Joseph Anthony Crawford v. State

Affirmed and Memorandum Opinion filed September 13, 2007 Affirmed and Memorandum Opinion filed September 13, 2007. In The Fourteenth Court of Appeals _______________ NO. 14-06-00818-CR _______________ JOSEPH ANTHONY CRAWFORD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 994,680 M E M O R A N D U M   O P I N I O N In his sole issue, appellant, Joseph Anthony Crawford, contends the trial court reversibly erred by denying him a jury trial at his punishment hearing. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background A jury found appellant guilty of the felony offense of evading arrest or detention. Subsequently, the trial court sentenced appellant to thirty-five years= confinement. The First Court of Appeals affirmed his conviction but reversed and remanded for a new trial on punishment. See Crawford v. State, No. 01-05-00292-CR, 2006 WL 908458, at *2 (Tex. App.CHouston [1st Dist.] April 6, 2006, no pet.) (not designated for publication). The trial court conducted the new punishment hearing without a jury. Appellant was sentenced to eighteen years= confinement. II. Analysis If a court of appeals or the Court of Criminal Appeals reverses and remands for errors in the punishment phase only, 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. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon 2006). AIf 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. (emphasis added). Therefore, a defendant has the option after remand to choose either the court or a jury to assess punishment. Easton v. State, 920 S.W.2d 747, 751 (Tex. App.CHouston [1st Dist.] 1996, no pet.); Johnson v. State, 995 S.W.2d 926, 928 (Tex. App.CWaco 1999, no pet.). Furthermore, a defendant may elect jury assessment of punishment after remand, notwithstanding his previous election in the original trial. Saldana v. State, 826 S.W.2d 948, 951 (Tex. Crim. App. 1992); Johnson, 995 S.W.2d at 929. However, the Court of Criminal Appeals has consistently held that Athe constitutional right of trial by jury does not encompass the right to have a jury assess punishment.@ Martin v. State, 753 S.W.2d 384, 389 (Tex. Crim. App. 1988); Easton, 920 S.W.2d at 750S751. Punishment by jury is a statutory right. Martin, 753 S.W.2d at 389B90; Easton, 920 S.W.2d at 751. Code of Criminal Procedure article 37.07(b)(2) includes the general provisions for requesting punishment by a jury. Under article 37.07(b)(2), after a guilty finding is returned, it is the judge=s responsibility to assess punishment unless the defendant elects punishment by a jury, in writing, before commencement of voir dire. See Tex. Code Crim. Proc. Ann. art. 37.07(b)(2) (Vernon 2006); see also Easton, 920 S.W.2d at 751 (explaining when considering article 44.29(b) and article 37.07(b)(2) together, article 44.29(b) Aclearly envisions a new jury will be empaneled on remand if the defendant elects punishment by jury@). Appellant contends he gave notice regarding his election for a jury to assess punishment on the court=s Agreed Setting form. Appellant=s trial attorney signed the form on which the following language appears: AThe undersigned Counsel hereby agrees this case is reset for Jury Trial to Aug. 31, 2006.@ Appellant also argues that he verbally informed the trial court before and during the punishment hearing regarding his request for a jury trial. In response, the State contends appellant waived his right to a jury because he failed to timely object. See Tex. R. App. P. 33.1. Assuming, without deciding, the Agreed Setting form constituted an election, we agree with the State=s contention that appellant waived his right to a jury trial by failing to timely object. We first note that the record does not include appellant=s alleged verbal request prior to the hearing. At the beginning of the punishment hearing, the trial court asked both parties if they were ready to proceed. Both parties announced ready, without objection. The State offered its evidence and asked the court to take judicial notice that the same evidence had been previously submitted at the guilt/innocense phase. Appellant did not object. Thereafter, appellant pleaded true to the two enhancement paragraphs. After the State rested, appellant objected for the first time that he had requested a jury for his new punishment hearing. In sum, by the time appellant objected, both parties had announced ready, the State had offered and the court admitted its evidence, appellant had pleaded true to the enhancement paragraph, and the State had rested. Therefore, we hold appellant waived his right to have the jury assess punishment. See Martin, 753 S.W.2d at 388 (holding defendant waived right to jury-assessed punishment even though defendant filed a written motion requesting that the jury assess punishment because defendant did not object when trial court heard punishment evidence and assessed punishment); Martin v. State, 452 S.W.2d 481, 482B83 (Tex. Crim. App. 1970) (holding defendant waived right to jury-assessed punishment even though defendant made a written request to have jury assess punishment because defendant did not object to jury=s discharge and raised no question concerning the right of the trial court to assess punishment during the hearing or in the motion for new trial); Easton, 920 S.W.3d at 751 (holding defendant waived right to jury-assessed punishment where defendant neither filed an election requesting a jury to be empaneled to assess punishment, nor objected to trial court=s receiving evidence and assessing punishment); Mangham v. State, 833 S.W.2d 705, 708 (Tex. App.CHouston [1st Dist.] 1992, no pet.) (holding defendant waived right to jury-assessed punishment even though defendant filed a motion electing to have jury assess punishment because the prosecutor mentioned during voir dire that jury would not be deciding punishment, neither party conducted voir dire regarding punishment, jury was dismissed without objection, and the court=s final judgment indicated defendant=s election for trial court to assess punishment); Caro v. State, 771 S.W.2d 610, 619 (Tex. App.CDallas 1989, no pet.) (holding defendant waived right to jury-assessed punishment because defendant filed motion for jury-assessed punishment after State had almost completed its voir dire, making the election untimely); Teubner v. State, 742 S.W.2d 57, 58 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (holding defendant waived right to jury-assessed punishment where defendant filed election for jury punishment after defendant pleaded not guilty, making the election untimely). Appellant=s sole issue is overruled, and the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed September 13, 2007. Panel consists of Justices Yates, Edelman, and Seymore.* Do Not Publish C Tex. R. App. P. 47.2(b). * Senior Justice Richard H. Edelman sitting by assignment.