Blackwell v. State

CARVER, Justice,

dissenting.

I respectfully dissent, because the State’s failure to consent in writing to the defendant’s waiver of a jury trial as provided by Tex.Code Crim.Pro.Ann. art. 1.13 (Vernon 1977) cannot be said to be an omission calculated to injure the rights of the defendant nor can it be said that such omission prevented the defendant from receiving a fair and impartial trial.

It will be readily noted that my reason for dissent above stated is drawn from article 36.19, Tex.Code Crim.Pro. (Vernon 1977), in which the Legislature declared that any error by disregarding five articles relative to the charge of the court in criminal cases should not warrant reversal unless the error was calculated to injure the rights of the defendant or unless it appeared from the record that the defendant had not had a fair or impartial trial. I submit that if the doctrine of harmless error (to the defendant) is applied to the court’s charge, surely the same doctrine of harmless error is equally applicable to the State’s omission here. Consequently, I would hold that the State’s failure to consent in writing to the defendant’s waiver of a jury trial was harmless, borrowing the legislative standard applied in article 36.19.

I cannot dispute the authorities cited in support of the majority’s opinion, but urge that such authorities, on reconsideration, should be overruled by holding the State’s omission did not support reversal unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant had not had a fair or impartial trial.