Id. 76 Tex.Crim. 229, 173 S.W. 1195 (1915).Id. at 229-30, 173 S.W. at 1195.
" (internal citations omitted)), overruled on other grounds byComer v. State , 754 S.W.2d 656 (Tex. Crim. App. 1986) ; see alsoVinson v. Burgess , 773 S.W.2d 263, 265 (Tex. 1989) ("No provision in the [Texas] [C]onstitution should be read or construed in isolation.").See, e.g. , Grady v. State , 117 Tex. Crim. 115, 35 S.W.2d 158, 158 (1931) (relying on Moore and stating "[t]he [Texas] Constitution recognizes the right of one accused ... to waive a jury...."); Lee v. State , 86 Tex. Crim. 203, 215 S.W. 856, 856–57 (1919) (citing Moore and explaining Court of Criminal Appeals had "uniformly ... construed" Texas Constitution to allow waiver of jury); Schulman v. State , 76 Tex. Crim. 229, 173 S.W. 1195, 1195 (1915) (citing Moore and stating criminal defendant can "waive a jury"). Although appellant takes issue with the Court of Criminal Appeals' analysis and conclusions in the aforementioned cases, we, as an intermediate appellate court, are bound in criminal cases to follow the decisions of the Court of Criminal Appeals.
Statutes similar to that in the Scott case have frequently been sustained. (See: State v. Worden, 46 Conn. 349; Baader v. State, 201 Ala. 76, 77 So. 370; Wadkins v. State, 127 Ga. 45, 56 S.E. 74; People v. Steele, 94 Mich. 437, 54 N.W. 171; People v. Martin, 256 Mich. 33, 239 N.W. 341; State v. Smith, 123 Ohio St. 237, 174 N.E. 768; Moore v. State, 22 Tex. App. 117, 2 S.W. 634; Schulman v. State, 76 Tex.Crim. Rep. 229, 173 S.W. 1195; Grady v. State, 35 S.W.2d 158.) People v. Scott is overruled.
Where defendant was tried under a complaint and information as a juvenile delinquent, article 1195, C.C.P., and waived a jury and was convicted; not being prosecuted for a felony, there was no reversible error. Following: Shulman v. State, 76 Tex. Crim. 229, and other cases. Appeal from the District Court of Hale, sitting in chambers as a Juvenile Court. Tried below before the Hon. R.C. Joiner, judge.
error and remanding to court of appeals for harm analysis); Uranga v. State, 330 S.W.3d 301, 304 (Tex. Crim. App. 2010) (claiming that violation of right to trial by impartial jury based on implied bias doctrine); Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998) (claiming error in removal of juror for cause violated right to trial by impartial jury); Marquez v. State, 725 S.W.2d 217, 243 & n.9 (Tex. Crim. App. 1987) (challenging the exclusion of prospective jurors based on opposition to death penalty violated right to trial by impartial jury); see also Dabney v. State, 60 S.W.2d 451, 451 (Tex. Crim. App. 1933) (considering effect of article I, section 10 in appeal of conviction for theft of chickens, apparently a misdemeanor, for which punishment of 60 days' confinement was assessed); Lee v. State, 215 S.W. 856, 856-57 (Tex. Crim. App. 1919) (observing that Texas Constitution did not mandate jury trial for prosecution of juvenile because charged offense was not a felony); Schulman v. State, 173 S.W. 1195, 1195 (Tex. Crim. App. 1915) (holding that established rule in Texas allowed defendant to waive jury or agree to jury of fewer than six jurors in misdemeanor prosecution); Moore v. State, 2 S.W. 634, 635 (Tex. App. 1886) (holding that statute allowing for waiver of jury trial in misdemeanor cases did not conflict with article I, section 10). As in the context of the civil jury trial right,
" (internal citations omitted)), overruled on other grounds by Comer v. State, 754 S.W.2d 656 (Tex. Crim. App. 1986); see also Vinson v. Burgess, 773 S.W.2d 263, 265 (Tex. 1989) ("No provision in the [Texas] [C]onstitution should be read or construed in isolation."). See, e.g., Grady v. State, 35 S.W.2d 158, 158 (Tex. Crim. App. 1931) (relying on Moore and stating "[t]he [Texas] Constitution recognizes the right of one accused . . . to waive a jury . . . ."); Lee v. State, 215 S.W. 856, 856-57 (Tex. Crim. App. 1919) (citing Moore and explaining Court of Criminal Appeals had "uniformly . . . construed" Texas Constitution to allow waiver of jury); Schulman v. State, 173 S.W. 1195, 1195 (Tex. Crim. App. 1915) (citing Moore and stating criminal defendant can "waive a jury"). Although appellant takes issue with the Court of Criminal Appeals' analysis and conclusions in the aforementioned cases, we, as an intermediate appellate court, are bound in criminal cases to follow the decisions of the Court of Criminal Appeals.
Other jurisdictions have also made this determination. See Commonwealth v. Nicoll, 452 Mass. 816, 897 N.E.2d 1226 (2008) (holding that defendant could waive his Sixth Amendment right to jury trial by jury of at least six persons and agree to trial by jury of five persons); see also Schulman v. State, 76 Tex.Crim. 229, 173 S.W. 1195 (1915) (holding that it is well-settled rule that defendant, under his right to waive trial by jury, has further right of agreeing to be tried before less than six jurors). But see People ex rel. Hunter v. District Court In and For the Twentieth Judicial District, 634 P.2d 44 (Colo.1981) (holding that defendants accused of non-capital felonies or class 1 misdemeanors may elect, pursuant to state statute, to be tried by jury of less than twelve but may not be tried by jury of less than six; specifically withholding determination with regard to misdemeanors other than class 1).
Other jurisdictions have also made this determination. See Commonwealth v. Nicoll, 452 Mass. 816, 897 N.E.2d 1226 (2008) (holding that defendant could waive his Sixth Amendment right to jury trial by jury of at least six persons and agree to trial by jury of five persons); see also Schulman v. State, 76 Tex.Crim. 229, 173 S.W. 1195 (1915) (holding that it is well-settled rule that defendant, under his right to waive trial by jury, has further right of agreeing to be tried before less than six jurors). But see People ex rel. Hunter v. District Court In and For the Twentieth Judicial District, 634 P.2d 44 (Colo. 1981) (holding that defendants accused of non-capital felonies or class 1 misdemeanors may elect, pursuant to state statute, to be tried by jury of less than twelve but may not be tried by jury of less than six; specifically withholding determination with regard to misdemeanors other than class 1).
See Commonwealth v. Nicoll, 897 N.E.2d 1226 (Mass. 2008) (holding that defendant could waive his Sixth Amendment right to jury trial by jury of at least six persons and agree to trial by jury of five persons); see also Schulman v. State, 173 S.W. 1195 (Tex. Crim. App. 1915) (holding that it is well-settled rule that defendant, under his right to waive trial by jury, has further right of agreeing to be tried before less than six jurors). But see People ex rel. Hunter v. District Court In and For Twentieth Judicial District, 634 P.2d 44 (Colo. 1981) (holding that defendants accused of non-capital felonies or class 1 misdemeanors may elect, pursuant to state statute, to be tried by jury of less than twelve but may not be tried by jury of less than six; specifically withholding determination with regard to misdemeanors other than class 1).
Thus, when the jury composed of six people is reduced to five jurors due to a juror becoming disabled, the trial court could either declare a mistrial, or alternatively, it could proceed to a verdict with the remaining five jurors if the State and defendant agree. See Schulman v. State, 76 Tex.Crim. 229, 173 S.W. 1195, 1195 (1915) (holding that jeopardy attached when defendant was placed on trial before six jurors in misdemeanor prosecution and appellant requested that they proceed to trial before five jurors when one juror was excused, but court discharged jury over appellant's protest). D. Analysis