‘Writ of ‘Iandamus Conditionally Granted; Opinion issued November 13, 2012




                                                In The
                                   Qunrt uf pprat
                          .FiftI! Distrirt Uf cxu at 1a11as
                                        No. 05-12-01315-CV


                     IN RE CRAIG WATKINS, CRIMINAL DISTRICT
                    ATTORNEY OF DALLAS COUNTY, TEXAS, Relator


                  Original Proceeding from the 282nd Judicial District Court
                                    Dallas County, Texas
                    Trial Court Cause Nos. F10-42330-S and F12-40559-S

                                            OPINION
                          Before Justices Morris. Richter. and Lang-Miers
                                     Opinion by Justice Morris

       This is an original mandamus proceeding. Relator Craig Watkins filed with us his petition

seeking relief after the trial judge permitted real party in interest, Luis Enrique Pena, to waive ajury

and plead guilty without the State’s consent to the jury waiver.       Mandamus is appropriate in a

criminal proceeding when the relator establishes: 1) “that he has no adequate remedy at law to

redress the harm that he alleges will ensue,” and 2) “that the act he seeks to compel or prohibit does

not involve a discretionary orjudicial decision.” Simon v. Levario. 306 S.W.3d 318. 320 (Tex. Crirn.

App. 2009) (orig. proceeding); see also State of Tex. ex rd. Hill v. Court ofAppeals for the Fifth

Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). Relator has established his

entitlement to reliet and we therefore conditionally grant the writ of mandamus.

       Real party in interest Luis Enrique Pena was charged with possession of a controlled
substance on two separate occasions. and his case was set for trial before a jury on September 5.

2012. That morning, the trial judge permitted Pena to waive his right to ajury trial and plead guilty

over the State’s objection. According to the tn al judge’s response to relator’s petition. he took such

action so he could consider Pena’s request lir deferred adjudication. a punishment that may not be

assessed by aury. See TEx. CODE CRIM. PROC. ANN. Art. 42.12. §5 (West Supp. 2011).

        The Texas Code of Criminal Procedure. however, clearly states that a defendant can only

waive his right to a trial by jury if the State consents and approves. TEx. CoDE CRIM. PROC. ANN.

Art. 1.13(a) (West Supp. 2012). Further. the court of criminal appeals long ago concluded that

“defendants accused of felony offenses have a constitutional right to trial by jury. but do not have

a constitutional protected right to waive trial bvlurv.” in re Roach, No. 05-09-0 145 1 -CV. 2010 WL

537751, at *3 (Tex. App.--Dallas Feb. 17, 2010, orig. proceeding) (citing Slate cx rd. Turner v.

McDonald, 676 S .W.2d 371, 373 (Tex. Crim. App. 1984, orig. proceeding). Because the trial court

had no discretion to disregard Article 1 .1 3(a). and because the State has no adequate remedy at law

to redress the failure to have a jury trial without its consent and approval, relator is entitled to the

writ he seeks. Simon. 306 S.W.3d at 321.

        Accordingly, we conditionally grant relator’s petition for writ of mandamus. The writ will

issue only in the event the trial judge fails to withdraw his acceptance of the guilty pleas entered in

cause numbers F 10-42330-S and F12-40559-S. withdraw his ruling denying the State’s request for

a trial by jury. and withdraw his factual findings related to real party in interest’s guilty pleas made

on September 5, 2012.




                                                                     MORRIS
                                                           STICE
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