Effrin Jermon Smith v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00187-CR
______________________________
EFFRIN JERMON SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 21440
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Effrin Jermon Smith pled guilty in this case to a charge of possession with intent to deliver a controlled substance, between four and 200 grams, in a drug-free zone, with a deadly weapon finding. The case was tried to the court on punishment, resulting in a twenty-five-year sentence.

On appeal, Smith contends we should reverse for a new punishment hearing because he did not adequately waive his right to a jury trial on punishment. Counsel properly asserts that the United States Constitution as interpreted by the United States Supreme Court requires an affirmative intentional relinquishment of the right to a jury trial, and that Texas statutory law also requires the right to a jury trial to be waived in writing. As to this case, counsel also appropriately admits that Smith expressly waived his right to a jury trial by signing written admonishments providing such waiver.

In this case, Smith signed an express waiver of his right to have a jury pass on his guilt/innocence and his punishment. That meets the requirements of Article 26.14 of the Texas Code of Criminal Procedure:

Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.

 

Tex. Code Crim. Proc. Ann. art. 26.14; see Scott v. State, 173 S.W.3d 856, 869 (Tex. App.--Texarkana 2005, pet. granted).

Article 37.07 provides that, if a finding of guilt is returned, the defendant may, with the consent of the attorney for the State, change his or her election of one who assesses the punishment. Tex. Code Crim. Proc. Ann. art. 37.07, 2(b) (Vernon 2006). That article does not apply in this instance.

Article 1.13 provides that a defendant may, on entering a plea, waive the right of trial by jury--in writing, in open court, with the consent and approval of the court and the attorney representing the State. Tex. Code Crim. Proc. Ann. art 1.13 (Vernon 2005). That article is directly applicable here.

Smith waived, in writing, his right to trial by jury on guilt/innocence and his right to have a jury assess his punishment. The omnibus document containing admonishments, waiver, application for probation, and approval by the State and the trial court is part of the record. On its face, the document reflects that Smith waived his right to a jury trial on punishment, meeting the requirements of the Code.

Because no error has been shown, we affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: February 26, 2007

Date Decided: April 17, 2007

 

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