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III. The Farris opinion
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rehearing. A motion for en banc reconsideration was also denied. A petition for
discretionary review was filed with the Court of Criminal Appeals. The petition was
refused.
So the arguments undercutting the Smith holding have never been specifically
addressed. Perhaps other intermediate courts of appeals will be willing to consider
these legal authorities. This assumes these courts of appeals will not simply cite Smith
and its reasoning as precedent that should be followed. This is what happened in the
IX. The Wiggins Opinion
In Wiggins, the Fourteenth Court of Appeals said:
We agree with the First Court of Appeals on this issue. Appellant posits that the constitution “absolutely prohibits the assignment of visiting judges when the elected district judge is not absent, disabled, or disqualified,” but neither the relevant language nor its interpretative commentary supports his assertion. Article V, section 7 ensures that the absence, disability, or disqualification of a judge will not operate to adjourn court or prevent the holding of court; but it does not limit the Legislature's ability to enact legislation permitting eligible and qualified judges to be assigned to district courts in other circumstances.31
Once one intermediate court of appeals rules against a systemic argument, other
appellate courts have a convenient authority on which to defeat the same argument.
This is what happened in Wiggins. As in Smith, both a motion for rehearing and a motion
31 Wiggins v. State, 622 S.W.3d at 560. The Wiggins Court cited the Smith case as well as Dean v. Dean for its conclusion.
for en banc reconsideration were filed. And as in Smith, both motions were
unanimously rejected without comment. Also, another petition for discretionary review
was filed with the Court of Criminal Appeals. Again, the Court of Criminal Appeals
refused the petition.
X. The Lazarine Opinion
Much like the reasoning employed by the Wiggins Court, the Lazarine Court’s
rationale for finding Section 74.056(a) constitutional was a straight reliance on Smith.
There was no independent reasoning. In Lazarine, the First Court of Appeals said:
Lazarine argues Article V, Section 7 “creates an absolute prohibition on the assignment of visiting judges outside of situations in which the elected district judge is absent, disabled, or disqualified.” He thus contends that as applied to him, Government Code Section 74.056(a) violates Article V, Section 7 because it permitted Judge Hill [the visiting judge] to preside over his trial, even though nothing in the record suggested Judge Abigail Anastasio, the elected judge of the 184th District Court, was absent, disabled, or disqualified at the time of his trial. This Court recently rejected this same argument under very similar circumstances in Smith v. State.32
XI. Why there may be hope in other intermediate courts of appeals
The original briefs in Smith, Wiggins, and Laarine were filed at roughly the same
time. None of the authorities that undercut Dean v. Dean were cited in the original
briefs. And, as mentioned earlier,33 the State did not cite the Dean opinion in its
32 Lazarine v. State, 2021 WL 5702182 at *3-*4. 33 See supra Footnote 11.
briefing.34 No party knew about the Dean opinion until the Smith Court mentioned it
in its opinion. So neither the First Court nor the Fourteenth Court were forced to deal
with authorities running counter to Dean. Intermediate appellate courts can simply
choose not to address arguments made on rehearing and that is exactly what happened
here. And, of course, the Court of Criminal Appeals has total discretion in choosing
the cases it wishes to hear.
If this argument is advanced in any of the other intermediate courts of appeals,
the Dean case should be attacked as inconsistent with controlling precedent. That
controlling precedent should be argued strenuously. Courts of appeals hearing this
argument for the first time should have to confront the weakness of the Dean case. And
when they do, the result could well be different.
34 See State’s Appellate Brief at 8 in Smith v. State; State’s Appellate Brief at 8-9 in Wiggins v. State; and State’s Appellate Brief at 10 in Lazarine v. State.
SYSTEMIC ARGUMENT TWO Jury Trials Cannot be Waived
I. The key provision of the Texas Constitution – Article I, Section 10
The first sentence of Article I, Section 10 of the Texas Constitution contains
these 16 words:
The foregoing language is very similar to the language of the Sixth Amendment
to the United States Constitution. In pertinent part, the federal provision says:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .
The big difference in the two provisions is that the federal provision speaks of
the “right” to a jury trial. The Texas provision, on the other hand, is an absolute
mandate –“the accused . . . shall have a speedy public trial.” The Texas provision does
not speak of a “right.” There is nothing in the text of Article I, Section 10 indicating
the jury-trial requirement can be waived.
II. The argument on appeal
In three separate appeals, the Harris County Public Defender’s Office has argued
that Article I, Section 10 prohibits defendants from waiving a jury trial. The three
appeals are:
(1) Charles Farris v. State, No. 01-1800863-CR;
(2) Isael Lemus v. State, No. 14-18-00905 through No. 14-00911-CR; and;
Each of the appeals involved a defendant who had pled guilty. The argument
on appeal was simply and accurately described by the First Court of Appeals in Farris:
In his sole issue, appellant contends that the trial court erred in accepting his guilty plea because “the Texas Constitution requires a jury trial in all criminal prosecutions.”35
The Farris Court rejected this argument in a 2-to-1 decision that was published
in August of 2019. Justice Countiss wrote the majority opinion and was joined by Chief
Justice Radack. Justice Gordon Goodman wrote the dissenting opinion.36
III. The Farris Opinion
The First Court of Appeals made the following observation about Mr. Farris’s
argument:
appellant relies solely on the language contained in Article I, section 10 to assert that he could not have waived “the absolute requirement of a jury trial in all criminal prosecutions” provided for by the Texas Constitution.37
35 Farris v. State, 581 S.W.3d 920, 921-22 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (emphasis in original). 36 Farris v. State, 581 S.W.3d 920, 925 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (Goodman, J., dissenting). 37 Farris v. State, 581 S.W.3d at 922 (emphasis added).
It’s unclear why relying on the language of the Constitution makes for a weak
argument. Such language would seem to be the most solid of all legal authority. In any
event, the Court of Appeals didn’t find such authority, on its own, to carry the day. The
Court advanced three reasons for rejecting Mr. Farris’s argument.
First, the Court of Appeals cited five cases from the Court of Criminal Appeals
for a rather remarkable proposition. That proposition is that there is no difference
between the language of Article I, Section 10 and the Sixth Amendment. But as
demonstrated above, this is clearly not the case.
The first of the five cited cases is Jacobs v. State.38 The Court of Appeals said this
about Jacobs:
“there is no significant textual difference between” Article I, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution that “indicate[s] that different standards of protection should be applied” to criminal defendants under either constitution.39
But the Jacobs case had nothing to do with whether Article I, Section 10 absolutely
mandates a jury trial in criminal cases. Rather, the opinion considered whether the
38 Jacobs v. State, 560 S.W.3d 205 (Tex. Crim App. 2018). 39 Farris v. State, 581 S.W.3d at 922-23 (emphasis and brackets in the original). 40 Jacobs v. State, 560 S.W.3d at 210.
The second of the five cited cases is Jones v. State.41 Like Jacobs, the issue in Jones
was the scope of the impartial-jury requirement. It was not whether Article I, Section
10 mandates jury trial in all criminal cases:
As we have said previously, there is no significant textual difference between the two constitutional provisions which would indicate that different standards of protection should be applied, and we can conceive of no reason why the impartial-jury requirements in the two constitutions should be different.42
The third of the five cited cases is Judge Yeary’s dissenting opinion in Niles v.
State.43 Judge Yeary had simply repeated the Court’s language in Jacobs and Jones. 44 There
was no consideration of whether Article I, Section 10 requires jury trials in all criminal
cases.45
The fourth of the five cited cases is Uranga v. State.46 This case had to do with
something known as the “implied bias” doctrine. In the course of analyzing this
doctrine, the Court of Criminal Appeals said:
The Sixth Amendment to the United States Constitution guarantees the right to a trial by an impartial jury in all criminal prosecutions. Article I, Section 10 of the Texas Constitution similarly guarantees that “[i]n all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” This Court has held that the right in the state constitution is no greater than that recognized in the Sixth Amendment. Neither the
41 Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998). 42 Id. at 391. 43 Niles v. State, 585 S.W.3d 562 (Tex. Crim. App. 2018) (Yeary, J., dissenting). 44 Id. at 577 n. 12 (“We have said before that there is no difference in scope between the Sixth Amendment’s right to a jury trial and that of Article I, Section 10, of the Texas Constitution.”). 45 See id. 46 Uranga v. State, 330 S.W.3d 301 (Tex. Crim. App. 2011).
federal nor the state constitution has been held to require an “implied bias” doctrine.47
As in Jacobs, Jones, and Niles, the Uranga Court was not considering whether
The fifth of the five cited cases is Marquez v. State.48 The case has nothing to do
with the argument that Article I, Section 10 mandates jury trials in all criminal cases.
The question in Marquez concerned the impartial-jury requirement and the fair cross-
section requirement:
Appellant has submitted no case which suggests that the impartial jury and fair cross-section requirements embodied in the two constitutions are different. And, indeed, we can conceive of no reason why they should be so. We are not without authority in holding that the two constitutional provisions provide comparable protection.49
As can be seen, none of these five cases involved the argument that Article I,
Section 10 mandates jury trials in all criminal cases. The five cases do not in any way
foreclose the argument under discussion here.
The second reason advanced by the Court of Appeals for rejecting the current
argument is also of questionable strength. The Court cited Delrio v. State – an opinion
47 Id. at 304. 48 Marquez v. State, 725 S.W.2d 217 (Tex. Crim. App. 1987). 49 Id. at 243.
