in Re the State of Texas Ex Rel. Kim Ogg

• Court: Court of Appeals of Texas
• Decided: May 11, 2021
• Docket: 01-20-00783-CR
• Status: Published

Opinion

Opinion issued May 11, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00782-CR NO. 01-20-00783-CR ——————————— IN RE THE STATE OF TEXAS EX REL. KIM OGG, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

On November 16, 2020, Relator, the State of Texas ex. rel. Kim Ogg, Harris

County District Attorney, filed a petition for writ of mandamus and a petition for

writ of prohibition complaining of the trial court’s decision to proceed with a bench trial without its consent.1 Relator seeks mandamus relief to order Respondent, the

Honorable Franklin Bynum, to (1) reverse his decision to set the matter “for a court

trial without the consent of the State,” and (2) “timely rule on the State’s objection

and motion to set the cause for jury trial.” Relator seeks a writ of prohibition to

prevent Respondent from proceeding to trial with the trial court acting as fact finder

without Relator’s consent.2

The Court of Criminal Appeals recently addressed this issue in In re State ex

rel. Ogg, 618 S.W.3d 361, 365-66 (Tex. Crim. App. 2021) (orig. proceeding). In

that case, the defendant requested a bench trial, seeking to waive his right to a jury

trial. Id. at 362. In anticipation of the State’s refusal to consent to the waiver, the

defendant argued the Texas Supreme Court’s Emergency Order “gave the trial court

the authority to override the State’s refusal to consent to his waiver.” Id. The trial

court granted the defendant’s motion for bench trial. Id.

The State filed a petition for writ of mandamus and a petition for writ of

prohibition in the Fourteenth Court of Appeals, which denied relief. See In re State

ex rel. Ogg, 610 S.W.3d 607, 611 (Tex. App.—Houston [14th Dist.] 2020, orig.

proceeding). The State sought relief from the Court of Criminal Appeals, which

1 The underlying case is State of Texas v. Mark Cooper Hart, Cause No. 2245005, pending in the County Criminal Court at Law No. 8 of Harris County, Texas, the Honorable Franklin Bynum presiding. 2 On November 16, 2020, this Court stayed the trial setting and all other proceedings in the underlying matter pending disposition of Relator’s petitions. 2 granted mandamus relief, holding the Texas Supreme Court’s Emergency Order

addresses only procedural matters, and not substantive rights, such as the State’s

right to consent to a bench trial. 618 S.W.3d at 364. The Court of Criminal Appeals

held the language in the Emergency Order giving courts the power to modify or

suspend “deadlines and procedures”

does not suggest that a court can create jurisdiction for itself where the jurisdiction would otherwise be absent or that a judge could create authority to preside over proceedings over which the judge would otherwise be barred from proceeding.

Id. The Court noted that if the Supreme Court had intended to do so, the Emergency

Order would have stated explicitly it was intended to permit trial courts to enlarge

their own jurisdiction and to conduct proceedings over which they have no authority.

Id. at 365. Finally, the Court held

The judge simply does not have the authority to conduct a bench trial when the State has not consented. He cannot use the Emergency Order’s authorization to modify or suspend procedures to confer that authority upon himself. If he could, then he could do the same thing to a criminal defendant regarding his statutory right to a jury assessment of punishment (after being convicted by a jury at the guilt stage of trial). It seems—and is—patently absurd that a generically framed right to modify statutory deadlines and procedures would confer upon the trial court the power to abrogate a defendant’s statutory right to a jury trial at punishment. It is equally absurd to think that this language would allow the trial court to do just that when the party insisting on a jury trial is the State.

Id. at 365–66.

3 In light of this recent decision from the Court of Criminal Appeals, we hold

that Respondent does not have authority to conduct a bench trial in this matter

without Relator’s consent.

CONCLUSION

We conditionally grant the petition for writ of mandamus, lift the stay imposed

on November 16, 2020, and order the trial court to vacate its setting of the underlying

case for a bench trial.3 The writ of mandamus will issue only in the event the trial

court does not comply with our opinion. Relator’s petition for writ of prohibition is

dismissed as moot. All other pending motions are denied as moot.

PER CURIAM

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).

3 In light of our ruling, relator’s request for mandamus relief to compel the trial court to rule on the State’s objection and motion to set the cause for jury trial is moot. 4