### In The C ou rt o f A p p ea ls Si x t h Appe l l at e Di st r i c t o f Te x as a t Te x ar ka na

______________________________ No . 0 6- 07 -0 01 42 -C R

______________________________ J ONATH AN B I L L Y TAYL OR, Appellant

V. THE STATE OF TEXAS, Appellee

On Appea l from the 124th J udicial District Court

Gre g g County , Texas Trial Court No. 34,207-B

B e f o r e C a rt e r , M o s e l e y

a n d C o r n e l i u s , * JJ. Opinion by

J ustice Cornelius

________________________ *Wil liam J . Cornelius, Chief J ustice, Retired, Sitting by Assignme nt2 O P I N I O N J onathan Billy Taylor was c onvicted, in a be nch trial, of the offe nse of mansla ug hter. The tr ia l c ou rt se t T a y lor ' s p un ish me nt at tw e nty y e a rs ' c on fi ne me nt. Taylor does not cha lleng e the suff iciency of the evidenc e to suppor

t the conviction. He r aises

on ly on e iss ue on

a pp e a l: the tr ia l c ou rt ' s a lle g e d er ro r in de nying Ta

y lor ' s motio n to with dr a w h is

wa ive r o f a

jur y tr ia l. Taylor was indicted on A

pril 5, 2006. On September 26, 2006, Taylor filed a moti on elec ting to have a jury assess his punishment, and on Octobe r 13, 2006, he w aived a rra ignme nt and the trial court e ntere d a pre trial order . The nex t ac t i v i t y in the case was on June 20, 2007, when Ta y lor signe d a wr itten waiver

of jury trial, an ag ree ment to ple ad g uilty to the offe nse, and a

stipulation of evidenc e. On that oc casion, the tria l court admonished Ta y lor persona lly

in open cour

t conce rning the knowing and voluntary nature of the jury waiver and its conseque nces. A lso at the same time, the trial cour

t set Tay lor' s trial on his guilty plea f or Jul y 6, 2007. Three day s befor e that trial da te, Taylor sent a pe rsonal letter to the Gre g g County

Communi ty

Supervision Office , with a copy to the trial court, in which he indicated that he intended to ask that his jury waiver be withdra

wn, but he did not file a motion to wit hdrawthe jury waiver until J uly 6, 2007, the day

set for the trial. On that date, the tr ial court moved the date f or Tay lor' s trial on the g uilty

plea f rom J uly 6, 2007, to J uly

26, 2007, and set July

16, 2007, as the da

y for he aring Taylor' s motion t o withdraw his jury waiver

. At t h e h e a r i n g o n t h e m o t i o n t o w i t h d r a w t h e j u r y w a i v e r , T a yl o r ' s f

o r m e r a t t o r n e y, t h e S t a t e ' s a t t o r

n e y,3

and Ta y lor himself testified. The trial court made comments and observa tions concer ning the eff

ect a withdra wal of the jury

waiver would have o n t h e co urt' s docket, a nd Taylor' s curr ent attorne y pr e se nte d a

rgume nt o n th e me ri ts o f t he mot ion . T he tr ia l c ou rt the n o ve rr

ule d T a y lor ' s mo tio n to wit h d ra w h i s wa i v er o f jury trial, and the c ase w as tried be fore the cour t on Tay lor' s not g uilty plea on July

26, 2007. Both the U nited States Consti tution and the Tex as C onstitut ion gua rante e the r ight to a tr ial by jury . U.S. C O N ST . a me nd . V I ; T EX . C O N ST . a rt . I , § 15 ; see also T EX . C ODE C R IM . P R OC . ANN . art. 1.12 (V ernon 2005) . The rig ht to a jury trial may be waived in a criminal case if the def endant persona lly

signs a written wa iver in open c ourt with the consent and approval of the court and the State' s attorney . T EX . C ODE C R IM . P R OC . ANN . art. 1.13 (V ernon 2005)

. A def endant may

withdr aw h i s waiver of jury trial if the motion to withdraw is made

su ff ic ie ntl y in a dv a nc e of

tr ia l tha t th e g ra

nti ng of the mot ion

wi ll n ot p ro du c e a dv e rs e c on se qu e nc e s. Ma rq ue z v. S tat e , 921 S.W .2d 217, 221–22 (Tex. Crim. App. 1996). Adverse conseque nces tha t may

a uth or ize a c ou rt to d e ny a mot ion to w ith dr a w a

jur y wa ive r a re (1) in ter feren c e wi th t

he or de rl y administration of the busi ness of the court; (2) unne cessa ry delay or inconve nience to witnesses; or (3) pr ejudice to the State. I f any of these a dverse conseque nces w ould occur , the court does not err in ove rruling the motion to withdraw. Id. a t 222. B e c a us e a mot ion to w ith dr a w a

jur y wa ive r i s a reque st to chang e the status quo, the movant has the burden to show fac ts e ntitli ng him to relief, i.e., that no adver se conse quence will follow from g ranting the motion to withdraw. Id. at 222–23.4

We r e vie w a

tr ia l c ou rt ' s o ve rr

uli ng of a mot ion to w ith dr a w a

jur y tr ia l w a ive r f

or a n a bu se of discre tion. Id. at 219. A trial court abuses its discr etion when it a cts without refe renc e to g uiding rules and pr inciples, or in other w ords, when it ac ts arbitrar ily or ca priciously

. Mo ntg

om e ry v . S tat e , 81 0 S. W.2 d 372 , 380 (T e x. Cr im. Ap p. 19 90 ). I f the Sta te , the re c or d itse lf , or the tr ia l court

re bu ts th e d e f e n d a n t ' s c l a i m o f n o a d v e r s e c o n s e qu e n c e s , t h e t r i a l c o u rt d o e s n o t a b u s e i t s d i s c r e t i o n in denying the motion to wit hdrawthe waive r of jury trial. Ma rq ue

z v . S tat e , 9 21 S.W. 2d

a t 22 3; In

re J .I .C. , No. 08-02-00239-CV, 2004 Tex. App. L EXI S 2758 (Tex. App.—El P aso Mar . 26, 2004, no pet.). At the he a ri ng on the mot ion to wit hd ra w the jur y wa ive r, Ta

y lor ' s for me r atto rn e y , K e vin Settle, testified that he was not a war e that any

witness was inconve nience d by the cour t's moving the trial setting f

rom J uly 6 to J uly 26, 2007, and that Taylor informed the community supervision offic e and the tria l court by

letter on July

3, 2007, that he intended not to plead g uilty on J uly 6 as previously ag ree d, and wa nted a jury

trial. Settle further

testified he ha d no evidenc e and no r eason to believe that Ta

y lor was se eking to withdraw his jury waiver for the sole purpose of delaying the trial, and Settle said he be lieved that Ta y lor was be ing hone st and truthful in his desire to ha ve a jury trial. Settle also said he could not answe r whether any adver se conse quence would occur if the jury waiver wer e withdra

wn, but he knew

of none. The St a te ' s a tt o r

n e y , Wi ll ia

m Je n n in g s , te s ti f

ie d

. H e s a id th e r e w e r e n o w it n e s s e s prese nt in c ou rt on July 6, 20 07 , w ho we re inc on ve nie nc e d b y the c ou rt ' s mo vin g the no nju ry tr ia l date to5

J uly 26. He a lso te stified that Taylor' s making a re quest to withdraw his jury waiver had no impact

on the Sta te ' s c a se , b ut i n h is o pin ion , a llo wi ng the wi thd ra wal of ju ry

wa ive rs wo uld

g re a tly inc on ve nie nc e the c ou rt . Jen nin g s sa id h e ha d n o w a y of kn ow ingif so me of th e wi tne sse s in Taylor' s case would have be en inconve nience d if they had bee n g iven only

ten day s' notice of the withdrawa l o f T ay

lor' s jury waiver and the c ase be ing se t for jury trial. J enning s also testified he believed it could inter fer e with the business of the c ourt if the cour t g ave Tay lor a jury

trial afte r he h a d p r e v i o u s l y w a i v e d

a j u r y. Ta y lor te sti fi e d th a t he kn e w h e ha d a ri g ht t o a jur y tr ia l wh e n he wa ive d that ri g ht; that hi s attorney explained his rig hts to him and he knew what he was doing ; that subsequent to his waiver he ma de a de c isi on to w ith dr a w the wa ive r a

nd c ha ng e his ple a ; he did

no t c ha ng e his min d a

nd a sk for a jury trial for the purpose of

delay ing the trial, but so he could c hang e his plea a nd have a jury trial. On completion of the testimony , the trial court took judicia l notice of its trial schedule a nd its recor ds, and made observa tions about the eff ect that a withdrawa l of Tay

lor' s waiver

of a jury trial would have ha d. The c ourt noted that its docket is extremely heavy , wi t h jury

wee ks containing specific trial settings e x tending well bey ond the month of Aug ust. The c ourt commented tha t giving Taylor a jury

trial at this time and in the exis ting c ircumstance s would require taking case s off the t r i a l d o c k e t t h a t t h e S t a t e h a d i n g o o d f a i t h a l r e a d y m a d e p l a n s t o t r y o n t h o s e w e e k s . In s u m m a r y, the tr ia l cou

rt sa id tha t to a llo w the wi thd ra wa l of Ta y lor ' s jur

y wa ive r in the se c ir c ums tanc e s w ou ld6

"w rec k" the court' s docket a nd would interfe re w ith the orderly administration of the business of the

c ou rt
. We conclude that Taylor has fa iled to car ry his burden to produc e suff icient fa cts showing that no adver se conse quence s would result from the g ranting of his motion to wit hdrawhis jury

wa ive r. Th e tr ia l c ou rt

is ve ste d with br oa d disc re tio n to man a g e a nd c on tr ol i ts d oc ke t in

or de r t o promote the orde rly

and ef ficient a dminist ration of justice w hile p ro t ec t ing the statutory and constitutional rig hts of

all persons who c ome bef ore the court. Ma rq ue

z v. S tat e , 921 S.W .2d at 223. I t appea rs t h at the trial cour

t has ac ted in these c ircumstance s in a g ood-fa ith effor t to fairly and eff iciently administer justice. Taylor has not show n otherwise. We, the ref ore, c onclude that the tr ial

c ou rt did no t a bu se its dis c re tio n in de nyingTa y lor ' s mo tio n to wi thd

ra w h is w a ive r o f a

jur y tr ia l. We a ff ir m th e jud g me nt o f t

he tr ia l c ou rt
.

Willi a m J. Co rn e liu s*

J ustice *Wil liam J . Cornelius, Chief J ustice, Retired, Sitting by Assignme nt Date Submitted: Marc h 14, 2008 Date D ecide d: May 6, 2008 Pub lis h