### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00588- CV

In re State of T exas ex rel. Wesley M au, Hays Cou nty Crim inal Dis tric t Att orney

ORI GINAL P ROCEEDI NG F ROM H AY S CO UNTY

M E M O R A N D U M O P I N I O N

This is a mandamus proce eding that arises from the prosec ution of J ose Rivera, J r., the real party in interest, for misdemeanor family violen ce as s au l t

. S ee Tex. Penal C ode § 22.01. After initially pleading not g uilty , during the prese ntation of evidenc e in the g uilt-innocence phase of jury trial, Rivera chang ed his plea to g uilty

. The trial court, there fore , instructed the jury to return a g uilty verdic t, which it did. The trial court then dismiss ed the jury and conducted a punishment hear ing. At the conclusion of the punishment hear ing, the trial court defe rre d adjudication of Rivera and plac ed him on community supervision. See Tex. Code Crim. P roc. a rt. 42A.101. Relator, the State of Texas, acting by and throug h the Criminal District Attorney for Hay s County , Texas, Wesley Mau, fi l ed a p et i tion for writ of mandamus with this Court seeking mandamus relief ag ainst Respondent, the Honora ble David Glickler, presiding judge of the County Court at L aw No. 2 of Hay s County , Texas. See Tex. Gov’t Code § 22.221; Tex. R. App. P. 52. I n its mandamus petition, the State asked this Court to compel t h e t ri al court to vacate its order defe rrin g adjudi cation, enter judgme nt on the jury verdic t of g uilty , and empane l a jury to assess Rivera ’s p unishment. We conclude d that the S tate did not demonstrate entitlement to mandamusrelief and denied the petition. See In re State ex rel. Mau , No. 03-17-00588- CV, 2017 WL 5985510,

at *1 (Te x . App.—Austin Dec . 1, 2017, orig . proce eding ).

The State soug ht m an d am u s relief ag ainst this Court in the Court of Criminal Appea ls, asking that co u rt t o compel this Court to mandamus t he trial court to withdraw its order defe rring adjudication, enter judgme nt on the jury ’s verdic t of g uilty in the minutes of the court, and empane l a jury to deter

mine Rivera’ s punishment. The Court of Criminal Appea ls conclude d “that the trial court was without authority to enter an order of defe rre d adjudi cation community supervision in this case ; that the State there fore has a clea r rig ht to compel the trial court to resc ind that order ; and that the State has no adequa te remedy at l aw to challeng e that order .” State ex re l. Mau v. Third Court of

Appeals , — S.W .3d —, No. WR -87,818-01, 2018 WL 5623985, at *6 (Tex. Crim. App. Oct. 31, 2018) (orig

. proce eding ). The court conditionally g rante d mandamus re lief ag ainst this Court, direc ted us “to order the trial court to resc ind the order g ranting defe rre d adjudication,” a

nd denied a

ny further relief

. Id. Acc ording ly , we withdraw our memorandum opinion dated Dec ember 1, 2017, and substitut e this memorandum opinion in its plac e. I n acc ordanc e with the opinion of the Court of Criminal Appea ls, we conditionally g rant the State’s petition for writ of mandamus, in par t , an d direc t Respondent to resc ind his order g ranting defe rre d adjudication community supervision. The writ of mandamus will i ssue only if Respondent fa ils to act in acc ordanc e with this opinion.

2__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Field, a nd Bour land Filed: Nove mber 9, 2018

3