In Re: Jonathan Taylor--Appeal from of County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00097-CV
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IN RE:
JONATHAN TAYLOR
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Jonathan Taylor petitions this Court for a writ of mandamus and seeks an emergency stay (1) of the bench trial set for this Thursday, July 26, 2007. The petition asks us to order the trial judge to accept Taylor's withdrawal of his waiver of trial by jury.

Procedural Posture

The underlying case is intoxication manslaughter and manslaughter stemming from an incident in August 2005 and indictment in April 2006. A pre-guilty-plea jury trial waiver was signed June 20, 2007, in anticipation of the entry of a guilty plea on July 6, but no plea was entered. Taylor then decided to enter a plea of not guilty on July 6 and sought to withdraw his waiver of trial by jury. The trial court set a hearing for July 16 on the motion to withdraw the waiver and set a bench trial for July 26. On July 16, the trial court denied Taylor's motion to withdraw the jury waiver.

Standard of Review

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). We must initially determine whether the relator has another adequate remedy at law, such as a normal appeal; such a remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842.

To establish entitlement to mandamus relief, the relator must show that there is no adequate remedy at law to redress the alleged harm and that the act to be compelled must be purely ministerial. Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex. Crim. App. 1995); Alvarez v. Eighth Court of Appeals, 977 S.W.2d 590, 592 (Tex. Crim. App. 1998). An act is ministerial "where the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment." Tex. Dep't of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981) (orig. proceeding).

Withdrawal of Jury Waiver

"When an accused validly waives trial by jury, a subsequent request by the accused to withdraw the jury waiver is addressed to the discretion of the trial court." Marquez v. State, 921 S.W.2d 217, 221 (Tex. Crim. App. 1996). The court should permit a defendant's withdrawal of a prior jury waiver if the defendant "establishes on the record that his request to do so is made sufficiently in advance of trial such that granting his request will not: (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the State." Id. at 223. "If the defendant's claims are rebutted by the State, by the trial court, or by the record itself, the trial court does not abuse his discretion in refusing to allow withdrawal of the waiver." Id. Indeed, should the defendant establish in the record the lack of adverse consequences, as set forth in Marquez, to the withdrawal of his or her waiver, then the "[d]enial of a criminal defendant's constitutionally guaranteed right to a jury trial is structural constitutional error and, therefore, reversible without a harm analysis." Green v. State, 36 S.W.3d 211, 216 (Tex. App.--Houston [14th Dist.] 2001, no pet.).

Nonetheless, the wealth of cases assessing the denial of a jury waiver withdrawal have all been decided on direct appeal. (2) Because a court, on direct appeal, may reverse a conviction and remand on a court's error in denying an attempt to withdraw a waiver of trial by jury, there is an adequate remedy at law. As such, mandamus does not lie.

We deny the petition for writ of mandamus, and the motion for emergency stay is overruled.

 

Jack Carter

Justice

 

Date Submitted: July 24, 2007

Date Decided: July 24, 2007

1. See Tex. R. App. P. 52.10(b).

2. See, e.g., Marquez, 921 S.W.2d at 223; Green, 36 S.W.3d at 215-16; Sigarst v. State, No. 09-06-00212-CR, 2007 WL 764711 (Tex. App.--Beaumont Mar. 14, 2007, pet. filed) (mem. op.); In re J.I.C., No. 08-02-00239-CV, 2004 WL 596217 (Tex. App.--El Paso Mar. 26, 2004, no pet.) (juvenile direct appeal); Terrell v. State, No. 05-01-01412-CR, 2002 WL 1478617 (Tex. App.--Dallas July 11, 2002, no pet.); Bensley v. State, No. 05-98-01783-CR, 2000 WL 726687 (Tex. App.--Dallas June 7, 2000, no pet.); Ramos v. State, No. 03-97-00485-CR, 1998 WL 830512 (Tex. App.--Austin Dec. 3, 1998, pet. ref'd).