This is an original proceeding brought by the Criminal District Attorney of Collin County, seeking a writ of mandamus directing the Honorable Robert F. Harkins, Judge of County Court at Law No. 2 of Collin County, to set aside his order directing a verdict of not guilty in a criminal case. (The State of Texas v. Harold Clay Mulanax, No. 2-594-85 County Ct. at Law No. 2, Collin County, June 12, 1985). The State also seeks reinstatement of the Mula-nax case on the docket of the trial court and an -order directing the respondent to set a trial date. For the reasons stated below, we conditionally grant the writ of mandamus.
On June 12, 1985, two criminal cases were set for trial before the County Court *789at Law No. 2 at 9:00 a.m. Respondent was the presiding judge. The first case proceeded to trial and the defendant entered a plea of not guilty and waived a jury trial. At 9:20 a.m. the State rested in that case without presenting any evidence. The court, on defense motion, then granted an instructed verdict in favor of the defendant. The court then called the Mulanax case, which was the other case on the docket, for trial on the merits and the following occurred:
THE COURT: State of Texas vs. Harold Clay Mulanax.
[DEFENSE COUNSEL] MR. ROLAND: Defense is ready Judge. I was told yesterday by Mr. Abel that Jeff Pierce was going to try the case, yesterday afternoon. And I looked for Mr. Pierce and couldn’t find him.
THE COURT: It’s 9:20. Is the State ready to proceed?
(No response)
THE COURT: Do you have a motion?
MR. ROLAND: At this time we move for a directed verdict.
THE COURT: I note that the State has failed to appear though notified that this case was set for trial at 9:00 o’clock. The defense Motion for Directed Verdict is granted.
MR. ROLAND: (To the Jailer) You show a Dallas hold on him don’t you?
THE JAILER: Yes.
MR. ROLAND: This defendant does have a hold, Dallas County.
(Recess in proceedings)
THE COURT: Is there some matter you wish to take up on the record?
[STATE’S ATTORNEY] MR. PIERCE: Yes. For the record, I was just informed at 9:30 that the case on Harold Mulanax, Number 11-594-85 was dismissed on order of the Court—
THE COURT: No. sir; Motion for Directed Verdict was granted. The case was called, and the State failed to proceed with its case.
MR. PIERCE: I would like to state there was a district attorney up here at 9:00 o’clock this morning, and we have the witnesses available and ready to testify in the District Attorney’s office. I was waiting around under the impression that the other case was proceeding first.
THE COURT: The Court called the cases at 9:00 o’clock, and on the State’s first case a Motion for Directed Verdict was granted because the State did not have its witnesses.
The second case was called and there was no prosecutor, and a motion was made and granted. There was no prosecutor in this courtroom at the time the motion was granted, no prosecutor to proceed on the case.
In fact, as I understand it, it’s twenty minutes of 10:00 now, and this is your first appearance on the case this morning, is that correct?
MR. PIERCE: But we did have a prosecutor available at 9:00 o’clock.
THE COURT: There was no prosecutor here at 9:00 o’clock when I called this case. When I called this case to trial there was no prosecutor in court ready to proceed.
MR. PIERCE: May I ask if anyone tried to get in touch with the DA’s office?
THE COURT: I’m not subject to cross-examination here. I’m about an inch from holding you in contempt for failing to appear. You’re obligated to appear as an attorney when cases are set for trial. There was no one here; certainly you did not appear until now, at twenty til ten. You’re required like anyone else to appear when a case is set, and your failure to appear is the reason a directed verdict was granted against you for the defendant.
In the future when cases are set you will appear at the time when set or show cause. The Court is not here at your convenience. Your failure to appear has resulted in a verdict against you.
Do we have anything else? You’re dismissed.
*790Over two months later, the court entered the following order:
ORDER
BE IT REMEMBERED that on the 12th day of June, 1985, came on to be heard the above-styled and numbered cause. The State of Texas, although duly notified, failed to appear. The Defendant, having waived jury and entered his plea of Not Guilty, appeared in person and with attorney of record and moved that Directed Verdict of Not Guilty be entered herein.
The court is of the opinion that said motion should be, and is hereby GRANTED and a judgment of Not Guilty is hereby Ordered and Entered in this cause.
SIGNED this 23 day of August, 1985.
/s/ Robert F. Harkins
JUDGE PRESIDING
Although the order of the trial court recites that Mulanax entered his plea of not guilty, this recitation does not control because the statement of facts shows the contrary. Perez v. State, 578 S.W.2d 753, 754 (Tex.Crim.App.1979) (en banc). The statement of facts at trial affirmatively shows that no inquiry was made as to how Mulanax wished to plead and he did not enter a plea. Because no plea was entered, the trial, including the action of the trial court in granting a motion for a directed verdict of not guilty, was a nullity. Willis v. State, 389 S.W.2d 464 (Tex.Crim.App.1965); and Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App.1964).
There is a possibility that, prior to trial, Mulanax entered a plea at arraignment. If such a plea was made, it does not, however, save the trial from being- a nullity because pleading at arraignment does not place a defendant in judicial jeopardy. Lockridge v. State, 522 S.W.2d 526, 527 (Tex.Crim.App.1975); and Vardas v. State, 518 S.W.2d 826, 827 (Tex.Crim.App. 1975), overruled on other grounds, Jackson v. State, 548 S.W.2d 685 (Tex.Crim.App.1977).
We now consider whether the writ of mandamus is a proper remedy in this case. The writ of mandamus is an extraordinary writ, and to justify this extraordinary remedy, the State must meet a twofold test. State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 481 (Tex.Crim.App.1985). First, there must be no other adequate legal remedy available to the State. Id. Second, the relief sought must be in the nature of a ministerial act by respondent, as opposed to a discretionary one. Id.
The first test is met because the State had no right to appeal the order of the trial court. Id. The second test is met because, in the absence of a plea, the trial was a nullity. Lockridge, 522 S.W.2d at 527; and Vardas, 518 S.W.2d at 827. Thus, the trial court had no discretion to entertain the motion for directed verdict and the State is entitled to a writ of mandamus.
We assume that respondent will vacate his order, reinstate the Mulanax case, and set a date for trial. If this is not done within thirty days of the date of this Court’s order, a writ of mandamus will issue.
It is so ordered.
AKIN, J., files a concurring opinion.