In re State

IN RE THE STATE OF TEXAS EX REL. STEPHEN B. TYLER

NUMBER 13-15-00316-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

October 30, 2015

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes

Memorandum Opinion by Justice Benavides¹

By petition for writ of mandamus, relator, the State of Texas ex rel. Stephen B. Tyler, contends that the trial court erred in convening a sentencing hearing before the bench because the State had not waived its right to a jury trial. We agree with the State and conditionally grant mandamus relief in this case and in three companion cases decided this same date. See In re State of Tex. ex rel. Stephen B. Tyler, No. 13-15-00317-CR, 2015 WL ___ (Tex. App.—Corpus Christi Oct. 30, 2015, orig. proceeding)(mem. op., not designated for publication); In re State of Tex. ex rel. Stephen B. Tyler, No. 13-15-00323-CR, 2015 WL ___ (Tex. App.—Corpus Christi Oct.30, 2015, orig. proceeding) (mem. op., not designated for publication); In re State of Tex. ex rel. Stephen B. Tyler, No. 13-15-00339-CR, 2015 WL ___ (Tex. App.—Corpus Christi Oct. 30, 2015, orig. proceeding) (mem. op., not designated for publication).

I. BACKGROUND

The real party in interest, Javier Lopez Jr., was charged by information in trial court cause number 2-103625 with the offense of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw through 2015 R.S.). The case was set for a jury trial; however, Lopez pleaded guilty before the trial court, the Honorable Daniel F. Gilliam, Judge of the County Court at Law No. Two of Victoria County, Texas, the respondent herein. At the proceeding in the trial court, Lopez's counsel stated that while he understood "that there is case law that says that the state demand that it go to the jury," it was Lopez's "preference" to have the trial court consider punishment. The prosecutor for the State, Barbara Agbu, informed the trial court that the State "would like to exercise its right to a jury trial." The respondent, counsel for Lopez, and the prosecutor thereafter discussed whether or not the State could demand a jury trial in these circumstances and the ramifications of such a procedure. The State objected to continuing without a jury and requested that the respondent stay further trial court proceedings. The respondent denied that request, accepted Lopez's guilty plea, and set the sentencing hearing to proceed before the bench.

This original proceeding ensued. The State filed an amended petition for writ of mandamus and motion for emergency relief. This Court granted emergency relief, stayedthe sentencing hearing, and requested that Lopez, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus. See TEX. R. APP. P. 52.2, 52.8(b).

Lopez filed a response to the petition for writ of mandamus through which he contends that: (1) he may change his plea to "not guilty" and elect to have the trial court sentence him; (2) In re State ex rel. O'Connell, 976 S.W.2d 902 (Tex. App.—Dallas 1998, orig. proceeding) has misconstrued the law and should be criticized or distinguished; and (3) the State's actions violate Lopez's rights to equal protection under the law. Lopez further specifically contends that the principles of statutory construction compel the conclusion that he can waive a jury trial without the State's consent.

The respondent filed extensive findings of fact and conclusions of law that provide as follows:

On the 14th day of July, 2015, this Court, prior to the [empaneling] of a jury for trial of this cause, accepted the Defendant's plea of guilty to the offense of driving while intoxicated as alleged in the information. The Court found the Defendant guilty of said offense and proceeded forward with a hearing before the Court for the Court to consider punishment of the Defendant. The enhancement paragraph of the information was read and the Defendant pled true to a prior conviction for driving while intoxicated as alleged. The State proceeded forward with the presentment of evidence for the Court to consider on punishment. The Court, upon notification by the Honorable Thirteenth Court of Appeals, STAYED any further trial proceedings in compliance with the order of said Court. The State appeared by and through the Assistant Criminal District Attorney, Barbara Agbu. The Defendant appeared in person and through defense counsel, James Beeler. The Court now makes and files the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The Criminal District Attorney maintains an office policy wherein all misdemeanor driving while intoxicated offenses are to be tried before a jury.

2. The State did not consent to the Defendant's plea of guilty to that alleged offense of driving while intoxicated in this cause.

3. This Court currently has 108 cases set for jury trial, of which 75 cases [are] alleged as driving while intoxicated offenses. These trial settings go through March 2016. Of these 75 cases, 23 defendants are represented by court appointed counsel. The trial docket is so crowded that District Judges are assisting with this Court's jury trials.

4. Similarly situated, County Court at Law #1, which is the only other County Court at Law in Victoria County, has 117 cases set for jury trial of which 77 cases are alleged driving while intoxicated offenses. Of these 77 cases, 24 defendants have court appointed counsel. Between both courts, there are currently 152 driving while intoxicated cases set for trial.

5. The trial of all misdemeanor driving while intoxicated offenses to a jury represents a substantial and unjustifiable expense to the taxpayers of Victoria County.

6. In four cases alone tried before this Court earlier this year, the cost exceeded $10,000. This cost included fees for court appointed attorneys, and fees for interpreters in two of the cases. This amount did not include the cost of the services of the jury or take into account their time in these cases. The usual costs for such cases, if resolved by a plea of guilty or nolo [contendere] to the Court, would have been $200 for each case. The fees for the interpreters probably would have been less than $200. Approximating the usual cost at $1,000 for the four cases, the costs of these cases with the jury trials were ten (10) times the amount for which they could have been resolved. After trial, all four of these Defendants indicated that they would have entered a plea of guilty if allowed to do so by the State.

7. The trial of this case before a jury to determine guilt of the Defendant would have been under false pretenses and nothing more than a sham and a display of pageantry by the State to confirm what the Defendant was already willing to admit—a plea of guilty.

8. The results of the State unreasonably withholding consent to the Defendant's plea of guilty in this case and other cases is to "wreck" the trial court's docket by piling up cases for trial, and to interfere with the orderly administration of justice.

9. Another result is that the State is able to deprive Defendants of the right to a speedy trial and related rights guaranteed under theConstitutions of the United States and the State of Texas, including the right to plead guilty to the alleged offense.

10. The most unexplainable and perplexing result is the State is seeking a reversal of the finding of guilt for the very offense for which they seek to prosecute and prove against the Defendant. This result makes no plausible sense.

CONCLUSIONS OF LAW

1. Article 27.14(a) of the Texas Code of Criminal Procedure states as follows: "A plea of "guilty" or a plea of "nolo contendere" in a misdemeanor case may be made either by the defendant or his counsel in open court; in such case, the defendant or his counsel may waive a jury, and the punishment may be assessed by the court either upon or without evidence, at the discretion of the court." [TEX. CODE CRIM. PROC. ANN. art. 27.14 (a) (West, Westlaw through 2015 R.S.)]. This is the Court's authority to allow Defendant to waive a jury (without consent of the State) and proceed with punishment to be assessed by the Court.

2. Article 1.13(a) [TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West, Westlaw through 2015 R.S.)] cited by the State requiring the consent of the attorney representing the State to the Defendant's plea of guilty is in direct conflict with Article 27.14(a) stated above and does not apply to misdemeanor offenses. Article 1.13(a) states in the pertinent part that ". . . to waive the right of trial by jury . . . the waiver must be made in person by the defendant in writing in open court . . . ." (underline added for emphasis). Article 27.14(a) states in the pertinent part that ". . . the defendant or his counsel may waive a jury . . . ." (underline added for emphasis). These statutes are in direct and clear conflict since Article 27.14(a) indicates that the waiver may be made by counsel in a misdemeanor case, and Article 1.13(a) requires such waiver to be made in person.

3. This Court construed the more detailed statute being Article 27.14(a) to be the controlling statute since it specifically indicates that it applies to misdemeanor cases. [TEX. GOV'T CODE ANN. § 311.026(b) (West, Westlaw through 2015 R.S.)]. Furthermore, nothing in the legislative history of Article 1.13(a) indicates that it was applicable to misdemeanor offenses. State of Texas ex. rel. Tim Curry, 847 S. W. 2d. 561, 566 (Tex. Crim. App. 1992). To construe the statutes otherwise would render Article 27.14(a) entitled "Plea of Guilty or Nolo [Contendere] in Misdemeanor" to be meaningless.

4. If the Defendant pled "not guilty" and after a jury trial on guilt was found by a jury to be guilty, the Defendant had the right to go to the Court for punishment. Whether the Court moved forward on a plea of "guilty" or "not guilty," the State winds up in the same place of being able to

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