Opinion issued May 11, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00782-CR
NO. 01-20-00783-CR
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IN RE THE STATE OF TEXAS EX REL. KIM OGG, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
On November 16, 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 complaining of the trial court’s decision to proceed with a bench
trial without its consent.1 Relator seeks mandamus relief to order Respondent, the
Honorable Franklin Bynum, to (1) reverse his decision to set the matter “for a court
trial without the consent of the State,” and (2) “timely rule on the State’s objection
and motion to set the cause for jury trial.” Relator seeks a writ of prohibition to
prevent Respondent from proceeding to trial with the trial court acting as fact finder
without Relator’s consent.2
The Court of Criminal Appeals recently addressed this issue in In re State ex
rel. Ogg, 618 S.W.3d 361, 365-66 (Tex. Crim. App. 2021) (orig. proceeding). In
that case, the defendant requested a bench trial, seeking to waive his right to a jury
trial. Id. at 362. In anticipation of the State’s refusal to consent to the waiver, the
defendant argued the Texas Supreme Court’s Emergency Order “gave the trial court
the authority to override the State’s refusal to consent to his waiver.” Id. The trial
court granted the defendant’s motion for bench trial. Id.
The State filed a petition for writ of mandamus and a petition for writ of
prohibition in the Fourteenth Court of Appeals, which denied relief. See In re State
ex rel. Ogg, 610 S.W.3d 607, 611 (Tex. App.—Houston [14th Dist.] 2020, orig.
proceeding). The State sought relief from the Court of Criminal Appeals, which
1
The underlying case is State of Texas v. Mark Cooper Hart, Cause No. 2245005,
pending in the County Criminal Court at Law No. 8 of Harris County, Texas, the
Honorable Franklin Bynum presiding.
2
On November 16, 2020, this Court stayed the trial setting and all other proceedings
in the underlying matter pending disposition of Relator’s petitions.
2
granted mandamus relief, holding the Texas Supreme Court’s Emergency Order
addresses only procedural matters, and not substantive rights, such as the State’s
right to consent to a bench trial. 618 S.W.3d at 364. The Court of Criminal Appeals
held the language in the Emergency Order giving courts the power to modify or
suspend “deadlines and procedures”
does not suggest that a court can create jurisdiction for itself where the
jurisdiction would otherwise be absent or that a judge could create
authority to preside over proceedings over which the judge would
otherwise be barred from proceeding.
Id. The Court noted that if the Supreme Court had intended to do so, the Emergency
Order would have stated explicitly it was intended to permit trial courts to enlarge
their own jurisdiction and to conduct proceedings over which they have no authority.
Id. at 365. Finally, the Court held
The judge simply does not have the authority to conduct a bench trial
when the State has not consented. He cannot use the Emergency
Order’s authorization to modify or suspend procedures to confer that
authority upon himself. If he could, then he could do the same thing to
a criminal defendant regarding his statutory right to a jury assessment
of punishment (after being convicted by a jury at the guilt stage of trial).
It seems—and is—patently absurd that a generically framed right to
modify statutory deadlines and procedures would confer upon the trial
court the power to abrogate a defendant’s statutory right to a jury trial
at punishment. It is equally absurd to think that this language would
allow the trial court to do just that when the party insisting on a jury
trial is the State.
Id. at 365–66.
3
In light of this recent decision from the Court of Criminal Appeals, we hold
that Respondent does not have authority to conduct a bench trial in this matter
without Relator’s consent.
CONCLUSION
We conditionally grant the petition for writ of mandamus, lift the stay imposed
on November 16, 2020, and order the trial court to vacate its setting of the underlying
case for a bench trial.3 The writ of mandamus will issue only in the event the trial
court does not comply with our opinion. Relator’s petition for writ of prohibition is
dismissed as moot. All other pending motions are denied as moot.
PER CURIAM
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
3
In light of our ruling, relator’s request for mandamus relief to compel the trial court
to rule on the State’s objection and motion to set the cause for jury trial is moot.
4