in Re the State of Texas Ex. Rel. Stephen B. Tyler

NUMBER 13-15-00316-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 Benavides1

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-

00317-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. 13-15-00323-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, Javier Lopez Jr., was charged by information in trial court

cause number 2-103625 with the offense of driving while intoxicated. See TEX. PENAL

CODE ANN. § 49.04 (West, Westlaw through 2015 R.S.). The case was set for a jury trial;

however, Lopez pleaded guilty before the trial court, the Honorable Daniel F. Gilliam,

Judge of the County Court at Law No. Two of Victoria County, Texas, the respondent

herein. At the proceeding in the trial court, Lopez’s counsel stated that while he

understood “that there is case law that says that the state demand that it go to the jury,”

it was Lopez’s “preference” to have the trial court consider punishment. The prosecutor

for the State, Barbara Agbu, informed the trial court that the State “would like to exercise

its right to a jury trial.” The respondent, counsel for Lopez, and the prosecutor thereafter

discussed whether or not the State could demand a jury trial in these circumstances and

the ramifications of such a procedure. The State objected to continuing without a jury

and requested that the respondent stay further trial court proceedings. The respondent

denied that request, accepted Lopez’s guilty plea, and set the sentencing hearing to

proceed before the bench.

This original proceeding ensued. The State filed an amended petition for writ of

mandamus and motion for emergency relief. This Court granted emergency relief, stayed

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the sentencing hearing, and requested that Lopez, or any others whose interest would be

directly affected by the relief sought, file a response to the petition for writ of mandamus.

See TEX. R. APP. P. 52.2, 52.8(b).

Lopez filed a response to the petition for writ of mandamus through which he

contends that: (1) he may change his plea to “not guilty” and elect to have the trial court

sentence him; (2) In re State ex rel. O’Connell, 976 S.W.2d 902 (Tex. App.—Dallas 1998,

orig. proceeding) has misconstrued the law and should be criticized or distinguished; and

(3) the State’s actions violate Lopez’s rights to equal protection under the law. Lopez

further specifically contends that the principles of statutory construction compel the

conclusion that he can waive a jury trial without the State’s consent.

The respondent filed extensive findings of fact and conclusions of law that provide

as follows:

On the 14th day of July, 2015, this Court, prior to the [empaneling] of a jury
for trial of this cause, accepted the Defendant’s plea of guilty to the offense
of driving while intoxicated as alleged in the information. 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.
The enhancement paragraph of the information was read and the
Defendant pled true to a prior conviction for driving while intoxicated as
alleged. The State proceeded forward with the presentment of evidence for
the Court to consider on punishment. The Court, upon notification by the
Honorable Thirteenth Court of Appeals, STAYED any further trial
proceedings in compliance with the order of said Court. The State appeared
by and through the Assistant Criminal District Attorney, Barbara Agbu. The
Defendant appeared in person and through defense counsel, James
Beeler. The Court now makes and files the following Findings of Fact and
Conclusions of Law:

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.

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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 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.
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

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 Constitutions of the United States and the State of Texas, including
the right to plead guilty to the alleged offense.

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.

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.

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 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. 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 [c]onstitutional 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).

R. Robert Willmann Jr. subsequently provided this Court with an amicus curiae

brief in support of Lopez’s alleged right to waive a jury without the State’s consent. See

TEX. R. APP. P. 11.

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

6
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)

(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

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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

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. Lopez, the respondent, and the amicus

assert that Lopez 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)

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(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

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

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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.

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

Lopez 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 Lopez and the respondent, article 27.14 does not require the State

to consent to the defendant’s jury waiver in a misdemeanor case. The amicus brief

similarly argues that principles of statutory construction indicate that the State lacks the

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ability to refuse consent to a defendant’s jury waiver.2 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,[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.

2 The amicus brief contends that: articles 27.14 and 1.13 conflict and article 27.14, as the more
specific statutory provision controls, and that article does not require the State’s consent to a defendant’s
jury waiver; the State has no constitutional right to a jury trial; the defendant’s failure to elect a jury in this
case indicates that the trial court may assess punishment under article 27.02; article 37.07 requires the
judge to assess the sentence upon a finding of guilty after a plea of not guilty; and article 42.12 does not
require the consent of the State prior to the judge placing the defendant on probation after conviction on a
plea of guilty or a plea of nolo contendere. See generally TEX. CODE CRIM. PROC. ANN. arts. 1.13, 27.02,
27.14, 37.07, 42.12 (West, Westlaw through 2015 R.S.).
3Article 27.19 of the Texas Code of Criminal Procedure provides the requirements for accepting
pleas from persons confined in a penal institution. See id. art. 27.19 (West, Westlaw through 2015 R.S.).

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1.13(a); 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
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

12
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).

When two statutes address the same general subject, they are considered as

being in pari materia. See State v. Vasilas, 253 S.W.3d 268, 271 (Tex. Crim. App. 2008);

Dixon v. State, 455 S.W.3d 669, 679 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

When two statutes are in pari materia, the doctrine requires that the statutes be read and

construed together, each enactment in reference to the other, as though they were parts

of one and the same law. Jones v. State, 396 S.W.3d 558, 561–62 (Tex. Crim. App.

2013); Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App. 2008); see Peraza v. State,

PD-0100-15, __ S.W.3d __, __, 2015 WL 3988926, at *9 (Tex. Crim. App. July 1, 2015).

When one statute deals with a subject in comprehensive terms, and another deals with a

portion of the same subject in a more definite way, the specific rule prevails over the more

general provision, absent contrary legislative intent. Azeez, 248 S.W.3d at 192; see also

TEX. GOV’T CODE ANN. § 311.026(b) (West, Westlaw through 2015 R.S.) (“If the conflict

between the general provision and the special or local provision is irreconcilable, the

special or local provision prevails as an exception to the general provision . . . .”).

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

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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

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 The respondent contends that “nothing in the legislative history of article 1.13

indicates that it was applicable to misdemeanor offenses.” 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. The respondent 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.

15
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. CHANGE OF PLEA

In support of his argument that he is entitled to waive a jury trial without the consent

of the State, Lopez asserts that he may change his plea to not guilty and elect to have

the trial court handle sentencing. That is not the case presented to this court, and we

decline to address such a hypothetical assertion. See In re Kuster, 363 S.W.3d 287, 290–

91 (Tex. App.—Amarillo 2012, orig. proceeding) (“[T]o the extent that [relator’s] petition

seeks mandamus relief based upon events that have not yet occurred and remain merely

hypothetical, we conclude that we are without jurisdiction to render advisory opinions on

factual situations that may or may not arise in the future.”); Jones v. Westergren, 771

S.W.2d 669, 671 (Tex. App.—Corpus Christi 1989, orig. proceeding) (“A court has no

jurisdiction to render an opinion on a controversy that is not yet ripe.”); see also In re

16
Stormer, No. WR–66, 865–01, 2007 WL 1783853, at **1–2 (Tex. Crim. App. June 20,

2007) (orig. proceeding) (per curiam) (not designated for publication) (“[S]peculation is

not proper in a petition for writ of mandamus.”). In short, this Court is prohibited from

issuing advisory opinions in our mandamus authority or otherwise. See TEX. CONST. art.

V, § 6; Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1988) (op. on reh’g)

(plurality opinion); Perez v. State, 938 S.W.2d 761, 764 (Tex. App.—Austin 1997, pet.

ref’d); see also In re State, No. 13-10-00264-CR, 2010 WL 2011521, at *4 (Tex. App.—

Corpus Christi May 17, 2010, orig. proceeding) (mem. op., not designated for publication).

VII. RATIONAL BASIS

Lopez asserts that he should be granted equal protection under the law and there

is no rational basis for the State’s policy precluding plea bargains in DUI cases. Lopez

specifically asserts the “community interest” basis for the State’s policy of demanding jury

trials in driving while intoxicated cases is invalid. In support of his argument, Lopez cites

several cases illustrating that appeals to the community have been disapproved as

improper jury argument. See, e.g., Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim.

App. 1984) (“[J]ury argument by a prosecuting attorney that is designed to induce the jury

to convict the defendant or assess him a particular punishment because ‘the people’

desire such is improper jury argument.”); Cox v. State, 247 S.W.2d 262 (Tex. Crim. App.

1952) (“The people of De Soto are asking the jury to convict this defendant.”); Porter v.

State, 226 S.W.2d 435 (Tex. Crim. App. 1950). In this regard, a prosecutorial argument

is improper if it induces the jury to reach a particular verdict based on the demands,

desires, or expectations of the community. See Cortez, 683 S.W.2d 419.

17
 The Equal Protection Clause of the Fourteenth Amendment requires that “all

persons similarly situated shall be treated alike” under the law. Plyler v. Doe, 457 U.S.

202, 216 (1982); State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Wood

v. State, 18 S.W.3d 642, 651 (Tex. Crim. App. 2000). Equal protection is implicated if a

classification interferes with a fundamental right or burdens a suspect class. Clark v.

State, 665 S.W.2d 476, 480–81 (Tex. Crim. App. 1984); State v. McNutt, 405 S.W.3d 156,

161–62 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). If no fundamental rights or

suspect classifications are involved, the challenged government action does not violate

equal protection “so long as unequal treatment of persons is based upon a reasonable

and substantial classification of persons.” Vasquez v. State, 739 S.W.2d 37, 43 (Tex.

Crim. App. 1987); see McNutt, 405 S.W.3d at 161. In other words, the classification will

not be set aside if it is rationally related to a legitimate state interest. Clark, 665 S.W.2d

at 481; McNutt, 405 S.W.3d at 162. Additionally, equal protection does not require things

that are “different in fact [to] be treated in law as though they were the same.” Downs v.

State, 244 S.W.3d 511, 518 (Tex. App.—Fort Worth 2007, pet. ref’d).

In determining whether the legislature had a rational basis for its actions, we must

uphold the law if we can conceive of any rational basis for the legislature’s action. Kiss

v. State, 316 S.W.3d 665, 669 (Tex. App.—Dallas 2009, pet. ref’d); Smith v. State, 149

S.W.3d 667, 671 (Tex. App.—Austin 2004, pet. ref’d). Thus, those attacking the

rationality of a legislative classification have the burden to negate every conceivable basis

that might support it. Walker v. State, 222 S.W.3d 707, 710–11 (Tex. App.—Houston

[14th Dist.] 2007, pet. ref’d); Tarlton v. State, 93 S.W.3d 168, 176 (Tex. App.—Houston

[14th Dist.] 2002, pet. ref’d). We apply a highly deferential standard of review to equal

18
protection claims of this nature. Walker, 222 S.W.3d at 710–11; Tarlton, 93 S.W.3d at

176. This standard is extremely respectful of legislative determinations and essentially

means a court will not invalidate a statute unless the statute draws distinctions that simply

make no sense. Walker, 222 S.W.3d at 710–11; Tarlton, 93 S.W.3d at 176.

The code of criminal procedure mandates that “[i]t shall be the primary duty of all

prosecuting attorneys . . . not to convict, but to see that justice is done.” See TEX. CODE

CRIM. PROC. ANN. art. 2.01 (West, Westlaw through 2015 R.S.). Thus, 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,” and therefore,

“if the prosecutor believes 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, our [l]egislature has provided the

means for vindicating that interest, and we hold nothing in our constitution is contravened

thereby.” State ex rel. Turner, 676 S.W.2d at 373–74. The “means” referenced by the

court of criminal appeals in Turner was an earlier version of article 1.13. Id.; see Woodall

v. State, 126 S.W.591, 593 (Tex. Crim. App. 1910) (construing a predecessor statute on

jury waiver as operating to the benefit of both the defendant and the state and stating that

the statute “is more especially designed to protect the interest of the state, by preventing

aggravated cases of crime being compromised by the assessment of the minimum

punishment”).

Based on the foregoing, we conclude that article 1.13 bears a rational relationship

to the State’s legitimate interest in the method of trial for criminal accusations.

Accordingly, we reject Lopez’s argument that requiring the State’s consent to a jury waiver

lacks a rational basis and violates his rights to equal protection.

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 VIII. CONSTITUTIONAL RIGHTS

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

respondent further contends that allowing the State to demand a jury trial deprives Lopez

of his right to a speedy trial and effectively deprives him of his right to plead guilty.

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

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.

20
 To the extent that Lopez and respondent contend 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

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.

IX. 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 Lopez’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

21
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 stated previously, 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. 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).

X. UNITARY AND BIFURCATED PROCEEDINGS

Based upon the colloquy between Lopez, the prosecutor, and the respondent at

the hearing wherein the respondent accepted Lopez’s plea of guilty, the respondent felt

that it was precluded from allowing the jury to assess punishment by Arismendez v. State,

595 S.W.2d 535 (Tex. Crim. App. 1980). In Arismendez, the defendant waived his right

to trial by jury and entered a plea of nolo contendere to the court. Id. at 535. After hearing

evidence, the trial court found the defendant guilty and allowed the defendant to elect to

have punishment assessed by a jury. Id. The court of criminal appeals concluded that

this procedure was improper because a guilty or nolo contendere plea proceeding should

not be bifurcated. Id. According to the court, there was a waiver of the right to trial by

jury, therefore, punishment should have been assessed by the court, and this should have

been done without bifurcation from trial of the issue of guilt. Id. at 535–36.

22
 Arismendez does not control the instant case because there, the defendant

pleaded guilty to the trial court, waiving the right to a jury, and yet had punishment

assessed by the jury. See, e.g., Carroll v. State, 975 S.W.2d 630, 631–32 (Tex. Crim.

App. 1998) (“Once a defendant enters a guilty plea, either to the trial court or to the jury,

the proceeding in the trial court becomes a unitary rather than a bifurcated proceeding.”).

Arismendez did not present the issue of whether or not the State was required to consent

to the defendant’s jury waiver. Accordingly, Arismendez does not prevent the State from

refusing to consent to a jury waiver and demanding a jury trial on guilt and punishment.

XI. TRIAL COURT’S DISCRETIONARY CONTROL OF ITS DOCKET

The respondent contends that “[j]udicial economy and a responsible use of

resources are compelling reasons” to accept Lopez’s guilty plea in order to effectively

control the court’s docket. The respondent further concludes that the trial of all

misdemeanor driving while intoxicated offenses to a jury represents a “substantial and

unjustifiable expense” to Victoria County taxpayers, “interfere[s] with the orderly

administration of justice,” “wreck[s]” the court’s docket, and causes delays in the trials of

such cases.

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).

23
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 Lopez’s waiver of a jury

trial.

XII. POLICY

Lopez contends that we should be fair to the executive and judicial branches by

permitting defendants to plead guilty in misdemeanor cases and go to the court for

punishment without wasting judicial resources in a pointless jury trial on guilt. The

respondent further contends that allowing the State to force jury trials in misdemeanor

plea cases results in exorbitant costs and unacceptable delays in trial settings.

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 expeditiously administer all of the cases before

him. 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.—

24
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

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. 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.

XIII. 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; State ex. rel.

Curry, 847 S.W.2d at 562; State ex. rel. Turner, 676 S.W.2d at 374. Accordingly, we lift

the stay previously imposed in this case and we conditionally grant relator’s petition for

writ of mandamus. See TEX. R. APP. P. 52.8(a). The respondent is directed to set this

cause for a jury trial at the earliest possible day and thereafter preside over jury selection

25
and trial of the case in the manner prescribed by law. The respondent may not enter a

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

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.

/s/ Gina M. Benavides
JUSTICE
GINA M. BENAVIDES

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

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

26