IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
IN CAUSE NO. 2076-A IN THE 83RD
JUDICIAL DISTRICT COURT OF PRESIDIO COUNTY
DISSENTING OPINION
In Ex parte Banks, we recognized that habeas corpus is available to review jurisdictional, constitutional, and fundamental defects. (1) Today the majority essentially reads the Legislature out of the process of defining one of these categories, "fundamental" defects. In the Court's view, "fundamental" has apparently become merely redundant of "jurisdictional" or "constitutional." For the reasons that follow, I respectfully dissent.
At the time the applicant pled guilty in exchange for a life sentence in this capital murder case, Articles 1.13 and 1.14 of the Texas Code of Criminal Procedure prohibited capital defendants from waiving jury trials. (2) The prohibition applied regardless of whether the State was actually seeking the death penalty. This represented a legislative judgment that all capital defendants should be tried by a jury, never the court. The requirement, by its terms, was not subject even to express waiver, much less forfeiture. It was, under the rubric of Marin v. State, an "absolute" or "fundamental systemic" requirement of the system, not optional with the parties. (3) The Legislature chose to forbid bench trials in capital murder cases even if both the defendant and the State should expressly consent. Accordingly, in cases in which a trial court allowed a capital defendant to proceed to judgment without a jury verdict under the prior statutory regime, this Court has always in the past respected the Legislative judgment that such an attempted waiver has no effect and has granted relief in post-conviction habeas corpus proceedings. (4)
Today the Court declares that such a claim will no longer be regarded as cognizable in post-conviction habeas proceedings. As I understand it, because in the Court's view the requirement is only statutory and only procedural, it cannot be regarded as fundamental. I cannot subscribe to this view.
This Court's power to issue the writ of habeas corpus is subject to legislative regulation. (5) The Legislature has prescribed the procedure to be followed in post-conviction writs of habeas corpus in both non-capital felony cases and in capital cases. (6) So far as I am aware, the Legislature has thus far left the question of what is cognizable in a post-conviction writ of habeas corpus to this Court's interpretation. But the Legislature has not abdicated its authority to enact "fundamental" requirements by statute. This is not to say that any and every mandatory criminal procedural statute will invariably set up an absolute or fundamental feature of the system, not optional with the parties, and therefore cognizable in post-conviction habeas corpus proceedings-far from it, as our more recent case law has made clear. (7) But when the Legislature enacts a statute that expressly makes a requirement nonwaivable, it has clearly and unmistakably identified a fundamental feature of the system, which no interest in the finality or repose of judgments should be thought to overcome. (8)
In former Articles 1.13 and 1.14, the Legislature could not have been more clear in manifesting its intention that any capital murder case be tried to a jury, regardless of the wishes of the litigants. They were, in this regard, more than "mandatory" statutes. They were unequivocal expressions of an indispensable feature of the system. In Marin we made it clear that such an absolute requirement should be subject to vindication in any available post-conviction proceeding, whether on direct appeal or in an initial application for writ of habeas corpus, irrespective of ordinary principles of waiver or procedural default.
The cases that the Court relies upon today are distinguishable. In Ex parte Sadberry, (9) we rejected a claim under Article 1.13 that a non-capital felony conviction was "void," and therefore cognizable in a post-conviction writ application, because the applicant had not waived his right to a jury trial in writing. We noted that the writing requirement was strictly a creature of statute, and that there was no claim the applicant had not, in fact, validly waived his right to a jury consistent with constitutional mandates. This holding was not surprising or anomalous. Though the statutory requirement of Article 1.13 that a jury waiver be in writing is a mandatory one, the statute does not identify the writing requirement as a feature of the system that the parties may not agree to dispense with, either by consent or forfeiture. The same can be said of the statutory provision at issue in Ex parte McCain. (10) The right at issue there was the right, embodied in Article 1.13(c), of an indigent non-capital defendant to have an attorney appointed and present before he waives his right to a jury trial. The Court held that this right, too, was not cognizable in post-conviction habeas corpus, notwithstanding the mandatory language of the provision. But this statutory provision, like the one in issue in Sadberry mandating that a jury waiver be made in writing, is not nearly as clearly marked as an absolute and indispensable feature of the system as the core (albeit statutory) requirement of a jury trial in capital cases at issue today.
If the applicant's claim does not constitute a legislatively recognized "fundamental" defect, cognizable in post-conviction habeas corpus proceedings, it is hard to imagine any legislative mandate that ever could. The Court has seemingly excluded the Legislature from the process of defining "absolute requirements or prohibitions" (less than jurisdictional), and thus taken it out of our habeas corpus jurisprudence altogether. I would hold that the applicant's claim remains cognizable in a post-conviction application for writ of habeas corpus, and grant relief. Because the Court does not, I respectfully dissent.
Filed: May 23, 2007
Publish
1. 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).
2. Both statutes were amended in 1991 to abolish the prohibition as it applies to capital cases
in which the State waives the death penalty. 3. 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993).
4. 5. Tex. Const. art. V, § 5.
6. 7. 8. By this I mean that, so long as the Legislature has prescribed a forum for review, such as
direct appeal or an initial application for habeas relief, such absolute requirements should be subject
to vindication. See 9. 864 S.W.2d 541 (Tex. Crim. App. 1993).
10. 67 S.W.3d 204 (Tex. Crim. App. 2002).