Hatch v. State

958 S.W.2d 813, 1997 Tex. Crim. App. LEXIS 108, 1997 WL 757584

• Court: Court of Criminal Appeals of Texas
• Decided: December 10, 1997
• Docket: 976-96
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury convicted appellant .of the felony offense of delivery of cocaine and the court assessed a sentence, enhanced by two prior felony convictions, at twenty years’ confine7 ment. The record reflects that after appellant’s trial began, the State and appellant agreed to proceed with eleven jurors after it was learned one of the jurors was not a United States citizen.¹ The eleven member jury returned a unanimous guilty verdict.

On direct appeal, appellant’s sole point of error claimed the jury had no power to render a verdict because it was composed of less than twelve jurors. The State claimed appellant waived the right to a jury composed of twelve members.

Relying on this Court’s recent decision in Ex parte Hernandez, 906 S.W.2d 931 (Tex. Cr.App.1995), the Court of Appeals held appellant could . not waive the requirement of Article 36.29(a), V.A.C.C.P., that no less than twelve jurors render a verdict in a felony case. Hatch v. State, 923 S.W.2d 98, 99 (Tex.App.—Dallas 1996); see Article 36.29(a) (not less than twelve jurors can render and return a verdict in a felony case). The Court of Appeals reversed the conviction and remanded the cause for a new trial. We granted the State’s petition for discretionary review to reexamine our decision in Hernandez and to once again reexamine the question of whether a defendant can waive his statutory right under Article 36.29(a) to a jury of twelve members.

In Hernandez, this Court held a defendant could not waive his right to a jury of twelve members. Hernandez, 906 S.W.2d at 932. We based our decision in Hernandez on Jones v. State, 52 Tex.Crim. 303, 106 S.W. 345, 347 (1907) (op. on reh’g), and Article 5, Section' 13, of the Texas Constitution, which provides that a petit jury in a district court shall be composed of twelve persons. However, the State now claims that our reliance in Hernandez on Jones was misplaced because of subsequent statutory developments that have occurred since Jones was decided.

We agree. In Jones, this Court held a defendant could not waive his right to trial by twelve jurors in a felony case. See Jones, 106 S.W. at 347. When Jones was decided, the applicable statute provided that a “defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case.” Jones, 106 S.W. at 347.

However, since Jones was decided, several significant statutory developments pursuant to constitutional authority have occurred which have rendered Jones obsolete. We first set out the pertinent constitutional provisions. Article 1, Section 10, of the Texas Constitution, in relevant part provides that in all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. Article 1, Section 15, of the Texas Constitution, in relevant part provides that the right of trial by jury shall remain inviolate but that the “Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” (Emphasis Suppled). And, Article 5, Section 10, of the Texas Constitution, in relevant part provides that in the trial of all causes in the District Courts, the plaintiff or the defendant shall, upon application made in open court, have the right of trial by jury.

This Court had held the applicable statute prior to the amendments discussed herein permitted a defendant in all misdemeanor cases to waive a jury altogether which carried with it the further right to agree to a trial by a jury composed of less than six members. See Mackey v. State, 68 Tex. Criara. 589, 151 S.W. 802, 803 (1912); Stell v. State, 14 Tex.App. 59 (1883).² In 1931, the statute was amended to permit waiver of a jury trial upon a plea of guilty to a noncapi-tal felony. See S.B. 53, 42nd Leg., R.S., Acts 1931, ch. 43; see also Interpretative and Special Commentaries to Article 1.15 (Vernon’s 1977). Soon after this, this Court decided the second sentence of Article 1, Section 15, granting the Legislature the authority to regulate the right to trial by jury, authorized the 1931 amendment that permitted waiver of a jury trial upon a plea of guilty to a noncapital felony. See McMillan v. State, 122 Tex.Crim. 583, 57 S.W.2d 125 (1933) (under the second sentence of Article 1, Section 15, the Legislature does not have the power to deny the right to trial by jury, but it does have the power to provide for the waiver of such right).

In 1965, the statute was amended to permit waiver of a jury trial in all noncapital felonies. See Code of Criminal Procedure Revision Act of 1965, 59th Leg., R.S., Acts 1965, ch. 722; see also Interpretative and Special Commentaries to Article 1.15 (Vernon’s 1977). Subsequent legislative amendments culminating in current Article 1.15 permit a defendant with the consent of the prosecution to waive a jury trial in all non-capital cases and capital cases where the prosecution does not seek the death penalty. See also Article 1.13, V.AC.C.P.; Article 1.14, V.AC.C.P.

Since Article 1.15 has been amended to permit waiver of a jury in all noncapital felonies and capital felonies where the prosecution does not seek the death penalty, it is a logical extension of Mackey to hold that Article 1.15 carries with it the further right to waive a jury composed of twelve persons in these felonies. See Mackey, 151 S.W. at 803. And, since the second sentence of Article 1, Section 15, authorizes the statutory waiver of a jury trial in these felonies, then it also authorizes the waiver of a jury composed of twelve persons in these felonies. See McMillan, 57 S.W.2d at 125.

In addition, pursuant to the constitutional authority in Article 1, Section 15, which authorized the jury-waiver statute in Article 1.15 which carries with it the further right to agree to trial by a jury composed of less than twelve persons, the Legislature in 1985 also enacted Section 62.201 of the Texas Government Code.³ Section 62.201 expressly provides:

“The jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors.” (Emphasis Supplied).

The “plain” language of Section 62.201, Texas Government Code, makes no distinction between civil and criminal cases and nothing in Section 62.201, Texas Government Code, conflicts with anything in Article 36.29, Texas Code of Criminal Procedure. Moreover, Article 35.03, Section 2, Texas Code of Criminal Procedure, makes explicit reference to Chapter 62 of the Texas Government Code which sets out the general provisions for petit juries in this state. In addition, Section 62.011(a), Texas Government Code, expressly authorizes a commissioners’ court on “the recommendation of a majority of the district and criminal district judges of a county” to adopt a plan for the selection of names of persons for jury service with the aid of electronic or mechanical equipment instead of drawing names from a jury wheel. We perceive no reason why Section 62.201 should not apply to criminal eases.

The dissenting opinions filed by Judge Overstreet and Judge Baird claim Section 62.201 should not be interpreted to apply to criminal cases- bécause it was intended to apply only to civil cases. These arguments ignore the “plain” language of Section 62.201 and would effectively legislate an exception to Section 62.201. See Garcia v. State, 829 S.W.2d 796, 800-01 (Tex.Cr.App.1992) (Clinton, J., concurring) (this Court has no power to act as a “superlegislature” by legislating exceptions to the “plain” language of our statutory enactments). These arguments also are inconsistent with the approach this Court has taken in other statutory construction cases. See State v. Johnson, 939 S.W.2d 586 (Tex.Cr.App.1996); State v. Daugherty, 931 S.W.2d 268 (Tex.Cr.App.1996). In addition, Chapter 62 of the Government Code shows that the Legislature knew how to restrict statutes to civil cases. For example, the very next section of the Texas Government Code, Section 62.202, is restricted to “a civil case.” The Legislature’s choice not to so restrict Section 62.201 should not be denied significance.

The dissenting opinions also imply that the first sentence of Article 36.29(a), requiring a verdict of not less than twelve jurors, should take precedence over. Section 62.201 because they deal with the same subject and cannot be reconciled. However, Section 62.201 and the first sentence of Article 36.29(a) can be harmonized by reading the first sentence of Article 36.29(a) to require a verdict of twelve jurors in a felony case unless the parties agree to fewer jurors under Section 62.201.⁴

Finally, Judge Baird’s dissenting opinion suggests we have created a “fictional distinction” between waiver of a right to be tried by twelve jurors and waiver of a right to trial by jury. However, there is a very real distinction between waiver of a right to trial by jury and waiver of a right to be tried by twelve jurors. See McMillan, 57 S.W.2d at 125; Mackey, 151 S.W. at 803. A defendant who agrees to be tried by less than twelve jurors is still exercising his right to trial by jury.

Based on the foregoing, we must agree that Hernandez was wrongly decided and that our reliance in Hernandez on Jones was misplaced. Therefore, we overrule//eman-dez ⁵ and hold a defendant may waive Article 36.29(a)’s requirement that not less than twelve jurors can return a verdict in a non-capital felony case.

We reverse the judgment of the Court of Appeals and affirm the judgment of the trial court.

1 . Section 62.102 of the Government Code provides the minimum threshold requirements for juror qualification. It states that a juror is disqualified to serve as a juror unless he ... "is a citizen of this state and of the county in which he is to serve as a juror;” and "is qualified under the constitution and laws to vote in the county in which he is to sejve as a juror.” Thus, the juror in the instant case was not qualified to serve on the jury because she was not a citizen of the United States.

2 . These cases applied Texas Code of Criminal Procedure, Article 22, which was the statutory predecessor to current Article 1.15, V.A.C.C.P. Article 22 provided that no person "can be convicted of a felony except upon the verdict of a jury duly rendered and recorded.” When the Court in Mackey said, "[o]ur statute provides that an appellant in a misdemeanor case can waive a jury altogether,” it seems to have been referring to Article 22. See Mackey, 151 S.W. at 803, citing Stell, 14 Tex.App. 59. Article 22 literally does not say a defendant can waive a jury in a misdemeanor case; it says a felony conviction requires a jury verdict. The absence of such a requirement for misdemeanor cases implied there was no such restriction on a misdemeanor defendant’s general right of waiver.

3 . Acts 1985, 69th Leg., ch. 480, Section 1, effective September 1, 1985.

4 . Moreover, the second sentence of Article 36.29(a) can be construed to stand side by side with Section 62.201. If, under the second sentence of Article 36.29(a), “one juror may die or be disabled from sitting” before the court’s charge is read to the jury, the case can proceed to a verdict whether or not the parties agree.

Article 36.29(c), V.A.C.C.P., also can be construed to stand side by side with Section 62.201. Under the circumstances described in Article 36.29(c), the trial court is required to discharge the jury unless the parties agree to fewer jurors under Section 62.201.

5 . We also note that had the rule we adopt here been applied to the facts in Hernandez the result would have been the same because the State refused to agree to proceed with less than twelve jurors and therefore a manifest necessity existed requiring the trial court to declare a mistrial. See Hernandez, 906 S,W.2d at 932; Section 62.201; Article 1.15; Article 1.14; Article 1.13.