IN RE JOHN ROACH

Writ of Mandamus Conditionally Granted; Opinion Filed February 17, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01451-CV
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IN RE JOHN ROACH
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Original Proceeding from the 429th District Court
Collin County, Texas
 
Trial Court Cause Nos. 199-80283-08, 199-80284-08, 199-80285-08, 199-80286-08
 
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MEMORANDUM OPINION
Before Justices Moseley, Lang, and Myers
Opinion By Justice Lang
        Relator John R. Roach, Collin County Criminal District Attorney, brought this mandamus proceeding, contending that the trial court abused its discretion by allowing real party in interest Robert Lee Blackburn to enter guilty pleas and waive jury trial “without the State's consent to the [defendant's] waiver of jury trial and over the State's objections on the record.” We conclude the trial court abused its discretion when it allowed Blackburn to waive jury trial without the State's consent. Therefore, we conditionally grant the writ.
I. Factual and Procedural Background
 
        On December 15, 2007 Robert Lee Blackburn, the real party in interest, was charged by indictment with the felony offenses of possession of a controlled substance, harassment of a public servant, tampering with physical evidence, and assault on a public servant. On December 3, 2009, the trial court held a hearing on Blackburn's plea and permitted Blackburn to waive jury trial and proceed under a plea of guilty. During the proceedings, the State objected to the trial court's acceptance of the plea “on the grounds that the State has not consented to the Blackburn's waiver of jury trial in this case.” The trial court overruled the objection. On December 4, 2009 a “jury trial waiver form” was filed with the district court. The record reflects that Blackburn and his attorney signed the form, but did not date it. The form includes signature lines for the assistant district attorney to indicate the State's consent to the waiver and for the presiding judge to indicate approval of the waiver. However, the form is signed by neither the State nor the trial judge.
II. Standard for Mandamus
 
        Mandamus relief is available when the trial court has abused its discretion and a party has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 215 (Tex. 1999) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). 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. Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon 2009). 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 to seek relief. See Ex Parte George, 913 S.W.2d 523, 526 (Tex. Crim. App. 1995); State ex. rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex. Crim. App. 1992); State ex. rel. Turner v. McDonald, 676 S.W.2d 371, 374 (Tex. Crim. App. 1984).
        An appellate court may only grant mandamus relief if the trial court abuses its discretion. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). Specifically, a trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding); In re Tex. Am. Express, Inc., 190 S.W.3d 720, 723 (Tex. App.-Dallas 2005, orig. proceeding). In determining whether the trial court abused its discretion in the resolution of factual matters, the court of appeals may not substitute its judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Sanders, 153 S.W.3d at 56 (Tex. 2004); In re Tex. Am. Express, 190 S.W.3d at 724. A trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker, 827 S.W.2d at 840; In re Tex. Am. Express, 190 S.W.3d at 724. Accordingly, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840; In re Tex. Am. Express, 190 S.W.3d at 724. If the trial court did not abuse its discretion, it is error for the court of appeals to grant mandamus relief. In re Sanders, 153 S.W.3d at 56; In re Tex. Am. Express, 190 S.W.3d at 724.
        III. Waiver of Jury Trial
 
        Relator argues in his petition for writ of mandamus that the trial court violated article 1.13 of the Texas Code of Criminal Procedure by allowing Blackburn to waive jury trial without the State's consent. Relator requests this Court to order the trial court to “set aside Blackburn's guilty plea and set the cases for jury trial.” Blackburn argues that because there is no signed order, Relator fails to provide “a certified copy of any order complained of, or any other document showing the matter complained of” as required by the rules of appellate procedure. See Tex. R. App. P. 52.3(j)(1)(A). Further, he contends the record is inadequate to show that the trial court made a “definite ruling” that violated a “ministerial duty.” Finally, Blackburn argues article 1.13 is unconstitutional.
A. Applicable Law
 
        The plain language of article 1.13 states that a defendant's right to waive a jury trial “upon entering a plea” is conditioned on certain procedural requisites being met “before the defendant enters his plea.”Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon 2009). In order for a defendant to waive his right to a jury, the language of the statute unambiguously requires the consent of the State. Id; In re State, ex. rel. O'Connell, 976 S.W.2d 902 904 (Tex. App.-Dallas 1998. orig. proceeding). Specifically, article 1.13, in pertinent part, states:
The defendant in a criminal prosecution ... shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such 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 of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.
 
 
Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon 2009) (emphasis added).
 
B. Application of Law to Facts
 
        In the case before us, Blackburn elected to plead guilty and waive jury trial both in writing and orally. However, the record reflects the “jury trial waiver form” was not signed by the State to indicate its consent. Further, during the plea proceedings, the State objected to the trial court “accepting the Defendant's guilty pleas” on the grounds that the “State has not consented to the Defendant's waiver of a jury trial.” At the conclusion of the defendant's plea proceedings, the State specifically requested a jury trial, but the trial court denied the request. In response to the State's request, the trial court stated, “the Court will note that the Defendant has entered his plea of guilty and that the Court will make a finding of guilt.... and will set the matter on the docket of the duly elected judge to proceed with the disposition of the case.”
        Blackburn contends the record contains no signed order or other document showing the matter complained of as required by rules of appellate procedure. See Tex. R. App. P. 52.3(j)(1)(A). Further, he argues “the record is inadequate to show the trial judge issued a definite ruling violating a ministerial duty.” However, in the absence of a formal written order, a reporter's record may be adequate to show the matter complained of to support a request for mandamus relief. See Tex. R. App. P. 52.3(j)(1)(A); In re Perritt, 973 S.W.3d 776, 779 (Tex. App.-Texarkana 1998, orig. proceeding) (concluding that if the trial court's ruling is adequately shown by the reporter's record a formal written order is not necessary). The record demonstrates that the State did not consent to jury trial waiver and that the trial court made a “definite ruling” regarding the waiver. We conclude that the record sufficiently shows the “matter complained of” to support the Relator's request for mandamus relief. See In re Perritt, 973 S.W.3d at 779.
        The plain language of article 1.13 requires the State's written consent for a defendant to waive his right to jury trial. See Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon 2009). Blackburn contends that article 1.13 is unconstitutional, but does not explain his argument or cite to any authority in support of his position. Consequently, Blackburn does not specifically raise a constitutional argument for this Court to address. See Tex. R. App. P. 52.4. Even so, the Court of Criminal Appeals long ago concluded that defendants accused of felony offenses have a constitutional right to trial by jury, but do not have a constitutional protected right to waive trial by jury. See McDonald, 676 S.W.2d at 373-374 (“As a matter of Texas constitutional law, an accused has an absolute right to trial by jury...but neither a historical nor express right to have a felony accusation tried by the court, sitting without a jury can be found.”). There is no constitutional impediment to conditioning a defendant's ability to waive trial by jury on the State's consent. See id (holding that article 1.13 is constitutional and that the trial court had a ministerial duty to conduct a jury trial when the State refused to consent to the jury trial waiver). Premised on the foregoing, we conclude that the trial judge abused his discretion by allowing Blackburn to waive jury trial without the State's consent.
IV. CONCLUSION
 
        The trial court abused its discretion when it allowed Blackburn to enter guilty pleas and waive jury trial without the prosecuting attorney's consent. Relators' petition for a writ of mandamus is conditionally GRANTED.
        The Court ORDERS the Honorable John McCraw, Presiding Judge by Assignment of the 429th District Court, Collin County, to set aside the guilty pleas entered for Cause Numbers 199- 80283-08, 199-80284-08, 199-80285-08, and 199-80286-08, set aside the jury trial waiver form not consented to by the State, and schedule these cases for further proceedings consistent with this opinion. The writ will only issue if the trial court fails to comply.
                                                          
        
 
 
 
 
 
DOUGLAS S. LANG
 
 
 
                                                          JUSTICE
 
091451F.P05