“I want a hamburger…no, a cheeseburger.”
Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty to receive a lesser sentence or probation. Sometimes, that is the best advice I can give. In these times, our goal is to mitigate the sentence.
However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing. In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the judge. This is a tactical choice. Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.
In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone. It is the defendant’s choice alone and no one can interfere with that choice. Seems fair enough, right?
In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it. If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.
That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).
As the appellate court noted:
Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made “in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.” Tex. Code Crim. Proc. Ann. art. 1.13(a).
The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.
