Petition for Writ of Mandamus Conditionally Granted, Petition for Writ of
Prohibition Dismissed, and Memorandum Opinion filed March 16, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00809-CR
NO. 14-20-00810-CR
IN RE THE STATE OF TEXAS EX REL. KIM OGG, HARRIS COUNTY
DISTRICT ATTORNEY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
WRIT OF PROHIBITION
County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 2330311
MEMORANDUM OPINION
On December 7, 2020, relator the State of Texas ex rel. Kim Ogg, Harris
County District Attorney, filed a petition for writ of mandamus and a petition for
writ of prohibition in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex.
R. App. P. 52. In the petition for writ of mandamus, relator asks this Court to compel
the Honorable Franklin Bynum, presiding judge of the County Criminal Court at
Law No. 8 of Harris County, to vacate his November 30, 2020 order setting the
underlying case for a nonjury trial without the State’s consent. The State also filed
a petition for writ of prohibition seeking to prevent Judge Bynum from conducting
a nonjury trial in the underlying case.
The State argues that the trial court has no discretion to act as a factfinder
when the State has not consented to the defendant’s waiver of a jury trial. The Texas
Court of Criminal Appeals agrees and recently held that the COVID-19 Emergency
Orders did not authorize the trial court to proceed to a bench trial without the State’s
consent or waiver to a jury trial. See In re State ex rel. Ogg, No. WR-91,936-01,
2021 WL 800761, at *4 (Tex. Crim. App. Mar. 3, 2021).
Accordingly, we grant the State’s petition for writ of mandamus and direct the
trial court to vacate its November 30, 2020 order setting the underlying case for a
nonjury trial. We are confident the trial court will act in accordance with this
opinion. The State’s petition for writ of prohibition is dismissed as moot. We lift
our stay entered on December 8, 2020.
PER CURIAM
Panel consists of Justices Jewell, Poissant, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
2