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

NUMBER 13-15-00317-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. 13-15-00323-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, Brian Anthony Hernandez, was charged by information

in trial court cause number 2-103177 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, Hernandez 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. The prosecutor for the State, Barbara Agbu, informed the trial court

that “the state would ask to proceed with a jury trial” and wished to “exercise its right to a

jury trial.” The prosecutor further requested a stay of the trial court proceedings if the trial

court chose to accept Hernandez’s guilty plea over the State’s objection, however, the

trial court denied that request. The respondent proceeded to accept Hernandez’s plea of

guilty and set the matter for a hearing on punishment later that day.

That same day, the State filed a petition for writ of mandamus and motion for

emergency relief. This Court granted emergency relief, stayed the sentencing hearing,

and requested that Hernandez, 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).

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 Hernandez 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

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

1998, orig. proceeding) (op. on reh’g) has misconstrued the law; and (3) he should be

guaranteed equal protection under the laws and constitution. That same day, the trial

court filed extensive findings of fact and conclusions of law which 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 Court, upon notification by the Honorable Thirteenth Court of Appeals,
STAYED any further 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, Patti Hutson. 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.

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.

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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.

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

4
 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. 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

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 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).

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.

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.

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 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

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. Hernandez and the respondent assert that

Hernandez does not need the State’s consent to plead guilty, waive a jury, and have the

respondent perform sentencing.

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 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)

(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.”).

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 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.

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

9
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

Hernandez 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 Hernandez and the respondent, article 27.14 does not require

the State to consent to the defendant’s jury waiver in a misdemeanor case. 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,[2] 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.

2 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.).

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 ....

(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.

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)”). 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

11
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

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

12
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

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

13
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

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

14
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.

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, Hernandez 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,

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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 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

Hernandez 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.

Hernandez 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, Hernandez 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

16
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.

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).

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 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

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

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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 Hernandez’s argument that requiring the State’s consent to a jury

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

VIII. CONSTITUTIONAL RIGHTS

Hernandez 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

Hernandez 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 (“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

19
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.

To the extent that Hernandez 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

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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 Hernandez’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 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. 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 Hernandez’s guilty plea in order to

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

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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).

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 Hernandez’s waiver of a

jury trial.

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 XI. POLICY

Hernandez 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 handle 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 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

23
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.

XII. 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 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).

Respondent is directed to 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. 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.

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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