The State of Texas v. Boudreaux, Kirk James

 
VACATE and REMAND; Opinion issued January 25, 2012
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-11-01091-CR
............................
THE STATE OF TEXAS, Appellant
V.
KIRK JAMES BOUDREAUX, Appellee
.............................................................
On Appeal from the Country Criminal Court No. 6
Dallas County, Texas
Trial Court Cause No. MA08-13488-G
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MEMORANDUM OPINION
Before Justices Morris, Moseley, and Francis
Opinion By Justice Morris
 
In this appeal, the State of Texas challenges the trial court's
purported acquittal of Kirk James Boudreaux for the offense of driving
while intoxicated. Concluding the trial judge was without authority to
find appellee not guilty of the offense, we vacate the trial court's
judgment and remand the cause for further proceedings. The background of
the case and the evidence adduced at trial are well known to the
parties, and therefore we limit recitation of the facts. We issue this
memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4
because the law to be applied in the case is well settled.
On September 8, 2008, appellee was charged by information with a
misdemeanor DWI offense. After a number of trial settings, the case was
set for “jury trial” on July 28, 2011. At trial, after both sides
announced “ready,” the trial judge asked the State to call its first
witness. The prosecutor responded, “Your Honor, we do not waive jury.
 
We're asking for a jury trial, and the jury-.” The trial judge stated,
“That's not my question. We do not call juries on Friday. Is the State
ready to call your first witness?” The prosecutor requested the
opportunity to check her phone, and the trial judge responded that she
was not “going to wait for any witness any longer.” The prosecutor
stated the witness was not in the courtroom. The trial judge then called
the case to trial and, the “State not having its witnesses present and
ready to go,” found appellee not guilty.
The trial court initially signed a “Judgment on Plea of Not
Guilty to the Judge” finding appellee not guilty and stating that “the
defendant waived the right to a jury trial in writing and in open court
with the consent and approval of the judge, the defendant's attorney, if
any, and the prosecuting attorney.” The record, however, does not
contain a written waiver of jury trial by appellee and does not reflect
that the prosecutor agreed to any waiver of a jury trial. Less than one
month after the entry of the original judgment, the trial court signed a
“Judgment of Not Guilty Nunc Pro Tunc” stating that “Defendant did not
waive any rights.” The judgment went on to note that the State of Texas
“was unable to announce ready for trial. Therefore the Judge determined
the State of Texas was not ready for trial. The Defendant in person and
through his attorney announced ready for trial.” The judgment once again
acquitted appellant of the charged offense.
A trial judge does not have the discretion to serve as the fact
 
finder in the trial of a misdemeanor case absent a valid jury waiver by
the defendant with the consent and approval of the State. See Tex. Code
Crim. Proc. Ann. art. 1.13(a) (West Supp. 2011); State v. Fisher, 212
S.W.3d 378, 381 (Tex. App.-Austin 2006, pet. ref'd); see also Ex parte
George, 913 S.W.2d 523, 527 Tex. Crim. App. 1995). Because the record
demonstrates that appellee did not waive his right to a jury trial, nor
did the State consent to any jury waiver, the trial court's “not guilty”
judgment does not amount to an acquittal within the meaning of our law
and instead constitutes no more than an order terminating the
prosecution. See Fisher, 212 S.W.3d at 381; State v. Lewallen, 927
S.W.2d 737, 739 (Tex. App.-Fort Worth 1996, no pet.).
A trial court has no authority to dismiss a case without the
prosecutor's consent to terminate the State's prosecution. See Fisher,
212 S.W.3d at 381. Thus, the trial court here was not authorized to
dismiss absent the State's consent, which clearly was not given. Id. We
resolve the State's two issues in its favor. We reverse the trial
court's “judgment” and remand the cause for further proceedings.
 
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111091F.U05
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