Opinion
NO. 01-16-00547-CR
06-29-2017
JOSE GRANADOS-GUEVARA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case No. 1445057
MEMORANDUM OPINION
After a bench trial, the trial court found appellant, Jose Granados Guevara, guilty of murder and assessed his punishment at 99 years' confinement. In two issues on appeal, appellant contends that (1) the trial court abused its discretion by refusing to allow appellant to withdraw his jury trial waiver, or, alternatively, (2) this Court should revisit Marquez v. State, 921 S.W.2d 217 (Tex. Crim. App. 1996) (plurality op.), a case that places the burden of proof on an appellant to show that his jury trial waiver should be withdrawn. We affirm.
BACKGROUND
The facts in this case are undisputed. Appellant, the leader of a gang, ordered Meraz, one of his gang members, to kill Meraz's cousin, who was a member of a rival gang. When Meraz refused to kill his own cousin, appellant ordered fellow gang members to kill Meraz, which they did, with appellant's assistance, by attacking him with a machete.
Appellant was indicted for Meraz's murder. On August 31, 2015, appellant waived his right to a jury trial at a pretrial hearing, and the trial court approved his written waiver of a jury trial. Appellant made at least three court appearances, including one on the Friday before trial began. At none of these hearings did appellant request to withdraw his jury waiver.
On Tuesday, June 21, 2016, appellant's case was called for trial. The court noted that appellant had waived a jury, but that the waiver had only been filed in one of appellant's three pending cases. Thus, the trial court asked whether appellant, in fact, wanted to waive a jury. Appellant's counsel responded, "That's correct, Your Honor." When the court questioned appellant about the jury waiver, appellant stated, "I want to see if I can elect for a jury." The State objected. The court then located the jury waiver that appellant had indeed filed in the present case and held a hearing to determine whether appellant should be permitted to withdraw his jury waiver. After hearing from both defense counsel and the prosecutor, the trial court denied appellant's request to withdraw his jury waiver and held a bench trial. The trial court found appellant guilty of murder and sentenced him to 99 years in prison. This appeal followed.
WITHDRAWAL OF JURY WAIVER
In his first issue on appeal, appellant contends that "[t]he [trial] Court abused its discretion when it failed to allow the appellant to withdraw his jury trial waiver." Appellant contends that his request to exercise his constitutional right to a jury trial did not interfere with the business of the court, inconvenience the witnesses, or prejudice the State.
Standard of Review
The Texas Constitution states that "[t]he right of trial by jury shall remain inviolate." TEX. CONST. art. I, § 15. The United States Constitution also protects the right to trial by jury. See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . . "). Texas law requires that a waiver of the right to a jury trial be made in person, in writing, and in open court. TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West Supp. 2015).
However, once a defendant waives his right to a jury trial, "he does not have an unfettered right to reassert that right." Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). Rather, a defendant has the burden to show the "absence of adverse consequences" from granting the withdrawal. Id.; Marquez, 921 S.W.2d at 223. To do so, the defendant must establish on the record that his request to withdraw his jury waiver was made sufficiently in advance of trial such that granting the request will not: (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the State. Hobbs, 298 S.W.3d at 197-98; Marquez, 921 S.W.2d at 223. "A silent record does not mean that the state, witnesses, and trial court did not in fact suffer prejudice; it merely means that proof was not offered on the issue." Marquez, 921 S.W.2d at 223 n.7.
We review a trial court's decision to deny a request to withdraw a jury waiver for an abuse of discretion. Hobbs, 298 S.W.3d at 198; Marquez, 921 S.W.2d at 223. A trial court abuses its discretion when it acts without reference to guiding rules and principles or, in other words, when it acts arbitrarily or capriciously. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh'g). "If the State, the record itself, or the trial court rebuts the defendant's claim of no adverse consequences, the trial court does not abuse its discretion in denying the motion to withdraw the waiver of jury trial." Taylor v. State, 255 S.W.3d 399, 401 (Tex. App.—Texarkana 2008, pet. ref'd); see also Hobbs, 298 S.W.3d at 198 (holding same); Marquez, 921 S.W.2d at 223 (holding same).
Analysis
The issue this Court must decide is whether appellant carried his burden to show that his request to withdraw his jury waiver was made "sufficiently in advance of trial" such that granting the request would not interfere with the orderly administration of the business of the court, result in unnecessary delay or inconvenience to witnesses, or prejudice the State. Hobbs, 298 S.W.3d at 197-98; Marquez, 921 S.W.2d at 223.
We begin by noting that appellant presented no evidence at all on the issues above. There was no testimony or questioning of witnesses. Appellant presented only the argument of defense counsel, who stated on the record:
[T]he fact [is] that obviously you could order a jury pool to be brought over this afternoon. It wouldn't delay this trial. We could start trial this afternoon. That's why I'm saying that I would object to [denying a jury trial], Your Honor, because the client tells me this morning that he would rather have a jury trial, and we have the means by which to bring a jury pool, a jury panel over this afternoon and it wouldn't delay the trial at all.
The trial court did not confirm or deny whether a jury was available, but asked the prosecutor to respond, which the prosecutor did, stating:
Yes, Judge. Trying a case to the Court versus trying a case to a jury, there are significant differences both in the planning and preparation, not only voir dire, but the case-in-chief. So, therefore, any change from the defendant from a judge bench trial to a jury trial would require—
this case would be reset for additional time, which this case also involves three in-custody witnesses. One has a sentencing hearing pending on the 23rd, who we plan to reach today or tomorrow. His position would be significantly impacted if we push the case back farther. We have a witness that was bench warranted back from TDC that is in custody now, but if the case is delayed by this waiver that he's asking for, we would be impacted that way.
I would like to make clear for the record that since that time that he has both signed the written waiver and waived his right to a jury on all three cases in front of the Court, he has never since then come forward and asked for a jury trial. He was brought before the Court actually on Friday and he made no mention of this. We are here with witnesses in the holding area and as we are about to begin was the first time that he has mentioned any desire to change his opinion on that, and we believe it's jury a delay tactic in order to inconvenience not only the witnesses, the Court, but also the State's case.
And we have, if I may, several appellate court opinions starting with Marquez v. State. The cite is 921 S.W.2d 217, and I'll provide a copy to defense and the Court. And case Smith v. State, which is an appellate opinion from 2012. The cite is 363 S.W.3d 761. Those cases stand for the point that the matter is in the discretion of the judge and a significant element for the judge to look at is the timing.
In Marquez it's almost spot-on the facts of this case, where the defendant right before trial is about to begin tried to change his mind. The judge denied that, they went forward, and the Court affirmed.
Appellant's counsel responded, "I am completely ready to try this case whether it's to the bench or to a jury, picking a jury this afternoon or whenever you want. If you want to bring a panel over right now, we could start voir dire, Your Honor."
Having heard these arguments, the trial court denied appellant's request to withdraw his jury waiver, and the case was tried to the court.
In Marquez, the defendant, like appellant in this case, waived his right to a jury at a pretrial hearing and then attempted to withdraw his jury waiver on the day of trial. 921 S.W.2d at 219. The Texas Court of Criminal Appeals held that the defendant, who "sought to withdraw his jury waiver at the very moment his trial was to begin," had "failed to claim or demonstrate that, in spite of the untimeliness of the request, granting the withdrawal would not prejudice the State, inconvenience, the witnesses, and interfere with the orderly administration of the court." Id. at 223. Although defendant in Marquez presented no evidence on those issues, the court of appeals had noted that "[t]here is nothing in the record to indicate that a jury panel was available, and we infer that a grant of appellant's request would have necessitated resetting appellant's trial to a later date." Id. at 219 (quoting Marquez v. State, 882 S.W.2d 100, 103 (Tex. App.—Austin 1994) (op. on remand)).
Here, the record is not completely silent, as it was in Marquez, regarding whether a jury was available or whether appellant's request would delay the case. Appellant's counsel asserted that a jury was available, and that the trial court "could order a jury pool to be brought over this afternoon." This assertion, however, was never confirmed by the trial court. Indeed, the only mention of a jury by the trial court was when it questioned, "Can you all order a panel? Get them over here as soon as you can." The record does not clearly establish that a jury was available that day, and it also shows, that, even if a jury was available, the case would be delayed at least until the afternoon.
Appellant argues that "[t]he court made no statements indicating that a jury trial would cause a delay in court administration." However, "[a] silent record does not mean that the state, witnesses, and trial court did not in fact suffer prejudice; it merely means that proof was not offered on the issue." Marquez, 921 S.W.2d at 223 n.7.
At the hearing, appellant made no argument and presented no evidence regarding whether witnesses would be inconvenienced or the State would be prejudiced. However, the prosecutor addressed these issues anyway.
The State argued that, had it know the case was a jury trial, rather than a bench trial, it would have prepared the case differently. Specifically, it would have prepared for a voir dire that it did not anticipate having to conduct. The State also indicated that, if the trial court were to grant the appellant's request to withdraw his jury waiver, it would ask for a continuance to prepare for a jury trial. Based on this, the trial court could have reasonably concluded that either the State would be prejudiced by having to go forward with a jury trial it had not anticipated, or that the trial would be delayed by granting the State a continuance.
The State also presented evidence that one of its witnesses, Ramirez, who was given a plea bargain in exchange for his cooperation in testifying in appellant's trial, was scheduled for sentencing two days later. Any delay in appellant's trial—either because of continuance or voir dire—could have impacted the State's strategy by forcing it to call Ramirez early in the trial, or it could have caused Ramirez's sentencing hearing to be reset so that he could be sentenced after the State received his truthful testimony at appellant's trial.
Finally, appellant points out that three of appellant's witnesses were in custody and could not have been inconvenienced because the State could call them at any time. However, appellant also acknowledges that the State called 13 witnesses at trial. There is no evidence that the other 10 witnesses would not have been inconvenienced because of the delay that would result from obtaining a jury and conducting voir dire.
Based on the information given to the trial court at the hearing and appellant's failure to provide any contradictory evidence, the trial court reasonably concluded that appellant's day-of-trial request to withdraw his jury waiver would, if granted, either interfere with the orderly administration of court business, cause unnecessary delay or inconvenience to witnesses, or prejudice the State. Accordingly, the trial court did not abuse its discretion in denying appellant's request.
We overrule appellant's first issue on appeal.
REVISIT MARQUEZ V. STATE
In his second issue on appeal, appellant argues that the holding by the Texas Court of Criminal Appeal in Marquez had the "unintended effect of stripping the defendant of his Constitutional right to a jury trial" by requiring a defendant to show that his request for a jury trial would not cause delay, inconvenience the witnesses, or prejudice the State. Appellant argues that this burden should be placed on the State because it "would be in a better position and would have the evidence to demonstrate real delay, inconvenience or prejudice." As such, appellant urges this Court to "revisit the holding in [Marquez] and to shift the burden to the State."
When the Court of Criminal Appeals "has deliberately and unequivocally interpreted the law in a criminal matter, [this Court] must adhere to its interpretation." Mason v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). As an intermediate appellate court, we are bound to follow the Court of Criminal Appeals' precedent. See Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); Toledo v. State, No. 01-15-00559-CR, 2017 WL 1281437, at *5 (Tex. App.—Houston [1st Dist.] Apr. 6, 2017, no pet.)
Accordingly, we decline appellant's request to revisit the holding in Marquez and overrule his second issue on appeal.
CONCLUSION
Having overruled both of appellant's issues on appeal, we affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Keyes and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).