                                 NUMBER 13-15-00323-CR

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


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


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Benavides and Perkes
            Memorandum Opinion by Chief Justice Valdez1

        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-

00316-CR, 2015 WL ___ (Tex. App.—Corpus Christi Oct. 30, 2015, orig. proceeding)


        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
(mem. op., not designated for publication); 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. 13-15-00339-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, Jaimie Rene Runnels, was charged by information in trial

court cause number 1-103420 with the offense of driving while intoxicated. See TEX.

PENAL CODE ANN. § 49.04 (West, Westlaw through 2015 R.S.). On July 13, 2015, the

case was called for trial by the respondent, the Honorable Eli Garza of the 377th District

Court of Victoria County, Texas.2 That day, Runnels pleaded guilty and waived his right

to a jury trial. The prosecutor representing the State, Jake Srp, did not sign a waiver of a

jury trial and objected to proceeding without a jury. The respondent overruled the State’s

objection and accepted Runnels’s plea of guilty. In so doing, the respondent articulated

his reliance on statutory interpretation and stated that he was taking judicial notice that

the State’s policy of refusing to waive jury trials was “interfering with the orderly

administration of the business of the courts” and requiring the appointment of counsel in

all such cases.

        The State requested a stay in the proceedings to seek review in this Court. The

trial court denied the request for a stay and ordered the State to proceed with the

punishment hearing. The State filed a petition for writ of mandamus with a request for


         2 Runnels’s case was pending in the County Court at Law Number One of Victoria County, Texas.

According to Runnels’s response to the petition for writ of mandamus, Judge Garza was sitting as a judge
of the County Court at Law in order to assist in presiding over the eight misdemeanor driving while
intoxicated cases scheduled for that day on the county court trial docket.

                                                   2
emergency relief with this Court; however, the punishment hearing was completed and

the trial court issued its sentence almost simultaneously with the State’s filing. The trial

court found Runnels guilty, sentenced him to confinement in the Victoria County Jail for

180 days, assessed a fine of $750 and costs, and placed him on community supervision

for a period of nine months. This Court therefore dismissed the State’s petition for writ of

mandamus as moot. See In re State ex rel. Tyler, No. 13-15-00315-CR, 2015 WL

4381222, at *1 (Tex. App.—Corpus Christi July 13, 2015, orig. proceeding) (per curiam)

(mem. op., not designated for publication).

       This original proceeding subsequently ensued. By one issue, the State contends

that the trial court erred in convening a sentencing hearing before the court when the

State had not signed a written waiver of its right to trial before a jury. The State requests

that we grant the petition and order the respondent to vacate the judgment and sentence

issued on July 13, 2015 and empanel a jury to hear the case. This Court requested that

Runnels, or any others whose interest would be directly affected by the relief sought, to

file a response to the petition for writ of mandamus. See TEX. R. APP. P. 52.2.

       On July 22, 2015, the respondent filed a response to the petition for writ of

mandamus. The respondent stated that it took judicial notice of the State’s policy that it

would no longer be offering plea bargain agreements in misdemeanor driving while

intoxicated cases; that this policy had caused an “extreme backlog”; that the district court

judges had offered to assist the county court judges to alleviate the backlog; and that the

State’s policy caused additional expense to the citizens of Victoria County and burdened

its court system. The respondent’s arguments, as restated, are that: (1) the State does

not have an absolute right to a jury trial in misdemeanor pleas; (2) the defendant’s right



                                              3
to waive a jury trial is being denied; and (3) the trial court has broad discretion to control

its docket which outweighs the State’s assertion of its right to a jury trial in a case involving

a misdemeanor guilty plea.

       On July 27, 2015, Runnels filed his response to the petition for writ of mandamus.

Runnels alleged that the State’s policy prohibiting plea bargains in misdemeanor driving

while intoxicated cases caused a delay in his trial of almost one year. Runnels further

argues that the State’s right to a jury trial in misdemeanor cases is not guaranteed under

Texas law. Runnels bases his argument on statutory construction, that is, the differences

between pleas of guilty or nolo contendere in felony and misdemeanor cases, and the

legislative intent regarding the 1991 revisions to article 1.13. Runnels further argues that

he has been sentenced following a hearing at which both the State and his attorney

offered evidence and argument, and has begun to carry out the terms and conditions for

his community supervision.

                                   II. STANDARD OF REVIEW

       To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If

the relator fails to meet both of these requirements, then the petition for writ of mandamus

should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). A remedy at law, though it

technically exists, “may nevertheless be so uncertain, tedious, burdensome, slow,

inconvenient, inappropriate, or ineffective as to be deemed inadequate.” Greenwell v. Ct.

of Apps. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 648–49 (Tex. Crim. App. 2005)



                                               4
(orig. proceeding). The act sought to be compelled must be a ministerial act that does

not involve a discretionary or judicial decision. State ex rel. Young, 236 S.W.3d at 210.

The ministerial-act requirement is satisfied if the relator can show a clear right to the relief

sought. In re State ex rel. Weeks, 391 S.W.3d at 122. A clear right to relief is shown

when the facts and circumstances dictate but one rational decision “under unequivocal,

well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly

controlling legal principles.” Bowen v. Carnes, 343 S.W.3d 805, 810 n.6 (Tex. Crim. App.

2011); see In re State ex rel. Weeks, 391 S.W.3d at 122.

       In criminal proceedings, the State has a limited right to appeal, which does not

include the right to appeal the trial court’s decision to waive a jury trial without the State’s

consent. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (West, Westlaw through 2015 R.S.)

(listing the orders that the State is entitled to appeal in criminal cases); State v. Redus,

445 S.W.3d 151, 153 (Tex. Crim. App. 2014) (examining the State’s statutory right to

appeal in criminal cases). Therefore, if the State challenges a defendant’s jury waiver

and contends that the Court failed to perform the ministerial duty of impaneling a jury,

mandamus is the proper vehicle with which to seek relief. In re State ex rel. Tharp, 393

S.W.3d 751, 752 (Tex. Crim. App. 2012) (orig. proceeding); State ex. rel. Turner v.

McDonald, 676 S.W.2d 371, 374 (Tex. Crim. App. 1984) (orig. proceeding) (en banc);

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

proceeding) (en banc) (per curiam); see also In re Roach, No. 05-09-01451-CV, 2010 WL

537751, at *1 (Tex. App.—Dallas Feb. 17, 2010, orig. proceeding) (mem. op.)

(conditionally granting mandamus relief when the trial court allowed the defendant to




                                               5
plead guilty and waive a jury trial without the State’s consent). Accordingly, we proceed

with our review regarding the merits of this original proceeding.

                                    III. APPLICABLE LAW

       By one issue, the State contends that the respondent committed error when he

convened a sentencing hearing before the trial court when the State had not signed a

written waiver of its right to trial before a jury. Runnels and the respondent assert that

Runnels does not need the State’s consent to plead guilty, waive a jury, and have the

respondent perform sentencing.

       The issue before us is whether a defendant in a misdemeanor case may

unilaterally waive a jury and plead guilty before the court without the State’s consent and

approval. The Dallas Court of Appeals and other courts have concluded that under article

1.13(a), a misdemeanor defendant may not waive a jury without the State’s consent and

approval, even when the defendant pleads guilty. See In re State ex rel. O’Connell, 976

S.W.2d at 905; State v. Fisher, 212 S.W.3d 378, 381 (Tex. App.—Austin 2006, pet. ref’d)

(holding that the trial court lacked authority to adjudicate the defendant’s guilt in a

misdemeanor case because State did not agree to the defendant’s jury waiver); see also

In re Escamilla, No. 03-12-00341-CV, 2012 WL 2989170, at *1 (Tex. App.—Austin Jul.

10, 2012, orig. proceeding) (mem. op.) (conditionally granting mandamus relief in favor

of the district attorney where the trial court erred in proceeding to accept a guilty plea in

a bench trial without the State’s consent to a jury waiver); In re Watkins, No. 05-11-01067-

CV, 2011 WL 3570520, at *1 (Tex. App.—Dallas Aug. 16, 2011, orig. proceeding)

(concluding that the trial court erred in acting as the fact-finder in a driving while

intoxicated case when the State did not consent to a jury waiver, but denying mandamus



                                             6
relief on grounds that the State had the right to appeal the defendant’s order of acquittal);

McCutchen v. State, No. 04-09-00350-CR, 2010 WL 3699987, at *6 (Tex. App.—San

Antonio Sept. 22, 2010, pet. ref’d) (mem. op., not designated for publication) (concluding

that the trial court did not err in allowing the State to refuse to waive a jury trial where the

appellant argued that the State was insisting on a jury trial for an “ignoble and

unreasonable purpose”); cf. In re Watkins, 390 S.W.3d 583, 584 (Tex. App.—Dallas 2012,

orig. proceeding) (“The Texas Code of Criminal Procedure . . . clearly states that a

defendant can only waive his right to a trial by jury if the State consents and approves.”).

       In a case similar to the one before this Court, the Texas Court of Criminal Appeals

considered an original proceeding brought by the District Attorney of Tarrant County

seeking a writ of mandamus directing the trial court to empanel a jury and to prohibit the

entry of a judgment. State ex rel. Curry, 847 S.W.2d at 561. The defendant in that case

stated that she wished to waive a trial by jury. Id. Relying on article 1.13, the State

refused to consent to the defendant’s jury waiver. Id. The trial court denied the State’s

request that the matter be set for a jury trial. Id. at 561–62. The court of criminal appeals

held that the trial court “does not have the discretion to serve as a factfinder in the trial of

a misdemeanor case absent the consent and approval of the State as prescribed by

[article 1.13(a)] to the accused’s waiver of [a] jury trial.” Id. at 562. Specifically, the court

held that under the circumstances presented, the trial court had a “ministerial duty to

conduct a jury trial.” Id. In so holding, the court of criminal appeals relied on its previous

analysis in State ex rel. Turner v. McDonald, 676 S.W.2d 371 (Tex. Crim. App. 1984) (en

banc), in which it held that a district court did not have the discretion to serve as a

factfinder in a felony case absent the State’s consent to the defendant’s jury waiver. Id.



                                               7
at 374; see also In re State ex rel. Tharp, 393 S.W.3d at 752 (conditionally granting

mandamus relief in favor of the State requiring the trial court “to submit the entire case—

both guilt and punishment—to the jury after the defendant plead guilty” to a felony

offense); In re Roach, 2010 WL 537751, at **2–3 (conditionally granting mandamus relief

in favor of the district attorney in a felony case where the trial court erred by accepting a

guilty plea when the State did not consent to the waiver of a jury trial).

       Accordingly, the trial court has a ministerial duty to empanel a jury when the State

refuses to consent to the defendant’s jury waiver. In such a case, where the defendant

pleads guilty and the trial court accepts the plea, but the jury has not or cannot be waived,

the proper procedure is for the trial court to direct a verdict of guilt and proceed with

punishment. Morin v. State, 682 S.W.2d 265, 269 (Tex. Crim. App. 1983); see also In re

State ex rel. Tharp, 393 S.W.3d at 758–59 (stating that when the defendant pleads guilty

and the State refuses to join the defendant’s waiver of a jury trial, the trial court must

submit all relevant issues, including punishment, to the jury).

                         IV. CONFLICTING STATUTORY PROVISIONS

       Runnels and the respondent contend that articles 27.14 and 1.13 of the Texas

Code of Criminal Procedure are in irreconcilable conflict, that article 27.14 is narrower in

scope than article 1.13, and thus article 27.14 controls our analysis of the situation before

the Court. According to Runnels and the respondent, article 27.14 does not require the

State to consent to the defendant’s jury waiver in a misdemeanor case.

       The analysis in this case concerns the interaction between article 1.13, entitled

“waiver of trial by jury,” and article 27.14, entitled “plea of guilty or nolo contendere in

misdemeanor.” Article 1.13 provides in relevant part:



                                              8
       (a)     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,[3] 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.

       ....

       (c)     A defendant may agree to waive a jury trial regardless of whether the
               defendant is represented by an attorney at the time of making the
               waiver, but before a defendant charged with a felony who has no
               attorney can agree to waive the jury, the court must appoint an
               attorney to represent him.

TEX. CODE CRIM. PROC. ANN. art. 1.13. Thus, a defendant in any case other than a capital

felony case involving the death penalty can waive a trial by jury if the waiver is made with

the “consent and approval of the court, and the attorney representing the state.” Id. art.

1.13(a) (emphasis added); see, e.g., Ex parte Garza, 337 S.W.3d 903, 912 (Tex. Crim.

App. 2011) (holding that a trial court erred in declaring a mistrial in a misdemeanor case

over the defendant’s objection when “the defendant waives his right to trial by a complete

jury under Article 1.14, and the State and the trial court are willing to consent to do so

under Article 1.13(a)”). In contrast, article 27.14, which concerns pleas of guilty or nolo

contendere in misdemeanor cases, provides in section (a) that:

       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


       3 Article 27.19 of the Texas Code of Criminal Procedure provides the requirements for accepting
pleas from persons confined in a penal institution. See TEX. CODE CRIM. PROC. ANN. art. 27.19 (West,
Westlaw through 2015 R.S.).

                                                  9
       assessed by the court either upon or without evidence, at the discretion of
       the court.

TEX. CODE CRIM. PROC. ANN. art. 27.14.

       When interpreting statutes, a court must “seek to effectuate the ‘collective’ intent

or purpose of the legislators who enacted the legislation.” Garcia v. State, 387 S.W.3d

20, 22–23 (Tex. Crim. App. 2012) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991)). Toward that end, a court must focus its “attention on the literal text of

the statute in question and attempt to discern the fair, objective meaning of that text at

the time of its enactment.” Boykin, 818 S.W.2d at 785. However, when the application

of a statute’s plain language would lead to absurd consequences, or when the language

is not plain but rather ambiguous, a court may consider extra-textual factors such as the

legislative history of the statute. Garcia, 387 S.W.3d at 22–23; Boykin, 818 S.W.2d at

785–86.    In this context, ambiguity exists when a statute may be understood by

reasonably well-informed persons in two or more different senses; conversely, a statute

is unambiguous when it permits only one reasonable understanding. Mahaffey v. State,

364 S.W.3d 908, 913 (Tex. Crim. App. 2012). Except under unusual circumstances, it is

best to effectuate the legislative intent evidenced by the plain language of statutes.

Garcia v. State, 829 S.W.2d 796, 799–800 (Tex. Crim. App. 1992); Camacho v. State,

765 S.W.2d 431, 433 (Tex. Crim. App. 1989); see also Patterson v. State, 769 S.W.2d

938, 940 (Tex. Crim. App. 1989).        Otherwise, courts risk invading the legislature’s

province by reading into the law that which is clearly not there. Ex Parte Halsted, 182

S.W.2d 479, 482 (Tex. Crim. App. 1944).

       It is our duty to harmonize all of the statutory provisions and give full effect to each

if it is possible to do so under the established rules of statutory construction. Postell v.

                                             10
State, 693 S.W.2d 462, 464 (Tex. Crim. App. 1985) (en banc); Cuellar v. State, 521

S.W.2d 277, 279 (Tex. Crim. App. 1975). Focusing on the literal text of article 26.14 and

article 1.13, article 26.14 governs pleas of guilty or nolo contendere in misdemeanor

cases and article 1.13 governs the waiver of jury trials. Construing the articles together,

we see no conflict between these articles. Article 1.13(a) sets out the specific and

required procedure for waiving a jury trial and clearly requires the State’s consent and

approval to validate a defendant’s jury waiver. Nothing in article 27.14(a) is to the

contrary. Article 27.14 is not rendered meaningless by this interpretation because it

instead delineates the procedure for making pleas of guilty or nolo contendere in

misdemeanor cases—that is, such pleas may be made either by the defendant or

counsel.

       Moreover, as acknowledged by the parties, the Dallas Court of Appeals has

considered this same argument and rejected it. In re State ex rel. O’Connell, 976 S.W.2d

902. In a thorough and lengthy analysis, the court considered the plain language of these

two articles, parsed the words and phrases therein, analyzed these articles’ interaction

with article 27.13, reviewed the history of Texas jurisprudence regarding jury waivers, and

contemplated the application of the rule of in pari materia. See id. at 905–08. The Dallas

Court of Appeals concluded that articles 1.13 and 27.14 did not conflict and article 1.13

requires the State’s consent to a defendant’s jury waiver in a misdemeanor case. See id.

       Based upon our analysis, we agree with the Dallas Court of Appeals and conclude

that the code of criminal procedure provisions can be harmonized, and we reject

arguments otherwise. See id.

                                  V. LEGISLATIVE INTENT



                                            11
       Runnels contends that the legislative history of article 1.13 indicates that “there is

serious doubt” that it was intended to apply to any cases other than capital felonies. As

an initial matter, we note that we do not typically resort to extra-textual factors such as

legislative history unless application of a statute’s plain language would lead to absurd

consequences, or when the language is not plain but rather ambiguous. Garcia, 387

S.W.3d at 22–23; Boykin, 818 S.W.2d at 785–86. Accordingly, our holding in this case is

not dependent on the legislative history of article 1.13. However, even if we were to

consider the legislative history of article 1.13 in analyzing its application to misdemeanor

offenses, we would conclude that the legislative history does not indicate that article 1.13

applies only to felony pleas.

       Article 1.13 was amended in 1991. See Act of May 27, 1991 (H.B.9), 72nd Leg.

R.S., ch. 652, 1991 TEX. GEN. LAWS 2394. The caption to House Bill 9 reads: “[a]n act

relating to the waiver of jury trial for a person charged with a capital offense and to the

punishment, sentencing and availability of parole for a person convicted of a capital

offense.” Id. An examination of House Bill 9 shows thirteen amendments to the Texas

Penal Code and Texas Code of Criminal Procedure, all concerning capital felony

prosecutions, and section 15(a) of House Bill 9 states that the amendments to articles

1.13 apply “to the trial of a capital offense that commences on or after the effective date

of the act.” Id. Runnels thus urges that the history of the amendments to 1.13 indicates

that it was not intended to apply to any cases other than capital felonies.

       As stated previously, in 1992, the Texas Court of Criminal Appeals held that the

trial court “does not have the discretion to serve as a factfinder in the trial of a

misdemeanor case absent the consent and approval of the State as prescribed by Art.



                                             12
1.13(a), supra, to the accused's waiver of jury trial,” and instead “has a ministerial duty to

conduct a jury trial.” State ex rel. Curry, 847 S.W.2d at 562. The court so held despite a

sharp dissenting opinion reviewing the legislative history of article 1.13 and the rules of

statutory construction. See id. at 562–63 (Miller, J., dissenting) (“My research reveals

that the legislature never intended to give the State the power to force a jury trial in a

misdemeanor case when it amended Article 1.13(a).”). Accordingly, in view of the court

of criminal appeals’ handling of the legislative history of article 1.13, we conclude that the

legislative history of article 1.13 does not indicate that misdemeanor offenses were

intended to be excluded from the scope of that article. See id.; Chaouachi v. State, 870

S.W.2d 88, 93 (Tex. App.—San Antonio 1993, no pet.) (analyzing the dissent in State ex

rel. Curry v. Carr and determining that the legislative history of article 1.13 did not indicate

that it was intended to apply only to felony offenses).

                              VI. RIGHT TO JURY TRIAL & WAIVER

       Runnels contends that the State has no guaranteed right to a jury trial in

misdemeanor cases.         The respondent further contends that the State’s actions in

demanding a jury trial have deprived Runnels of his right to waive a jury trial.

       A criminal defendant has the right to a trial by jury. U.S. CONST. amend. VI (“In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district . . . .”); TEX. CONST. art. I, § 15 (“The right of trial by

jury shall remain inviolate. The [l]egislature shall pass such laws as may be needed to

regulate the same, and to maintain its purity and efficiency.”); TEX. CODE CRIM. PROC. ANN.

art. 1.12 (West, Westlaw through 2015 R.S.) (“The right of trial by jury shall remain

inviolate.”); Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009) (“A defendant



                                                13
has an absolute right to a jury trial.”). Subject to the conditions of the Texas Code of

Criminal Procedure, a criminal defendant also has the right to waive a jury trial. See TEX.

CODE CRIM. PROC. ANN. art. 1.14(a) (West, Westlaw through 2015 R.S.) (“The defendant

in a criminal prosecution for any offense may waive any rights secured him by law except

that a defendant in a capital felony case may waive the right of trial by jury only in the

manner permitted by Article 1.13(b) of this code.”). Further, when a criminal defendant

pleads guilty, he waives several constitutional rights, such as the right to a trial by jury.

Davison v. State, 405 S.W.3d 682, 686 (Tex. Crim. App. 2013); Ex parte Zantos-Cuebas,

429 S.W.3d 83, 88 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In contrast, the State

“technically” has no “right” to trial by jury, and due process and due course of law are

guarantees applicable to citizens and not governments or their agents. State ex rel.

Turner, 676 S.W.2d at 373–74.

       To the extent that Runnels and respondent contend that forcing individuals to a

jury trial infringes on their rights, this issue has been determined as a question of federal

constitutional law in Singer v. United States, 380 U.S. 24 (1965).             The court there

reasoned:

               In light of the Constitution’s emphasis on jury trial, we find it difficult
       to understand how the petitioner can submit the bold proposition that to
       compel a defendant in a criminal case to undergo a jury trial against his will
       is contrary to his right to a fair trial or to due process. A defendant’s only
       constitutional right concerning the method of trial is to an impartial trial by
       jury. We find no constitutional impediment to conditioning a waiver of this
       right on the consent of the prosecuting attorney and the trial judge when, if
       either refuses to consent, the result is simply that the defendant is subject
       to an impartial trial by jury—the very thing that the Constitution guarantees
       him. The Constitution recognizes an adversary system as the proper
       method of determining guilt, and the Government, as a litigant, has a
       legitimate interest in seeing that cases in which it believes a conviction is
       warranted are tried before the tribunal which the Constitution regards as
       most likely to produce a fair result.

                                               14
Id. at 36. Quoting and following Singer, our highest criminal court in Texas has concluded

that article 1.13 is not unconstitutional on grounds that it grants the State a “right” to a jury

trial. See State ex rel. Turner, 676 S.W.2d at 374. Specifically, there is no violation of

the due process or due course of law provisions of the federal or state constitutions in

applying the provisions of article 1.13 to require the State’s consent to a jury waiver. See

id. Accordingly, there is no constitutional impediment to conditioning a defendant’s ability

to waive trial by jury on the State’s consent. See id.

                VII. TRIAL COURT’S DISCRETIONARY CONTROL OF ITS DOCKET

       The respondent contends that judicial economy and a responsible use of

resources are compelling reasons to accept Runnels’s guilty plea in order to “effectively

control its docket.”

       We agree that the control of the business of the court is vested in the sound

discretion of the trial judge. Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App.

1996) (en banc); see Wheatfall v. State, 882 S.W.2d 829, 838 (Tex. Crim. App. 1994).

Specifically, the “trial court is vested with broad discretion to manage and control its

docket in order to promote the orderly and efficient administration of justice while

protecting the statutory and constitutional rights of all persons who come before the

court.” Taylor v. State, 255 S.W.3d 399, 402 (Tex. App.—Texarkana 2008, pet. ref'd).

The test for abuse of discretion is not whether, in the opinion of the appellate court, the

facts present an appropriate case for the trial court's action, but rather, “whether the trial

court acted without reference to any guiding rules or principles.” State v. Thomas, 428

S.W.3d 99, 103 (Tex. Crim. App. 2014).




                                               15
        However, while we agree that the trial court has broad discretion in administering

its docket, the trial court’s duty to impanel a jury is ministerial in nature. State ex. rel.

Curry, 847 S.W.2d at 562; State ex. rel. Turner, 676 S.W.2d at 374. A ministerial act, by

its nature, does not involve the use of judicial discretion. In re Allen, 462 S.W.3d 47, 49

(Tex. Crim. App. 2015) (orig. proceeding). Accordingly, the trial court lacked discretion

to refuse to impanel a jury when the State refused to consent to Runnels’s waiver of a

jury trial.

                                        VIII. POLICY

        The respondent points out that the State’s refusal to accept plea bargains in

misdemeanor driving while intoxicated cases has caused an “extreme backlog” of cases

and results in defendants “who would otherwise be pleading guilty” being required to hire

an attorney or request representation by a court-appointed attorney. The respondent

asserts that the State’s policy has caused “an ever increasing docket and waste of

economic and judicial resources,” and that “[a]rbitrary actions . . . requesting jury trials

accomplish nothing but delays in justice.”

        We appreciate and acknowledge the ramifications of the State’s bright-line policy

rejecting plea bargains and requiring jury trials in all misdemeanor driving while

intoxicated cases.    We further empathize with the frustration experienced by the

respondent in attempting to handle these matters. However, as an intermediate appellate

court, we are bound by the precedent of our state’s highest criminal court. Lockard v.

State, 364 S.W.3d 920, 924–25 (Tex. App.—Amarillo 2012, no pet.); Bolen v. State, 321

S.W.3d 819, 828 (Tex. App.—Amarillo 2010, pet. ref’d); Ervin v. State, 331 S.W.3d 49,

53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Zarchta v. State, 44 S.W.3d 155, 162



                                             16
(Tex. App.—Houston [14th Dist.] 2001, pet. ref‘d); see TEX. CONST. art. 5, § 5(a) (providing

that the court of criminal appeals is the final authority for criminal law in Texas). Our court

of criminal appeals has determined that the trial court does not have the discretion to

serve as a factfinder in the trial of a misdemeanor case absent the consent and approval

of the state. See State ex rel. Curry v. Carr, 847 S.W.2d at 562. Similarly, our legislature

declares the public policy of the state. Martinez v. State, 323 S.W.3d 493, 501 (Tex. Crim.

App. 2010). We may not override the legislature’s intent in favor of countervailing policy

considerations. Garcia, 387 S.W.3d at 25; Martinez, 323 S.W.3d at 501; Boykin, 818

S.W.2d at 785. The legislature has determined that the State has an interest in the

method of trial which it has chosen to protect by statute. See State ex rel. Turner, 676

S.W.2d at 373 (stating that the State has “legitimate interests, representing the collective

citizenry as it does, in the method of trial of criminal accusations” and the State may

conclude that it is “essential to the interest of doing justice that a particular accused be

tried by a fair and impartial jury of his peers”); Watson v. State, 730 S.W.2d 150, 152

(Tex. App.—Amarillo 1987, pet. ref'd).

       Accordingly, while we recognize the full implications of the State’s policy to

demand jury trials in all misdemeanor driving while intoxicated cases, it is not within our

province to address these issues here.

                                        IX. INJUSTICE

       Runnels argues that mandamus should be denied in this case because he “has

been sentenced in accordance with the Texas Code of Criminal Procedure and has begun

to carry out the requirements of his sentence.” Runnels contends that if the petition for

writ of mandamus is granted, “the overriding injustice is the possibility that all of [his]



                                              17
efforts . . . to comply with a lawful judgment and sentence . . . will be for naught.” Runnels

offers no other argument or authority in support of his assertion that this defeats

mandamus relief.

       We have already determined that the trial court had a ministerial duty to empanel

a jury when the State refused to consent to Runnels’ jury waiver, thus the trial court’s act

of proceeding to sentencing before the bench was improper and the resulting sentence

was a nullity. Criminal defendants always stand the risk of an appeal of an illegal

sentence. See TEX. CODE CRIM. PROC. ANN. art. 44.01(b) (“The state is entitled to appeal

a sentence on the ground that the sentence is illegal.”). Further, a trial or appellate court

which otherwise has jurisdiction over a criminal conviction may always notice and correct

an illegal sentence. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).

Accordingly, we reject Runnels’ argument that his efforts to comply with the sentence

previously imposed renders mandamus relief inappropriate.

                                       X. CONCLUSION

       The Court, having examined and fully considered the petition for writ of mandamus,

the response, and the applicable law, is of the opinion that the State has met its burden

to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210; Ex Parte George,

913 S.W.2d at 526; State ex. rel. Curry, 847 S.W.2d at 562; State ex. rel. Turner, 676

S.W.2d at 374. Accordingly, we conditionally grant relator’s petition for writ of mandamus.

Respondent is directed to vacate the judgment and sentence issued on July 13, 2015,

set this cause for a jury trial at the earliest possible day, and thereafter preside over jury

selection and trial of the case in the manner prescribed by law. Respondent may not

enter a judgment in this cause except upon verdict of a jury as prescribed by law or in the



                                             18
event the State exercises its discretion to consent to the waiver of a jury trial. See, e.g.,

State ex rel. Turner, 676 S.W.2d at 374.

                                                  /s/ Rogelio Valdez
                                                  ROGELIO VALDEZ
                                                  CHIEF JUSTICE
Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
30th day of October, 2015.




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