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Click here for the full text of this decision FACTS:Authorities charged Rodney D. Davidson with felony driving while intoxicated. The trial court tried Davidson without a jury on a plea of not guilty. The record, however, did not contain a statutory written jury waiver under Texas Code of Criminal Procedure Art. 1.13, nor does it indicate that Davidson orally waived that right before the trial court. Rather, the only evidence indicating that Davidson did in fact waive his right to a jury trial appeared in the court’s judgment. The judgment recites that “[after both sides announced ready for trial], the Defendant, Defendant’s attorney, and the State’s attorney agreed in open court and in writing to waive a jury in the trial of this cause and to submit it to the Court. The Court consented to the waiver of a jury.” Following his conviction, Davidson filed a pro se notice of appeal attacking the veracity of these recitals in the trial court’s judgment. The court appointed Davidson an appellate attorney. The 2nd Court of Appeals subsequently abated the case, on Davidson’s motion, to permit the trial court to conduct a hearing to determine whether Davidson waived his right to a jury trial and whether Davidson was denied the effective assistance of counsel at a critical stage of the proceedings. During the hearing, Davidson testified that his trial counsel never asked him if he would like to waive his right to a jury trial nor did he ever agree to do so. Davidson explained that he knew he had a right to be tried by a jury but that he did not realize that his case was proceeding as a bench trial until after the trial had already begun. Davidson stated that after the trial started, he expected the jurors to file in and jury selection to begin. He asked his attorney: “[W]hen do we start picking the jury?” According to Davidson, his attorney replied, “We done discussed this. You gave up your right to a jury trial.” At the conclusion of the hearing, the trial court made findings of fact and conclusions of law, which included, inter alia, findings that: Davidson did not sign a statutory jury waiver or agree to such a waiver in open court; and the trial court did not ask Davidson whether he wanted to waive trial by jury. HOLDING:Reversed and remanded. Under the U.S. and Texas constitutions and Texas law, the right to a jury trial at the guilt stage is a statutory and a constitutional right that cannot be relinquished absent an express waiver. To constitute an express waiver, the court stated, there must be an “intentional relinquishment or abandonment of a known right or privilege.” A defendant’s mere acquiescence in proceeding to trial without a jury does not constitute an express waiver, the court stated. In Davidson’s case, the court stated, the record from the abatement hearing clearly shows that Davidson did not expressly waive, in any form to the trial court, his right to a trial by jury. Consequently, the court concluded that the trial court denied Davidson his constitutional and statutory right to a jury trial. Denial of a criminal defendant’s constitutionally guaranteed right to a jury trial, the court stated, is a structural constitutional error that affects the very framework of the underlying trial. Such errors, the court stated, defy analysis by harmless error standards and are therefore not subject to a harm analysis. OPINION:Gardner, J.; Gardner, Walker and McCoy, J.J.

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