State Ex Rel. Curry v. Carr

847 S.W.2d 561, 1992 WL 278703

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 1993
• Docket: 71514
• Status: Published

Opinions

OPINION

PER CURIAM.

This is an original action brought by the Honorable Tim Curry, Criminal District Attorney of Tarrant County, seeking a writ of mandamus directing the Honorable Brent A. Carr, Judge of County Criminal Court No. 9 of Tarrant County, to empanel a jury and prohibiting until then the entry of a judgment in Cause No. 458869 styled the State of Texas v. Dara Stephenson.¹

The record reflects that on September 11, 1992, Stephenson, expressed her desire to waive trial by jury. The State refused to consent to the jury waiver and relied on Art. 1.13(a), V.A.C.C.P., which provides in 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 such 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 him, and filed in the papers of the cause before the defendant enters his plea.

The Respondent trial judge entered an order denying the State’s request that the case be tried before a jury and indicated his intent to set the case for a trial before the court. He further stated:

The court is of the opinion that the State is not entitled to request a jury trial in this case and will at this time deny and will forever deny until ordered by another authority that the State — as long as Mr. Taylor (defense counsel) seeks to have this heard without a jury, the court will deny the State the right to a jury trial unless ordered by a supervening (sic) court.

In State ex rel Turner v. McDonald, 676 S.W.2d 371 (Tex.Cr.App.1984), this Court granted mandamus relief under circumstances similar to those now presented. There, it was held a district judge did not have the discretion to serve as a factfinder in the trial of a felony case absent the consent and approval of the State to the defendant’s jury waiver as prescribed by Art. 1.13, supra. Absent consent and approval of the jury waiver by the State, the district judge had a ministerial duty to conduct a jury trial on the issue of guilt or innocence.

At the time of this Court’s opinion in McDonald, the necessity for the State’s consent and approval of a jury waiver extended only to a “felony less than capital.” On September 1, 1991, Art. 1.13(a), supra, was amended to apply to “any offense other than a capital felony in which the State notifies the court and the defendant that it will seek the death penalty.”²

We hold Respondent 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. Under the circumstances presented, Respondent has a ministerial duty to conduct a jury trial.

Consequently, we hold Relator is entitled to a writ of mandamus directing Respondent to set aside his order denying the State’s request that the case be tried before a jury. However, as is customary with this Court, we will withhold the issuance of the writ at this time. Instead, we will accord the Respondent the opportunity to conform his actions to this opinion. Only if such action is not taken, will the writ of mandamus and prohibition issue.

ON RESPONDENT’S MOTION FOR REHEARING

Rehearing denied.

1 . Stephenson stands charged with the misdemeanor offense of driving while intoxicated.

2 . Amended by Acts 1991, 72nd Leg., Chap. 652, Sec. 1, effective September 1, 1991.