## IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD
- 0593
- 20

JOSE CESAR SANCHEZ , App ellant

v. THE STATE OF TEXAS

ON APPELLANT ’S PETITION FOR DISCRETIONARY REVIEW FROM THE ELEVEN TH COURT OF APPEALS ECTOR COUNTY
Y E ARY , J., delivered the opinion of the Court in which R ICHARDSON , N EWELL , K EEL , W ALKER , S LAUGHTER , and M C C LURE , JJ., joined . H ERVEY , J., concurred in the result. K ELLER , P.J., dissented. O P I N I O N The issue in this case is whether the trial court should have permitted Appellant to withdraw his waiver of a jury trial that was executed in anticipation of a negotiated plea that was never consummated. After overruling several requests by Appellant to withdrawSANCHEZ

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### 2 his jury waiver, the trial court afforded him a bench trial. 1 We conclude that the trial court abused its d iscretion by failing to permit the withdraw al of appellant’s jury

- trial waiver , and we therefore reverse.
I. BACKGROUND (a) In the Trial Court Appellant was indicted in November of 2016 and arraigned in December

. His case was originally set for a pre - trial hearing in March of 2017. After this initial pre - trial setting was continued several times, Appellant’s initially appointed counsel filed a motion to withdraw from representing him on the ground that she did not speak Spa nish, Appellant’s first language. This motion was heard on April 13, 2017, and again on April 20, 2017. On the latter date, the trial court granted th e motion to withdraw and appointed Appellant new, Spanish

- speaking counsel

. On th e same da y that the tria l court appointed Spanish

- speaking counsel to represent Appellant , out

- going counsel informed the trial court that Appellant had resisted the State’s plea bargain offers and was inclined to go to trial. T he trial court announced that it had arranged for an interpreter to appear for a trial s etting o n April 26, 2017 , but the n adjourned the April 20 th pre - trial hearing without setting a new trial date , apparently because the trial court was uncertain when the interpreter could be rescheduled. A t some point, however, the case was reset for a jury

- trial date of July 10, 2017.

1 Appellant was convicted of the offense of continuous sexual assault of a child, and the trial court thereafter assessed his punishment at life in the penitentiary and a $5,000 fine. T EX
. P ENAL C ODE § 21.02(b), (h).SANCHEZ

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### 3
T he next time Appellant appear ed in open court was o n June 29, 2017, with his new counsel, for a hearing on a negotiated guilty plea. The plea hearing got off to a rocky start, however , when Appellant expressed an immediate hesitation about waiving a jury : THE COURT: Mr. Sanchez, you were scheduled for a plea hearing today at 1:30 based on a waiver of a right to a jury trial that you e xecuted earlier today in order to dispose of you r case; is that correct? THE DEFENDANT: I did sign it but I didn’t know I would los e my right to

-- to have a jury. Appellant acknowledged that his counsel had gone over the plea papers with him that morni ng and had generally describe d them to him , but he claimed that counsel had failed to explain “[t]hat I was giving up a right to a jury trial.” Appellant’s counsel then recounted to the trial court the explanation he had given Appellant that morning, inclu ding “that he would be giving up his right to a jury trial.” He assured the trial court that Appellant had understood t his explanation and was now simply reneging on his choice to plead guilty. The following exchange between the trial court and defense cou nsel then occurred : THE COURT: And did you read the waiver of right to a jury trial to him verbatim? [DEFENSE COUNSEL]: I broke it down into Spanish because it is kind of difficult verbatim because of the legal [sic] but there was no question. He knew what he was looking at and he knew what he was getting and the consequences of the whole thing. I don’t know what happened to him when he came back.
THE COURT: And this morning when

-- before Mr. Sanchez executed the waiver of right to a jury trial, you did explain to him the

-- by executing the document, he was acknowledging that if there was any trial after the execution of the waiver, that the trial would be to the Court, not only as to guilt

- innocence but also as to punishment; is that right? [DEFENSE COUNSEL]: I made it

-- yes, it is.SANCHEZ

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### 4
THE COURT: Okay. [DEFENSE COUNSEL]: And I made that clear and that he would not have a right to a

-- THE COURT: And you are confident that he understood that condition before he signed the waiver? [DEFENSE COUNSEL]: He was

-- I had to

-- he was kind of hesitant about it. He didn’t understand

-- what does this mean, what

-- so I spent time explaining it step by step. Because I wanted to make sure that he knew before I came out here and bro ught you that, and that he knew what we were doing. And so there is no question that he understood. Now, he changed his mind but that’s fine. But I told him

-- THE COURT: But before Mr. Sanchez executed this document and at the time he executed the docu ment, you are certain that he understood the substance of it? [DEFENSE COUNSEL]: One hundred percent. THE COURT: Okay. And that was this morning? [DEFENSE COUNSEL]: That was this morning. THE COURT: And he comes back this afternoon and he tells you that he is electing to reject the State’s plea offer? [DEFENSE COUNSEL]: Well, he apologized to me. He said, I have to apologize to you but I have changed my mind. The trial court next informed Appellant what it understood to be the substance of the State’s plea offer

— a ten

- year sentence in exchange for Appellant’s guilty plea to a lesser

- included offense. Appellant continued to evince some ambivalence about accepting the State’s offer, although at one point he asserted , “I do want to plead guilty.” He asked the trial court for a few days to consider his options

. B ut the State informed the trial courtSANCHEZ

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### 5 that its offer would expire at 5 p.m. that day , and the trial court gave Appellant only that long to make up his mind. The June 29 th ple a hearing then concluded with the following exchange between the trial court and the State: [PROSECUTOR]: Judge, are we going to do a bench trial or a jury trial? THE COURT: If we proceed to trial, it will be before the Court because the waiver

-- [ PROSECUTOR]: I just wanted to make sure. THE COURT: Because the waiver has been executed and the jury trial has been waived so it is just a matter of Mr. Sanchez’s decision as to whether to or not to accept the plea offer that you have extended to him today. Appellant apparently declined the State’s plea offer . The case did not proceed to a jury trial on July 10th as scheduled. Instead, on July 19, 2017, the trial court issued an order setting the case for a bench trial on August 7, 2017. 2
In the meantime, the State filed two motions to amend the indictment, on June 30,
2017 , and July 10, 2017. The amendments were intended to adjust the time

- period over which Appellant is alleged to have committed the acts of sexual abuse against the victim which c onstituted the offense of continuous sexual ab use . On July 10 th , the trial court issued an order by which it essentially granted both of the State’s motions to amend the indictment

. Appellant then exercised his statutory right to a ten

- day period “to respond to”

2 The docket sheet reflects that the cau se was set for trial on three dates prior to the aborted guilty plea on June 29th: March 27, 2017, April 26, 2017, and May 22, 2017. I t was set for trial on two other occasions after the hearing of the aborted guilty plea on June 29th , first on July 10, 20 17, and then on July 17, 2017, before it finally proceeded to a bench trial on August 7 , 2017.SANCHEZ

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### 6 an amended indictment, 3 causing a delay in the July 10th trial setting. For Appellant’s part, on August 2, 2017, five days before the bench trial ultimately occurred , he filed a written motion asking the trial court to restore his case to the jury

- trial docket. The trial court did not rule on this motion prior to the bench trial on August 7 th

. After the interpreter was sworn in for purposes of the bench trial on August 7th , Appellant formally requested the trial court to allow him to withdraw his waiver of jury trial. When the State refused to consent to the withdrawal , the trial court entertained Appellant’s arguments as to why allowing him to withdraw his waiver would not “inconvenience” the State

. Appellant argued that, even after he rejected the State’s plea offer, the case could have proceeded to a jury trial on July 10th, as had been scheduled, had the State not amended its indictment, indicating that it was not ready on that date. The State responded that it could have been ready on July 10th, notwithstanding its wish to amend the indictment, had Appellant not insisted on his statutory right to ten days to prepare, causing the trial court to reset the trial for August 7th. The trial court denied Appellant’s motion, and the bench trial commenced. After the parties had rested and closed at the guilt

- innocence phase of the bench trial, but before the trial court heard closing arguments, the trial court sua sponte announce d that it desired to revisit its ruling on Appellant’s motion to withdraw h is jury trial waiver. The trial judge announced that he had reviewed this Court’s plurality opinion in Marquez

3 See T EX
. C ODE C RIM
. P ROC
. art. 28.10(a) (“On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.”).SANCHEZ

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### 7
v. State , 921 S.W.2d 217 (Tex. Crim. App. 1996), 4 and he engaged in the following exchange : [THE COURT]: . . . Essentially what this Court has to determine to grant a defendant ’ s request to permit a withdrawal of a jury waiver is, first, is whether or not the request is submitted sufficiently in advance of trial. I believe it has. The initial request was discussed on June 29th at the time this matter was addressed in open court w ith Mr. Sanchez as far as his

-- the jury waiver he had executed that day. But there are three other elements. One is whether or not the granting of the request will interfere with the orderly administration of the business of the Court. And the defendant had the burden to overcome that and I find that the defendant has not. It is very clear that this case has been delayed time and time and time again. It has been set for trial

-- or had been set for trial before Mr. Sanchez had executed this jury waiver on four previous occasions. In fact, the second time this case was set for trial, which was to be tried on April 26th, the week before Mr. Sanchez had requested that his attorney be permitted to withdraw, even though his attorney had been appointed since Dec ember of ‘ 16 on the basis that he couldn ’ t communicate with his attorney, and that was [Appellant’s initially

appointed counsel] . So the Court delayed the trial and permitted Mr. Sanchez to have other court appointed counsel, and that is what we arrived at today. The second element is whether or not the granting of the request would result in unnecessary delay or inconvenience to witnesses. And I would like to hear from the State on this, but it appears to me, as in all cases, that if the case is set for t rial, as it has been in this case several times, you notify your witnesses. If it is delayed they are advised of the delay. Some witnesses become rather frustrated with the fact the case can ’ t proceed because of numerous delays. So I would like to hear fro m the State on that because I am just guessing, having not known what has gone on in your office as far as this case is concerned. [PROSECUTOR] : May I speak, Your Honor? THE COURT: Of course. [PROSECUTOR] : Your Honor, as it came out in testimony from [the complainant] , I have met with her at least six or more times. One of the

4 The standard for determining whether a trial court has abused its discretion in failing to allow a defendant to withdraw a waiver of jury trial , first announced by a plurality of the Court in Marquez , was later adopted by a solid majority of the Court in Hobbs v. State , 298 S.W.3d 193, 197 (Te x. Crim. App. 2009).SANCHEZ

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### 8 reasons I have had to meet with her multiple, multiple times is this case has been continuously reset and reset. And I would like on the record that that is not a reflection

-- saying something poorly about these defense counsels. They have done an imminent job, both in this case and all the other cases that I have ever, in my experience dealing with. They are excellent attorneys and t hey have represented their client very well. But because of the actions of their client, which I don ’ t think impugns them in any way, shape or form, this case has been delayed and delayed and delayed. I have had to bring in all the witnesses you saw today, plus others that I chose not to call, and we had to meet with them over and over again. And quite honestly, Your Honor, the victim in this case was very reluctant to go forward. As you could tell from her testimony, she is very nervous, she is very skitti sh. She is scared. She is scared of the process. She is scared of the defendant. I think she might even be a little scared of me. The reality is I had to promise her that I would do everything in my power to obtain a plea in this case just to get her to ag ree to come down here and testify. And when we are talking about harm or prejudice to the State ’ s case, every single time a case is continued or reset, for whatever reason, there is a chance that the 13th time a witness tells the story, they just don ’ t car e anymore. They refuse to come in and they refuse to cooperate. That ’ s the potential harm and/or prejudice that the State is going to have, in any criminal case. And in cases of sexual assault where you are dealing with young children who are talking about the very individual who they believe

-- well, may not be their biological father, but for all practical purposes was their father, makes it even more difficult. Thank you, Your Honor. THE COURT: I think that would

-- what you have just presented to the C ourt would address the element which is prejudice to the State or potential prejudice to the State. When I consider everything that has been presented by counsel, I cannot find that the defendant has met the burden that would justify the granting of a requ est to withdraw the jury waiver. The trial court found Appellant guilty and assessed his punishment

. 5 (b) On Appeal On appeal, Appellant raised two points of error related to his right to a jury trial. In his first point , he argued that he did not validly waive his right to a jury trial in the first place. The State conceded that Appellant’s jury trial waiver had not been executed in strict

5 See note 1, ante

.SANCHEZ

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### 9 compliance with Article 1.13(a) of the Code of Criminal Procedure, since it was not executed “in open court[,]” as that provision requires. Sanchez v. State , No. 11

- 17

- 00254

- CR, 2020 WL 2837023, at *2 (Tex. App.

— Eastland May 29, 2020) (mem. op., not designate d for publication); T EX

. C ODE C RIM

. P ROC

. art. 1.13(a). But the court of appeals found that error to have been harmless, concluding that his jury

- trial waiver was no less knowingly and intelligently entered for not having been executed in strict conformity with the statute. Sanchez , 2020 WL 2837023, at *2 (citing Johnson v. State , 72 S.W.3d 346, 348 (Tex. Crim. App. 2002)). Appellant challenged this holding via his first ground for review
in his petition to this Court for discretionary review , which we refused

. In his second point of error, Appellant argued that the trial court abused its discretion by failing to permit him to withdraw his waiver of his right to a jury trial. The court of appeals decided that Appellant could not establish that the trial court abuse d its discretion because he was unable to show the “absence of adverse consequences” to the State from the restoration of his jury

- trial right. Id

. , at * 3. I t further explained that Appellant failed to establish that withdrawal of his waiver would not result in an interference with the orderly administration of the trial court’s business, in view of the many resets for trial occasioned by Appellant’s insistence on a Spanish

- speaking attorney and the need for an interpreter.
I

d

. And , in view of the prosecutor’s representations about the effects of delay on his witnesses, especially his principal witness ( the complainant ) , Appellant was unable to show that reinstatement of his right to a jury trial would not result in unnecessary delay or inconvenienc e to witnesses. Id

. , at *4. We granted discretionary review only of the ground in Appellant’s petition that challenges this holding.SANCHEZ

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### 10
II. WITHDRAWAL OF JURY
- TRIAL WAIVER A defendant has an “absolute” right to a jury trial; and, though it may be waived, consist ent with the federal constitution, the record must show that his waiver was express, knowing, and intelligent. Hobbs v. State , 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). Moreover, by statute, a waiver must also “be 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.” T EX

. C ODE C RIM

. P ROC

. art. 1.13(a). “But once the defendant validly waives his right to a jury trial, he does not have an unfettered right to reassert that right.” Hobbs , 298 S.W.3d at 197. As the party who seeks to alter the status quo , the defendant bears the burden when he seeks to withdraw a valid jury

- trial waiver

. I n Hobbs , this Court explained that, as a predicate to withdrawing a valid waiver, a defendant must show that granting his request will not: ( 1) interfere with the orderly administration of the business of the trial court; ( 2) result in unnecessary delay or inconven ience to witnesses; or ( 3) prejudice the State. Id . at 197

– 98. The trial court’s decision whether to grant such a request is discretionary

. Id . at 198. A nd if the record rebuts the defendant’s assertions that his request will not interfere with court busin ess , delay the proceedings , inconvenience witnesses , or prejudice the State , then there is no abuse of discretion. Id

. The question arose in this case: Did Appellant validly waive his right to a jury trial in the first place, for purposes of applying the Hobbs standard for measur ing the trial court’s discretion to deny a withdrawal of the waiver? After all, as the State has conceded and the court of appeals has recognized, Ap pellant’s jury

- trial waiver , though in writing, did notSANCHEZ

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### 11 otherwise conform to the requirements of Article 1.13(a); it was not “made” by Appellant

— indeed, it was renounced by him

— “in open court.” See Sanchez , 2020 WL 2837023, at *2. We will nevertheless assu me without deciding , for purposes of this case, that for a jury

- trial waiver to be “valid” within the meaning of the Hobbs standard, it need only satisfy the federal constitutional criteria for validity ; namely, that the record show that it was made expres sly, knowingly, and intelligently, regardless of whether it was executed in writing or in open court

. ( A fter all, we refused Appellant’s first ground for discretionary review , whereby he assailed the court of appeals’ conclusion that the failure of his waiver to conform with Article 1.13(a)’s “ open court ” requirement was harmless)

. Entertaining that assumption for purposes of resolving Appellant’s second ground for review, we a re still compelled to conclude that, on the facts of this case , the trial court abused its discretion by failing to permit Appellant to withdraw his jury

- trial waiver.
III. ANALYSIS (a) The Timeliness of Appellant’s Request to Withdraw The court of appeals concluded that Appellant “effectively asked to withdraw his waiver on the day of the plea hearing[,]” on June 29th. Id

. , at *3. That being the case, Appellant contends that the court of appeals erred to consider the possibility of inte rference, delay, inconvenience, or prejudice that may have accrued between June 29th and the date of the bench trial, on August 7th, when the trial court ultimately made a ruling. Appellant’s Brief at 11

– 12. Instead, Appellant argues that th e Hobbs factors should be assessed as they would have applied on June 29th. Id

.SANCHEZ

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### 12
The State cou n ters that Appellant did not, in fact, make any explicit request to withdraw his jury

- trial waiver at any time during the June 29th plea hearing; that he did not make an y such formal request until filing his motion to restore the case to the jury docket, on August 2nd. State’s Brief at 6, 9

– 11. Therefore, according to the State, the court of appeals correctly considered events that accrued right up until the date of the b ench trial itself

— interference with the court’s docket and delay of the trial brought on by Appellant’s insistence on his statutory 10

- day period to respond to the State’s amendments to the indictment , and inconvenience to the State’s witnesses, particularly the complaining witness

— in assessing the Hobbs factors. Id . at 14. The State is correct that Appellant made no express or formal request to withdraw his jury

- trial waiver during the June 29th plea heari ng. That being said, he certainly made his ambivalence about waiv ing a jury trial clear to the trial court at th e very outset

. And
i ndeed, the trial judge him self later indicated on the record that he had understood Appellant to have be en seeking to withdr aw his jury

- trial waiver at that time . When he revisited the issue of withdrawal , after both sides had rested and closed at the guilt phase of Appellant’s bench trial, on August 7th, the trial judge declared: “T he initial request was discussed on June 29th at the time this matter was addressed in open court with Mr. Sanchez as far as his

-- the jury waiver he had executed that day. ” Under these circumstances, we agree with both Appellant and the court of appeals that the trial court understood Appellant to have “effectively” requested a withdrawal of his jury

- trial waiver at the plea hearing ; and we agree with Appellant that whether he satisfied the Hobbs factors should be assessed as of the date of t his initial de facto request , on June 29th

.SANCHEZ

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### 13 (b) Applying t he Hobbs Factors The trial court ultimately ruled th at the numerous resets of the case for trial , both before and after the June 29th plea hearing , disrupted the court’s docke t and threatened to

cause the State’s complaining witness to become reticent. But we conclude that the first handful of resets that occurred , prior to the June 29th plea hearing , are in no way attributable to Appellant’s requests to withdraw his jury trial waiver. If anything, they are instead attributable to Appellant’s insistence upon obtaining Spanish

- speaking counsel and
to the trial court’s concern that an interpreter be secured , in order to ensure a fair trial

— presumably a trial before a jury , since Appellant had not waived that right yet. These events had nothing to do with, and were not in any way affected by, Appellant’s later waiver of his right to a jury trial, much less his request to withdraw that waiver. Both the trial court and the court of appeals were mistaken to take t hose circumstances into account in assessing whether Appellant could satisfy the Hobbs factors. As for any disruption, delay , or inconvenience following the June 29th hearing, we do not believe those events are any more relevant to a determination of whet her the trial
court abused its discretion by prohibiting Appellant from withdraw ing his jury

- trial waiver at the plea hearing itself . Within just a few hours of his execution of the waiver that morning , Appellant “effectively” ask ed to withdraw it. To have granted his request right away would have caused no disruption to court business, delay in the proceedings, or inconvenience to witnesses that would not have been attendant to his never having waived the right in the first place.SANCHEZ

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### 14 Indeed, th is case was on the docket for a jury trial to be conducted on July 10 th

. H ad Appellant been allowed to withdraw his waiver, there is no reason to believe on this record that he could not have been ready for that setting other than the State’s ame ndments to the indictment , which the State insisted did not affect its own readiness to proceed on July 10th in any event. And t he amendments themselves were no t a direct product of Appellant’s request to withdraw his jury

- trial waiver. We think the court of appeals was also mistaken
to have regarded these circumstances as a legitimate justification under Hobbs for refusing to allow Appellant to withdraw his jury trial waiver on June 29th

. We turn finally to the related Hob bs factors of potential inconvenience to the witnesses and prejudice to the State. The prosecutor complained at the conclusion of the bench trial that, before the June 29th plea hearing had even begun, he had already informed the complaining witness that A ppellant had agreed to accept the State’s plea offer, which would relieve his “skittish” witness of the obligation to testify. But any inconvenience to the complaining witness and consequent prejudice to the State was occasioned, not by Appellant’s request to withdraw the jury

- trial waiver itself, but by his broader decision not to accept the State’s plea bargain after all. The only consequence of allowing Appellant to withdraw his jury

- trial waiver once he had decided to reject the guilty plea w ould have b een that the reluctant complaining witness would eventually have to testify in a jury trial rather than a bench trial. We regard any ensuing inconvenience to the witness and prejudice to the State to be, at best, de minimis when we consider all the circumstances

— especially the fact that Appellant made it known to the trial court within mere hours of having executed the jury

- trial waiver that he wished to withdraw it.SANCHEZ

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### 15
There is no case from this Court of which we have been made aware that is factuall y on all fours with this one. Nevertheless, the Court decided, in an analogous case, that when a defendant ha d accepted a plea offer, and he was later permitted to withdraw his guilty plea, the trial court err ed in failing to honor his request for a jury t rial , notwithstanding the prior jury

- trial waiver he executed as part of the plea bargain. See Wilson v. State , 698 S.W.2d 145, 146

– 47 (Tex. Crim. App. 1985); and see George E. Dix & John M. Schmolesky, 43 T EXAS P RACTICE : C RIMINAL P RACTICE AND P ROCEDURE § 40:61, at 575 (3d ed. 2011) (“If the trial court grants a motion to withdraw a plea of guilty or nolo contendere, a trial court errs in failing to honor the defendant’s request for a jury trial.”) (citing Wilson , 698 S.W.2d at 146

– 47). This is not a case , of course, in which the defendant accepted a bargain with the State to plead guilty and then attempted to withdraw from the guilty plea itself . Here, Appellant ultimately did not accept the State’s plea offer in the first place . But a d efendant who executes a jury waiver in anticipation of a negotiated guilty plea, and then balks at executing the plea and immediately seeks the reinstatement of his right to a jury trial, should be no less entitled to have his wish respected than the defen dant who goes through with the guilty plea and only later seeks to withdraw from both the plea itself and the attendant jury

- trial waiver. He should be no more bound by his earlier jury

- trial waiver than the defendant who accepts but then reneges upon a bargained

- for guilty plea , at least
not when he immediately makes it clear that he no longer wishes to be bound by the jury

waiver

.SANCHEZ

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### 16
CONCLUSION
We conclude that the trial court abused its discretion in forcing Appellant to submit to a bench trial. Accordingly, w e reverse the court of appeals’ judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

DELIVERED: September 22, 2021 PUBLISH