by the Court of Criminal Appeals that actually does address Article I, Section 10’s “mandatory language.” 50 Citing McMillan v. State, 51 the Delrio Court said: Since 1931 we have not held, however, despite mandatory language in the provision, that an impartial jury is an inflexible constitutional imperative which cannot be procedurally defaulted or consciously waived. Rather, we have recognized it to be a right of the accused, which must be pressed in some fashion at trial before reversal of his conviction may be predicated upon its breach. 52 As one can see, the Delrio Court candidly recognized that Article I, Section 10 contains “mandatory language.” Nevertheless, the Delrio Court felt compelled to follow McMillan – a 1933 case declining to find that Article I, Section 10 created a constitutional imperative. Delrio did not explain why McMillan was correct. Instead, the Court followed McMillan with no regard for whether the opinion was (or was not) well-reasoned. And a look at McMillan reveals there to have been no independent analysis of Article I, Section 10 in that case either. In fact, McMillan does not even mention Article I, Section 10. So to defeat the argument that Article I, Section 10 mandates a jury trial in every criminal prosecution, the Farris opinion relies on Delrio. And the Delrio opinion relies on McMillan. And the McMillan opinion does not even mention Article I, Section 10.
See Farris v. State, 581 S.W.3d at 923 (citing Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992)). See McMillan v. State, 57 S.W.2d 125 (Tex. Crim. App. 1933). 52 Delrio v. State, 840 S.W.2d at 446. 50 51
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