IV. The Lemus opinion

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.

50 See Farris v. State, 581 S.W.3d at 923 (citing Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992)). 51 See McMillan v. State, 57 S.W.2d 125 (Tex. Crim. App. 1933). 52 Delrio v. State, 840 S.W.2d at 446.

The third reason advanced by the Court of Appeals for rejecting the argument

made by Mr. Farris is also based on an old case. That old case is Dabney v. State –

another 1933 case from the Court of Criminal Appeals.53 As the Farris Court

recognized, Dabney “addressed [Mr. Farris’s] exact argument on appeal.”54 The Dabney

Court did indeed address the argument. But the Dabney Court’s resolution of the

argument was based not on the law, but rather on the argument’s negative

consequences. The Dabney opinion said:

The opinion in this case was predicated on McMillan v. State (Tex. Cr. App.) 57 S.W.(2d) 125. Appellant urges that the conclusion reached in the latter case was wrong, in that the court failed to take note of section 10, art. 1, of the State Constitution, which reads, in part: “In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury.” Appellant admits that section 15 of article 1 of the Constitution55 makes a jury trial a “right” which might be waived if it were not for section 10 of said article, which appellant urges is an absolute requirement of trial by jury in all criminal prosecutions. If appellant is right, then all legislative acts permitting a waiver of jury in misdemeanor cases are void, as being in conflict with the constitutional provision of section 10. We are not in accord with appellant's position. Sections 10 and 15 must be considered together as was done in Moore v. State, 22 Tex. App. 117, 2 S. W. 634. The conclusion there reached is not in accord with appellant's contention. We regard the opinion in that case as direct authority supporting our conclusion in McMillan v. State, supra.56

53 See Dabney v. State, 60 S.W.2d 451 (Tex. Crim. App. 1933). 54 See Farris v. State, 581 S.W.3d at 923-24. The argument, as accurately capsulized by the Farris Court, is that “Article I, section 10 creates ‘an absolute requirement of trial by jury in all criminal prosecutions.’” 55 In pertinent part, Article I, Section 15 of the Texas Constitution says: The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. 56Dabney v. State, 60 S.W.2d at 451 (emphasis added).