the verdict of a no such there was restriction on misdemeanor jury duly rendered and When the recorded.” general right defendant’s of waiver. said, Mackey provides that Court in statute "[o]ur appellant case can waive a misdemeanor Leg., 69th Section effec- 3. Acts ch. altogether,” referring it seems to have been September tive Mackey, Article 22. See S.W. at to citing Stell, Tex.App. literally 59. Article Code, anything conflicts with dissenting opinions Article imply that the Texas Code of Criminal Procedure. 36.29(a), More- first sentence of requiring Article over, Article Section Texas Code of jurors, verdict of not less than twelve should Procedure, explicit makes reference precedence take over. Section 62.201 because Chapter 62 of the Texas Government Code they subject deal with the same and cannot general provisions sets out the be reconciled. Section 62.201 and petit juries addition, in this state. 36.29(a) the first sentence of Article can be 62.011(a), Code, expressly Texas Government by reading harmonized the first sentence of authorizes a commissioners’ court on “the require verdict recommendation of a of the district jurors in unless the judges district county” to fewer under Section 62.201.4 adopt plan for the selection of names Finally, Judge dissenting opinion Baird’s persons service with the aid of elec- suggests we have created a “fictional distinc- tronic or mechanical equipment instead of tion” right by between waiver of a to be tried drawing names from a per- wheel. We jurors right by and waiver of a to trial why ceive no reason Section 62.201 should very there is a real distinc- apply to criminal eases. by tion between of a waiver to trial dissenting opinions The by filed Judge by waiver of a to be tried Judge Overstreet and claim Baird Section McMillan, jurors. 125; See 57 S.W.2d at 62.201 interpreted should not be to apply to Mackey, 151 at A defendant who criminal cases- bécause it was intended to agrees by to be tried less than twelve apply only to arguments civil cases. These still exercising by jury. is his to trial ignore “plain” language of Section 62.201 foregoing, agree Based we must effectively legislate and would an exception wrongly that Hernandez was decided and State, to Section 62.201. See Garcia v. 829 that our reliance Hernandez on Jones was (Clin- (Tex.Cr.App.1992) S.W.2d 800-01 Therefore, misplaced. we overrule//eman- (this ton, J., concurring) Court has no dez and hold a defendant waive Article “superlegislature” by legislating to act as a 36.29(a)’s requirement that not than exceptions “plain” language of our can return a verdict in a non- enactments). statutory arguments These capital felony case. approach are inconsistent with the Court has taken in other construc- judgment We reverse the of the Court of Johnson, tion cases. See State v. 939 S.W.2d Appeals affirm judgment of the trial (Tex.Cr.App.1996); Daugherty, State v. court. (Tex.Cr.App.1996). 931 S.W.2d 268 In addi- tion, Chapter 62 of the Government Code BAIRD, Judge, dissenting. shows that the knew how to re- example, majority opinion strict statutes to civil cases. For yet The is another at- very tempt next section of the Texas Govern- to circumvent law in fur- Code, ment Section agenda. is restricted to “a therance of a result oriented Legislature’s civil case.” The majority light choice not to “... holds 62.201 Section Code, so restrict Section 62.201 should not be de- of Texas Government and the oth- significance. statutory provisions herein, nied er discussed we Moreover, parties agree the second sentence of Article unless the to fewer by can be construed to stand side side under Section 62.201. If, with Section 62.201. under the second sen- 36.29(a), juror may tence Article “one die or adopt 5. We also note that we here had the rule sitting” be disabled from before the court’s applied been to the facts in the result Hernandez charge proceed is read to the the case can would have State been same because the parties agree. to a verdict whether or not the agree proceed refused to with less than twelve 36.29(c), V.A.C.C.P., necessity and therefore a manifest existed Article also can be con- requiring by strued trial court declare mistrial. to stand side side with Section 62.201. S,W.2d 932; See Under 36.29(c), circumstances described Article 62.201; 1.15; 1.14; required discharge the trial court is Article Article 1.13. A. wrongly de- must that Hernandez was our in Hernandez on and that reliance cided present not relevant to the Art. 1.15 is misplaced. we overrule Therefore Jones applies only to cases tried art. 1.15 because hold a defendant waive Hernandez nothing whatsoever the court has before 36.29(a)’s requirement that not less article which, applies do with in turn can a verdict than twelve return where trial. to cases there is noncapital ease.” at 814. Ante (Tex. Holtzclaw S.W.2d (art. application upon has no majority relying Cr.App.1970) errs controlling regardless punishment whether cases Government jury); Proce- court or Basaldua the Code of Criminal is assessed when (Tex.Cr.App.1972) very same provides authority on the dure (art. non-capi applies only in expressly point. This is done because the waived). why should not cases where has been “perceive no reason tal Therefore, “carry possibly Ante at 816. art. 1.15 cannot apply to cases.” however, are, why reasons it” a There several not, How consisting less than twelve Tex. Gov’t Code 62.201 should ever, mak capable is apply to criminal cases. because law, ing I will the substance this the address Right Jury Felony I. of Trial Case argument. their Right Jury Trial of Twelve B. majority argues Legislature The that the Second, majority pursuant opinion § is incorrect to constitutional enacted agree by can I, that an to a trial authority § found art. 15 of the Texas accused law is clear a repre- of than twelve because case necessarily Constitution and that felony prosecution jury in a must consist par- sents the intent of the that Legislature of try jury composed agree can to less than twelve individuals ties cases with of simply is Un- jurors focusing in all less than twelve not a By twelve cases. exclu- waive, I, § an in en- sively authority questionably, on art. accused 15 as V, majority tirety, right § § to a under both the ignores 13 of his trial art. obvious, Constitution and under the the Texas Constitution and United States States, primary of Texas Constitution. Patton v. United underpinning constitutional § 50 74 L.Ed. 854 ignored § Art. 13 S.Ct. purposefully 62.201. is 281 U.S. State, (1930); v. 312 because it reveals a to the 648 S.W.2d truth antithetical Samudio But, majority’s (Tex.Cr.App.1983) despite the majority’s holding. issue, an attempt confuse the waiver of I, § as the The chooses art. entirety, right by jury, of trial in its accused’s authority attempt to con- in an here. is not at issue tenuous, unprecedented, an fic- struct State, right of trial 161 Tex.Crim. tional distinction between the Clark (1955), case, by jury felony right in a trial this Court held and the S.W.2d of jurors in a by jurors felony Specifical- in a that there be twelve twelve case. ly, they argue “pursuant felony integral right of trial to the constitutional ease is so I, by a verdict less than authority by jury, art. authorized the rendered right jury-waiver jurors vitiates statute in art. 1.15 the defendant’s [Tex.Code twelve judgment by jury so as make the Pro.] Crim. carries with it the trial further Const, V, § Relying on Tex. art. right agree by jury to trial void. persons, legislature twelve in district court shall be less than I, jurors, 15 that enacted the Texas twelve 1985 also 62.201 of inviolate, argu- by remain right Code.” of trial Government Ante at This out of declared that essential ele- “[a]n ment has no basis and is concocted the Court ment, then, jury, right trial thin air. supplied emphasis is indi- cated. 1. All unless otherwise case, is that the approval must he com- the consent and! of the court

posed judg- attorney representing [and][a] the State. Meek v. State, plea (de ment in a case where there is a (Tex.Cr.App.1993) 851 S.W.2d 868 guilty, upon based only a verdict appellant’s nial of right constitutional jurors, eleven is absolutely void.” Id. Im- by jury trial of six without a written waiver portantly, opinion goes error). say, on to “... right of such constitutes reversible any agreement also, have See Townsend [defendant] consenting made (Tex.Cr.App.1993). [to thereto less 470 The defendant than twelve] would be Id.See this case right did not waive either his ineffective.” also, Dunn v. by.jury, matter, Tex.Crim. 242 trial or for that his (1922) (holding S.W. 1049 judgment trial in writing. Because felony case based on a verdict of eleven this case was indeed a trial case which void). absolutely is precludes It application is axiomatic of art. and there is is, then that by jury no written waiver of defendant’s case, premised being on there by jury, either a or trial com posed case, in this the ma

jority’s premise fatally entire flawed and therefore opinion its entire is incorrect. C. Third, majority opinion creates non- Legislative History II. Demonstrates existent nexus between 62.201 and art. Applicable § 62.201 is Not alleged commonality being art. Criminal Cases § 15 as the authority constitutional for both majority argues Legislature that the provisions. wants us to believe pursuant enacted to constitutional I, § if art. permit 15 authorizes art. 1.15 to represents and that it the intent of accused to waive his I, § 15 must also authorize 62.201 to cases with less than twelve in all permit an being accused to consent to tried majority cases. The reasons that because by jury than less twelve. Not § there is in limiting no 62.201 its argument air, originate this in thin it is de- cases, application to necessarily ap- civil it majority ceitful. The couches art. 1.15 as See, plies to both civil and criminal cases. granting an jury accused the waive simplistic reasoning Ante at 814. This exem- is, art. trial. 1.15 in couched fact plifies diligent a lack of research. as a restriction on an accused’s waive a trial: statutory Tex. Gov’t Code and its No with Articles 1.13 and mine]. by jury rendered and except upon court dant, upon entering person ^[2] [3] in in person the verdict recorded, writing be convicted waived his plea, 1.:4 ^[4] unless the defen- ... has in accordance [numbering ^[1] jury duly in felony open Texas Constitution which lative predecessors, bills. but nine Courts Grand and quorum’ authority In trials of civil shall be members to transact business and were enacted petit found in art. composed of a juries provides: grand jury cases, pursuant in the District and in trials 13 of the shall be present legis- men, Conveniently, grade failed to mention cases below the Courts, pursuant 1.15; waiver of a to art. in the District nine members of the verdict, writing, be in in concurring, may MUST accordance with render but fact, jury-waiver 1.13 and 1.14. In “the stat- when the verdict shall be rendered 1.15,” number, majority, art. signed [so ute in called than the it shall be whole 815], actually Ante at by every jury concurring waiver in member forbids When, case, unless the waiver is in pending any accordance with 1.13 it. the trial of accused, three, and 1.14. Art. requires exceeding an in a one or more case, die, expressly may sitting, waive that or disabled from [of by jury] uniting open in in court with remainder of the shall have the case, agree, particular verdict; may by provided, that the consent render try with a less number.3 may modify the rule Legislature change or whole number authorizing less than the of Then, again 69th in to render a verdict. without substan- the statute recodified change, Tex. Gov’t Code tive became I While Tex. Gov’t Code § 62.201.4 provides “The in which a district court persons, except par- of 12 that the suggests “enact- try agree to a case with fewer than ties “statutory in 1985 was ment” in- jurors,” represents Legislature’s intent development” signifying legislative jurors neces- regarding the number of tent try cases with less may consent parties cases, ma- sary in court in civil district court. full in all cases district than a has jority persuade me fails how- Ante at 815. Tex. Gov’t Code fact, any bearing cases. In on criminal “enactment,” ever, far hardly was predecessors always located were Rather, “statutory development.” from a chapters dealing exclusively “juries of an old civil a mere was recodification cases,” long civil as the statute majority’s unsup- than the statute. Other books, has been on the there has been contention, there ported is no indication parallel procedure provision, of criminal code apply to § 62.201was ever intended to crimi- presently Proc. Tex.Code Ann. Crim. fact, of Criminal nal cases. Code 33.01. Procedure, governs pro- criminal cases regarding requisite num- vides originated in Arti- Section 62.201 1879 as and misdemeanor ber of in both chapter cle Eleven the Revised Proc. Tex.Code prosecutions. Crim. of Texas under the title of Statutes “Juries and art. 33.01. Pursuant this Cases,” provided: Civil §in precedent, as discussed IV m- Court’s in the shall be district court fra, provisions control. these men; but the case, agree, particular consent Regarding III. Parallel Provisions to with a less number. Cases Found in Jurors as Rev. recodified Criminal Procedure Civ.St.1911, arts. 5214 and 5216. Rev.Civ.St. Considering pedigree, § 62.201’s could 1911 art. 5214 is found in the Revised Civil which has single find a criminal case Statutes of the of Texas in Title 75 State ” support on it to verdict rendered relied Chapter titled “Juries Civil Cases Likewise, the of less than twelve. and reads: any has cited criminal case for Jury in the in district Court.—The proposition this either. consulted composed shall district courts be V, authority, § art. 62.201’s constitutional men; parties may by the consent but provided any guidance § to see if it case, particular agree, try to with a § criminal cases. applicability 62.201’s to [Const., 5, § less number. art. 13J.2 The section titled “cross references” follow- provision again The was in 1925 as recodified V, § in ing the of art. 13 Vernon’s Annotated Statutes art. Vernon’s Civil Const, Code Ann. Tex. refers Crim. § predecessor The the immediate 62.201. regarding Ann. as law the Proc. art. 33.01 the the language reads same: necessary for a criminal number Legisla- in court. as the The in the shall be case district Just district courts V, men; parties pursuant acted to their art. but the ture art Title Vernon's cited 1911 art. 5216 is also found in Ann.Civ.St. 2.Rev.Civ.St. law, merely prior as combines the lan- pro- Cases—Chapter Civil 75—Juries in Rev.Civ.St.1911, guage 5214 and 5216 arts. "Jury county justices’ vides: courts.—The provisions. back to two and cites the reader those county justices and in in the courts courts peace shall be of six men/’ this was located 4. Prior art 2191. Vernon’s Ann.Civ.St. power they provide jury. when enacted 62.201to lav/ has the Case defined “disabled” for required juror the for exception very narrowly. number a civil In Landrum court, they ease district enacted art. 33.01 v. (Tex.Cr.App. pursuant 1990), provide to art. 13 to explained a: this Court jurors required number of for a criminal ... determination of whether to excuse provides: case in court. district Art. 33.01 36.29(a) juror pursuant to Art. is within court, the district shall consist judge_ the sound discretion of qualified jurors; county However, the statute limits the exercise of courts, court the jury and inferior shall discretion situations where there qualified jurors. consist of six illness, physical exists some mental condi- legislative history of art. 33.01 demon- tion, or emotional state hinders which one’s Legislature strates that the never intended ability perform ju- duties one’s as a parties agree try could criminal cases against any ror. ... Bias for or of the law a full less than Art. 33.01 can be case, an appropriate while traced back to 1879 Code challenge basis on which to a member of appeared Procedure where Title VIII cause, venire render a Incidents,” One, Chapter “Of Trial its jury panel the sworn mentally member of provided: art. impaired that he is disabled as envi- In the district court the shall consist 36.29(a). sioned Art. men; county in the courts and juror in the instant excused courts, inferior consist of six because not a she was United States’ citizen. men. ground appropriate While this reason language, although This recodified 1925 as for challenging a veniremember for cause Ann.C.C.P.1925, Vernon’s is virtual- art. pursuant Proc. to Tex.Code Crim. Ann. art. ly today the same as it was in 1879. Unlike 35.16(a)(1) being qualified as not to vote in very inception, art. from its comity the State or under the Constitution has never certainly and laws of the does not eases with less than twelve juror render under “disabled” art. 36.29. Important involving to this case See, Landrum, 788 S.W.2d at 579. Because prosecution, exercised their apply does not to excuse the V, § enact Tex.Code Crim. ease, instant 36.29(a), dictates, very Proc. Ann. art. that twelve render the verdict specifically, necessary number felony case stands. for a felony case: render Not less than twelve IV. Code Stare .Decisis Dictates return a verdict case. It must of Criminal Procedure Controls signed each concurred Over Texas Government Code foreman; however, provided, when case, pending the trial of one Additionally, already tliis Court has decid juror may sitting die or he disabled from provi ed that a of Criminal Procedure any charge at the of the court time before sion precedence takes over a Texas Govern is of read to the the remainder the provision provisions ment when both Code have the to render shall the deal with In Cantu v. the same issue. verdict; shall but when the verdict be ren- (Tex.Cr.App.1992), the S.W.2d 667 defen number, than the whole it less dered it dant was error contended the signed every be member the judge rely on Tex.Code Proc. Ann. Crim. jury concurring in it.... 35.16(a)(2), juror quali which deals with plain fication in criminal cases because art. According to the of art. 35.16(a)(2) 36.29(a), exception Tex. Gov’t only statutory conflicted with the juror rule, qualifi juror “not twelve” is if one also addressed less than sitting generally, dies or from at time cations both civil and criminal is “disabled” charge of is read to cases. This said: before the the court the Court Id., 685-86, n. This 13. issue 842 S.W.2d at provisions ... the of Articles majority wrong is settled law and the Procedure] the Code of Criminal [of precedent. ignore our juror qualification in’ criminal control cases.... Jones & Hernandez Y. general provision are Good Law

Section 62.102 is Still service, relating many types does, In as it order hold special provision, Article 35.16 is a while Court, of this must overrule recent decision relating only in criminal service (Tex. parte Ex general provision con- cases. Whenever that Her Cr.App.1995). They contend now special provision, or flicts with local because re wrongly nandez was decided if provisions together, should 52 Tex.Crim. be construed lied on Jones (1907) they (Op. Reh’g), possible, given effect. S.W. 345 so that both superseded by the argue 1985 enactment If there exists irreconcilable conflict be- at 62.201. Ante Tex. Gov’t Code general special provisions, tween the supra, As discussed exception prevails. the local An bearing have no on criminal eases principle general exists when both court, predecessors, statutory district but its (1) general provision after is enacted 1879,preceded dating back to Jones. (2) special provision, or local it is provi- manifestly general jury of intended that the Jones was convicted eleven open agreed men court to prevail special provi- after sion over the or local juror’s excuse one because the brother sion. permit- at time had been killed. The law the bar, judge In the case at the trial recon- juries only if ted than provisions the two as ciled follows: or juror was excused for either death twelfth See, disability. Pro. Ann. Tex.Code Crim. THE [BY COURT]: [T]he Government 36.29(a). Since twelfth a ceiling Code is and that in floor by agreement for a rea- Jones was excused case, particularly a trial a criminal disability, or son other than death Court here, case as we have compliance judgment reversed the strict must Code Criminal Procedure take petit that a with the art. 13 mandate precedence. furthermore, And would district court be general doing be more as to what we’re Jones, composed of men. here, relying the Government Code jurors in both civil and criminal cases. predecessor Because analysis. agree with this find that We We at the time Jones was decid- 62.201 existed provisions capable the two are of reconcili- ed, the Court could have used that version pose type ation and do not of irrecon- way that case in the 62.201 to decide cilable conflict addressed Section present ease. majority decides the 311.026(b). encompasses Section 62.102 all event, the Court would have held be- types of trials and is a minimal threshold of eleven to cause Jones consented contrast, By juror qualifications. Arti- him, implicitly against a verdict render disqualifying cle 35.16 stated additional agreed of less than to be tried Jones, to be factors considered criminal cases. twelve. this Court said addition, that “It would seem that the constitutional if the two we find even cited, provisions well as the acts provisions incapable harmoniza- were thereto, place Legislature in obedience tion, manifestly 62.102 is not in- right by jurors felony trial in displace provisions the tended to relevant of party beyond the accused even reach the specific Article and the therefore Jones, at right.” waiving that provisions prevail Article 35.16 would years ago, Judge in 35.16 and McCormick Only cases. Articles two in opinion in Hernandez controlling in this authored the 35.19 are therefore case. this Court its holding right proceed reaffirmed in Jones.5 with a of less Hernandez, empan Additionally, than twelve. articles eled, commenced, the trial and the after first require any and waiver of the testified, juror defense witness informed by writing. trial be in Tex. Gov’t Code judge, the trial presence outside the 62.201 is not to criminal cases jurors, other he disquali that to be "wished applied all cases provi- and which have the juror fied as a appellant’s because he knew are civil sion cases. is not grade father from high school and school. “statutory development” and it was not “en- See, Hernandez, 906 S.W.2d Al at 932. in 1985. acted” Rather it is a recodifkation though Hernandez’s conveyed counsel of an older civil actually pre- statute that objection he had no excusing juror the dates our decision in Jones. from the proceeding and with eleven Finally, this said Court has when the Code jurors, mistrial, the moved for State refus of Criminal the Procedure and Texas Gov- ing proceed mandatory without the twelve matter, ernment Code address the same the 36.29(a). required by as The trial Criminal Code of Procedure will judge excused the as Her biased and See, Cantu, control. 842 S.W.2d at n. argued permit nandez should have been perfectly 13. Clark makes it clear that the by jurors. ted to be tried eleven In Hernan by jury felony trial in case is dez, Judge McCormick stated: by tantamount the of trial twelve commands that a appellant aby Because was tried verdict not be returned than fewer twelve, less than without twelve jurors “may unless one of the authority, the judgment Ap- the Court of die or sitting be from disabled at time peals should be affirmed. charge before the of the court is read to -years Only ago two the jury[.]”. the It is also well established permitted followed the and law prejudice bias or against favor of or State to assert the that there be a disability defendant is not within the prosecution. They 36.29(a). well, meaning of Article Tex- As if, appellant today as much to owe even as Constitution Article states Section 13 time, majori- the law favor does not that, part petit juries “Grand ty’s partisan agenda reaching results District Courts ultimately benefit State. Because men; ...” This re- constitutional fairly fails to this case resolve quirement has been held to be non-waiva- impartially .in with accordance settled ble even with the consent State precedent, I dissent. Accordingly, the trial defendant. judge appellant’s felony could allow not OVERSTREET, dissenting. Judge, proceed with eleven majority’s application dissent to the [internal citations omitted]. Code, § Gov’t disposi- V.T.C.A 62.201 in the law, Judge Id. The same which was clear to tion of this case. I am convinced that we only yesterday, today blindly McCormick is rely consult should section of the light overruled him in “statutory of a Code of Government Code when the Criminal development,” which is not a development provides ample authority Procedure on the all. Ante at 814. subject. granted We review to determine VI. Conclusion appeals holding whether the court of erred dismissing Art. 1.15 of Code of Proce- court erred permits remaining dure which a defendant proceeding to waive with the simply jury and have the case tried no. The eleven. answer carry before court does not it a that “not requires with of Criminal Procedure Overstreet, Along Judge I dissented case a verdict must be rendered support because the record did not unless one or more of them be- Hernandez dies, necessity, finding required by the Court’s of manifest disabled comes 36.29(a). or disagreed holding because I with the Court’s

823 prosecution a return The defendant jurors can render and than twelve ease,” upon entering a right, the in unless one ... shall have verdict a jury, by Article 36.29 trial or becomes disabled. the plea, dies waive conditioned, however, In this case a was excused V.A.C.C.P.1 such waiver that began the was revealed after trial because by the person defendant must be made citizen. that she was not United States the consent writing open court with (lack her of citi- the basis of dismissal Since court, attorney the approval of the and and zenship) categories not fall the did under and The consent representing the State. disability, permissible or was not death shall be entered approval by the court remaining to render verdict the court, and the on the minutes of the record the court have this case. Instead trial should rep- approval attorney the and consent a mistrial and dismissed declared writing, be resenting the State shall him, papers in the signed and filed appears by persuaded his enters cause before defendant the. applies that argument State’s [emphasis plea, added] agreement case that this proceed with eleven consti- jury may is clear that a defendant waive It jury I do tuted a waiver of twelve. trial; however, refers to a waiver Legislature’s intent not believe it predi- must jury of the entire be waiver First, apply to criminal that cases. conditions. cated certain far as of 62.201 dates back as jury meaning to “waiver of attributes another appeared 1879 where it as Article 31003 by holding that can waive a trial” one Chapter Statutes of Eleven The Revised ju- by consenting to than twelve fewer the title of “Juries in Civil under v. S.W.2d 814- rors. Hatch 958 [emphasis comparing added] Cases.” interpreta- (Tex.Crim.App.1997). This apparent § 62.201 Article it is that 3100 because classic defini- “[t]he tion distorted § 62.201 is the version of Article amended by this [is] Court [ ]followed tion waiver which has been 3100 moved the Govern- relinquishment or abandon- ‘an intentional Furthermore, ment all the cases which Code. privilege, of a known or Johnson ment have 62.201 have civil cases. cited been Zerbst, U.S. 58 S.Ct. v. Therefore, swayed by I am the State’s ” (1938).’ State, 759 Capistran L.Ed. argument applies to criminal (Tex.Crim.App.1982) (op. on S.W.2d appears cases when it in a code other than r’hrg.) (citing Robles S.W.2d the Code of Criminal and has Procedure viewing this defini- (Tex.Cr.App.1979)). as in civil cases. been cited conjunction it seems unrea- tion in I am is a equally unconvinced his appellant “waived” sonable assert waiver of trial as contended the State trial because a of eleven right to adopted by Upon Court. defen- appel- If a verdict in this case. still rendered charged felo- being dant and indicted with a relinquished or lant had abandoned judge have or ny, a defendant elect to trial, would have been the verdict thereby jury determine fact issues of court not a com- rendered If he guilt or decide innocence. number. posed try want to his before majority’s disposition I also dissent waive the set out parte by overruling Ex Hernan of this case which states: Any to sections will be 1.Any be the further reference further reference to articles will Code unless other- unless the Government the Code of Procedure sections of articles of otherwise indicated. indicated. wise Code, that "the 3.Article provides: "The 2.V.T.C.A. Gov’t men; district courts per- jury in of 12 a district court is partic- sons, parties may by agree, in a parties may agree but the consent except case, jurors.” try with a particular ular less number.” case with fewer than 12 dez, (Tex.Crim.App.1995). 906 S.W.2d 931 It Hernandez, I

is true that but I dissented support

dissented because the record did not finding necessity.

the Court’s of manifest I disagree

did holding with the that a

verdict must be rendered

unless or more one of them becomes disabled required by

or dies as Article 36.29.

Upon finding justification no reasonable applying relying 62.201 or over-

turning finding no waiver of trial, engage refuse to a creative

review of the issue in favor of the State

respectfully majority’s disposi- dissent to the

tion of the case. MANSFIELD, JJ„ join.

MEYERS and Texas,

The STATE of Lyle STEVENSON, Appellee.

Steven

No. 1348-95. Texas, Appeals

Court of Criminal

En Banc.

Dec.

Case Details

Case Name: Hatch v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 10, 1997

Citation: 958 S.W.2d 813

Docket Number: 976-96

Court Abbreviation: Tex. Crim. App.