In re the State of Texas, ex rel. Jennifer A. Tharp, Relator (dissenting)
Annotate this Case
Download PDF
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP–76,916
In re the State of Texas, ex rel. Jennifer A. Tharp, Relator
ON RESPONDENT’S MOTION FOR REHEARING OF STATE’S PETITION
FOR A WRIT OF MANDAMUS IN CAUSE NO. CR2011-325 IN THE
433RD DISTRICT COURT OF COMAL COUNTY
M EYERS, J., filed a statement dissenting to the denial of Respondent’s
Motion for Rehearing.
DISSENT
Article 37.07, Section 2(b), provides that punishment shall be assessed by the
judge unless the defendant elects jury assessment in writing before the commencement of
the voir dire examination of the jury panel. This was not the case when Rojas v. State,
404 S.W.2d 30 (Tex. Crim. App. 1966) was decided. Back then, a defendant could
request that the jury assess punishment after the jury returned a guilty verdict. Therefore,
Rojas really does not apply to this case and should not have been relied upon by the
majority. Additionally, because we have no case law indicating that the defendant’s
In Re Tharp dissent–Page 2
waiver of his right to jury-assessed punishment was improper, the State failed to
demonstrate a clear right to the mandamus relief it sought. Therefore, I would grant
Respondent’s motion for rehearing and reconsider our holding in this case.
I respectfully dissent to the majority’s denial of the motion for rehearing.
Filed: February 27, 2013
Publish
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
