Ex Parte Felton

590 S.W.2d 471, 1979 Tex. Crim. App. LEXIS 1716

• Court: Court of Criminal Appeals of Texas
• Decided: November 7, 1979
• Docket: 62654
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P.

On May 30, 1973, James Felton, the applicant in this case, was convicted of murder with malice in cause no. 1251 in the 71st District Court in Harrison County. According to the court records attached to his application, Felton was convicted by the court on his plea of guilty and punishment was assessed at twenty years. Also attached to his application are forms filed in that case for waiver of the right to trial by jury, an agreement to stipulate testimony, and for approval of the district attorney and consent of the court. The place on the waiver of jury trial form for the signature of the accused is blank. This record is the basis for Felton’s application for relief. He contends the conviction in cause 1251 is void because his guilty plea was received in violation of Articles 1.13 and 1.15, V.A.C.C.P.

Article 1.13 supra, provides:

“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.” (Emphasis added.)

Article 1.15, supra, provides in part:

“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; . . .” (Emphasis added.)

Although a printed jury waiver form was filed in cause 1251, it was not signed by the applicant. The language of Art. 1.13, supra, plainly requires that the waiver of the right to trial by jury “must be made in person by the defendant in writing . It does not say that the waiver is sufficient if it be reduced to writing. It says made in writing. A printed form becomes a writing made by the defendant only when he places his signature on it and by that act adopts the writing as his own. This act not having been performed in this applicant’s case, as evidenced by the forms in the record before us, there was no effective waiver of the right to trial by jury in compliance with Art. 1.13, and, under the express mandate of Art. 1.15, no felony conviction could have been lawfully entered. We conclude that applicant Felton is entitled to the relief he seeks, and accordingly his conviction in Cause No. 1251 in the 71st Judicial District Court of Harrison County is set aside. He shall be discharged from further custody under that conviction and shall be remanded to the custody of the sheriff of Harrison County to answer the indictment pending against him in that cause. A copy of this opinion shall be sent to the Texas Department of Corrections.

It is so ordered.