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
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DISSENTING MEMORANDUM OPINION1
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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court may permit an oral or written waiver of the right to a jury to be withdrawn for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
2