Texas Courts of Appeals
No. 01-16-00516-CR 6/28/18
Is the failure to obtain a written waiver of a jury trial constitutional error requiring reversal? Is the evidence insufficient to prove venue in a continuous sexual abuse case when the indictment alleges one county, but the evidence shows that the predicate offenses occurred in multiple counties?
No. Neither the Texas nor United States Constitutions require a jury trial waiver to be written. Although Code of Criminal Procedure Art. 1.13 does require a waiver to be written, failure to comply with the statute is only statutory error, not constitutional error. Statutory error is disregarded unless the error affected the defendant’s substantial rights. Failure to obtain a written jury waiver does not affect the defendant’s substantial rights if the record reflects that the defendant knew he had the right to a jury trial and knowingly waived that right. Here, the failure to obtain a written jury waiver was harmless because the judgment stated that the defendant waived his right to a jury trial. Additionally, venue is not an element of the offense for purposes of evaluating the sufficiency of the evidence, and the continuous sexual abuse statute does not require that the predicate offenses be committed in the same county. Read opinion.
The jury waiver issue is consistent with existing precedent. The sufficiency of the evidence issue will be useful because the multi-county situation is very common in sexual abuse cases, and prosecutors handling these cases can never be sure what the victim will testify to until it happens on the stand.