IN RE: CRAIG WATKINS (2011)

Original Proceeding from the County Criminal Court No. 6

Dallas County, Texas

Trial Court Cause No. MA08–13488–G

MEMORANDUM OPINION

Opinion By Justice Fillmore

Relator, Craig Watkins, Dallas County Criminal District Attorney, brought this mandamus proceeding, contending the trial court abused its discretion by proceeding to a trial before the court when the State did not execute a written waiver of a jury trial.   Based on the record before us, we conclude relator has not shown he is entitled to the relief requested.

Background

On September 8, 2008, Boudreaux was charged by information with driving while intoxicated (DWI) with an open container of alcohol, enhanced by one prior DWI conviction.   After a number of trial settings, the case was set for “jury trial” on July 28, 2011.   At trial, after both sides announced “ready,” the trial court asked the State to call its first witness.   The prosecutor responded, “Your Honor, we do not waive jury.   We're asking for a jury trial, and the jury—.”  The trial court stated, “That's not my question.   We do not call juries on Friday.   Is the State ready to call your first witness?”   The prosecutor requested the opportunity to “check” her phone, and the trial court responded it was not “going to wait for any witness any longer.”   The prosecutor stated the officer was not in the courtroom.   The trial court then called the case to trial and, the “State not having its witnesses present and ready to go,” found Boudreux not guilty.   The trial court entered a “Judgment on Plea of Not Guilty to the Judge” finding Boudreaux not guilty and stating that “defendant waived the right to a jury trial in writing and in open court with the consent and approval of the judge, the defendant's attorney, if any, and the prosecuting attorney.”   The record, however, does not contain a written waiver of jury trial by Boudreaux and does not reflect the prosecuting attorney agreed to the waiver of a jury trial.

Discussion

A defendant's right to waive a jury trial “upon entering a plea” is conditioned on, among other things, the consent of the State.   See Tex.Code Crim. Proc. Ann. art. 1.13(a) (West 2005);  In re State ex rel. O'Connell, 976 S.W.2d 902, 906 (Tex.App.—Dallas 1998) (op. on reh'g).   A trial court “does not have the discretion to serve as a fact-finder in the trial of a misdemeanor case absent the consent and approval of the State.”  State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex.Crim.App.1993) (per curiam).   Because the record clearly shows the State did not consent to the waiver of a jury trial, the trial court “was not authorized to pass upon” Boudreaux's culpability and the not guilty finding of the trial court “has no more legal effect than such a finding by any other unauthorized person or entity would have.   In short, it does not amount to an acquittal within the meaning of our law.”   Ex parte George, 913 S.W.2d 523, 527 (Tex.Crim.App.1995);  see also State v. Fisher, 212 S.W.3d 378, 381 (Tex.App.—Austin 2006, pet. ref'd).   Accordingly, the trial court's “judgment” is no more than an order terminating the prosecution in Boudreaux's favor and is an appealable order under article 44.01(a)(1) of the code of criminal procedure.   See Tex.Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp.2010);  State v. Stanley, 201 S.W.3d 754, 758 (Tex.Crim.App.2006) (State has right to appeal any order, short of an acquittal, that effectively terminates the prosecution in favor of the defendant);  Fisher, 212 S.W.3d at 382;  State v. Lewallen, 927 S.W.2d 737, 739 (Tex.App.—Fort Worth 1996, no pet.).

Mandamus relief is appropriate in a criminal case if the relator shows that he has no other adequate legal remedy and the act sought to be compelled is purely ministerial.  State of Tex. ex rel. Hill v. Court of Appeals for the Fifth Dist., 67 S.W.3d 177, 180–81 (Tex.Crim.App.2001).   Because the State has an adequate appellate remedy, it is not entitled to relief by mandamus.¹  See id. at 180.   Accordingly, we DENY relator's petition for writ of mandamus.

111067F.P05

FOOTNOTES

FN1. In In re Roach, No. 05–09–01451–CV, 2010 WL 537751 (Tex.App.—Dallas Feb. 17, 2010, orig. proceeding) (mem.op.), the trial court allowed the defendant, over the State's objection, to waive a jury and plead guilty to the charges.   Citing article 44.01 of the code of criminal procedure, we noted the State has a limited right to appeal and that right “does not include the right to appeal the trial court's decision to waive a jury trial without the State's consent.”  Id. at *1. We concluded the State was entitled to mandamus relief if “the State challenges a defendant's jury waiver and contends that the Court failed to perform the ministerial duty of impaneling a jury.”  Id. at *1. Article 44.01 does not authorize the State to appeal a trial court's ruling denying the State's request for a jury trial.   See Tex.Code Crim. Proc. Ann. art. 44.01(a).   Accordingly, the State was entitled to mandamus relief.  Id. at *3 (granting mandamus and ordering trial court to set aside guilty pleas and jury trial waiver form not consented to by State and to schedule cases for further proceedings);  see also Curry, 847 S.W.2d at 562 (granting mandamus relief and directing trial court to set aside order denying State's request for jury trial);  O'Connell, 976 S.W.2d at 911 (granting mandamus relief and directing trial court to vacate order denying State's request for jury trial and to set the case on jury docket).   However, article 44.01(a) does allow the State to appeal the trial court's judgment in this case that effectively terminated the prosecution in favor of Boudreaux.   See Tex.Code Crim. Proc. Ann. art. 44.01(a);  Stanley, 201 S.W.3d at 758;  Fisher, 212 S.W.3d at 381–82..  FN1. In In re Roach, No. 05–09–01451–CV, 2010 WL 537751 (Tex.App.—Dallas Feb. 17, 2010, orig. proceeding) (mem.op.), the trial court allowed the defendant, over the State's objection, to waive a jury and plead guilty to the charges.   Citing article 44.01 of the code of criminal procedure, we noted the State has a limited right to appeal and that right “does not include the right to appeal the trial court's decision to waive a jury trial without the State's consent.”  Id. at *1. We concluded the State was entitled to mandamus relief if “the State challenges a defendant's jury waiver and contends that the Court failed to perform the ministerial duty of impaneling a jury.”  Id. at *1. Article 44.01 does not authorize the State to appeal a trial court's ruling denying the State's request for a jury trial.   See Tex.Code Crim. Proc. Ann. art. 44.01(a).   Accordingly, the State was entitled to mandamus relief.  Id. at *3 (granting mandamus and ordering trial court to set aside guilty pleas and jury trial waiver form not consented to by State and to schedule cases for further proceedings);  see also Curry, 847 S.W.2d at 562 (granting mandamus relief and directing trial court to set aside order denying State's request for jury trial);  O'Connell, 976 S.W.2d at 911 (granting mandamus relief and directing trial court to vacate order denying State's request for jury trial and to set the case on jury docket).   However, article 44.01(a) does allow the State to appeal the trial court's judgment in this case that effectively terminated the prosecution in favor of Boudreaux.   See Tex.Code Crim. Proc. Ann. art. 44.01(a);  Stanley, 201 S.W.3d at 758;  Fisher, 212 S.W.3d at 381–82.