in Re State of Texas Ex Rel, Tharp, Jennifer

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 2013
• Docket: AP-76,916
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,916 In re the State of Texas, ex rel. Jennifer A. Tharp, Relator

ON RESPONDENT'S MOTION FOR REHEARING OF STATE'S PETITION FOR A WRIT OF MANDAMUS IN CAUSE NO. CR2011-325 IN THE

433^RD DISTRICT COURT OF COMAL COUNTY

Meyers, J., filed a statement dissenting to the denial of Respondent's Motion for Rehearing.

DISSENT

Article 37.07, Section 2(b), provides that punishment shall be assessed by the judge unless the defendant elects jury assessment in writing before the commencement of the voir dire examination of the jury panel. This was not the case when Rojas v. State, 404 S.W.2d 30 (Tex. Crim. App. 1966) was decided. Back then, a defendant could request that the jury assess punishment after the jury returned a guilty verdict. Therefore, Rojas really does not apply to this case and should not have been relied upon by the majority. Additionally, because we have no case law indicating that the defendant's waiver of his right to jury-assessed punishment was improper, the State failed to demonstrate a clear right to the mandamus relief it sought. Therefore, I would grant Respondent's motion for rehearing and reconsider our holding in this case.

I respectfully dissent to the majority's denial of the motion for rehearing.

Filed: February 27, 2013

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