I respectfully dissent and would sustain the appellant's second point of error and hold that appellant did not knowingly waive his statutory right to have the jury assess punishment.
In the instant case, the appellant had three trials. He demonstrated his desire that the presiding judge of the 232nd Judicial District Court of Harris County, the Honorable A.D. Azios, not assess his punishment. He did this in the first and second trials by exercising his statutory right under Tex.Crim.P.Ann. art. 37.07, sec. 2(b) (Vernon Supp. 1988), to have the jury assess punishment. It was only at the third trial, when Judge Azios did not preside, that appellant waived his right to have the jury assess punishment. His waiver of the jury was based solely on the fact that Judge Frank Price was trying the case. When Judge Azios, rather than Judge Price, appeared for the punishment hearing, appellant immediately objected. Under these particular circumstances, it seems clear that the waiver of this valuable statutory right to a jury trial was based on the reasonable expectation that Judge Price would assess punishment.
Deciding whether the judge or jury will assess punishment is one of the most important choices facing any criminal defendant. All good trial lawyers know that it is essential to know how a specific judge will probably act on a given set of facts. They constantly review a judge's past rulings to know the judge's propensities. This knowledge when advising a client to waive or not to waive a jury, is often more important than most or all of the decisions in a trial. Texas is one of the few states that allows jury sentencing, and it has given the defendant the exclusive option to elect to have a jury. Where a defendant does everything possible, under rights granted *Page 225 him by law, to avoid having punishment imposed by a particular judge, and gives up the right to jury punishment only on the reasonable assumption that a specific judge will assess the punishment, and then another judge is substituted, such a waiver cannot be characterized as knowing or voluntary.
I recognize that there will be cases where it is impossible or impractical for the judge who presided at the guilt-innocence stage to assess punishment. This will occur when the judge has died, become incapacitated, left office, or is unavailable for a lengthy period of time. None of these events occurred in this case, and no evidence indicates that Judge Price was not ready, willing, and able to assess punishment and thus fulfill the reasonable expectations that were created when he presided over the guilt-innocence stage of the trial.
This does not create a general right to be sentenced by any particular judge. On the contrary, relief is appropriate in this particular case only because of the unavoidable conclusion that appellant reasonably relied on Judge Price's presence, combined with the absence of any suggestion that Judge Price would not preside.
Few would deny that a judge who heard the evidence at the guilt stage is in a better position to assess an appropriate punishment than one who did not. Although Judge Azios heard the evidence at the first trial of this cause, approximately 17 months before this trial, no evidence from the guilt-innocence phase of the instant trial was introduced before he assessed punishment. Moreover, nothing suggests that the evidence at the two trials was the same. In fact, the evidence at the first trial appears to have been more favorable to appellant than the evidence at the third trial because there was a hung jury at the first trial. Although the statement of facts of the third trial could have been transcribed for Judge Azios' review prior to the assessment of punishment, this was not done.
Courts should be reluctant to approve the assessment of punishment by a judge who did not hear the evidence that led to conviction, when the judge who did is available. In the instant case, the defendant objected to the switching of judges, and a valuable right was knowingly and voluntarily waived in reasonable reliance upon the presence of the judge who presided at the guilt-innocence phase of the trial.
Because these circumstances combined to render appellant's waiver of his right to jury assessment of punishment involuntary and because the sentencing judge had no evidence introduced on which he would have a basis to render a decision as to punishment, I would reverse and remand this case for a new trial on the punishment phase of the trial. *Page 226