                                 NUMBER 13-15-00339-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 Justice Perkes1

        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. 13-15-00323-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, Kyle Thomas Perkins, was charged by information in trial

court cause number 2-103790 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 Kemper Stephen Williams,

Judge of the 135th District Court of Victoria County, Texas. That day Perkins pleaded

guilty.2 The prosecutor representing the State, Tim Poynter, did not sign a waiver of a

jury trial and objected to proceeding with sentencing without a jury. The respondent

overruled the State’s objection, characterizing a jury trial in this matter as a “sham trial”

and a “waste of judicial resources.” The respondent then accepted Perkins’s plea of guilty

and proceeded with sentencing. The respondent sentenced Perkins to 180 days in the

Victoria County jail but suspended that sentence for twelve months. The respondent also

ordered Perkins to pay a fine of $750 and court costs, ordered Perkins to complete 100

hours of community service restitution, suspended Perkins’s license for 90 days, and

required Perkins to install an ignition interlock device on his motor vehicle.




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

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

                                                    2
       This original proceeding 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.

       On August 7, 2015, the respondent filed “Findings of Fact and Conclusions of Law

and Response to Application for Writ of Mandamus” which provides:

       On the 13th day of July, 2015, this Court, prior to the [empaneling] of a jury
       for trial of this cause, and after duly admonishing the Defendant, accepted
       the Defendant’s waiver of jury and plea of guilty to the offense of driving
       while intoxicated as alleged in the information. The State objected to the
       waiver. The objection was overruled and the court found and so stated in
       the record that [article 1.13 of the Texas Code of Criminal Procedure] did
       not control such a situation in a misdemeanor case, holding instead that
       [article 27.14] controls. The Court found the Defendant guilty of said offense
       and proceeded forward with a hearing before the Court for the Court to
       consider punishment of the Defendant. A final Judgment and Sentence was
       signed and entered on July 13, 2015.

                                   FINDINGS OF FACT

       1.     The Criminal District Attorney maintains an office policy wherein all
              misdemeanor driving while intoxicated offenses are to be tried before
              a jury.

       2.     The State did not consent to the Defendant’s plea of guilty to that
              alleged offense of driving while intoxicated in this cause.

       3.     This Court currently has 108 cases set for jury trial, of which 75 cases
              are alleged as driving while intoxicated offenses. These trial settings
              go through March 2016. Of these 75 cases, 23 defendants are
              represented by court appointed counsel. The trial docket is so
              crowded that District Judges (including the undersigned) are
              assisting with this Court’s jury trials.

       4.     Similarly situated, County Court at Law #1, which is the only other
              County Court at Law in Victoria County, has 117 cases set for jury
              trial of which 77 cases are alleged driving while intoxicated offenses.
              Of these 77 cases, 24 defendants have court appointed counsel.

                                             3
      Between both courts, there are currently 152 driving while intoxicated
      cases set for trial.

5.    The trial of all misdemeanor driving while intoxicated offenses to a
      jury represents a substantial and unjustifiable expense to the
      taxpayers of Victoria County.

6.    In four cases alone tried before this Court earlier this year, the cost
      exceeded $10,000. This cost included fees for court appointed
      attorneys, and fees for interpreters in two of the cases. This amount
      did not include the cost of the services of the jury or take into account
      their time in these cases. The usual costs for such cases, if resolved
      by a plea of guilty or nolo [contendere] to the Court, would have been
      $200 for each case. The fees for the interpreters probably would
      have been less than $200. Approximating the usual cost at $1,000
      for the four cases, the costs of these cases with the jury trials were
      ten (10) times the amount for which they could have been resolved.
      After trial, all four of these Defendants indicated that they would have
      entered a plea of guilty if allowed to do so by the State.

7.    The trial of this case before a jury to determine guilt of the Defendant
      would have been under false pretenses and nothing more than a
      sham and a display of pageantry by the State to confirm what the
      Defendant was already willing to admit—a plea of guilty.

8.    The results of the State unreasonably withholding consent to the
      Defendant’s plea of guilty in this case and other cases is to “wreck”
      the trial court’s docket by piling up cases for trial, and to interfere with
      the orderly administration of justice.

9.    Another result is that the State is able to deprive Defendants of the
      right to a speedy trial and related rights guaranteed under the
      Constitutions of the United States and the State of Texas, including
      the right to plead guilty to the alleged offense. For example, this
      Defendant was arrested on April 14, 2014. Because of the State’s
      “policy” a scheduling order was entered on October 29, 2014 setting
      the case for trial on May 4, 2015. The State then filed a motion for
      continuance and the case was re-set for July 13, 2015, some 15
      months after Defendant’s arrest.

10.   The most unexplainable and perplexing result is the State is seeking
      a reversal of the finding of guilt for the very offense for which they
      seek to prosecute and prove against the Defendant. This result
      makes no plausible sense.



                                       4
                         CONCLUSIONS OF LAW

1.   Article 27.14(a) of the Texas Code of Criminal Procedure states as
     follows: “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 assessed by the court
     either upon or without evidence, at the discretion of the court.” [TEX.
     CODE CRIM. PROC. ANN. art. 27.14 (a) (West, Westlaw through 2015
     R.S.)]. This is the Court’s authority to allow Defendant to waive a
     jury (without consent of the State) and proceed with punishment to
     be assessed by the Court.

2.   Article 1.13(a) [TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West,
     Westlaw through 2015 R.S.)] cited by the State requiring the consent
     of the attorney representing the State to the Defendant’s plea of
     guilty is in direct conflict with Article 27.14(a) stated above and does
     not apply to misdemeanor offenses. Article 1.13(a) states in the
     pertinent part that “. . . to waive the right of trial by jury . . . the waiver
     must be made in person by the defendant in writing in open court . .
     . .” (underline added for emphasis). Article 27.14(a) states in the
     pertinent part that “. . . the defendant or his counsel may waive a jury
     . . . .” (underline added for emphasis). These statutes are in direct
     and clear conflict since Article 27.14(a) indicates that the waiver may
     be made by counsel in a misdemeanor case, and Article 1.13(a)
     requires such waiver to be made in person.

3.   This Court construed the more detailed statute being Article 27.14(a)
     to be the controlling statute since it specifically indicates that it
     applies to misdemeanor cases. [TEX. GOV’T CODE ANN. § 311.026(b)
     (West, Westlaw through 2015 R.S.)]. Furthermore, nothing in the
     legislative history of Article 1.13(a) indicates that it was applicable to
     misdemeanor offenses. State of Texas ex. rel. Tim Curry, 847
     S.W.2d 561, 566 (Tex. Crim. App. 1992). To construe the statutes
     otherwise would render Article 27.14(a) entitled “Plea of Guilty or
     Nolo [Contendere] in Misdemeanor’’ to be meaningless.

4.   If the Defendant pled “not guilty” and after a jury trial on guilt was
     found by a jury to be guilty, the Defendant had the right to go to the
     Court for punishment. Whether the Court moved forward on a plea
     of “guilty” or “not guilty”, the State winds up in the same place of
     being able to present evidence on punishment to the Court. [TEX.
     CODE CRIM. PROC. ANN. art. 37.072(b) (West, Westlaw through 2015
     R.S.)]. There is no harm to the State.




                                       5
       5.     Statutes are not to be construed to produce absurd results. The
              absurd result is that the Court would have a jury empaneled for no
              useful purpose. [In re State ex. rel. O’Connell, 976 S.W.2d 902, 909
              (Tex. App.—Dallas 1998, orig. proceeding) (citing Brown v. State,
              943 S.W.2d 35, 36 (Tex. Crim. App. 1997))]. The issue of guilt has
              already been determined by the Defendant’s plea of guilty.

       6.     The State does not have a “Constitutional Right” as argued to a jury
              trial. The State did not cite any Constitutional basis for such a right,
              and the Court finds no references for any such basis. The
              Constitution of the United States and the State of Texas are to
              protect individuals from the overreaching of the government such as
              in this case presently before the Court.

       7.     Judicial economy and a responsible use of resources are compelling
              reasons for this Court to accept Defendant’s plea of guilty and to be
              able to effectively control its docket. The control of the business of
              the Court is vested in the sound discretion of the trial judge.
              Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App. 1994).

       8.     As to the mandamus, the relator must show that what he seeks to
              compel is a ministerial act, not invoking a discretionary or judicial
              decision. If the relator fails to satisfy this requirement, the relief
              should be denied. Relator must show he has a clear right to the relief
              sought—that is to say, 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. [In re State ex rel. Young v. Sixth Ct. of
              Apps., 236 S.W.3d 207 (Tex. Crim. App. 2007)(orig. proceeding)].
              Here, as set out above, the law is actually settled against Relator’s
              position. Art. 27.14 is the more specific statute and pertains to
              waivers of [a] jury in a misdemeanor case.

       9.     This Court respectfully requests that the Petition for Writ of
              Mandamus be denied and that Relator be sanctioned under [Texas
              Rule of Appellate Procedure 52.11] because the petition is clearly
              groundless.

       On August 13, 2015, the State filed objections to the trial court’s findings of fact

and conclusions of law. The State’s objections are voluminous and include the assertion

that the trial court’s findings and conclusions lack support in the record and are irrelevant

to the issues at hand. The State supported its objections with data from the Texas Office

of Court Administration which it alleges “shows a very different situation in Victoria County

                                             6
than what the trial court describes in its findings of fact and helps to refute any suggestion

that the Victoria County courts are currently suffering from any kind of backlog of

misdemeanor cases.”3

        Perkins filed a response to the petition for writ of mandamus on August 26, 2015.

By his response, Perkins argues that mandamus relief should be denied because: (1)

Texas statutes expressly delineate separate and distinct procedures regarding a

misdemeanor plea and a felony guilty plea; (2) an examination of legislative intent

indicates that article 1.13 was not intended to address a misdemeanor defendant’s waiver

of jury trial; and (3) case law does not support the State’s contention of error.

                                        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.


        3 It is axiomatic that an appellate court reviews the actions of the trial court based on the record
before the court at the time it makes its ruling. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex.
1990) (orig. proceeding) (concluding that where evidence and rule changes were not presented to the trial
court, they did “not form a basis for us to find that the trial court abused its discretion in this mandamus
proceeding”); Sabine OffShore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (orig.
proceeding) (holding that in an original proceeding, the appellate court may not consider evidence that was
not part of the record before the trial court except to decide its own jurisdiction); In re Taylor, 113 S.W.3d
385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (“We will not consider exhibits that were
not part of the trial court record at the time of the hearing on the motion that is the subject of this original
proceeding.”). Accordingly, we do not consider the data from the Office of Court Administration in
determining whether the trial court abused its discretion in this case.

                                                       7
of Apps. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 648–49 (Tex. Crim. App. 2005)

(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



                                               8
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. Perkins and the respondent assert that

Perkins 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 trial 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



                                              9
mandamus 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, 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. at 374; see also In re State ex rel.



                                               10
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

       Both Perkins and the respondent contend that the rules of statutory interpretation

indicate that the State need not consent to a defendant’s waiver of a jury trial in cases

involving misdemeanor pleas. For instance, Perkins contends that the Texas Code of

Criminal Procedure expressly delineates separate and distinct procedures regarding

felony and misdemeanor guilty pleas.        See TEX. CODE CRIM. PROC. ANN. art. 27.13

(requiring that pleas of guilty or nolo contendere in felony cases to be “made in open court

by the defendant in person”); Id. art. 27.14 (allowing pleas of guilty or nolo contendere in

misdemeanor cases to be “made either by the defendant or his counsel in open court”



                                             11
and “the defendant or his counsel may waive a jury, and the punishment may be assessed

by the court either upon or without evidence”).            According to Perkins, article 27.13

incorporates the provisions of 1.13 by reference, but article 27.14 does not, therefore,

article 1.13 should not be held to apply to misdemeanors. The respondent contends that

articles 27.14 and 1.13 of the Texas Code of Criminal Procedure are in direct 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.

       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:

       (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,[4] 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.




       4 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.).

                                                 12
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)”). By its terms, article 1.13 applies to misdemeanor cases. TEX.

CODE CRIM. PROC. ANN. art. 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
       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



                                            13
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.

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,

and including article 27.13 in our purview, 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 in

all cases except for capital felony cases involving the death penalty. 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




                                             14
in misdemeanor cases and allows such pleas to be made by either “the defendant or his

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

       Perkins argues that “an examination of legislative intent indicates that Article 1.13

was not intended to delineate procedures regarding a misdemeanor defendant’s waiver

of jury trial.” 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




                                             15
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. Perkins 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.

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 and thorough 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, 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,



                                             16
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. CONSTITUTIONAL RIGHTS

       The respondent contends that the State has no constitutional right to a jury trial.

We agree. 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 the respondent contends

that forcing individuals to a jury trial infringes on their constitutional 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.

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

                                               17
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. SHAM AND FRAUD

       The respondent contends that requiring the State’s consent to a jury waiver results

in requiring a jury to be empaneled “for no useful purpose” because the issue of guilt has

already been determined by Perkins’s guilty plea. The respondent also argues that there

is no harm to the State in proceeding with sentencing before the bench because the “State

winds up in the same place of being able to present evidence on punishment to the Court.”

Thus, the respondent argues that these proceedings are nothing more than a “sham” and

a “display of pageantry by the State.”

       However, as recognized by our court of criminal appeals, “the State has legitimate

interests, representing the collective citizenry as it does, in the method of trial of criminal

accusations.” State ex rel. Turner, 676 S.W.2d at 373–74.            In short, the State has

determined that the matter of punishment in this case should be presented to the jury

rather than to the bench. Under existing law, the State can compel a jury trial by

withholding consent and approval upon the belief that justice is done by requiring the

accused to be tried by a fair and impartial jury of his peers. See id.; Watson v. State, 730

S.W.2d 150, 152 (Tex. App.—Amarillo 1987, pet. ref'd).

               VIII. 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 Perkins’s guilty plea in order to “effectively

control its docket.” Perkins similarly argues that the respondent has discretion and a

“ministerial duty to exert effective control of the Victoria County Court’s dockets.”



                                              18
         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).

         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 Perkins’s waiver of a jury

trial.

                                         IX. POLICY

         The respondent concluded that the trial of all misdemeanor driving while

intoxicated offenses to a jury “represents a substantial and unjustifiable expense” to

Victoria County taxpayers, delays the trials of such cases, and interferes with “the orderly

administration of justice.”



                                             19
       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 efficiently and timely manage 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 (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, 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.

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.




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                                       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.

The 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. The respondent may not

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

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. Given our ruling in this original proceeding, we

deny the respondent’s request to assess sanctions against the State.



                                                                 GREGORY T. PERKES
                                                                 Justice

Do Not Publish. TEX. R. APP. P. 47.2(b).

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




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