               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS

                           NO. WR-87,818-01



      STATE OF TEXAS EX REL. WESLEY MAU, HAYS COUNTY
            CRIMINAL DISTRICT ATTORNEY, Relator

                                     v.

              THIRD COURT OF APPEALS, Respondent

              ON PETITION FOR WRIT OF MANDAMUS
                      FROM HAYS COUNTY

      N EWELL, J., filed a concurring opinion in which Hervey and
A LCALA, JJ., joined.

     Mandamus is an extraordinary writ that cannot be used to make

new law; it preserves existing law. My understanding is that the Court

grants Relator mandamus relief because the terms of the applicable

statute, Article 1.13(a), are clear without resort to statutory construction.

To that extent, I join the Court’s opinion, with respect to Sections II-B

and II-C. But I agree with Judge Alcala that Section II-A is unnecessary,
                                                                    Mau Concurring – 2

and I join her concurring opinion.

      I write separately to observe that the Court’s analysis makes clear

that there is no such thing as a “State’s right to a jury trial.” Instead, the

Court holds that Article 1.13(a) provides a limitation on the trial court’s

authority, rather than a grant of power to the State. Our Constitution

mandates, “The right of trial by jury shall remain inviolate” without

reference to the right of the State to insist upon a jury trial.1 It grants

authority to our Legislature to regulate that right in order to “maintain its

purity and efficiency.”2 As we have previously observed, the Framers of

our Constitution were “[i]mpelled by experienced abuse and oppression

inflicted on them as citizens of earlier governments.”3 This inviolate right

is personal to the defendant.

      That is why Article 1.13 is couched in terms of the defendant’s right

to waive a jury trial.                     Though we have posited that the State has

legitimate interests in the method of trial, it is just as easy to read Article

1.13 as ensuring greater protections for a defendant’s right to a jury by




      1
          T EX . C O NST . art. I, § 15.

      2
          Id.

      3
          State ex rel. Turner v. McDonald, 676 S.W .2d 371, 372 (Tex. Crim . App. 1984).
                                                                   Mau Concurring – 3

limiting how and when the defendant can waive that right.4 Given that,

it seems odd that a defendant who wants to waive a jury could

nevertheless be forced to endure one. But the statute says what it says,

and mandamus is not the appropriate vehicle to second-guess our

Legislature.

     I would also note that the Court seems to hold that setting aside the

punishment is the appropriate remedy for violating this statute. In Ex

parte Collier, we held that the State’s failure to sign the consent to a

waiver of trial did not require setting aside the conviction.5 We reasoned

that even though there was not an actual written waiver, the record as

a whole indicated that the State agreed with the defendant’s waiver.6 In

doing so, we followed other precedent rejecting the argument that the

lack of written consent to the defendant’s waiver rendered the conviction

void.7    This would seem to undercut the Court’s conclusion that a trial

court lacks authority to dismiss a jury without a written waiver from the




     4
         Id.

     5
         Ex parte Collier, 614 S.W.2d 429, 434 (Tex. Crim . App. 1981).

     6
         Id. at 433-34.

     7
         Id. at 433 (exam ining Gonzalez v. State, 508 S.W .2d 388 (Tex. Crim . App. 1974)).
                                                                                Mau Concurring – 4

State.8

       Ultimately, I am able to square our holding in Collier with today’s

holding because the Court seems to reject, albeit implicitly, the

application of concepts such as preservation and harmless error to

mandamus jurisprudence. Indeed, the bottom line in Collier was that the

defendant had failed to show how he was harmed by the State’s failure

to sign the consent form.9 Harm analysis is generally part and parcel to

a direct appeal.10 Mandamus, on the other hand, is not a substitute for

appeal.11         It is appropriate when direct appeal does not provide an

adequate remedy.12                 So, it makes sense that we would not convert

mandamus into an appeal by engaging in a harm analysis.

       Similarly, preservation of error is also a creature of direct appeal.13

Here, the State failed to complain about the trial court’s dismissal of the



       8
         In another context, it has been argued that the failure to com ply with a m andatory
statute does not require m andam us relief when the rem edy is unclear. See In re Carter,
541 S.W .3d 743, 745 (Tex. Crim . App. 2017) (Yeary, J., dissenting). Nevertheless, I agree
with the Court’s holding because it im plicitly rejects that argum ent.

       9
            Id. at 434.

       10
            See T EX . C O D E C RIM . P RO C . art. 44.2 (“Reversible Error in Crim inal Cases”).

       11
          See Bradley v. Miller, 458 S.W .2d 673, 675 (Tex. Crim . App. 1970) (“[Mandam us]
is not a substitute for and cannot be used to perform the office of an appeal.”).

       12
            In re Medina, 475 S.W .3d 291, 297-98 (Tex. Crim . App. 2015).

       13
            See Tex. R. App. P. 33.1 (“Preservation; How Shown”).
                                                                   Mau Concurring – 5

jury until it was too late. If the State had an adequate remedy through

appeal, the lack of a timely objection might have factored into the

analysis. But even though the State did not let the trial court know “what

it wanted” at a time when the trial court was in a position to do

something about it,14 I agree with the Court that it does not foreclose

mandamus relief.

     With these thoughts I concur.

Filed: October 31, 2018

Publish




     14
          See Lankston v. State, 827 S.W .2d 907, 909 (Tex. Crim . App. 1992).
