Allen Wayne Johnson v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-98-297-CR

ALLEN WAYNE JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 23,448

O P I N I O N

Allen Wayne Johnson was convicted of delivery of a controlled substance and sentenced to life imprisonment. He appeals, asserting that the court erred in not allowing him to waive his right to a jury at a new punishment hearing which a federal court ordered. We will affirm the judgment.

PROCEDURAL HISTORY

In 1989, a jury convicted Johnson of delivery of a controlled substance. He was sentenced to 75 years imprisonment. This court affirmed that judgment. See Johnson v. State, No. 10-90-003-CR (Tex. App. Waco December 31, 1990) (not designated for publication). In 1992, the Court of Criminal Appeals vacated the judgment and remanded the case to this court for a harmless-error analysis after it found an improper jury argument. We again affirmed the judgment. See Johnson v. State, No. 10-90-003-CR (Tex. App. Waco March 3, 1993) (not designated for publication).

Johnson filed a petition for writ of habeas corpus in May of 1993, and a post-conviction application for writ of habeas corpus in December of 1994. Both petitions were denied by the trial court. The United States District Court for the Northern District of Texas later granted a writ. The State appealed the decision to the Fifth Circuit Court of Appeals, which reversed in part and remanded the cause for a new punishment hearing.

On July 23, 1998, Johnson filed an election to have the court assess his punishment. In August, he filed a motion to exclude State s request for trial by jury. Johnson s election was denied based on the fact that the State did not consent to the waiver of a jury. See Tex. Code Crim. Proc. Ann. art. 37.07(2)(b) (Vernon Supp. 1999). The jury sentenced Johnson to life in prison.

Johnson brings one point of error in which he asserts that the court erred in refusing to allow him to waive his right to a jury.

ARTICLE 44.29(b)

Article 44.29(b) of the Code of Criminal Procedure provides that, when a defendant is granted a new trial on punishment:

[T]he cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under Subsection (b), Section 2, Article 37.07, of this code. If the defendant elects, the court shall empanel a jury for the sentencing stage of the trial in the same manner as a jury is empaneled by the court for other trials before the court. . . .

Id. art. 44.29 (b) (Vernon Supp. 1999). // Article 37.07, section 2(b) provides that the defendant may, with the consent of the attorney for the state, change his election of who assesses punishment from his election at the guilt-innocence phase of trial. Id. art. 37.07, 2(b).

The State argues that the language of article 44.29 indicates an intention to place Johnson in the position that he would have been if a finding of guilt had been returned. Thus, it argues, the legislature must have intended for article 37.07, section 2(b) to control Johnson s right to an election at punishment. We disagree. The language of article 44.29 states that the cause shall stand as it would have stood in case the new trial had been granted by the court below. In that event, a defendant would have the right to make a new election. See Tex. R. App. P. 21.9 ( Granting a motion for new trial restores the case to its position before the former trial, including, at any party s option, arraignment or pretrial proceedings initiated by that party. ); Awadelkariem v. State, 974 S.W.2d 721, 724 (Tex. Crim. App. 1998) ( [T]he effect of the granting of a motion for new trial is to place the cause in the same position as if no trial had ever taken place. ). Additionally, article 44.29(b) itself says if the defendant elects, thereby further showing that the defendant has a right to a new election. Tex. Code Crim. Proc. Ann. art. 44.29(b); Saldana v. State, 826 S.W.2d 948, 950 (Tex. Crim. App. 1992). Furthermore, article 37.07, section 2(b) exempts itself from new punishment hearings under article 44.29. Tex. Code Crim. Proc. Ann. art. 37.07, section 2(b).

In Saldana, the Court of Criminal Appeals held that article 44.29(b) permits a defendant to elect jury assessment of punishment after remand, notwithstanding his waiver of a jury before the original trial. Saldana, 826 S.W.2d at 950. Although the opposite request was made here, the rationale applies equally. Johnson wished to change his choice from a jury trial to a non-jury trial on punishment. Article 44.29(b) creates the right to choose either jury or court assessment of punishment after a remand, notwithstanding the choice made at the original trial. Id. at 950; see also Easton v. State, 920 S.W.2d 747, 751 (Tex. App. Houston [1st Dist.] 1996, no pet.). Thus, Johnson was erroneously denied the right to elect court assessment of punishment.

Nevertheless, the right to waive a jury is not a constitutional right. It is a statutory right, and it is not absolute, as it is subject to the procedural conditions provided in article 1.13(a). State ex rel. Turner v. McDonald, 676 S.W.2d 371, 373 (Tex. Crim. App. 1984); Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 1999). Thus, we will apply a nonconstitutional harm analysis to the error. See Tex. R. App. P. 44.2(b); Fowler v. State, 958 S.W.2d 853, 864-66 (Tex. App. Waco 1997), aff d, No. 0075-98 (Tex. Crim. App. March 31, 1999).

In considering harm, we review the entire record to determine whether the error had more than a slight influence on the verdict. Id. at 866. If we find that it did, we must conclude that the error affected the defendant s substantial rights in such a way as to require a new trial. Id. Otherwise, we disregard the error. Id.

Johnson was found guilty of delivery of a controlled substance. The possible sentence for this crime was heightened by an enhancement paragraph alleging a prior conviction for murder. The State proved that prior conviction as well as a prior conviction for theft. Five witnesses testified that Johnson s reputation for being a peaceful and law-abiding citizen is bad. Johnson testified on his own behalf after his brother testified that his reputation for truthfulness is good. He told the jury that he had worked toward a college degree while in prison and that he had maintained a high academic grade-point average. Witnesses also testified that his conduct was good while in prison. Johnson refused, however, to apologize for any of the crimes that he had committed.

Considering the extent of Johnson s prior criminal history, we cannot say that the court s error in failing to allow Johnson to elect to have the court assess punishment affected his substantial rights. Thus, we disregard the error. Id. Issue one is overruled.

The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

(Justice Gray concurring)

Affirmed

Opinion delivered and filed June 30, 1999

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