dissenting.
I dissent to the majority’s application of V.T.C.A Gov’t Code, § 62.201 in the disposition of this case. I am not convinced that we should consult and rely on a section of the Government Code when the Code of Criminal Procedure provides ample authority on the subject. We granted review to determine whether the court of appeals erred in holding that the trial court erred in dismissing a juror and proceeding with the remaining eleven. The answer is simply no. The Code of Criminal Procedure requires that “not less *823than twelve jurors can render and return a verdict in a felony ease,” unless one juror dies or becomes disabled. Article 36.29 V.A.C.C.P.1 In this case a juror was excused after the trial began because it was revealed that she was not a United States citizen. Since the basis of her dismissal (lack of citizenship) did not fall under the categories of death or disability, it was not permissible for the remaining jurors to render a verdict in this case. Instead the trial court should have declared a mistrial and dismissed the jury.
The majority appears persuaded by the State’s argument that § 62.2012 applies to this case and that the agreement of the parties to proceed with eleven jurors constituted a waiver of a jury trial by twelve. I do not believe it was the Legislature’s intent that § 62.201 apply to criminal cases. First, the language of § 62.201 dates back as far as 1879 where it appeared as Article 31003 in Chapter Eleven of The Revised Statutes of Texas under the title of “Juries in Civil Cases.” [emphasis added] In comparing § 62.201 to Article 3100 it is apparent that § 62.201 is the amended version of Article 3100 which has been moved to the Government Code. Furthermore, all the cases which have cited § 62.201 have been civil cases. Therefore, I am not swayed by the State’s argument that § 62.201 applies to criminal cases when it appears in a code other than the Code of Criminal Procedure and has been cited as authority only in civil cases.
I am equally unconvinced that this is a waiver of jury trial as contended by the State and adopted by the Court. Upon a defendant being charged and indicted with a felony, a defendant may elect to have a judge or jury determine issues of fact and thereby decide guilt or innocence. If he does not want to try his case before a jury, he may waive the jury as set out in Article 1.13, which states:
The defendant in a criminal prosecution ... shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the. cause before the defendant enters his plea, [emphasis added]
It is clear that a defendant may waive a jury trial; however, such a waiver refers to a waiver of the entire jury and must be predicated on certain conditions. The majority attributes another meaning to “waiver of jury trial” by holding that one can waive a jury trial by consenting to fewer than twelve jurors. Hatch v. State, 958 S.W.2d 813, 814-815, (Tex.Crim.App.1997). This interpretation is distorted because “[t]he classic definition of waiver [ ]followed by this Court [is] ‘an intentional relinquishment or abandonment of a known right or privilege, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).’ ” Capistran v. State, 759 S.W.2d 121, 122 (Tex.Crim.App.1982) (op. on r’hrg.) (citing Robles v. State, 577 S.W.2d 699 (Tex.Cr.App.1979)). In viewing this definition in conjunction with 1.13, it seems unreasonable to assert that appellant “waived” his right to a jury trial because a jury of eleven still rendered a verdict in this case. If appellant had abandoned or relinquished the right to a jury trial, the verdict would have been rendered by the court and not a jury composed of any number.
I also dissent to the majority’s disposition of this case by overruling Ex parte Hernan*824dez, 906 S.W.2d 931 (Tex.Crim.App.1995). It is true that I dissented in Hernandez, but I dissented because the record did not support the Court’s finding of manifest necessity. I did not disagree with the holding that a verdict must be rendered by twelve jurors unless one or more of them becomes disabled or dies as required by Article 36.29.
Upon finding no reasonable justification for applying and relying on § 62.201 or overturning Hernandez, and finding no waiver of a jury trial, I refuse to engage in a creative review of the issue in favor of the State and respectfully dissent to the majority’s disposition of the case.
MEYERS and MANSFIELD, JJ„ join..Any further reference to articles will be the articles of the Code of Criminal Procedure unless otherwise indicated.
.V.T.C.A. Gov’t Code, § 62.201 provides: "The jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors.” Any further reference to sections will be the sections of the Government Code unless otherwise indicated.
.Article 3100 provided that "the jury in the district courts shall be composed of twelve men; but the parties may by consent agree, in a particular case, to try with a less number.”