            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                  NOS. AP-76,953 & 76,954



           IN RE STATE OF TEXAS EX REL. DAVID P. WEEKS, Relator



              ON STATE’S PETITION FOR A WRIT OF MANDAMUS
                  AGAINST THE TENTH COURT OF APPEALS
              IN CAUSE NO. 24,083 IN THE 278 TH DISTRICT COURT
                           OF WALKER COUNTY

       P RICE, J., filed a dissenting opinion in which W OMACK, J., joined.

                                  DISSENTING OPINION

                                                I.

       Mandamus is an extraordinary remedy. To intercede in an ongoing capital murder

trial and order the trial court to give a particular jury instruction that we believe is raised by

the evidence, and modify another jury instruction because we think the trial judge has

misconstrued the law, is extraordinary indeed. Shall we interrupt the next capital trial

because we think the trial judge has made a legal mistake in admitting certain evidence, or

in failing to admit it? Or in granting a continuance, or failing to grant it? In allowing a
                                                                                     Weeks — 2


capital murder defendant to represent himself, or failing to allow it? Or a hundred other

scenarios that routinely present themselves in the course of a capital ligation (or any other

criminal trial)? Where will it end?

       When defendants seek our interlocutory involvement in such matters, this Court

usually declines to intrude, typically refusing even to grant leave to file their applications for

mandamus relief. After all, if the trial court makes a mistake in the defendant’s eyes, he can

ultimately vindicate that mistake in the ordinary course of direct appeal if he is convicted.

Because the State’s right to appeal is limited, however, the Court sometimes seems more

solicitous of its mandamus applications—more willing to interrupt proceedings below and

at least file and set the matter for a considered decision. We understandably fear that a trial

court’s mistake of judgment that cuts against the State’s interest may result in an unjust

acquittal, and this apparent windfall to the defendant exerts a subtle pressure on the Court

to rectify the situation that is all but irresistible. The danger is that we should forget that the

necessity for a mandamus applicant to demonstrate he has no adequate remedy to redress the

wrong he alleges is but the first prong of the two-prong standard that serves to insure that

mandamus is not wantonly invoked to interfere unduly with the ordinary course of judicial

proceedings. We run the risk of inadvertently diluting the second prong—the requirement

that what the applicant seeks to enforce by our higher authority constitutes a manifestly

ministerial act, not a judicial one.

       To be sure, we have often characterized a judicial act as “ministerial” for mandamus
                                                                                    Weeks — 3


purposes when the undisputed facts and circumstances informing it can admit of “but one

rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional,

or case law sources), and clearly controlling legal principles.”1 This is meant to be a rigorous

standard, however, which should not be invoked to justify routine intrusions in trial-level

judicial decisions that seem incorrect to us, or even manifestly incorrect, at least so long as

the mistakes occur in the exercise of judicial, not ministerial, functions.2 That the line

separating the two is often indistinct is nothing new. But if we are to err in the exercise of

our discretionary mandamus authority, it seems to me, we should make a point of trying to

err on the side of non-intrusiveness, even when the State seeks relief that is otherwise

unavailable to it in order to avert an apparent injustice. As Judge Meyers, joined by three

other judges, forcefully observed almost twenty years ago:

       Plainly, it is the policy of our Legislature that the State not be permitted to
       appeal judicial rulings in criminal cases except under those circumstances
       expressly permitted by statute. See Tex.Code Crim.Proc.Ann. art. 44.01 (West
       Supp.1993). If a statute does not allow the appeal of a ruling, then the exercise
       of our extraordinary writ jurisdiction to review it frustrates the evident design
       of our statute law, brazenly seizing from the legislative department ultimate
       authority to determine what is appealable. Such a practice is fundamentally at
       odds with our form of government. Rather than circumvent the ordinary
       appellate process, we should instead insist that mandamus not lie merely to
       evaluate the correctness of court decisions which are not reviewable on appeal,

       1

         Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) (quoting State ex rel. Young
v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)).
       2

       E.g., Garcia v. Dial, 596 S.W.2d 524, 529 (Tex. Crim. App. 1980) (writ of mandamus lies
to compel entry of a judgment, but not generally to compel entry of a particular judgment).
                                                                                   Weeks — 4


       no matter how plainly erroneous those ruling may seem. Since mandamus is
       not available to force a particular result in matters calling for the exercise of
       judgment or discretion anyway, the Court should not invoke absence of an
       appellate remedy to justify use of its original jurisdiction as a convenient
       vehicle for the judicial review of otherwise unappealable orders.

             Although, in the instant cause, the Court pays lip service to these
       precepts, its behavior once again parts company with its principles.3

I fear that, once again today, the Court merely pays lip service.

                                              II.

       Does the State have a clear right to have the trial court submit the jury instructions it

seeks? Although we do not have the entire record of the trial testimony before us, it is

apparently undisputed that Falk, the real party in interest, did not personally cause Canfield’s

death. Understandably, the State wants the trial court to authorize the jury to convict Falk

as a party under Section 7.02(a)(2) of the Penal Code.4 In denying mandamus relief, the

court of appeals held that whether the evidence supported such an instruction constituted a

manifestly “judicial determination[,]”5 depending on the trial court’s understanding of the

testimony and whether the jury could rationally infer that Falk, with the specific intent to

promote or assist in the commission of the capital murder of Canfield, solicited, encouraged,

       3

        State ex rel. Healey v. McMeans, 884 S.W.2d 772, 779 (Tex. Crim. App. 1994) (Meyers, J.,
dissenting).
       4

        TEX . PENAL CODE § 7.02(a)(2).
       5

       In re State of Texas ex rel. David Weeks, ___ S.W.3d ___, 2012 WL 6218205, at *5 (No.
10-12-00443-CR, Tex. App.—Waco, delivered Dec. 12, 2012).
                                                                                        Weeks — 5


directed, aided, or attempted to aid Martin in killing her.

       The trial court was concerned about the testimony of a “Mr. Isaacs,” as well as a

“witness who was under the shed[.]”6 Neither the court of appeals nor this Court has been

graced with the trial testimony of these two mystery witnesses. What we do have is

testimony from two other witnesses, two of the guards (other than Canfield) who were armed

and mounted. These witnesses establish that, working in concert, Martin and Falk distracted

one of these witnesses, Jeffcoat, and Martin wrested his pistol from him. Martin tossed the

pistol to Falk, who then scrambled outside the perimeter fence. There, Falk and Canfield

exchanged an undetermined number of pistol shots before Falk approached Canfield’s horse.

A struggle ensued for the rifle in Canfield’s scabbard, which Canfield only relinquished

when Falk jammed his pistol into her ribs. The testimony that we have varies with respect

to how far Falk then removed himself before the truck that Martin had commandeered struck

Canfield’s horse.7 But from the record excerpts that we have before us, it is clear that Falk

was retreating.

       On this state of the record, the trial judge might have deemed the evidence to be

insufficient to justify a rational jury inference that, at the moment the truck struck Canfield’s



       6

        Majority opinion at 3.
       7

        Jeffcoat, the guard with the best vantage, testified that Falk was “probably twenty feet” away
from Canfield by the time he noticed the truck approaching. The other guard who testified could not
estimate the distance because Canfield’s horse blocked his line of sight.
                                                                                            Weeks — 6


horse, Falk still harbored whatever willingness he may have earlier displayed to cause her

death.8 The record insofar as we have it establishes clearly enough that Falk intended to

escape and to aid Martin’s escape attempt as well. But there is no specific showing that he

knew Martin had commandeered a truck,9 much less that Martin would then use it to run into

Canfield’s horse. The trial court might conceivably have concluded that the record does not

fairly support a jury verdict that Falk specifically intended to promote or assist a capital

murder.10 Such a conclusion would seem to me to be at the very least debatable. Like the

court of appeals, I cannot say the trial court’s judicial determination—that the only theory of

        8

         The pistol that Falk jammed into Canfield’s ribs was subsequently found on the ground close
to Canfield’s body. All of the rounds in the cylinder had been fired. From this it might be argued
that Falk could not have killed Canfield with the pistol by the time he jammed it into her ribs, and
that his apparent threat to do so if she did not relinquish the rifle was hollow. Still, once he secured
the rifle, he could have used it to shoot Canfield, but he did not. From the record that we have, all
we can reasonably conclude is that, once he obtained the rifle, Falk retreated.
        9

        Jeffcoat testified that the truck Martin stole belonged to “[t]he guy that works for the sign
shop” on an adjacent property, and that it “is always parked in the same spot.” The inference is that
Martin and Falk would have noticed the truck there as they worked in the onion field and may have
planned to steal it. But there is no evidence in the record before us to show that the key was in the
truck or to suggest that Martin could have distracted Jeffcoat, grabbed his pistol, made his escape
through the perimeter fence, got to the truck, hot-wired it, and drove it into Canfield’s horse in the
minute-and-a-half to two minutes over which Jeffcoat estimated the entire incident transpired.
        10

         From the trial judge’s bare comments on the record, Majority Opinion at 3, I cannot say
whether this supposition accurately reflects his actual reasoning process. On direct appeal, however,
we will typically uphold a trial court’s ruling when it reaches the correct result for the wrong reason.
See, e.g., State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000) (“If the trial judge’s decision
is correct under any theory of law applicable to the case, the decision will be sustained.”). I should
think that this principle would apply in spades in the milieu of mandamus proceedings. We should
be able to say that a trial court’s judicial decision is not only unjustified, but unjustifiable, before we
are willing to hold that he had a ministerial duty to decide otherwise.
                                                                                    Weeks — 7


party liability available to the State to establish Falk’s complicity for capital murder was the

conspiracy theory authorized under Section 7.02(b) of the Penal Code—was so manifestly

off-base as to justify mandamus relief. I certainly would not slam on the brakes in the middle

of a capital murder trial—especially at the point at which the jury has heard all of the

evidence and awaits only instruction from the trial court and argument of the parties before

retiring to deliberate—in order to address the question.

                                              III.

       The trial judge’s proposed party instruction under Section 7.02(b) would require the

State to prove that Falk should have anticipated that, in the course of carrying out the

conspiracy to escape, Martin would commit the capital murder of Canfield in the particular

manner in which he did—namely, by striking her horse with a truck. The court of appeals

offered its “strong opinion” that this was an unjustified construction of the law, but held that

the question is nevertheless one of “first impression” and therefore not “well-settled” law so

as to authorize relief under the second prong of the standard for mandamus relief.11 Today

this Court disagrees, citing two cases for the proposition that mandamus may sometimes be

appropriate to resolve issues of first impression.12 But in each of those cases we regarded the

meaning of the governing statute, if not altogether plain from the statutory language, to be

       11

        Weeks, supra, at *8 & n.8.
       12

       State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002); State ex rel. Rosenthal v. Poe, 98
S.W.3d 194 (Tex. Crim. App. 2003).
                                                                                         Weeks — 8


sufficiently “clear and undisputable” to entitle the State to the mandamus relief it sought.13

       Here, the Court does not purport to rely on the “clear and indisputable” meaning of

Section 7.03(b) itself to establish that the trial judge’s proposed instruction is unauthorized.

Instead, it relies upon “well-established evidentiary sufficiency principles” to conclude that

the State has a “clear right” to the Section 7.02(b) jury instruction sans the trial judge’s

gloss.14 But these “principles” do not derive from the language of the statute itself, and there

is no case law directly on point. To reach its desired result, the Court must extrapolate from

existing (and relatively new) case law—it must extend those “well-established evidentiary

sufficiency principles”—to the particular question at hand to justify its conclusion.15 I agree

with the court of appeals that applying even well-settled legal “principles” to novel fact

       13

        Poe, supra, at 201-02; Patrick, supra, at 595.
       14

        Majority Opinion at 14.
       15

         Both the trial court and the State were operating under the presumption that the indictment
alleged that Canfield’s death was caused by a particular manner and means, namely, by striking the
horse she was riding with a deadly weapon, to wit, a motor vehicle. Less than a year ago we held,
in Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012), that a variance in the particular manner
and means by which an appellant committed an aggravated assault did not cause the State’s proof
to be legally insufficient. Although Johnson did not involve a murder prosecution, the reasoning by
which we arrived at our conclusion would most likely apply in the context of a prosecution for
capital murder. See id. at 296, 298 (observing that variances with respect to the manner and means
by which a murder is accomplished do not implicate legal sufficiency). But we have not explicitly
said so. Nor have we explicitly said in any case that what applies to determining the legal
sufficiency of the primary allegation would apply equally to determining the legal sufficiency of the
evidence to establish party liability under Section 7.02(b). It is therefore likely that both the trial
judge and the State were operating under a presumption that will not be borne out by post-Johnson
jurisprudence. But that is a question of law the answer to which has not, until today, been firmly
resolved by either statute or case law.
                                                                                  Weeks — 9


scenarios is manifestly a judicial function, not subject to mandamus compulsion.

                                             IV.

       Granting mandamus relief under these circumstances only serves to encourage

prosecutors to seek what amounts to an interlocutory appeal whenever a trial court’s ruling

during the course of a trial displeases them. Interlocutory appeals are generally disfavored;16

interlocutory appeals that allow the State to circumvent the legislative will with respect to

what judicial rulings the State should be able to challenge at all on appeal are all the more

objectionable.17 And when the enterprise moreover necessitates the interlocutory generation

of a transcript of large portions (but not all) of the court reporter’s notes and due

consideration of an incomplete record by, not one, but two higher courts, while a jury that

has heard all of the evidence has been sent home to cool its heels—that is all the more reason

to refuse to exercise our discretionary authority even to entertain the application, much less

grant mandamus relief.18 I respectfully dissent.




FILED:        January 16, 2013
PUBLISH


       16

       Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010).
       17

       McMeans, supra, at 779 (Meyers, J., dissenting).
       18

      George E. Dix & John M. Schmolesky, 43B TEXAS PRACTICE : CRIMINAL PRACTICE AND
PROCEDURE § 61:3, at 930 (3rd ed. 2011).
