Tennison, Jeremie Glen

WR-85,771-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/27/2016 2:09:24 PM
Accepted 9/27/2016 2:18:23 PM
ABEL ACOSTA
NO. CLERK

IN THE COURT OF CRIMINAL APPEALS RECEIVED
COURT OF CRIMINAL APPEALS
9/27/2016
OF THE STATE OF TEXAS ABEL ACOSTA, CLERK

JEREMIE GLEN TENNISON,

Relator

V.

THE HONORABLE EDWIN KLEIN,

Respondent

From the 420th District Court of Nacogdoches County, Texas

RELATOR’S PETITION FOR WRIT OF MANDAMUS

Clay Dean Thomas
3548 NE Stallings Drive
Nacogdoches, Texas 75965
Texas State Bar Number 24088520
clay.thomas@claythomaspc.com
 No.

JEREMIE GLEN TENNISON, RELATOR

V.

THE HONORABLE EDWIN KLEIN, RESPONDENT

IDENTITY OF PARTIES AND COUNSEL

Relator and Real Party in Interest: Respondent:

Jeremie Glen Tennison The Honorable Edwin Klein

Trial Attorney for Relator:

Clay Dean Thomas
Attorney at Law
3548 NE Stallings Drive
Nacogdoches, Texas 75965

Attorney for Realtor on Appeal:

Clay Dean Thomas
Attorney at Law
3548 NE Stallings Drive
Nacogdoches, Texas 75965

Presiding Judge:

The Honorable Edwin Klein
420th District Court
101 West Main Street
Suite 220
Nacogdoches, Texas 75961

ii
CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................................. ii

STATEMENT OF JURISDICTION ........................................................................................... 2

STATEMENT OF THE CASE .................................................................................................... 2

ISSUES PRESENTED .................................................................................................................. 4

I. THE TRIAL COURT’S FAILURE TO AFFORD RELATOR A FAIR AND

IMPARTIAL HEARING HAS CONSTITUTIONALLY DEPRIVED HIM OF A RIGHT

PROTECTED BY THE CONSTITUTIONS OF BOTH THE UNITED STATES AND THE

STATE OF TEXAS .................................................................................................................... 4

II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD

HEARING ON MOTION TO WITHDRAW WAIVER OF JURY TRIAL .............................. 4

III. THE RELATOR’S EARLIER WAIVER WAS THE RESULT OF INEFFECTIVE

ASSISTANCE OF COUNSEL ................................................................................................... 4

IV. MANDAMUS IS THE APPROPRIATE REMEDY IN THIS CASE............................. 4

STATEMENT OF THE FACTS ................................................................................................. 5

ARGUMENT AND AUTHORITITES ....................................................................................... 9

I. THE TRIAL COURT’S FAILURE TO AFFORD RELATOR A FAIR AND

IMPARTIAL HEARING HAS CONSTITUTIONALLY DEPRIVED HIM OF A RIGHT

PROTECTED BY THE CONSTITUTIONS OF BOTH THE UNITED STATES AND THE

STATE OF TEXAS .................................................................................................................... 9

iii
 II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD

HEARING ON MOTION TO WITHDRAW WAIVER OF JURY TRIAL ............................ 14

III. THE RELATOR’S EARLIER WAIVER WAS THE RESULT OF INEFFECTIVE

ASSISTANCE OF COUNSEL ................................................................................................. 17

IV. MANDAMUS IS THE APPROPRIATE REMEDY IN THIS CASE........................... 19

CONCLUSION ........................................................................................................................... 23

PRAYER ...................................................................................................................................... 24

CERTIFICATION ...................................................................................................................... 24

CERTIFICATE OF APPELLATE COUNSEL ....................................................................... 25

CERTIFICATE OF COMPLIANCE ....................................................................................... 25

CERTIFICATE OF SERVICE ................................................................................................. 26

CERTIFICATE OF SERVICE ................................................................................................. 26

iv
Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........................................................................ 14, 17

Dickens v. Second Court of Appeals, 727 S.W.2d 542 (Tex. Crim. App. 1987) .......................... 21

Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238 (Tex. 1985)......................................... 15

Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009) ................................................................. 9

Green v. State, No. 14-99-00642-CR (Tex. App. — Houston [14th Dist.] Jan. 4, 2001) ............. 22

Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009) ............................................................ 13

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) .................................................... 22

In re State ex. Rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) ........................................... 21

In re Winship, 397 U.S. 658 (1970) .............................................................................................. 14

Joachim v. Chambers, 815 S.W.2d 234 (Tex.1991) ....................................................................... 1

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) ............................................. 20

Marquez v. State, 921 S.W.2d 217 (Tex. Crim. App. 1996)............................................. 12, 22, 23

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .................................................. 15

Penry v. State. 903 S.W.2d 715 (Tex. Crim. App. 1995) ............................................................. 15

People v. Melton, 271 P.2d 962 (Cal. App. Dep’t Super. Ct. 1954)) ........................................... 12

Rios v. Calhoon, 889 S.W.2d 257 (Tex.1994) ................................................................................ 1

State ex. rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207 (Tex. Crim.

App. 2007) ................................................................................................................................ 21

Stoner v. Massey, 586 S.W.2d 843 (Tex. 1979) ........................................................................... 23

Sullivan v. Louisiana, 508 U.S. 275 (1993) .................................................................................. 14

Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1992) ...................................................................... 23

Trimble v. PR Reg. Ser., 981 S.W.2d 211 (Tex. App. — Houston [14th Dist.] 1998) .................. 15

v
United States v. Gaudin, 515 U.S. 506 (1995).............................................................................. 14

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ........................................................................... 20

Statutes

Tex. Code Crim. Proc. § 28.01 ................................................................................................. 9, 10

Tex. Code Crim. Proc. 11.15 .................................................................................................... 9, 10

Tex. Code Crim. Proc. Ann. Art. 1.12 .......................................................................................... 12

Tex. Gov’t Code Ann. §§ 22.221 (a), (b) (West 2014) ................................................................. 20

Tex. Gov’t Code Ann. Tit. 2, subtit. G, app. A (West 2015)........................................................ 18

Rules

Tex. Disciplinary Rules Prof’l Conduct R. 1.01, cmt 6. (1989) ................................................... 18

Tex. R. App. P. 52.3(e) ................................................................................................................. 20

Tex. State Bar R. art. X, § 9 .......................................................................................................... 18

Constitutional Provisions

TEX. CONST. art V, § 3............................................................................................................... 20

TEX. CONST. art V, § 6............................................................................................................... 20

TEX. CONST. art. I, § 15. ............................................................................................................ 12

U.S. CONST amend. XIV............................................................................................................. 14

U.S. CONST. amend. VI ........................................................................................................ 11, 14

vi
 CASE NO.
IN RE JEREMIE GLEN TENNISON,
Relator
__________________________________________________________________

RELATOR’S PETITION FOR WRIT OF MANDAMUS

__________________________________________________________________

Relator, Jeremie Glen Tennison, submits this original petition for writ of

mandamus. Relator originally petitioned the Twelfth Court of Appeals in Tyler,

Texas to order the Honorable Edwin Klein, presiding judge of the 420th District

Court of Nacogdoches County, Texas, to hold a hearing requested by Relator

regarding his Motion to Withdraw Waiver of Jury Trial. That petition was refused

in Cause Number 12-16-00270-CR. In accordance with case law, it is appropriate

for the Court of Criminal Appeals to allow an appeal of such refusal when the court

of appeals erroneously denies a writ of mandamus. See, e.g., Joachim v. Chambers,

815 S.W.2d 234, 240-41 (Tex.1991) (CA erroneously denied mandamus to prohibit

retired judge, who continued to sit as judicial officer, from testifying as expert in

trial); see also Rios v. Calhoon, 889 S.W.2d 257, 259 (Tex.1994) (CA erroneously

denied mandamus to require trial court to order preparation of record for indigent

appellant). When a court of appeals erroneously refuses to issue a writ of mandamus,

1
a petition for mandamus filed in the Supreme Court should be directed at the trial

court’s action, not the court of appeals’ refusal to issue the writ. For clarity, relator

is referred to as Jeremie Tennison; respondent, the Honorable Edwin Klein, is

referred to by name; and the real party in interest is referred to as Jeremie Tennison.

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus. Tex. Gov’t Code §

22.221(a) (West); see Tex. Const. art V, §§ 3, 6(a).

STATEMENT OF THE CASE

The underlying suit seeks to have the Relator, Jeremie Glen Tennison tried on

the criminal charge of evading arrest from a law enforcement officer in violation of

Tex. Penal Code Ann. § 38.04(a) (West 2013).

The Respondent is the Honorable Edwin Klein, presiding judge of the 420th

Judicial District Court of Nacogdoches County, Texas.

The order complained of by Relator is the Trial Court’s refusal to hold a

Hearing for acceptance of a Waiver of Jury Trial in Cause Number F1421200 until

the day of the scheduled Bench Trial. The Realtor complains such failure to rule in

the matter proscribed by Tex. Code Crim. Proc. Ann. § 28.01, among others, is

necessarily intended to prevent Relator from withdrawing his Waiver of Jury Trial

by setting forth a sequence of events for which the Court would be allowed to

2
engineer failure of such Motion and purposefully deprive the Relator of a

constitutional right.

On September 26, 2016, Relator filed a Petition for Writ of Mandamus with

the Twelfth Court of Appeals sitting in Tyler, Texas. Contemporaneously, Relator

filed an opposed Motion for an Emergency Stay of the bench trial scheduled for

September 28, 2016. (Exhibit O), (Exhibit P) The Twelfth Court of Appeals refused

to issue the requested writ and additionally refused the emergency stay. (Exhibit Q)

Given the unalterable effect of a Bench Trial forced upon an unwilling defendant

who has repeatedly asked the court to allow a withdrawal of the waiver in

compliance with this Court’s decision in Hobbs v. State, 298 S.W.3d 193 (Tex. Crim.

App. 2009) and Marquez v. State, 921 S.W.2d 217, 220 (Tex. Crim. App. 1996), the

Relator files this original petition.

3
 ISSUES PRESENTED

I. THE TRIAL COURT’S FAILURE TO AFFORD RELATOR A FAIR AND
IMPARTIAL HEARING HAS CONSTITUTIONALLY DEPRIVED HIM
OF A RIGHT PROTECTED BY THE CONSTITUTIONS OF BOTH THE
UNITED STATES AND THE STATE OF TEXAS

II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD
HEARING ON MOTION TO WITHDRAW WAIVER OF JURY TRIAL

III. THE RELATOR’S EARLIER WAIVER WAS THE RESULT OF
INEFFECTIVE ASSISTANCE OF COUNSEL

IV. MANDAMUS IS THE APPROPRIATE REMEDY IN THIS CASE

4
 STATEMENT OF THE FACTS

At approximately 1:55 p.m. on August 13, 2014, Relator Jeremie Tennison

and his mother were in route to the funeral of his grandfather on Farm to Market

Road 343 in Nacogdoches County, Texas. Approximately three miles from the site

of the funeral, Mr. Tennison passed Trooper Larry Linder of the Texas Highway

Patrol. Trooper Linder’s radar unit registered Mr. Tennison was traveling at 77 miles

per hour in a 55 mile per hour speed zone. Upon activating the emergency lights,

Trooper Linder’s in-vehicle video unit began recording the entire incident although

the audio was either of immensely poor quality or was purposefully turned off.

Trooper Linder pursued Mr. Tennison and initiated the stop without incident.

Upon contact with Mr. Tennison, Trooper Linder inquired as to the purpose

of the Relator’s speed. Mr. Tennison related that they were attempting to get to his

grandfather’s funeral prior to its start. Trooper Linder then began to question Mr.

Tennison’s mother. He stated, “I saw you with that other boy the other day. What

were you doing with him?” Trooper Linder’s questioning indicated he was

questioning her about her previously being in the company of a black man. Linder

then asked, “What are you doing with him?” indicating the Relator. Mrs. Tennison

replied, “That’s my son.”

Trooper Linder made the assessment that Mr. Tennison was intoxicated. He

then moved Mr. Tennison to a location out of range of his vehicle video for the

5
purpose of performing sobriety tests upon him. Contemporaneous with this action,

Mr. Tennison’s father arrived on the location. After the sobriety tests had been

performed, Trooper Linder approached the senior Mr. Tennison and engaged him in

conversation. During this, the Relator returned to his seat in the still running pickup

truck to take advantage of air conditioning in the hot August heat.

Upon recognizing the Relator was behind the wheel, Trooper Linder

approached the truck and grabbed Mr. Tennison by the hair, violently yanking on

his head several times, arguably fracturing two of the Relator’s cervical vertebrae.

To avoid the assault, the Relator put the vehicle in drive and sped away while leaving

a thick cloud of dust. Trooper Linder immediately pulled his service weapon and

fired several times at the vehicle. Trooper Linder then approached the senior Mr.

Tennison in anger and assaulted him with his fist.

Trooper Linder then reported to dispatchers that Mr. Tennison had attempted

to run him over, necessitating the use of his service weapon. Trooper Linder was

shortly notified that Mr. Tennison and his mother had crashed into a tree on County

Road 874 in Nacogdoches County, Texas. By the time Trooper Linder arrived on

the scene, the vehicle was engulfed in fire. Trooper Linder used his fire extinguisher

to momentarily suppress the fire so that an extraction could be made. The Relator

was left untreated in any significant circumstance until EMS arrived.

6
 An ambulance was dispatched from Nacogdoches EMS at 2:10 p.m. and

arrived at approximately 2:30 p.m. After attempting to address Mr. Tennison’s

wounds, EMS left in transport at approximately 3:00 p.m., arriving at the

Nacogdoches Memorial Hospital at 3:25 p.m. During transport, Mr. Tennison was

given morphine to alleviate the pain. While in treatment at the Nacogdoches

Memorial Hospital, Trooper John Riggins informed Mr. Tennison he was under

arrest for Driving While Intoxicated and requested a blood sample. Mr. Tennison

complied without warrant and a sample was drawn by the hospital’s phlebotomist.

The sample was mailed to the DPS Laboratory in Tyler, Texas. Subsequent testing

indicated that Mr. Tennison’s blood alcohol content was 0.054 with 99.7%

confidence. An additional drug screen indicated the presence of Lorazepam and

morphine administered by medical personnel. After an initial evaluation, Mr.

Tennison was transported to LSU Medical Center in Shreveport. After a period of

some months attempting to rehabilitate the leg, it was amputated by surgical staff.

On September 19, 2014, Mr. Tennison was indicted for the crime of evading

arrest. (Exhibit A) On April 2, 2015, the 420th Judicial District Court of Nacogdoches

County appointed John Henry Tatum II as Mr. Tennison’s counsel. (Exhibit B) On

March 7, 2016, Mr. Tennison waived his right to a Jury Trial with the advice of

counsel. (Exhibit C) Mr. Tennison was then set for a plea on May 12, 2016. (Exhibit

D) He ultimately chose not to accept the plea and dismissed John Henry Tatum, II

7
and retained the services of Winfred Aaron Simmons, II, a local attorney. The

District Clerk’s Record is silent on this transaction as it appears no record of the

dismissal or removal of Mr. Tatum was filed with the clerk and no appearance was

filed by Mr. Simmons. Based on his earlier waiver of a jury trial, the Relator was set

for a bench trial on August 3, 2016. (Exhibit E) Mr. Tennison, believing his counsel

at that time was unprepared for such a trial, sought to plea to the matter on that date.

Previous to this plea date, the Tennison family retained the services of present

counsel to defend Mr. Tennison. Particular in their stated desire was to ensure the

trial would “flesh out” facts the Relator believed would not have been presented by

previous counsel and his stated desire that this trial be conducted before an impartial

jury of his peers. On August 2, 2013, Counsel filed a Motion For Substitution of

Counsel (Exhibit F) which was granted by the court (Exhibit G). Contemporaneous

to that motion, counsel also filed a Motion For Continuance (Exhibit H) which was

granted, setting the Defendant for a Bench Trial on September 28, 2016. (Exhibit I)

On August 23, 2016, Defendant filed a Motion to Withdraw Waiver of Jury Trial.

(Exhibit J) On the same day, August 23, 2016, the Defendant filed a Motion for a

Pretrial Hearing. (Exhibit K) During a subsequent verbal communication with

Pamela Sowell, the 420th District Court Coordinator, Defendant’s Counsel was told

Judge Klein would take the matter up on the day of the Bench Trial.

8
 ARGUMENT AND AUTHORITITES

I. THE TRIAL COURT’S FAILURE TO AFFORD RELATOR A FAIR
AND IMPARTIAL HEARING HAS CONSTITUTIONALLY
DEPRIVED HIM OF A RIGHT PROTECTED BY THE
CONSTITUTIONS OF BOTH THE UNITED STATES AND THE
STATE OF TEXAS

Tex. Code Crim. Proc. § 28.01 provides:

Sec. 1. The court may set any criminal case for a pre-trial hearing before
it is set for trial upon its merits, and direct the defendant and his
attorney, if any of record, and the State’s attorney, to appear before the
court at the time and place stated in the court’s order for a conference
and hearing. The defendant must be present at the arraignment, and his
presence is required during any pre-trial proceeding. The pre-trial
hearing shall be to determine any of the following matters:

(b) Pleadings of the defendant.

Sec 2. When a criminal case is set for such a pre-trial hearing, any such
preliminary matters not raised or filed seven days before the hearing
will not thereafter be allowed to be raised or filed, except by permission
of the court for good cause shown; provided that the defendant shall
have sufficient notice of such hearing to allow him not less than 10 days
in which to raise or file such preliminary matters. The record made at
such pre-trial hearing, the rulings of the court, and the exceptions and
objections thereto shall become a part of the trial record of the case
upon its merits.

Thus, the statute holds that the court may hold pre-trial hearings on matters,

but not that it must do so. See Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009).

There are, however, circumstances in which a court must conduct a hearing and the

conduct of such hearing is not left to the court’s leisure. Tex. Code Crim. Proc. 11.15,

9
for instance, provides: The writ of habeas corpus shall be granted without delay by

the judge or court receiving the petition, unless it be manifest from the petition itself,

or of some documents annexed to it, that the party is entitled to no relief whatever.

Given the discord between these two commands within the same code, it is

helpful to examine the source from which each derives sustenance. Section 28.01

finds its roots in the necessity of a trial court to manage its docket and to move

matters court administration forward. As such, the court may choose the timing of

the hearing of pre-trial motions when they do not injure substantial constitutional

rights or do not so prejudice the matter against the State or the Defendant. The

stripping of a court of the management of its own docket would make the attainment

of an efficient administration of the court, and of justice itself, improbable.

But there are matters of such great dimension that criminal justice demands

the court conduct a hearing prior to the final action of litigation. This holds when

matters considering constitutional demands are requested of the court. Tex. Code

Crim. Proc. 11.15 regarding matters of habeas corpus, for instance, is but one of

several meant to protect constitutional values which may tend to be invaded when

the court sleeps. Chapter 31 of the Tex. Code Crim. Proc. similarly addresses change

of venue matters in which the consideration by hearing must reasonably be held at a

period prior to trial. Likewise, Chapter 30 of the Tex. Code Crim. Proc. addresses

matters of the disqualification of trial judges. It is categorically inarguable that

10
hearings on matters such as these should be considered to be required held at a

reasonable time prior to the commencement of trial, and to do otherwise, imperils

the fairness and impartiality of the process.

A Motion To Withdraw Waiver Of Jury Trial must necessarily be of such

great constitutional import that it receives at least as much attention by the trial

court as did the initial waiver. Certainly, the waiver of such right has been

considered to be of great enough importance that the trial court held a pre-trial

hearing on the matter. It follows that a motion to withdraw deserves at least

comparable consideration.

The right to trial by jury is protected by both the United States and Texas

Constitutions. The United States Constitution provides:

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
wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with witnesses
against him; to have compulsory process for obtaining witnesses in
his favor, and to have the assistance of counsel for his defence. U.S.
CONST. amend. VI.

The Texas Constitution provides:

The right of trial by jury shall remain inviolate. The Legislature shall
pass such laws as may be needed to regulate the same, and to
maintain its purity and efficiency. Provided, that the Legislature
may provide for the temporary commitment, for observation and/or
treatment, of mentally ill persons not charged with a criminal
offense, for a period of time not to exceed ninety (90) days, by order

11
 of the County Court without the necessity of a trial by jury. TEX.
CONST. art. I, § 15.

Additionally, Tex. Code Crim. Proc. Ann. Art. 1.12 (Vernon 2015) directs

“[t]he right of a trial by jury shall remain inviolate.

The waiver of a jury trial is prescribed in article 1.13 of the Texas Code of

Criminal Procedure but the withdrawal of such waiver was not. Therefore, the

matter must be addressed by case law and it is in Marquez v. State, 921 S.W.2d

217, 220 (Tex. Crim. App. 1996) that the appropriate standards for such

withdrawal have been considered. Marquez held that Texas follows the

prevailing trend allowing a defendant to withdraw his waiver where the request

is made in good faith and there are no adverse consequences. Authorities holding

to this view hold that a defendant should be permitted to withdraw his jury waiver

unless granting the request would prejudice the state, delay the trial, impede

justice, or inconvenience the witnesses, or, in some cases, the defendant’s request

was made in bad faith. Id. at 221-22. This right is described as fundamental,

“cherished,” and one in which “the court should only deny the privilege thus

accorded a defendant charged with a crime to a trial of his peers where some

adverse consequence will flow from his change of mind.” Id. (quoting People v.

Melton, 271 P.2d 962, 964 (Cal. App. Dep’t Super. Ct. 1954)).

When a defendant seeks to withdraw a waiver of his right to a jury trial,

the defendant is initially burdened with establishing on the record that the request
12
to make the withdrawal has been made sufficiently in advance of trial and that

granting of such request will not (1) interfere with the orderly administration of

the business of the court, (2) result in unnecessary delay or inconvenience to the

witnesses, or (3) prejudice to the State. See Hobbs v. State, 298 S.W.3d 193 (Tex.

Crim. App. 2009). Where the defendant’s claims are rebutted by the State, the

trial court, or by the record itself, the trial court does not abuse its discretion in

refusing to grant the withdrawal. Here, the Relator has stated that he has made

the motion to withdraw the waiver of jury trial thirty-six (36) days prior to the

bench trial. Contemporaneous with this motion, the Relator also motioned the

court for a pre-trial hearing on the matter well in advance of trial. That hearing

was effectively refused by the trial judge. The Relator also stated in the motion

that he anticipated no adverse consequences to the State and that it was his

intention to bring such issue prior to trial such that no witnesses would be

inconvenienced and further not to interfere adversely with the administration of

the business of the court. The record contains nothing that rebuts these statements

and the record remains abundantly silent as to any response. There is nothing

which suggests allowing the Relator to withdraw his jury waiver would have any

adverse consequences on the State, witnesses, or the court.

13
 It would therefore seem that the right to a pre-trial hearing in advance of the

trial may indeed be weighed by the constitutional dimensions of the right asserted.

The right to a jury trial is such a right.

At stake in this case are constitutional protections of surpassing importance:
the proscription of any deprivation of liberty without “due process of law,”
Amdt. 14, and the guarantee that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial , by an impartial jury.” Amdt.
6. Taken together, these rights indisputably entitle a criminal defendant to “a
jury determination that [he] is guilty of every element of the crime with which
he is charged, beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S.
466 (2000) (citing United States v. Gaudin, 515 U.S. 506, 510 (1995); see also
Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); In re Winship, 397 U.S. 658
(1970)).

Although each of the aforementioned cases considered matters in addition to

the right to a jury trial, it is inarguable that the tenor of those Supreme Court

decisions was the certainty of a right to a trial by an impartial jury of a citizen’s

peers. A failure to hold requested hearing on matters which are of paramount

constitutional dimension necessarily indicates an abuse of discretion by the trial

court.

II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
HOLD HEARING ON MOTION TO WITHDRAW WAIVER OF JURY
TRIAL

Texas appellate courts will not disturb such matters unless they find an abuse

of discretion. Trial courts abuse their discretion when they act without reference to

guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

14
App. 1990) (citing Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42

(Tex. 1985)). Stated differently, a trial court abuses its discretion if it acts arbitrarily

or unreasonably. Trimble v. PR Reg. Ser., 981 S.W.2d 211, 214-15 (Tex. App. —

Houston [14th Dist.] 1998). To determine whether the trial court abused its

discretion, we consider the record as a whole. Penry v. State. 903 S.W.2d 715, 728

(Tex. Crim. App. 1995).

In this matter, the record is clear. Within twenty-one (21) days after filing his

Motion for Substitution of Counsel (Exhibit F) entering the case and thirty-six (36)

days prior to the scheduled Bench Trial, Defendant’s Counsel filed a Motion to

Withdraw Waiver of a Jury Trial (Exhibit J) and a Motion For Pre-trial Hearing on

the matter. (Exhibit K) By its refusal, the court has made it abundantly clear that it

considered the matter unworthy of consideration. This is the only inference which

may be reasonably drawn from the court’s refusal to hear the issue prior to the

scheduled bench trial. The hearing of such a matter within moments of the bench

trial is improper because it is calculated to create an excuse for the court to validly

deny such request prior to the beginning of the bench trial. For instance, the Relator

has unequivocally sought this hearing for the purpose of avoiding any interruption

of the court’s administration. Additionally, the Relator sought no inconvenience

upon the witnesses and sought no prejudice on the State. (Exhibit J) The denial of a

hearing well in advance of trial and without any response at all from the State, leaves

15
the record vacant of any assertion of interruption of the court’s administration, any

inconvenience upon witnesses, and any prejudice that may be experienced by the

State.

The conduct of such a pre-trial hearing moments before the bench trial is

necessarily prejudiced against the Relator since the court has engineered the factors

for which it may validly deny the Realtor’s request to withdraw his waiver of a jury

trial. For instance, in order to establish the court’s claim that it’s orderly

administration may be affected, it need only point out that the State has issued a

Witness List of forty-one (41) persons it intends to call at the bench trial and who

may be waiting in the courthouse hallway. (Exhibit L) This would not only interrupt

the court’s efficient administration but create an inconvenience to the witnesses. It

is inconceivable that the Relator has sought such inconvenience and he has pled so

by requesting the hearing thirty-six (36) days prior to the bench trial. Any such

interruption or inconvenience is most certainly judicially created and it might

reasonably appear the timing has been calculated to deny the Relator a fair hearing.

If a trial court engineers the factors upon which a hearing is calculated such

that it reasonably assures the denial of the Relator’s rights, it has acted arbitrarily

and unreasonably. If these matters do not create a recipe for textbook bias and

behavior that is unreasonable and arbitrary, there might likely be no violation so

grievous that any party might claim as an abuse of discretion.

16
 III. THE RELATOR’S EARLIER WAIVER WAS THE RESULT OF
INEFFECTIVE ASSISTANCE OF COUNSEL

The waiver of the right to a jury trial must be one in which the defendant is

legally aware of the consequences of the matter. An allocution before the trial court

is an integral construct in such waiver and establishes a record for the court, but it is

also abundantly necessary the defendant perform such waiver with as a reasonably

complete understanding as to the facts against him. In other words, it is reasonable

for a criminal defendant to rely on counsel that he should do so.

The waiver of a trial by jury is a constitutional matter and not one of trial

strategy. The effect of such a waiver is greatly enhanced by the very damage to the

constitutional rights of the defendant. The defendant is left to the vagaries of the

State.

Judges, it is sometimes necessary to remind ourselves, are part of the
State — and an increasingly bureaucratic part of it, at that.) The
founders of the American Republic were not prepared to leave it to the
State, which is why the jury-trial guarantee was one of the least
controversial provisions of the Bill of Rights. It has never been
efficient; but it has always been free. Apprendi v. New Jersey, 530 U.S.
466 (2000) (Scalia, J. concurring).

When advising a client on the waiver of constitutional rights, it is the duty of

defense counsel to be as well-informed as possible prior to advising that waiver. This

is, of course, a thorny path since, in many circumstances, the desires of the defendant

17
and the evidence proffered by the State appear incontrovertible. But even in the

contractual plea bargain, a defendant does not waive the right to a jury trial until he

allocates immediately prior to sentencing.

Having accepted employment, whether by appointment or by the
private retention of services, the lawyer should act with competence,
commitment, and dedication to the interest of the client and with zeal
in advocacy upon the client’s behalf. A lawyer should feel a moral or
professional obligation to pursue a matter on behalf of a client with
reasonable diligence and promptness despite opposition, obstruction, or
personal inconvenience to the lawyer. Tex. Disciplinary Rules Prof’l
Conduct R. 1.01, cmt 6. (1989) reprinted in Tex. Gov’t Code Ann. Tit.
2, subtit. G, app. A (West 2015) (Tex. State Bar R. art. X, § 9).

The Rules of Professional Conduct require the lawyer to a greater

commitment than the “man on the street.” This is because the lawyer holds the trust

and future of his clients in his actions and as such, a special duty has arisen in

response to that relationship. Nothing could be more important than the liberty of a

criminal defendant because the State may take away everything he has…and

everything he is ever going to have. Therefore, it is of paramount importance that

the criminal defense lawyer makes a reasonable effort to investigate the

circumstances of the client’s case.

It is unthinkable that in a criminal matter involving potentially forty-one (41)

witnesses, both of Relator’s previous counsel found nothing of which to discover

other than what the State had provided. In a criminal matter where a Texas State

Trooper fired his weapon at a fleeing party, there was no report proffered as to the

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Texas Department of Public Safety’s internal investigation of the shooting nor was

one subpoenaed by defense counsel. When available video recording indicates there

were many civilians witnessing the actions of law enforcement, no interviews were

performed by defense counsel. In an action in which a defendant’s leg was broken

and in which he suffered the final amputation of that leg and one in which he

arguably may have suffered two fractured cervical vertebrae caused by an assault

upon him by the Texas State Trooper, no investigation whatever appeared to be

performed. Such investigation is abundantly available through subpoena power…yet

no subpoena whatever was issued at the request of defense counsel in the three-

hundred forty (340) days from his appointment until the day such waiver of the right

to a jury trial was signed and there were none at all until present counsel entered.

The Clerk’s Record has no Motion to Substitute Counsel for the second counsel nor

any motion to withdraw by the appointed counsel. The Clerk’s record is silent on

each of these matters. Can any rational being reasonably assert such a party could

knowingly advise his client to waive his right to a jury trial in a complicated criminal

matter when so little, if any, investigation has been performed? To do so is patently

absurd.

IV. MANDAMUS IS THE APPROPRIATE REMEDY IN THIS CASE

The Supreme Court of Texas and intermediate appellate courts first derive

jurisdiction to issue mandamus relief from constitutional provisions. See TEX.

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CONST. art V, § 3 (giving mandamus authority to the Supreme Court of Texas); Id.

§ 6 (authorizing the courts of appeals to exercise mandamus power). The Texas

Government Code also allows a court of appeals to “issue a writ of mandamus and

all other writs necessary to enforce the jurisdiction of the court” against a district or

county court judge in the court of appeals district or a district court judge “who is

acting as a magistrate at a court of inquiry under [c]hapter 52, [of the] Code of

Criminal Procedure, in the court of appeals district. Tex. Gov’t Code Ann. §§ 22.221

(a), (b) (West 2014). The Texas Rules of Appellate Procedure mandate that a relator

must first seek relief in a court of appeals. Tex. R. App. P. 52.3(e).

The relator must establish there is only one result that the trial court could have

reached. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (citing Johnson v.

Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Because reasonable

minds differ, the fact that one court would have decided the case differently will not

give rise to an abuse of discretion “unless it is shown to be arbitrary and

unreasonable.” Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985) (orig. proceeding)). “A trial court has no ‘discretion’ in determining

what the law is or applying the law to the facts.” Id. (“[A] clear failure by the trial

court to analyze or apply law correctly will constitute an abuse of discretion…”).

Furthermore, the court abuses its discretion when the court misapplies the relevant

law. Id.

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 In criminal proceedings, the relator must establish: (1) the act sought to be

compelled is ministerial, and (2) there is no other adequate remedy at law. In re State

ex. Rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding)

(granting mandamus to compel trial court to submit jury instructions as requested, a

ministerial act it previously refused to perform); State ex. rel. Young v. Sixth Judicial

District Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (issuing

mandamus for a ruling on a motion); Dickens v. Second Court of Appeals, 727

S.W.2d 542, 548 (Tex. Crim. App. 1987) (orig. proceeding) (granting mandamus to

correct the mandamus issued).

The ministerial duty requirement “is satisfied if the relator can show that he has

a clear right to the relief sought — that is to say, 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. See Young, 236 S.W.3d at 210 (granting mandamus in regard to a jury

charge).

The general rule is that mandamus relief will not issue to correct a mere incidental

trial court ruling when the relator has an adequate remedy at law. When considering

balancing tests to determine whether a party has an adequate remedy by appeal,

courts look to a number of factors, including whether mandamus will: (1) preserve

a relator’s “substantive and procedural rights form impairment or loss[;]” (2) “allow

21
the appellate courts to give needed and helpful direction to the law that would

otherwise prove elusive in appeals from final judgments[;]” and (3) prevent waste

of public and private resources invested in proceedings that would eventually be

reversed. In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig.

proceeding).

Here, the ministerial requirement has been satisfied by rulings from the Court of

Criminal Appeals in Marquez. See also Green v. State, No. 14-99-00642-CR (Tex.

App. — Houston [14th Dist.] Jan. 4, 2001) (memorandum opinion per curiam). The

facts of this case certainly indicate the requirements required by case law rulings

have been met. The Relator has appropriately pled and the record is devoid of any

matter upon which disagreement as to unfairness to the court administration, the

witnesses, or State have been alleged.

The Relator has no adequate remedy at law. The assertion of this right is no mere

incidental trial court ruling but rather one of bedrock constitutionality with

underpinnings from case law. The violation of case law in regards to what is a

paramount constitutional right has little, if any, remedy because such remedy would

be speculative at best.

Lastly, the Relator has made the predicate request required and it has in effect

been refused. When the request to the trial court would be futile, parties are excused

from this requirement because the refusal would be a mere formality. Terrazas v.

22
Ramirez, 829 S.W.2d 712, 725 (Tex. 1992) (recognizing that the court has

previously allowed parties to seek mandamus relief when they did not first present

a request to the trial court because the demand would otherwise be futile (citing

Stoner v. Massey, 586 S.W.2d 843 (Tex. 1979) (orig. proceeding). Here, the

predicate request was made even though futile.

CONCLUSION

Nothing in the record from the date of the indictment until September 25,

2016, indicates the Relator should be deprived of the trial court’s granting of his

Motion to Withdraw Waiver of Jury Trial. Certainly, nothing in the record

establishes he has sought to withdraw the waiver in bad faith. Indeed, the Relator

has met all the requirements established by Marquez and as such, he should be

allowed the opportunity to present a defense before a jury. It is concerning in itself,

that the trial court has sought to prevent the matter from a proper hearing for some

reasonable period before the trial and is likely indicative of the heightened need for

such an extraordinary procedure as this petition. Indeed, the very refusal of even a

fair hearing indicates the trial court’s bias against the Relator. This rather arbitrary

and unreasonable behavior is, in itself, evidence of an abuse of discretion.

Additionally, it should be reasonably clear that no appropriate investigation was

performed. Investigations, of course, are not necessarily indicated by the Clerk’s

Record but the very lack of even a single subpoena requested by defense counsel in

23
a complicated criminal case, may indeed be indicative of a willingness on the part

of defense counsel to investigate no further than the evidence proffered by the State.

Such a defense in a complicated case is rotten from its very inception. Without

reasonable investigation, it cannot be said that the Relator’s waiver of a jury trial

was well-advised.

This case is ripe for mandamus in that the interests invaded may likely not be

cured by any other action and even if so, that remedy is speculative at best.

PRAYER

WHEREFORE, Relator prays this Court grant this writ of mandamus and

specifically instruct the trial judge to allow the withdrawal of the waiver of a jury

trial and set the case for a trial to be judged by a jury.

Relator prays for all other relief to which he should show himself to be

otherwise justly entitled.

CERTIFICATION

I certify that I have reviewed the petition and have concluded that every
factual statement made in the petition is supported by competent evidence include
in the appendix or the record.
/s/ Clay Dean Thomas
Clay Dean Thomas

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 CERTIFICATE OF APPELLATE COUNSEL

I hereby certify that the foregoing document was electronically filed to

the Clerk, Court of Criminal Appeals on this the 26th day of September, 2016.

/s/ Clay Dean Thomas
Clay Dean Thomas

CERTIFICATE OF COMPLIANCE

This is to certify that the sections covered by Texas Rule of Appellate

Procedure 9.4(i)(1) contain 6,738 words in 14-point type, excepting footnotes which

are in 12-point type. The total word count is 6,738.

/s/Clay Dean Thomas
Clay Dean Thomas

Respectfully submitted,

BY: /s/ Clay Dean Thomas
Clay Dean Thomas
Attorney for Relator
3548 NE Stallings Drive
Nacogdoches, Texas 75965
Phone: (936) 715–7144
Facsimile: (877) 899–0382
clay.thomas@claythomaspc.com
State Bar Number: 24088520
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 CERTIFICATE OF SERVICE

I certify that on September 27, 2016, I served a copy of Relator’s Petition on the

party listed below by electronic service made to the trial court’s coordinator, and the

electronic transmission was reported as complete. My e-mail address is

clay.thomas@claythomaspc.com.

/s/Clay Dean Thomas
Clay Dean Thomas

The Honorable Edwin Klein
420th Judicial District Court
101 West Main Street
Suite 210
Nacogdoches, Texas 75961
TEL: 936-560-7848
FAX: 936-560-7899

CERTIFICATE OF SERVICE

I certify that on September 27, 2016, I served a copy of Relator’s petition on the

party listed below by depositing a true copy of the above and foregoing document

with the United States Postal Service.

/s/Clay Dean Thomas
Clay Dean Thomas

Jeremie Glen Tennison
2306 Douglass Road

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Nacogdoches, Texas 75964

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