Ex Parte Bailey

626 S.W.2d 741, 1981 Tex. Crim. App. LEXIS 1194

• Court: Court of Criminal Appeals of Texas
• Decided: October 21, 1981
• Docket: 68232
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

The judge of the convicting court has made the following findings of fact on the applicant’s petition for habeas corpus relief from a felony conviction (V.A.C.C.P. Article 11.07, Sections 2-5):

“1. Petitioner was indicted on March 7, 1974 for Capital Murder under Section 19.03, Texas Penal Code, said offense allegedly having occurred on or about February 22, 1974;

“2. Petitioner was tried before a jury and convicted [sic] of Capital Murder on May 3, 1974;

“3. After the verdict, Petitioner’s attorneys withdrew their request to go to the jury for punishment on the agreement of the State and on the Court’s guarantee to assess life imprisonment.”

The convicting court also has sent us the judgment, the sentence, and the docket sheets from which we learn that the trial court dismissed the jury and assessed life imprisonment as punishment on May 3, 1974. We also glean the facts that the applicant had pleaded not guilty and that he did not perfect an appeal from his conviction. (The petition also alleges that he did not appeal.)

A defendant cannot waive trial by jury in a capital felony case. V.A.C.C.P. Article 1.14. Habeas corpus relief will be granted when a defendant has been convicted of a capital felony without the verdict of a jury. Ex parte Jackson, 606 S.W.2d 934 (Tex.Cr.App.1980); Ex parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979). The verdict is not complete until the jury has rendered a completed verdict on punishment. Eads v. State, 598 S.W.2d 304 (Tex.Cr.App.1980). Therefore habeas corpus relief will be granted in this case.

The applicant’s conviction in cause 4698 in the 9th Judicial District Court of Waller County is set aside. The applicant is remanded to the custody of the Sheriff of Waller County to answer the indictment pending in that cause.