Marquez v. State

¶1dissenting.

¶2The question presented in this case is whether the State should bear the burden of *226making an affirmative showing that it would be prejudiced by a granting of the defendant’s request to withdraw a jury waiver or whether the defendant should bear the burden of making an affirmative showing that the State would not be prejudiced thereby.1 The majority holds that the burden is placed on the defendant to establish that he is entitled to withdraw his jury waiver by affirmatively showing on the record that the state would not be prejudiced by the granting of the withdrawal. Majority op. at 223.

¶3While agreeing with the majority that the decision whether to grant a request to withdraw a previously executed jury waiver is generally within the discretion of the trial court, I would hold, due to the “inviolate” nature of the right to a trial by jury, that such discretion is to be “exercised liberally in favor of granting to an accused the right to trial by jury.” Floyd v. State, 90 So.2d 105, 107 (Fla.1956). In other words, a trial court should be found to have abused its discretion in denying a defendant’s request to withdraw a jury waiver unless the record affirmatively shows that the withdrawal of the waiver would have caused undue delay, prejudice to the State, or real inconvenience to the witnesses. See, e.g., Floyd v. State, 90 So.2d 105, 107 (Fla.1956); Cochran v. State, 383 So.2d 968, 969 (Fla.Dist.Ct.App.1980); Brumbalow v. State, 128 Ga.App. 581, 197 S.E.2d 380, 380-81 (1973); Thomas v. Commonwealth, 218 Va. 553, 238 S.E.2d 834, 835-36 (1977).

¶4The majority concludes it is “logical” to place the burden on the defendant because “[w]e have generally held ... that the party seeking to change the status quo bears the burden of showing facts entitling him to relief.” Majority op. at 222-223. In support of this holding, the majority points to cases in which the burden is placed on the proponent of evidence to show something about that evidence. Id.The majority also refers to caselaw holding that a defendant seeking to change venue has the burden of demonstrating how he is prejudiced by the publicity in the current venue. Id.While these cases make sense in the contexts presented, placing the burden on the defendant in the instant context is not so clearly logical. The burden should logically be assigned to the party who is best positioned to carry that burden. In the evidence context, it makes sense to place the burden on the party presenting the evidence to advocate for its admission. For instance, the party proffering expert testimony is best positioned to demonstrate the qualifications of the expert; this makes more sense than requiring the opponent to demonstrate why the expert is not qualified. Similarly, in the venue context, it makes sense to place the burden on the party complaining about the venue to show why it should be changed. Here, it makes no sense to burden the defendant with demonstrating that withdrawal of his jury waiver will not cause undue delay, prejudice to the State, or real inconvenience to the witnesses. This requires the defendant to prove a negative that he may know little or nothing about. The burden is most appropriately placed on the State to demonstrate undue delay, prejudice to its case or inconvenience to its witnesses.

¶5Contrary to the State’s argument, this rule would not “impede the administration of justice.” If the record reflected that withdrawal of the waiver would result in undue delay, prejudice to the State, or real inconvenience to the witnesses, the trial court would have discretion to deny the request. The State would simply need to ensure that one or more of these prejudices would be affirmatively shown on the record.

¶6*227The Court of Appeals stated that there was nothing in the record indicating that a jury was available. Marquez v. State, 882 S.W.2d 100, 103 (Tex.App.—Austin 1994). The court therefore inferred that a jury was not available, concluding that the case would have to be reset for a jury, resulting in delay. Id.The Court of Appeals erred in this regard. In the absence of any evidence in the record as to the availability of a jury, presumptions and inferences should be made against the party bearing the burden, which in my opinion ought to be the State. I would therefore hold that the Court of Appeals erred in inferring, in favor of the State, that a jury was not available. Cf. Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992) (where record must show that defendant was admonished as to dangers of self-representation, court cannot presume waiver from silent record).

¶7The question remains whether, without the inference as to the availability of a jury, the record otherwise affirmatively shows that appellant’s waiver would have resulted in undue delay, prejudice to the State, or real inconvenience to the witnesses. As the Court of Appeals did not address this issue I would vacate the judgment of the Court of Appeals and remand this cause to that court to reconsider this issue. For these reasons, I dissent.