            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. WR-87,818-01



       IN RE 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

      Y EARY , J., delivered the opinion of the Court in which K ELLER, P.J., and
K EASLER, R ICHARDSON, K EEL, and W ALKER, JJ., joined. A LCALA, J., filed a concurring
opinion in which H ERVEY and N EWELL, JJ., joined. N EWELL, J., filed a concurring
opinion in which H ERVEY and A LCALA, JJ., joined.

                                        OPINION

       This mandamus proceeding arose from a misdemeanor prosecution for family-

violence assault in which the convicting court granted deferred adjudication community

supervision. Although the defendant originally pled not guilty and invoked his right to a jury

trial, in the middle of that trial he changed his plea to guilty. The trial court then instructed
                                                                                     MAU — 2

the jury to return a guilty verdict predicated upon the defendant’s guilty plea, which the jury

did. But then, rather than permit the jury to go on to assess punishment, the trial court

dismissed the jury. And rather than assess punishment, the trial court placed the defendant

on deferred adjudication community supervision.

       In this mandamus proceeding, the State, through its elected district attorney, now first

argues that the trial court was not authorized to defer the adjudication of the defendant’s

guilt. The State further contends that the trial court lacked authority to take over the role of

assessing punishment from the jury because the defendant’s change of plea converted the

trial into a unitary proceeding, at which the jury should have assessed punishment. The State

prays that we order the trial court to withdraw its order granting deferred adjudication

community supervision and empanel a new jury to assess the defendant’s punishment. We

will indeed grant mandamus relief, but of a more limited scope than that requested. We hold

that the trial court plainly lacked the authority to defer adjudication of guilt following a jury

verdict on a plea of guilty, and we will conditionally order the trial court to withdraw its

order of deferred adjudication.

                                     I. BACKGROUND

       Jose Rivera, Jr., the real party in interest, was charged by information with the

misdemeanor offense of family-violence assault for punching or choking his younger brother.

T EX. P ENAL C ODE § 22.01(a)(1). He did not waive his right to a jury trial, and the State never

gave written consent to his waiving a jury trial. The cause therefore proceeded to a jury trial
                                                                                           MAU — 3

on Rivera’s plea of not guilty. After several witnesses had testified, Rivera unexpectedly

changed his plea to guilty.1 The trial court accordingly retired the jury with an instruction that

it return a verdict of guilty on the basis of Rivera’s plea, which the jury immediately did.

        But the trial court did not submit the issue of punishment to the jury. Instead, it

dismissed the jury upon its return of the guilty verdict. Neither party objected to the jury’s

dismissal. The prosecutor then noted that Rivera had not been properly admonished prior to

pleading guilty before the jury. Again without objection, the trial court proceeded to

admonish Rivera, obtaining waivers of his various trial rights, including (as the trial court

told Rivera) “the right to trial by jury, which we did begin here.” Only at this point—after

the jury had already returned a verdict of guilty—did Rivera purport to waive his right to jury

trial. The State did not object to this belated waiver. But neither did the State consent in

writing, before the entry of the guilty plea, as required by Article 1.13 of the Code of

Criminal Procedure.2 Rivera then again purported to plead guilty.

        After hearing additional witnesses with respect to punishment, the trial court




        1
          There is some suggestion in the record that Rivera changed his plea because the testimony
revealed that he had punched his younger brother in the back, and Rivera acknowledged that this
much of the allegation was, in fact, accurate. Rivera’s counsel announced for the record, in the
presence of the jury, that Rivera “would like to change his plea to guilty of striking the victim in the
back with his fist.” And, in fact, the trial court then announced to the jury that Rivera had pled guilty
to the offense only insofar as he had “punched [his younger brother] on or about the lower back[.]”
        2
         Before a defendant in a criminal prosecution for any offense less than capital will be
allowed to waive the right to trial by jury, there must be “consent and approval of the attorney
representing the state [which] 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. art. 1.13(a).
                                                                                           MAU — 4

announced on the record that it would defer adjudication, explaining:

               THE COURT: All right. Let me go on the record and make a couple of
        notations.

               I spent my lunch hour thinking about the case and potential
        ramifications, also thinking about the procedure we utilized this morning.

                A jury was selected, sworn, seated and testimony was initiated. During
        the course of that testimony, the defendant elected to change his plea and he
        did enter on the record in front of the jury a plea of guilty to the charge. In an
        abundances [sic] of caution, the Court then crafted a jury charge that resulted
        in an instructed verdict and instructed the jury to find the defendant guilty, but
        at no time was a judgment entered or conviction of adjudication made.

               As it turns out, based on the law and utilizing the case of State versus
        Sosa and Article 42.12, it is within the trial court’s discretion if a defendant
        does plead guilty, even after trial has been initiated, the Court still possesses
        the authority to defer adjudication of guilt.3

               Based on the extreme circumstances in this case that led to that
        moment, as well as the entire punishment hearing, I believe the interest of
        justice out -- extraordinarily outweigh and weigh in favor of the Court’s
        exercising that discretion; and therefore I will accept your plea of guilty that
        was made, which would then terminate the need for the jury at that time.

               And having received your voluntary plea of guilty, which we’ve
        received multiple times today, I will find it in the interest of justice to set aside
        and defer any adjudication on your guilt today and place you on deferred
        adjudication community supervision for a period of six months with no fine.

Only then did the State object:

                [PROSECUTOR]: Judge, our objection respectfully is that this was a


       3
          See State v. Sosa, 830 S.W.2d 204 (Tex. App.—San Antonio 1992, pet. ref’d) (holding that
trial court judge could allow the defendant to withdraw his plea of not guilty and plead guilty instead,
and then grant deferred adjudication probation, despite having already found the defendant guilty on
his not guilty plea); former TEX . CODE CRIM . PROC. art. 42.12 § 5(a) (authorizing deferred
adjudication probation based upon a guilty plea to the trial court).
                                                                                              MAU — 5

        jury trial. This defendant pled guilty to a jury and [State v. Sosa] is a case
        involving a non jury trial. It is therefore distinguishable.

              It’s the State’s belief that upon that finding of guilt by the jury, the
        defendant was convicted and there is no judgment non obstante verdicto in a
        criminal case.

The trial court replied:

                THE COURT: I understand. And I want the record to be clear that it’s
        my interpretation as the Court that once the defendant changed his plea to
        guilty, even though the jury had been sworn and impaneled, the procedure for
        submitting the case to the jury for a directed verdict was improper and once
        having received the guilty plea, the authority to allow a deferred adjudication
        to be the punishment in this case remain[s] with the Court and I’m exercising
        my discretion in that regard.

The trial court accordingly entered a written order deferring adjudication of guilt and placing

Rivera on six months’ deferred adjudication community supervision.4

        The State sought a writ of mandamus from the Third Court of Appeals in Austin.5

That court denied relief in a brief, unpublished memorandum opinion in which it simply


        4
          The written order deferring adjudication of guilt asserts, in boilerplate language, that “the
Defendant, defendant’s attorney, and the State announced in open court that they, and each of them
agreed in writing to waive a jury in this cause and to submit this cause to the Court.” Of course, the
record plainly belies this assertion, at least insofar as it applies to the State. At no point did the State
ever announce in open court, nor did it ever consent in writing, to Rivera’s belated waiver of his right
to a jury trial. And there was no such jury trial waiver, much less written consent from the State,
prior to the jury’s return of a verdict of guilty based upon Rivera’s change of plea.
        5
          The courts of appeals now have jurisdiction to grant mandamus relief against statutory
county court judges, such as the judge in this case. See Acts 2017, 85th Leg., ch. 740, § 1, p. 3160,
eff. Sept. 1, 2017 (amending TEX . GOV ’T CODE § 22.221(b)(1), to include judges of statutory county
courts as among those against whom courts of appeals may issue writs of mandamus). When a court
of appeals and this Court have concurrent original jurisdiction of a petition for writ of mandamus
against the judge of a district or county court, the petition should be first presented to the court of
appeals absent a compelling reason not to. Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim.
App. 2003).
                                                                                  MAU — 6

declared that, “[h]aving reviewed the petition, the response of the real party in interest,

relator’s reply, and the record, we conclude that relator has not demonstrated that he is

entitled to relief.” In re State ex rel. Mau, No. 03-17-00588-CV, 2017 WL 5985510, at *1

(Tex. App.—Austin Dec. 1, 2017) (mem. op., not designated for publication). Relator now

asks this Court to issue the writ of mandamus against the Third Court of Appeals, compelling

that court to mandamus the trial court in this cause to withdraw its order deferring

adjudication, enter judgment on the jury’s verdict of guilty in the minutes of the court, and

empanel a jury to determine Rivera’s punishment.

       Under these circumstances, this Court applies the two-pronged test for granting relief

in mandamus proceedings: (1) whether the relator has an adequate remedy at law to address

his complaint, and (2) whether what he seeks is a ministerial act, not involving discretion or

judicial decision-making. In re State ex rel. Young v. Sixth Judicial Court of Appeals, 236

S.W.3d 207, 210–11 (Tex. Crim. App. 2007). A relator may satisfy the second prong by

establishing that he has a clear right to the relief he seeks under law that is definite and

unambiguous, and that “unquestionably applies to the indisputable facts of the case.” Id. at

210.

                                      II. ANALYSIS

                 A. The Trial Court’s Authority to Assess Punishment

       In making its second argument—that the trial court lacked authority to assess

punishment after a guilty plea to a jury—the State places principal reliance upon this Court’s
                                                                                          MAU — 7

opinion in In re State ex rel. Tharp, 393 S.W.3d 751 (Tex. Crim. App. 2013). Tharp, in

contrast to this case, involved a prosecution for a felony offense. Id. at 752. As in the instant

case, the defendant in Tharp changed his plea from not guilty to guilty after his jury trial had

already commenced. Id. at 753. Unlike this case, in Tharp the defendant had expressly

elected to have the trial court assess his punishment, even though the guilt phase of his trial

was before the jury. Id. The State argued that, by changing his plea before the jury from not

guilty to guilty, the defendant had converted his trial into a unitary proceeding in which,

notwithstanding his pre-trial election to have the judge assess his punishment, the jury would

be required to assess punishment instead. Id. The trial court disagreed with the State, and

ruled that it, not the jury, would assess punishment. Id.

       In the mandamus proceeding that ensued, we held that the State was plainly correct,

and ordered the trial court to submit the issue of punishment to the jury. Id. at 759. The trial

court in Tharp relied upon the defendant’s pretrial election of judge-assessed punishment

under Article 37.07 of the Code of Criminal Procedure.6 But we held that the controlling

statute was, instead, Article 26.14, which requires that, in a felony case, when a defendant

persists in pleading guilty, a jury shall assess punishment.7 Id. at 754–59.


       6
         See TEX . CODE CRIM . PROC. art. 37.07(2)(b) (providing for court assessment of punishment
as the default unless the defendant elects in writing prior to voir dire to have the jury do so).
       7
           In whole, this provision reads:

               Where a defendant in a case of felony persists in pleading guilty or in entering
       a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury
       shall be impaneled to assess the punishment and evidence may be heard to enable
                                                                                            MAU — 8

        In many previous felony cases, we have held that, when a defendant changes his plea

from not guilty to guilty, but does not waive his right to a jury trial, the proceeding becomes

a unitary trial, and the jury’s primary function is to assess punishment. E.g., Ring v. State,

450 S.W.2d 85, 87 (Tex. Crim. App. 1970); Basaldua v. State, 481 S.W.2d 851, 852–53

(Tex. Crim. App. 1972); Frame v. State, 615 S.W.2d 766, 767 n.1 (Tex. Crim. App. 1981);

Ricondo v. State, 634 S.W.2d 837, 841–42 (Tex. Crim. App. 1981) (op. on reh’g).8 These

cases are predicated, however, upon a statute—Article 26.14—that, on its face, applies only

to felony prosecutions. The instant prosecution involves a misdemeanor offense, so Article

26.14 does not expressly apply. On the other hand, Article 37.07 (upon which the trial court

relied in Tharp) applies only in cases in which the defendant (felony or misdemeanor)

persists in his plea of not guilty. Rojas v. State, 404 S.W.2d 30 (Tex. Crim. App. 1966);

Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001). Here, Rivera changed his plea

from not guilty to guilty in the middle of his misdemeanor jury trial. On their faces, neither

Article 37.07 nor Article 26.14 seems to mandate that only one entity or the other—judge or




        them to decide thereupon, unless the defendant in accordance with Articles 1.13 or
        37.07 shall have waived his right to trial by jury.

TEX . CODE CRIM . PROC. art. 26.14.
        8
          In that event, the appropriate procedure is to instruct the jury to return a guilty verdict—just
as the trial court did in this case. E.g., Griggs v. State, 451 S.W.2d 481, 483 (Tex. Crim. App. 1970);
Fairfield v. State, 610 S.W.2d 771, 780 (Tex. Crim. App. 1981); Ricondo, 634 S.W.2d at 840;
Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988). The remaining question in this
misdemeanor prosecution is whether the trial court should have also instructed the jury to assess
punishment, as would be required in a felony case.
                                                                                           MAU — 9

jury—should assess punishment in this context. Tharp, likewise, does not expressly control.

In the absence of clear guidance establishing whether the State is entitled to insist on a jury

assessment of punishment in this misdemeanor prosecution, we cannot conclude that the

State has established a clear right to prohibit the trial court from assessing punishment in this

case. We decline to grant mandamus relief to that extent.9

            B. The Trial Court’s Authority to Grant Deferred Adjudication

       In its first argument for granting mandamus relief, however, the State maintains that

the trial court had a ministerial duty to enter judgment on the jury’s verdict. It contends that

permitting a trial court to defer adjudication of guilt after a jury has returned a verdict of

guilty undermines the State’s statutory discretion, under Article 1.13(a), to refuse to consent



       9
           This Court has long and routinely issued opinions in which we have explained why
mandamus relief must be denied. E.g., Ordunez v. Bean, 579 S.W.2d 911 (Tex. Crim. App. 1979);
Warminksi v. Dear, 608 S.W.2d 621 (Tex. Crim. App. 1980); Collins v. Kegans, 802 S.W.2d 702
(Tex. Crim. App. 1991); Smith v. Gohmert, 962 S.W.2d 590 (Tex. Crim. App. 1998). We have also
issued opinions to explain why an application for writ of mandamus must be dismissed. See Johnson
v. Tenth Jud. Dist. Ct. of Appeals, 280 S.W.3d 866 (Tex. Crim. App. 2008) (dismissing mandamus
application because it did not involve a “criminal law matter” so as to invoke this Court’s original
jurisdiction); In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (opining that “Relator was
entitled to mandamus relief[,]” but nevertheless dismissing her application as moot because she had
already obtained the relief she sought); see also McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim.
App. 1992) (filing and setting an application for writ of mandamus but, in the same opinion, denying
relief because the relief sought had already been obtained). We have even issued a detailed order to
explain why we opted to deny leave to file an application for writ of mandamus in the first place. In
re Brown, 343 S.W.3d 803 (Tex. Crim. App. 2011) (order denying leave to file an application for
writ of mandamus with a detailed explanation that it would not be appropriate to grant mandamus
relief because the trial court’s action involved a judicial decision, not a ministerial function). There
is nothing advisory in our issuing an opinion today that explains why it is appropriate to deny the
State’s broader claim to mandamus relief. Were we to grant the more limited relief the State seeks
without passing on the issue of the greater relief, the State would undoubtedly simply refile its
application to once again seek that greater relief.
                                                                                       MAU — 10

to a jury waiver. By the time the jury returned a guilty verdict,10 Rivera had not waived his

right to a jury trial, and the State had not consented (in writing or otherwise) to such a

waiver. We agree that the trial court was without authority to enter an order deferring

adjudication of guilt—the action that provoked the State’s objection in this case.

       Absent the consent of the State as prescribed by Article 1.13 of the Code of Criminal

Procedure, the trial court had no discretion to resolve the issue of Rivera’s guilt in any

manner but by a jury trial. State ex rel. Turner v. McDonald, 676 S.W.2d 371, 374 (Tex.

Crim. App. 1984). This is as true in a misdemeanor prosecution as it is in a felony

prosecution. State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex. Crim. App. 1992). And,

once the jury returned its guilty verdict, the trial court had a ministerial duty to immediately

enter that verdict on the minutes of the court for inclusion in the ultimate written judgment.

See T EX. C ODE C RIM. P ROC. art. 37.04 (“If in proper form and no juror dissents therefrom,

and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of

the court.”) (emphases added).

       The court of appeals opinion relied on by the trial court—State v. Sosa—is not binding

authority and is, at any rate, distinguishable. See note 3, ante. The question in Sosa was

whether the judge, having found the defendant guilty on his plea of not guilty in a bench trial,

could subsequently withdraw its finding of guilt in order to be able to assess deferred

adjudication probation. 830 S.W.2d at 205. The court of appeals held that he could,

       10
           See TEX . CODE CRIM . PROC. art. 37.01 (“A ‘verdict’ is a written declaration by a jury of
its decision of the issue submitted to it in the case.”).
                                                                                   MAU — 11

essentially because it could find no case law or provision in the Code of Criminal Procedure

that prohibits it. See id. (“[W]e find no statutory or caselaw authority which circumscribes

the trial judge’s discretion in this situation or affirmatively prohibits this procedure.”). The

same cannot be said about a jury verdict of guilty.

       The prosecutor was correct that, under the Code of Criminal Procedure, “the trial

court does not have the authority to grant a different judgment—a judgment non obstante

verdicto—than that rendered by the jury.” State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim.

App. 1996). See also Lucio v. State, 351 S.W.3d 878, 905 (Tex. Crim. App. 2011) (a trial

court lacks authority to entertain a request for a judgment notwithstanding the jury’s verdict).

Once a jury verdict of guilty has been returned, the only way in which a trial court may undo

that verdict is by way of an order granting a motion for new trial. See T EX. R. A PP. P. 21.1(a)

(“New trial means the rehearing of a criminal action after the trial court has, on the

defendant’s motion, set aside a finding or verdict of guilt.”). A trial court may not grant a

new trial sua sponte. Ex parte Ybarra, 629 S.W.2d 943, 945 (Tex. Crim. App. 1982). Nor

may it grant a new trial, even “in the interest of justice,” in the absence of some legal defect

in the proceeding to justify its order. State v. Thomas, 428 S.W.3d 99, 104–05 (Tex. Crim.

App. 2014). Here, Rivera never filed a motion for new trial, the trial court did not grant a

motion for new trial, nor is any legal basis for such a motion apparent from the record.

       Rivera’s guilty plea to the jury resulted in a guilty verdict, and that verdict has not

been abrogated. Under these circumstances, the trial court lacked authority to defer his
                                                                                   MAU — 12

adjudication and place him on deferred adjudication community supervision. By its very

terms, the statutory option authorizing deferred adjudication is limited to defendants who

plead guilty or nolo contendere before the trial court after waiving trial by jury. See T EX.

C ODE C RIM. P ROC. art. 42A.101(a) (“[T]he judge may, after receiving a plea of guilty or nolo

contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer

further proceedings without entering an adjudication of guilt and place the defendant on

deferred adjudication community supervision.”); Reed v. State, 644 S.W.2d 479, 483 (Tex.

Crim. App. 1983), overruled on other grounds by Kelly v. State, 824 S.W.2d 568 (Tex. Crim.

App. 1992) (“The power to defer adjudication rests solely within the discretion of the trial

court. The availability of the option is limited to defendants who plead guilty or nolo

contendere.”). Although the trial court here made reference to former Article 42.12, Section

5, by the time of Rivera’s trial, in August of 2017, this provision had been superseded by

Article 42A.101. However, no substantive change in the law was intended by the 2015

legislation that repealed Article 42.12 and replaced it with Chapter 42A. Moore v. State, 520

S.W.3d 906, 908 n.3 (Tex. Crim. App. 2017). Because the trial court in this case plainly

lacked authority to grant Rivera deferred adjudication community supervision following a

guilty verdict from a jury, the State has established a clear right to compel the trial court to

rescind its order granting deferred adjudication.

                                   C. Adequate Remedy?

       Because deferred adjudication community supervision does not constitute a
                                                                                       MAU — 13

“sentence,” the Third Court of Appeals has held that the State cannot appeal from an order

granting it under Article 44.01(b) of the Code of Criminal Procedure.11 See State v. Wilcox,

993 S.W.2d 848, 850 (Tex. App.—Austin 1999) (“Because an order deferring adjudication

does not constitute or contain a sentence [as defined by T EX. C ODE C RIM. P ROC. art. 42.02],

article 44.01(b) does not apply. As a consequence, the State is not entitled to appeal, and we

are without jurisdiction.”). Although this Court originally granted the State’s petition for

discretionary review in Wilcox, we ultimately dismissed that petition on the ground that it had

been granted improvidently. Wilcox v. State, 18 S.W.3d 636 (Tex. Crim. App. 2000). Thus,

it appears that the State has no ordinary appellate remedy by which to challenge the trial

court’s order granting deferred adjudication community supervision in this case—at least not

under current binding precedent in Hays County, which falls within the Third Court of

Appeals’ district.

                                      III. CONCLUSION

       We conclude that the trial court was without authority to enter an order of deferred

adjudication community supervision in this case; that the State therefore has a clear right to

compel the trial court to rescind that order; and that the State has no adequate remedy at law

to challenge that order. Accordingly, we conditionally grant the writ of mandamus to compel

the court of appeals to order the trial court to rescind the order granting deferred adjudication.

Any further relief is denied.

       11
          See TEX . CODE CRIM . PROC. art. 44.01(b) (“The state is entitled to appeal a sentence in a
case on the ground that the sentence is illegal.”).
                                MAU — 14

DELIVERED:   October 31, 2018
PUBLISH
