Salinas v. State

980 S.W.2d 219, 1998 Tex. Crim. App. LEXIS 129, 1998 WL 693106

• Court: Court of Criminal Appeals of Texas
• Decided: October 7, 1998
• Docket: 466-98
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was charged by indictment with the offense of felony driving while intoxicated, alleged to have been committed on or about June 7,1995. At trial, after withdrawing his not guilty plea before the jury and instead proceeding to plead guilty to the trial court, appellant was sentenced by a jury to 5 years incarceration and a $2,000 fíne. The court of appeals affirmed the conviction and sentence. Salinas v. State, 963 S.W.2d 889 (Tex.App. — Corpus Christi 1998). Appellant seeks discretionary review of the court of appeals’ decision.

The court of appeals held that although it was error that appellant did not sign a jury waiver, such did not affect a substantial right, and thus overruled his point of error complaining about such. Id. at 891-92. His petition for discretionary review asks whether under Article 1.13, V.A.C.C.P., his failure to execute a written waiver of jury tidal upon changing his plea before the jury is error that is subject to harmless error analysis.

In Meek v. State, 851 S.W.2d 868 (Tex.Cr.App.1993), we concluded that error in failing to comply with Article 1.13’s requirement of executing a written jury waiver was not subject to a harmless error analysis. However, more recently, in Cain v. State, this Court held that, other than federal constitutional errors labeled as structural by the United States Supreme Court, no error is categorically immune to a harmless error analysis. Cain v. State, 947 S.W.2d 262, 264 (Tex.Cr.App.1997). The court of appeals failed to address either of these cases in its opinion.

We summarily grant appellant’s petition, vacate the judgment of the court of appeals, and remand the cause to the court of appeals for reanalysis in light of Meek and Cain, supra.