Houston v. State

on appellant’s motion for rehearing

WOODLEY, Judge.

Counsel for appellant again urges that reversal of this conviction should be ordered because 13 jurors were sworn to try him. It is conceded that, insofar as possible for them to do so, appellant and his counsel agreed that the injured juror might be excused and the selection of the jury continue without the other jurors who had been selected being discharged.

It is, however, urged upon us that to affirm this conviction would be to hold that an accused who is on trial for a capital felony may waive a jury trial.

*566And it is argued that the…