in the Matter of L.W.

• Court: Court of Appeals of Texas
• Decided: January 12, 2015
• Docket: 02-14-00338-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00338-CV

IN THE MATTER OF L.W.

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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY TRIAL COURT NO. 38856-LR

DISSENTING MEMORANDUM OPINION1

I respectfully dissent to the majority’s conclusion that because a portion of

L.W.’s waiver is erroneous, the entire waiver must be regarded as ineffective.

The waivers signed by both L.W. and her attorney made two independent

demands: (1) they waived L.W.’s right to jury trial and (2) they requested that the

trial court determine whether she met the commitment criteria under the code of

criminal procedure. All parties agree that L.W. and her attorney requested that

1 See Tex. R. App. P. 47.4. the trial court apply the wrong standard in L.W.’s hearing. That, however, has no

bearing on the separate clause waiving a jury trial. Cf. In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 134–35 (Tex. 2004) (orig. proceeding) (upholding jury

waiver in contract even when rest of contract is alleged to have been fraudulently

induced).

L.W. makes no argument that she or her attorney did not knowingly,

intelligently, or voluntarily sign the waivers. They were notarized and filed with

the trial court. If L.W. had changed her mind, she was allowed to withdraw the

waiver. See Tex. Health & Safety Code Ann. § 574.032(d) (West 2010) (“The

court may permit an oral or written waiver of the right to a jury to be withdrawn for

good cause shown. The withdrawal must be made not later than the eighth day

before the date on which the hearing is scheduled.”). There is no evidence that

she did so. And despite L.W.’s announcement when the case was called that

she “did not waive [her] right,” her attorney announced that they were ready for

trial to the bench.

I would therefore hold that L.W.’s jury trial waiver was effective and that

therefore she did not properly withdraw it. I would overrule L.W.’s first issue and

affirm the trial court’s judgment.

/s/ Lee Gabriel LEE GABRIEL JUSTICE

DELIVERED: January 9, 2015