IN RE: the STATE of Texas EX REL. Kim OGG (2021)

MEMORANDUM OPINION

On December 7, 2020, relator the State of Texas ex rel. Kim Ogg, Harris County District Attorney, filed a petition for writ of mandamus and a petition for writ of prohibition in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition for writ of mandamus, relator asks this Court to compel the Honorable Franklin Bynum, presiding judge of the County Criminal Court at Law No. 8 of Harris County, to vacate his November 30, 2020 order setting the underlying case for a nonjury trial without the State's consent. The State also filed a petition for writ of prohibition seeking to prevent Judge Bynum from conducting a nonjury trial in the underlying case.

The State argues that the trial court has no discretion to act as a factfinder when the State has not consented to the defendant's waiver of a jury trial. The Texas Court of Criminal Appeals agrees and recently held that the COVID-19 Emergency Orders did not authorize the trial court to proceed to a bench trial without the State's consent or waiver to a jury trial. See In re State ex rel. Ogg, No. WR-91,936-01, 618 S.W.3d 361, 365–66 (Tex. Crim. App. Mar. 3, 2021).

Accordingly, we grant the State's petition for writ of mandamus and direct the trial court to vacate its November 30, 2020 order setting the underlying case for a nonjury trial. We are confident the trial court will act in accordance with this opinion. The State's petition for writ of prohibition is dismissed as moot. We lift our stay entered on December 8, 2020.

PER CURIAM