Should You Take Your Chances With A Jury?

July 25, 2017 | By Fulgham Hampton Criminal Defense Attorneys
Should You Take Your Chances With A Jury?
Should You Take Your Chances With A Jury

The right to a trial by jury is inviolate. It is a personal right every person who is charged with a criminal offense enjoys. In Texas, that right may be waived in most cases. There is no magic formula to decide which is best for you. That decision must be made in close consultation with your attorney. In that instance, you need an attorney with significant trial experience to guide you. Brandon Fulgham, founder of Fulgham Law firm, is a former prosecutor who has tried numerous cases to juries, and many more to judges, has the courtroom experience to properly advise his clients on the advantages and disadvantages of waiving a jury.

Every person facing criminal charges has the right to a trial by jury. That right is guaranteed by the Sixth Amendment of the United States Constitution as well as Article I, Section 10 of the Texas Constitution. The right to a trial by jury means that all deliberating jurors, deemed to be impartial (6 or 12 depending on the nature of the case), must agree unanimously that the person is guilty or innocent. To be found guilty, the jurors must find the person committed the crime beyond a reasonable doubt. The jury may also be asked to render punishment after a guilty finding as well. The jurors are chosen at random from the community and are theoretically a jury of the person’s peers.

The right to a trial by jury may be waived. The State of Texas permits a person to waive that right except in a capital case in which the state is seeking to impose the death penalty.  Generally, a person must waive his right to a jury trial in open court and in writing. The judge must accept the waiver as well as the attorney for the state. The right to a jury is waived prior to the defendant entering a formal plea. The person’s attorney does not need to be present at the time the jury is waived. However, the court will appoint an attorney to represent someone who wishes to waive the right to a jury trial if they do not have an attorney present before that person is charged with a felony. The court will accept the waiver if the waiver is made expressly, knowingly, and voluntarily. If the person validly waives their right to a jury trial then the judge alone will hear the facts of the case and decide guilt or innocence. The judge must decide whether the government proved the case against you beyond a reasonable doubt. The judge will determine the appropriate punishment if the state met its burden.

Texas courts appear to take a hard stand on people who waive their right to a jury trial then, at a later time, try to reassert their right to a jury trial. Texas courts require the person who desires to reassert his right to a trial by jury to prove that there is an “absence of adverse consequences” before the judge will allow the person to withdraw his jury waiver. The courts require the person’s request to withdraw his jury waiver well in advance of the trial date. The courts have a strong desire in deterring last minute requests.  Last minute requests may be granted, however, if granting the request does not interfere with the business of the court and administration of justice. The request may also be granted if witnesses are not inconvenienced and there is no prejudice to the prosecution.  If the person can show these requirements are met, then the trial judge has the discretion to allow the person to withdraw the jury waiver.

Consult An Experienced Criminal Defense Attorney Before Waiving Your Rights

Fort Worth criminal defense attorney Brandon Fulgham is a seasoned criminal trial attorney. He will thoroughly review your case and devise the best defense for you. The best defense may involve waiving a jury and allowing the judge alone to hear the case and decide your guilt or innocence. Once that decision is made, it is very difficult to go back so it is vitally important you retain an attorney with the right experience. Call  Fulgham Law Firm today at 817-764-1392 to schedule your free, no-obligation consultation and discuss whether it is in your best interest to waive a jury.


1. Tx. Code Crim. P. 1.13

2. Smith v. State, 363 SW 3d 761 (Tx. App. Ct. 2012).

3. Hobbs v. State, 298 SW 3d 193 (Tx. Crim. App. 2009).

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