Petition s for Writ s of M and amus and Writs of Prohibition Denied and Opinion filed October 27 , 2020
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00451

- CR NO. 14

- 20

- 00452

- CR NO. 14

- 20

- 00453

- CR NO. 14

- 20

- 00454

- CR

IN RE THE STATE OF TEXAS EX REL. KIM OGG , Re l ator

ORIGINAL PROCEED ING S WRITS OF MANDANUS WRIT S OF PROHIBITION Co unt y Crim in al C our t at Law No. 16 Harris County, Texas Trial Court Cause No s . 2288950 & 2288951


### OPINION On June 23, 2020, relator the State of Texas ex rel. Kim Ogg, Harris County D istrict At t orney, filed pet itions for writs of mandamus and petition s for writs of prohibition in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petitions for writs of mandamus, the State asks this court to2 comp el the H o norable Da rrell Jordan, pres iding judge of Count y Criminal Court at Law No. 16 in Harris County, to set aside his June 11, 2020 ruling in trial court

c ause numbers 2288950 and 2288951, The State of Texas v. Jacob Darrin Straugha n , granting Straugh an ’ s mot i on to cond u ct a bench trial witho u t the St ate ’s consent to waiver of a jury trial . In the petitions for writs of prohibition, the State seeks to prevent Judge Jordan from proceeding to trial with Judge Jordan acting as fact finder.
The State also f iled mo t i on s for t e m porary relief of the p roceedings below. See Tex. R. App. P. 52.8(b), 52.10. On June 2 4 , 2020, w e ordered a stay of the trial proceedings

. O n July 8, 20 2 0 , Straughan filed a response
. B ACKGROUND Straughan was charged on December 1, 2019, with m i s demeanor o f fenses of evading arre st and assault. The cases were reset multiple times at Straughan ’ s request

. In February 20 20, the State and Straughan entered a pretrial intervention
contra ct , and the cases were reset to December 18, 2020. On May 18, 2020 , Strau ghan was charged w ith two new offenses

— misdemeanor assault and felony violation of a protective order. On June 10, 2020, Straughan moved for a speedy trial. Straughan assert ed the State agreed to continue the intervention contract even thoug h there w as

an other incident on April 17, 2020. However, on May 18, 2020, the State accepted new charges for the April 17, 2020 incident. On June 4, 2020, Straughan was advised the State intended to terminat e the intervention contract. At a hearing on June 8, 202 0 , Str augha n took the po sition that if the intervention contract were terminated, h e wished to waive his right to a jury trial and proceed to a bench trial.3 St r aughan pointed out that under the Texas Supreme Court’s emergency orders regarding COVID

- 19 , he c a nnot have a jury trial until August 1, 2020, and probably would not have a jury trial until 2021. Straughan also filed a written waiver of a jury and a request for a bench trial, arguing that it is his right to waive a jury. Straughan asked the tr ial co u r t to waive C ode of Criminal Procedure article 1.13 , which provides that the State must consent to a bench trial: The defendant in a criminal prosecution for any off ense other than a capital felony case in which the state notifies the court a n d the defen d ant that it wi ll seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that, except as provide d by Article 27.19, the waiver must be made in person by the defen dant in wri t ing i n open cou rt with the
consen t and approval of the court, and the attorney representing the state

. The consent and approval by the court shall be entered of record on the mi nutes of the court, and the consent and approval of the attorney re presenting the s ta te s h all be in w riti ng, signed by that attorney, and filed in the papers of the cause before the defendant enters the defendant’s plea

. Tex. Code Crim Proc. Ann. a rt. 1.13(a)

. T he trial court held a hearing on June 11, 2020 , at which Str a ugha n with d rew his mot ion f or speedy t rial. The reporter ’ s record reflects the trial court
set the case for a benc h trial on June 26, 2020. The State then filed these writs, as set forth above.
A PPLICABLE L AW To be entitled to relief on a petition for writ of mandamu s , t he Stat e mus t demonstra te the act sought to be compelled is purely ministerial and the State has4 no other adequate legal remedy. State ex rel. Rosenthal v. Poe , 98 S.W.3d 194, 198 (Tex. Crim. App. 2003)

. To be entitled to relief on a pet itio n f or writ of
p ro h ibition, the State m ust show it has no other adequate remedy at law and is clearly entitled to the relief sought. Curry v. Wilson , 853 S.W.2d 40, 432

– 44 (Tex. Crim. App. 199 3). The State has no right to appeal the trial court ’s rul ing

. S ee Tex. Code Crim P roc. Ann. art. 44.01

. This satisfie s th e no - adequat e - legal

- remedy

r equirement

. See Poe , 98 S.W.3d at 203

. T o satisfy the ministerial

- act requirement , the relief sought must be clear and indisputable such that its me r its are beyond di spute an d there is noth ing left to t he

exe r cise o f discre tion or judgment

. Id

. a t 198. Similarly, a wr it of prohibition will issue to require execution of a matter whose merit is indisputable. Knowles v. Scofield , 598 S.W.2d 854, 860 (Tex. Crim. App. 1980)

. Ge nerally, a bsent the State ’ s consent and approval of a de fe ndant ’ s ju ry waiver , a trial court has a ministerial duty to conduct a jury trial on the issue of guilt or inno c ence and ab uses its discretion by serving as factfinder , entitl ing the S t ate to ma ndamus relief. State ex rel. Cur ry v. Carr, 847 S.W .2d 56 1 , 56 2 (Tex. Cr im. App. 1992) ; In re Watkins , 390 S.W.3d 583 (Tex. App.

— Dallas 2012, no pet.) ; Tex. Code Crim Proc. Ann. a rt. 1 .13(a)

.5 A NALYSIS The e mergency order 1 pr ovides:
3. Subject only to constituti onal pr ovis ions , all c ourts in T exas may i n an y case, civil or criminal

— and must to avoid risk to court staff, partie s , attorneys, jurors, and the public

— without a participant’s consent :

a.
. . . modify or suspend any and all dea d lines and procedures, whet her pre scri bed by stat ute , rule, or order, for a stated per iod ending n o later than December 1 , 2020 . . . . The emerge ncy order expressly allows the court in a criminal case to suspend all p rocedures prescribed b y st atute

. The State has no cons titutio nal right to a jury trial

— that right belongs t o the defendant

. See Tex. Const. art. I, § 10. The Sta te ’ s right to withhold consent to the defendant ’ s waiver of his constitutional right to a jury is stat utory. See Tex. Code Crim. Proc. Ann. A rt. 1.13(a). The trial
court ’ s application of the emergency order to sus pend the consent requi rement in article 1.13 (a) is con sist ent wi t h the plain lan guage of the e mergency order. Th us, th e State has not establish ed a clear legal right to the relief sought.

1 See Twe nty

- S ixth Emergency Order Regardin g the COVID

- 19 St ate of Disaster ¶ 3(a) , Misc. Docket No. 20

- 911 2 (Tex. Sep t. 18 , 2020 ) , 83 Tex

. B. J.

– , avail able a t https://www.txcourts.gov/media/1449738/209112.pdf

. At the tim e of the trial court ’s ruling , the Seventeenth Emergency Order was in effect

. Se vent e enth Emergency Orde r Regardin g the COVID

- 19 State of Disaster ¶ 3(a) , Misc. Docket No. 20

- 9 071 (Tex. May 26 , 2020 ) , 83 Tex. B. J. 496 , 496 avail able a t https://www.txcourts.gov/media/1446702/2 09071.pdf

. Because the i ss ue is subject to the “capa ble of repetition, yet evading review” exception to the m ootness do ctrine , we proceed under the current effec tive emergency order , which is subs tantively the same

. Pharris v. State , 165 S.W.3d 681, 683 (Tex. Crim. App. 2005) ( recognizing exception appl ies when (1) challe nged action was too short in duration to be litigated fu lly be fo re action ceased or expir ed and (2) reasonable expect ation exists that same complaining party will be subjected to same action again )

.6 Before this court, t he State claim s: (1) s uspending article 1.13(a) is inconsistent with t he Texas Constitution ’ s gran t to t he Legis l ature to gover n the waiver of jury righ ts and (2) s uspending article 1.13(a) is inconsistent with the
stat utory author ity granted to the Supreme Court of Texas

. See Tex. Const. art. I, § 15; Tex. Gov ’ t Code Ann. § 22.0035

. Our review of t he record reflects t he former
arg ument was n ot presented to the trial cou rt. Accordingly, we do n ot address it. See In re St ate ex rel. Rodriguez , No. 1 3

- 19

- 00200

- CR, 2019 WL 2426597, at *5 (Tex. App.

— Corpus Christi June 10, 2019, orig. proceeding) (mem. op. , not designated for publicatio n ) ( recognizing “ [i] t is well established that arguments which are not presented to the trial court will not be c onsidered in a petition fo r writ of m andamus

. ” ) (citing In re Am. Optical Corp. , 988 S.W.2d 711, 714 (Tex. 1991) (orig. proceeding) (refusing t o consider argument that was not presented to tri al court)

. See a lso In re Floyd , No. 05

- 16

- 00491

- CV, 2016 WL 2353874, at *1 (Tex. App.

— Dallas May 3, 2016, orig. proceeding) (mem. op. , not designated for publication ) (same )

. T urning to the latte r, the Sta te argued in the trial court that the portion of the Government Code authori z ing emergency orders allows suspension of procedures

“ for the cond uct of a ny court proc eeding

. ” The State contended “ for the c onduct ” is a limitati o n o n the type s of procedures th at may be s uspended and it does not inc lude “ things that are subst antive in nature , ” su ch as the stat utory require ment that the S tate consent to a def endant ’s waiver of a ju ry trial

. T he State ’ s argument is not based on the p l ain lan guage of the emergency ord er , whi ch allo ws the trial court to modify any procedure subject only to constitutional limitations. See Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim.7 App. 1991) (discussing plain

- language test). A ssuming , without decid ing, that “ for the co nduct ” i mpos e s a limi tation on the type of procedure th at an e mergency order

ma y suspend, i t is a statutory , not constitutional limitation. See Tex. Gov ’ t Code Ann. § 22.0035

. Because t he State has not shown that “ any procedure ” does not
encompass a bench trial , it has not es t ablished it is indisputably entitl ed to the relief it s e eks or that the trial court had a ministerial duty to deny appellant ’ s request.
T he State ’ s petitions are denied , and we lift the stay previously imposed in th e underlying cause s
. See Te x. R. App . P. 52.8(a).

PER CURI AM

Pane l c onsists of Justices Wise, Bourliot, and Spain. Pu blish

— Tex. R. App. P. 47.2(b).