in Re the State of Texas Ex Rel. Kim Ogg ( 2020 )

Petitions for Writs of Mandamus and Writs of Prohibition Denied and
Opinion filed October 27, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00451-CR
NO. 14-20-00452-CR
NO. 14-20-00453-CR
NO. 14-20-00454-CR
IN RE THE STATE OF TEXAS EX REL. KIM OGG, Relator
ORIGINAL PROCEEDINGS
WRITS OF MANDANUS
WRITS OF PROHIBITION
County Criminal Court at Law No. 16
Harris County, Texas
Trial Court Cause Nos. 2288950 & 2288951
OPINION
On June 23, 2020, relator the State of Texas ex rel. Kim Ogg, Harris County
District Attorney, filed petitions for writs of mandamus and petitions for writs of
prohibition in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petitions for writs of mandamus, the State asks this court to
compel the Honorable Darrell Jordan, presiding judge of County Criminal Court at
Law No. 16 in Harris County, to set aside his June 11, 2020 ruling in trial court
cause numbers 2288950 and 2288951, The State of Texas v. Jacob Darrin
Straughan, granting Straughan’s motion to conduct a bench trial without the
State’s consent to waiver of a jury trial. In the petitions for writs of prohibition, the
State seeks to prevent Judge Jordan from proceeding to trial with Judge Jordan
acting as factfinder.
The State also filed motions for temporary relief of the proceedings below.
See Tex. R. App. P. 52.8(b), 52.10. On June 24, 2020, we ordered a stay of the trial
proceedings. On July 8, 2020, Straughan filed a response.
BACKGROUND
Straughan was charged on December 1, 2019, with misdemeanor offenses of
evading arrest and assault. The cases were reset multiple times at Straughan’s
request. In February 2020, the State and Straughan entered a pretrial intervention
contract, and the cases were reset to December 18, 2020. On May 18, 2020,
Straughan was charged with two new offenses—misdemeanor assault and felony
violation of a protective order.
On June 10, 2020, Straughan moved for a speedy trial. Straughan asserted
the State agreed to continue the intervention contract even though there was
another incident on April 17, 2020. However, on May 18, 2020, the State accepted
new charges for the April 17, 2020 incident. On June 4, 2020, Straughan was
advised the State intended to terminate the intervention contract. At a hearing on
June 8, 2020, Straughan took the position that if the intervention contract were
terminated, he wished to waive his right to a jury trial and proceed to a bench trial.
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Straughan pointed out that under the Texas Supreme Court’s emergency orders
regarding COVID-19, he cannot have a jury trial until August 1, 2020, and
probably would not have a jury trial until 2021.
Straughan also filed a written waiver of a jury and a request for a bench trial,
arguing that it is his right to waive a jury. Straughan asked the trial court to waive
Code of Criminal Procedure article 1.13, which provides that the State must
consent to a bench trial:
The defendant in a criminal prosecution for any offense other than a
capital felony case in which the state notifies the court and the
defendant that it will seek the death penalty shall have the right, upon
entering a plea, to waive the right of trial by jury, conditioned,
however, that, except as provided by Article 27.19, the waiver must
be made in person by the defendant in writing in open court with the
consent and approval of the court, and the attorney representing the
state. The consent and approval by the court shall be entered of record
on the minutes of the court, and the consent and approval of the
attorney representing the state shall be in writing, signed by that
attorney, and filed in the papers of the cause before the defendant
enters the defendant’s plea.
Tex. Code Crim Proc. Ann. art. 1.13(a).
The trial court held a hearing on June 11, 2020, at which Straughan
withdrew his motion for speedy trial. The reporter’s record reflects the trial court
set the case for a bench trial on June 26, 2020. The State then filed these writs, as
set forth above.
APPLICABLE LAW
To be entitled to relief on a petition for writ of mandamus, the State must
demonstrate the act sought to be compelled is purely ministerial and the State has
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no other adequate legal remedy. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198
(Tex. Crim. App. 2003). To be entitled to relief on a petition for writ of
prohibition, the State must show it has no other adequate remedy at law and is
clearly entitled to the relief sought. Curry v. Wilson, 853 S.W.2d 40, 432–44 (Tex.
Crim. App. 1993). The State has no right to appeal the trial court’s ruling. See Tex.
Code Crim Proc. Ann. art. 44.01. This satisfies the no-adequate-legal-remedy
requirement. See Poe, 98 S.W.3d at 203.
To satisfy the ministerial-act requirement, the relief sought must be clear and
indisputable such that its merits are beyond dispute and there is nothing left to the
exercise of discretion or judgment. Id. at 198. Similarly, a writ of prohibition will
issue to require execution of a matter whose merit is indisputable. Knowles v.
Scofield, 598 S.W.2d 854, 860 (Tex. Crim. App. 1980).
Generally, absent the State’s consent and approval of a defendant’s jury
waiver, a trial court has a ministerial duty to conduct a jury trial on the issue of
guilt or innocence and abuses its discretion by serving as factfinder, entitling the
State to mandamus relief. State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex.
Crim. App. 1992); In re Watkins, 390 S.W.3d 583 (Tex. App.—Dallas 2012, no
pet.); Tex. Code Crim Proc. Ann. art. 1.13(a).
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ANALYSIS
The emergency order1 provides:
3. Subject only to constitutional provisions, all courts in
Texas may in any case, civil or criminal—and must to avoid risk to
court staff, parties, attorneys, jurors, and the public—without a
participant’s consent:
a. . . . modify or suspend any and all deadlines and
procedures, whether prescribed by statute, rule, or order, for a
stated period ending no later than December 1, 2020 . . . .
The emergency order expressly allows the court in a criminal case to
suspend all procedures prescribed by statute. The State has no constitutional right
to a jury trial—that right belongs to the defendant. See Tex. Const. art. I, § 10. The
State’s right to withhold consent to the defendant’s waiver of his constitutional
right to a jury is statutory. See Tex. Code Crim. Proc. Ann. Art. 1.13(a). The trial
court’s application of the emergency order to suspend the consent requirement in
article 1.13(a) is consistent with the plain language of the emergency order. Thus,
the State has not established a clear legal right to the relief sought.
1
See Twenty-Sixth Emergency Order Regarding the COVID-19 State of Disaster ¶ 3(a), Misc.
Docket No. 20-9112 (Tex. Sept. 18, 2020), 83 Tex. B.J. –, available at
https://www.txcourts.gov/media/1449738/209112.pdf. At the time of the trial court’s ruling, the
Seventeenth Emergency Order was in effect. Seventeenth Emergency Order Regarding the
COVID-19 State of Disaster ¶ 3(a), Misc. Docket No. 20-9071 (Tex. May 26, 2020), 83 Tex. B.J. 496,
496 available at https://www.txcourts.gov/media/1446702/209071.pdf. Because the issue is
subject to the “capable of repetition, yet evading review” exception to the mootness doctrine, we
proceed under the current effective emergency order, which is substantively the same. Pharris v. State,
165 S.W.3d 681, 683 (Tex. Crim. App. 2005) (recognizing exception applies when (1) challenged action
was too short in duration to be litigated fully before action ceased or expired and (2) reasonable
expectation exists that same complaining party will be subjected to same action again).
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Before this court, the State claims: (1) suspending article 1.13(a) is
inconsistent with the Texas Constitution’s grant to the Legislature to govern the
waiver of jury rights and (2) suspending article 1.13(a) is inconsistent with the
statutory authority granted to the Supreme Court of Texas. See Tex. Const. art. I, §
15; Tex. Gov’t Code Ann. § 22.0035. Our review of the record reflects the former
argument was not presented to the trial court. Accordingly, we do not address it.
See In re State ex rel. Rodriguez, No. 13-19-00200-CR, 2019 WL 2426597, at *5
(Tex. App.—Corpus Christi June 10, 2019, orig. proceeding) (mem. op., not
designated for publication) (recognizing “[i]t is well established that arguments
which are not presented to the trial court will not be considered in a petition for
writ of mandamus.”) (citing In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex.
1991) (orig. proceeding) (refusing to consider argument that was not presented to
trial court). See also In re Floyd, No. 05-16-00491-CV, 2016 WL 2353874, at *1
(Tex. App.—Dallas May 3, 2016, orig. proceeding) (mem. op., not designated for
publication) (same).
Turning to the latter, the State argued in the trial court that the portion of the
Government Code authorizing emergency orders allows suspension of procedures
“for the conduct of any court proceeding.” The State contended “for the conduct”
is a limitation on the types of procedures that may be suspended and it does not
include “things that are substantive in nature,” such as the statutory requirement
that the State consent to a defendant’s waiver of a jury trial.
The State’s argument is not based on the plain language of the emergency
order, which allows the trial court to modify any procedure subject only to
constitutional limitations. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.
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Ohio App. 1991) (discussing plain-language test). Assuming, without deciding, that “for
the conduct” imposes a limitation on the type of procedure that an emergency order
may suspend, it is a statutory, not constitutional limitation. See Tex. Gov’t Code
Ann. § 22.0035. Because the State has not shown that “any procedure” does not
encompass a bench trial, it has not established it is indisputably entitled to the
relief it seeks or that the trial court had a ministerial duty to deny appellant’s
request.
The State’s petitions are denied, and we lift the stay previously imposed in
the underlying causes. See Tex. R. App. P. 52.8(a).
PER CURIAM
Panel consists of Justices Wise, Bourliot, and Spain.
Publish — Tex. R. App. P. 47.2(b).
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