Wilson v. State

ONION, Presiding Judge,

concurring.

I concur in the result reached, but I write to explain why I concur.

The conviction, in a bench trial, upon a plea of not guilty, was for the offense of indecency with a child. V.T.C.A., Penal Code, § 22.11. The trial court assessed punishment at 10 years’ imprisonment.

On appeal appellant complained, inter alia, that he was deprived of a trial by jury which he did not waive. See Article 1.13, V.A.C.C.P. The Dallas Court of Appeals reversed on this ground. Wilson v. State, 669 S.W.2d 792 (Tex.App. [5th Dist.] 1984). The Court of Appeals’ reversal was the proper result, but the wrong reasons were given. This Court granted State’s petition for discretionary review to examine the holding of the Court of Appeals that appellant’s prior jury waiver executed before a magistrate under Article 1918c, V.A.C.S., was revoked when the trial court (District Judge) subsequently permitted him to change his plea from nolo contendere (before the magistrate) to a plea of not guilty before the district judge. We also granted review, on our own motion, of the issue of the authority of a magistrate under said Article 1918c, V.A.C.S.

In reaching its decision, the Court of Appeals relied upon the language in Parker v. State, 626 S.W.2d 738 (Tex.Cr.App. 1981): “The decision to allow appellant to withdraw his plea weeks after he had been adjudged guilty was within the trial court’s discretion; however, the effect of the trial court’s action was to grant the appellant a new trial.” This was clearly unsupported dictum and should not have been followed. Relying upon Parker, at least in part, the Court of Appeals concluded the change to a plea of not guilty acted as a revocation of the prior jury waiver, which can only lead into dangerously deep water in proceedings involving pleas of guilty and nolo conten-dere. None of this was necessary.

None of the reasoning of the Court of Appeals was necessary. Here the only jury waiver in the record is one executed before the magistrate under Article 1918c. Article 1.13, V.A.C.C.P., provides that “a jury waiver in a felony less than capital must be made in writing in open court with the consent and approval of the court,” meaning the district court. The validity of the only jury waiver in the case would thus *148be dependent upon a compliance with said Article 1918c. Here there was no order of referral from the district court to the magistrate as required by Article 1918c, and further, no showing that the action of the magistrate was adopted by the district court as required by the statute.

All of that aside, it is clear that when the matter came before the district court that the court “clearly revoked all prior proceedings before the magistrate.” Thus the case stood as if it had never been referred to the magistrate, if in fact it ever was. The appellant entered his plea of not guilty before the district court and asked for a jury trial. This was denied. There was never a jury waiver before the district court in compliance with Article 1.13, V.A. C.C.P. Appellant was entitled to a jury trial and the cause must be reversed. The Court of Appeals was right, but for the wrong reason. With this explanation, I concur.

While at it, I would note that I join Judge Clinton’s concurring opinion as to the authority of the magistrate under Article 1918c, V.A.C.S.