Overruling many cases which held that the judgment in a habeas corpus proceeding must be affirmed in the absence of a statement of facts, the majority abates this appeal because there was no compliance with Article 44.34, V.A.C.C.P. The rule of those cases was considered to be so well established that no reasoning or citation of statutory authority was required. See e.g., Ex parte Naill, 127 S.W. 1031 (Tex.Cr.App. 1910); Ex parte Palmer, 136 Tex.Crim. R., 124 S.W.2d 860 (1939); Ex parte Moore, 318 S.W.2d 667 (Tex.Cr.App. 1958); and Ex parte Kindell, 415 S.W.2d 922 (Tex.Cr.App. 1967). Their implicit rationale, however, was that the burden was on petitioner to submit the statement of facts for inclusion in the record on appeal and that Article 44.34 (or its equivalent) was waived if he failed to discharge that burden. The majority in the instant case repudiates this rationale without adequate justification in law, reason or policy.
Article 40.09, V.A.C.C.P., governs appeals from judgments of conviction and thus does not directly control this case. However, since that article and Article 44.34 both relate to the subject of appeals, they are governed by one spirit and policy and are intended to be consistent and harmonious in their several parts and provisions.
Article 40.09 places the burden upon defendant to obtain a transcription of the reporter's notes for inclusion in the record. Nothing in policy or the language of Article 44.34 supports the view that the Legislature intended to remove this burden from petitioner in habeas corpus appeals. Under these circumstances we should reaffirm the rule which the majority rejects today.
That the term "shall" is used in Article 44.34 does not compel the conclusion that such provision is mandatory. This term is also used in Article 19.01, V.A.C.C.P., governing the appointment of jury commissioners, but we held in Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App. 1975), that that article is directory and not mandatory.
Likewise, we have consistently held that Article 20.20, V.A.C.C.P., is directory and not mandatory. Jenkins v. State,468 S.W.2d 432 (Tex.Cr.App. 1971); Cotton v. State, 500 S.W.2d 482 (Tex.Cr.App. 1973). That article provides that the names of witnesses on whose testimony an indictment is founded shall be endorsed thereon.
Whether Article 44.34 is mandatory or directory, petitioner may waive compliance with the provision. Article 1.14, V.A.C.C.P., provides as follows:
"The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case."
Article 1, Section 10 of the Texas Constitution, and Article 1.25, V.A.C.C.P., grant an accused the right to be confronted with the witnesses against him. But even *Page 49 though both provisions state that the accused "shall be confronted", it is fundamental that the right may be waived. Garcia v. State, 151 Tex.Crim. R., 210 S.W.2d 574 (1948); Hernandez v. State, 378 S.W.2d 311 (Tex.Cr.App. 1964); Salas v. State, 385 S.W.2d 859 (Tex.Cr.App. 1965); Rushing v. State,476 S.W.2d 675 (Tex.Cr.App. 1972); Jones v. State, 501 S.W.2d 670 (Tex.Cr.App. 1973); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App. 1977).
Article 26.01, V.A.C.C.P., provides that there shall be an arraignment in all felony cases, after indictment, and all misdemeanor cases punishable by imprisonment. It is well established that the right to an arraignment may be waived notwithstanding the fact that the statute is mandatory. Eckels v. State, 153 Tex.Crim. R., 220 S.W.2d 175 (1949); Vanwright v. State, 454 S.W.2d 406 (Tex.Cr.App. 1970); Richardson v. State, 508 S.W.2d 380 (Tex.Cr.App. 1974).
Article 38.23, V.A.C.C.P., provides in part:
"No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. . . ." (Emphasis added)
Although this rule regarding illegally obtained evidence is mandatory, complaints regarding the admission of such evidence may be waived. LeBlanc v. State, 424 S.W.2d 434 (Tex.Cr.App. 1968); Ansley v. State, 468 S.W.2d 862 (Tex.Cr.App. 1971); Warren v. State, 514 S.W.2d 458 (Tex.Cr.App. 1974); McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App. 1975); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App. 1975); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App. 1976).
Many other examples of waiver of mandatory provisions could be given. Even constitutional rights may be waived by failing to take certain actions or by failing to object. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App. 1976).
From the foregoing it is clear that petitioner may waive the requirement of Article 44.34 that the statement of facts be included in the record on appeal.
What the majority overlooks is that in many cases a petitioner in a habeas corpus proceeding, particularly in extradition matters, does not want a transcription of the court reporter's notes. All he seeks is delay.
Today's erroneous decision will add additional burdens to the trial courts, the court reporters, the clerks' offices, and to this Court. It is difficult to understand how all of the judges who have sat on this Court since it was created have been wrong in the thousands of cases which have been decided to the contrary.
Article 1.14, supra, which provides that an accused may waive a right such as is in issue in the instant case, has not been repealed. There was a waiver in this case. The judgment should be affirmed.
ONION, P. J., joins in this dissent.
OPINION ON STATE'S MOTION FOR REHEARING Before the court en banc.