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

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I n r e T h e S t a t e o f T e x a s e x r e l . J E N N I F E R T H A R P , R e l a t o r
O N S T A T E ’ S P E T I T I O N F O R A W R I T O F M A N D A M U S I N C A U S E N O
. C R 2 0 1 1
- 3 2 5 I N T H E 4 3 3 D I S T R I C T C O U R T R D O F C O M A L C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E A S L E R , H E R V E Y , C O C H R A N , a n d A L C A L Á , J J . , j o i n e d . P R IC E , J . , f i l e d a d i s s e n t i n g o p i n i o n i n w h i c h J O H N S O N , J . , j o i n e d . W O M A C K , J . , c o n c u r r e d . M E Y E R S , J . , d i d n o t p a r t i c i p a t e . T h e S tate seeks the issuance of a writ of mandamus to require a trial judge to su b m i t t h e entire case —both g uilt and punishment—to the jury afte r the defe ndant pled g uilty to the jury

. We shall g rant re lief.
I. BACKG ROUND
A. P lea P roce edings Cary Fa ulkner was char g ed with felon y DWI

. He reac hed an ag ree ment with the S tate to 1 plead g uilty in exchang e for a sentenc e of four y ear s in prison, a $2000 fine, a two-y ear driver’ slicense suspension, and a deadly -we apon finding

. When the trial judge , t h e Honorable Dibbrell

Driving while intox icated. 1THARP — 2

Waldrip, asked F aulkner

wher e he lived, F aulkner mentioned that he we nt to high school with the judge ’s brother. J udg e Waldrip and Fa ulkner then eng ag ed in a brief conver sation unrela ted to the

case
. Be fore deciding whether to a cce pt the plea ag ree ment, J udg e Waldrip order ed a prese ntence investiga tion (PS I ).
I n a hear ing afte r the PSI , J udg e Waldrip a nd the parties discussed the fac t tha t F aulkner ’s felony probation had been revoke d in Guada lupe County and he had been sentenc ed to four y ear s. The prese nt DWI s en t en ce was to run concur rently with the sentenc e in the revoc ation case , and
J u d g e Waldrip expressed his thought that if the sentenc es wer e concur rent, then the prese nt cas e should car

ry a five-year sentenc e. The prosec utor explained that the deadly -we apon finding would

ensure that Fa

ulkner would serve at least half of his four- y ear term, which was not g uara nteed in the

revoc ation case

. J udg e W aldrip said he was not inclined t o make a deadly -we apon finding so that he could
have “all options available to us as need be.” The prosec utor would not ag ree to remove the deadly

wea pon finding from the plea ag ree ment, even in exchang e for the higher sentenc e of five y ear s. J udg e Waldrip asked why , and the prosec utor responde d that, without the deadly -we apon finding , the defe ndant “would t h en b e el i g ible for shock probation, and I have no plans for Mr. Fa ulkner being on probation.” J udg e Waldrip then asked, “How would y ou control that at a jury trial.” The
prosec utor replied, “[O]nce the jury makes a finding of the deadly wea pon, the court has a minist eria l duty to enter it into the judgme nt and then he cannot g et proba t i o n o r s h ock probation.” J udg e Waldrip responde d, “[p] resuming I put it in the jury char g e,” and asked if the prosec utor had a case
to support his position. The judge asked the prosec utor if he wanted to “jump throug h those hoops”
and conclude d by sug g esting that the prosec utor was “g oing to be doing a bunch o f wo rk forTHARP — 3

nothing.”
The prosec utor complained that the parties had worke d out a deal, and he did not “know why
there ’s a problem with tha t.” J udg e Waldrip r esponded that punishing the defe ndant “is not g oing

to cure his addiction.” The prosec utor then expressed discomfort with J udg e Waldrip presiding over the case due to the judge ’s ear lier conver sation with Fa ulkner. Ultimately , J udg e Waldrip reje cted the plea a g ree ment and set the c ase f or a jury trial. 2
B. Trial
Be fore the beg inning of trial, Fa ulkner elec ted to have the trial judge assess punishment. At

tr i al , af t er the j ury was sworn, Fa ulkner pled g uilty

. The prosecutor then asser ted t hat Faulkner’ s plea r ender ed the tria l a unitary proce eding , and there fore , the jury was to a ssess punishment. But
J udg e Waldrip ruled that punishment would be a ssessed by himself, not the jury

. 3
The State filed an application for emer g ency stay and a petition for a writ of mandamus with
the Third Court of Appea ls, which denied relief

. The State then filed with this Court an application
for emer g ency stay of the proce eding s, a motion for leave to file a petition for a writ of mandamus,
and a petition for a writ of mandamus. We g rante d a stay and reque sted a response from J udg e

The State subs eq u en tly filed a motion to rec use. Although he declined to rec use J udg e 2 Waldrip on the basis of partiality , the rec usal judge said, “I think he did abuse his discretion.” The rec usal judge also sug g ested that the State could file a petition for a writ of mandamus to require the trial judg e to submit a deadly -we apon issue to the jury , if that issue wer e ra ised by the evidenc e. The State asser

ts that J udg e Waldrip ref

used to allo w the deadly -we apon portion of the 3 indictment to be rea d to the jury

. J udg e Waldrip asser ts that the State s p ra n g its theory that Fa ulkner’s g uilty plea conver ted the trial into a unitary trial befor e the jury for the first time afte r the j u ry wa s sworn. As the parties have not included a transcr ipt of the trial proce eding s occu rr i n g befor e the jury was sworn, neither of these asser t i o n s i s s ubstantiated by the rec ord. Neither asser tion is important to our resolution of the instant mandamus proce eding s, howeve r, and we will assume, for the sake of arg ument, that the State’s asser t i o n i s n o t true and that J udg e Waldrip’s asser tion is t rue.THARP — 4

Waldrip. 4
II. ANALYSIS
A. Standards f

or Mandam us To be entitled to mandamus relief , the rela tor must show that: (1) he has no adequate reme dy

at law, and (2) what he seeks to compel is a minist eria l act. Wit h respe ct to the second require ment, 5
the rela tor must show a clea r rig ht to the relief soug ht. A clea r rig h t t o re l ief is shown when the 6
fac ts and circ umstances dictate but one rational decision “under unequivoca l, well-settled (i.e., from

extant st atutory , constitutional, or case law sourc es), a nd clea rly controlling leg al principles.” 7 B. No Adequate Rem edy
The rela tor and responde nt a g ree that the State has no adequate reme dy at law. We a g ree
. 8 C. Ministerial Duty
The State c ontends that, once a defe ndant pleads g uilty befor e a jury , the law provides that
the trial become s unitary , requiring the jury to be instructed to return a verdic t of g uilty and to assess punishment. The State arg ues that J udg e Waldrip’s insistence that he will assess punishment usurps

In re State ex rel. Tharp , No. WR -78,248-01 (Tex. Crim. App. Augus t 1 7 , 2 0 1 2 ) (not 4 desig nated f

or publication). Bowen v. Carnes , 343 S.W .3d 805, 810 (Tex. Crim. App. 2011). 5 Id. 6 Id. (quoting State ex rel. Y oung v. Sixth Judicial District Court of Appeals , 236 S.W .3d 7 207, 210 (Tex. Crim. App. 2007)). See G reenwell v. Court of Appeals for the Thirteenth Judicial Dist. , 159 S.W .3d 645, 8 648-49 (Te x . Crim. App. 2005) (“B ut potential review at a late r time is not alway s or automatically

an ade quate r emedy : ‘I n some ca ses, a r emedy at law may

technica lly

exis t; howeve r, it may

never theless be so unc erta in, tedious, burdensome, slow, inconve nient, inappropria te, or inef

fec tive as to be de emed inade quate.’ ”).THARP — 5

the leg al re quirement that the jury assess punishment in this ty pe of situation.
J udg e Waldrip contends that there is no exis ting case law or statutory law requiring the action
which Relator sug g ests is appropr iate. J udg e Waldrip contends that the discussion of unitary trials
is essentially irrele v an t , b ecause it beg s the true question: “whe ther the State may , by ref using to
consent to a defe ndant’s waiver of a jury , cause the defe ndant’s elec tion of the trial court as assessor of punishment to be abrog ated.” Arg uing that th e l aw i s not clea r or well settled, he attempts to distinguish some of the case s upon which the State relies. J udg e Waldrip also contends that judge

assessed punishment afte r a plea of g uilty to a jury is authorized by Articles 26.14 and 37.07 of the
Texas Code of Criminal Procedur e. Finally , he contends that the State’s posi t ion would lead to absurd results beca

use the defe ndant would be forc ed to play out a char ade—in which he elec ts the
trial judge to assess punishment, pleads not g uilty to a jury , but then admits his g uilt to the jury —in
order to have punishment dete rmined by the trial judg e. We disag ree with J udg e Waldrip’s conte ntion that the l aw does not clea rly provide for the
relief the State see ks. Article 26.14 pr ovides:
Where a defe ndant in a case of felony persists in pleading g uilty or in enter ing a plea of nolo c ontender e, if the punishment is not a bsolutely fix ed by law, a jur y shall be impaneled to assess the punishment and evidenc e may b e h ea rd to enable them to decide there upon, unless the defe n d an t in acc ordanc e with Articles 1.13 or 37.07 shall have w aived his rig ht to trial by jury

. 9 This statute makes a jur

y trial on punishment the default option for a defe ndant who pleads guilty
in a felony case
. To avoid the defa ult option, the g uilty -plea ding defe ndant must waive his rig ht to

a jury under either Article 1.13 or Article 37.07. To waive a jury under Article 1.13, the defe ndant

T E X
. C O D E C R I M
. P R O C . art. 26.14. 9THARP — 6

must have the State’s consent. The rela tor and responde nt ag ree that the State did not and will not 1 0
consent in this case
. J udg e W aldrip’s contention is that Faulkne r could a nd did waive his right t o a jury under A rticle 37.07. Tha t contention is not corre ct. Article 37.07 pr ovides in releva nt part: (a) I n all criminal case s, other than [certain] misdemeanor case s
. . ., which are tried before a jury on a plea of not guilty , the judge shall, befor e arg ument beg ins, first submit t o the j ury the i ssue of g uilt or i nnocenc e of the defendant of the offense or offe nses char g ed, without authorizing the jury to pass upon the punishme n t t o be imposed. . . . (b) [I ]f a finding of g uilty is r eturne d, it sha ll then be the responsibility of the judge to assess the punishment applicable to the offe nse; provided, howeve r, that

. . . [i n] case s wher e the defe ndant so elec ts in writing befor e the commence ment of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury

. . . . I f a finding of g uilty is returne d, the defe ndant may , with t h e co n sent of the attorney for the sta te, cha

ng e his elec tion of one who a ssesses the punishment. 1 1
Over forty y ear s ag o, in Rojas v. State , we construed the interplay betwee n Article 26.14 and
this portion of Article 37.07. I n that case , afte r the defe ndant pled g uilty to a jury , he objected that 1 2
the court’s char g e did not instruct the jury to deter mine punishment. The trial judge overr uled this 1 3 objection and conducte d a punishment hear ing to the bench. We held, unequivoca lly , that “Ar ticle 1 4 37.07, supra, by its terms applies t o p l ea s o f not g uilty alone.” We further explained that “[i] n 1 5

Id. , art. 1.13(a) (“the waiver must be made in person by the defe ndant in w riting in ope n 1 0 court with the c onsent and a pproval of the court, a

nd the attorne y

repr esenting the state” ). Id. , art. 37.07, §§ 2(a ), (b) (empha sis added). 1 1
404 S.W .2d 30 (Tex. Crim. App. 1966). 1 2 Id. at 30. 1 3 Id. at 30-31. 1 4 Id. at 30. 1 5THARP — 7

case s wher e Article 37.07, supra, is applicable , the time for waiving the rig ht to have the jury assess the punishment does not arr ive until such jury has found the defe ndant g uilty ” and thus, it could not be said that t h e d ef

en d an t had waived a jury “in acc ordanc e with Article 37.07.” We further 1 6
observe d that a former draf t of the Code “had made provisions for elec tion prior to the selec tion of
the jury ” and that “[t] his, and the possibili ty that the plea of g uilty may be withdrawn during the trial,
may explain the refer ence to Article 37.07 in Article 26.14.” So the t rial j udg e erred in ref using 1 7

to submit the question of punishment to the jury

. Stated succinc tly , Rojas construed Article 26.14 1 8

as providing that a plea of g uilty results in punishment being d eter mined by a jury unless the
defe ndant waive s a jury

with the State’s conse nt. There are only

two fac tual differ ence s of any note betwe en the pr esent c ase a nd Rojas

. I n Rojas , it was the defe ndant, rather t h an t he State, who was complaining that the trial judge had usurped the function of the j ury . This fac tual differ ence is imm ater ial, as Article 26.14 codified a long- standing rule that wa s intended primar ily for the State’ s benef

it:
I t is not a provision, insofar as it require s evidenc e to be submitt ed, which is intended solely for the benef

it of t he defenda

nt. I t i s intended, also, and more espec ially , to protec t the int er es t s of the State, by preve nting ag g rava ted case s of crime to be cover ed up by the plea of g uilty , so as to allow the criminal to esca pe with the minimum punishment fix ed by law. 1 9
The second differ ence is that Article 37.07 now provides that the defe ndant must elec t a jury

Id. at 31. 1 6 Id. 1 7 Id. 1 8 Id. at 33-34 (op. on State’s motion for rehe aring ) (quoting Harwell v. State , 19 Tex. App. 1 9 423 (1885)) (empha sis in Rojas ). We are not sug g esting that J udg e Waldrip’s conduct in the prese nt case was a

ny sort of attempt to “c over up a crime by the plea of

g uilty .”THARP — 8

for punishment befor e the commence ment of voir dire instead of afte r a verd i ct o f g uilty

. The 2 0 timing of the election require ment in our curr ent statute see ms to be the same a s the “for mer draft
of the Code” to which we had refer red in Rojas

. But our ref ere nce to the former draft of t he code

was in conjunction with the “the possibili ty that the plea of g uilty may be withdrawn during trial,” 2 1
which is based upon our longsta nding rule that a defe ndant has an unconditional rig ht to chang e his plea from “g uilty ” to “n o t gu ilty ” at any time befor e the jury retire s for delibera tions. I f the 2 2
d ef endant chang es his plea from “g uilty ” to “not g uilty ,” then Article 37.07 would b ec o m e applicable , and if Article 37.07 require d the defe ndant to e lect a jury deter mination of

punishment
befor e jury

selec tion, then a mid-trial cha ng e of ple a could cause that ear lier elec tion ( or fa ilure to
elec t) to suddenly

become controlling

. I n our opinion on the State’s motion for rehe ar i n g i n R o j a s , we made clea

r that sever al
aspec ts of our s t at u tory scheme , which rema in substantively the same today , supported our conclusion that the Article 37.07 punishment-elec tion provision did not apply to g uilty pleas. We 2 3 pointed to sever al prov i s i o ns in Article 36.01, and, more importantly , we asked, “I f it was the
intention of the L eg islature that the alterna te proce dure provided in A rt. 37.07 should a pply wher e

When Article 37.07 was first adopted, it require d the defe ndant to make his elec tion “upon 2 0 the return of a finding of guilty .” T E X
. C O D E C R I M
. P R O C
. art. 37.07, § 2(b) (Vernon’ s 1966). I n 1967, the statute was amende d to r equire the defe ndant’s elec tion “ at the time he enter s his ple a in open court.” T E X
. C O D E C R I M
. P R O C
. art. 37.07, § 2(b) and h i s t o ri ca l n o t e (Ve rnon’s 1981). I n 1985, the statute was amende d to ref lect the curr ent require ment that the elec tion be made befor e the commence ment of voir dire . T E X
. C O D E C R I M
. P R O C . art. 37.07 § 2(b) (West 1985).

Rojas , 404 S.W .2d at 31. 2 1
See Murray v. State , 302 S.W .3d 874, 883 (Tex. Crim. App. 2009) (re fer ring to historical 2 2 prac tice). Rojas , 404 S.W .2d at 33-35.

2 3THARP — 9

the plea is g uilty , why did they not say so in said Article instead of say ing ‘and wher e the plea is not
g uilty — .’? ” 2 4
I n 1967, the phrase “and wher e t h e plea is not g uilty ” was chang ed to the current wording
“which are tried befor e a jury on a plea of not g uilty .” A few y ear s afte r our decision in Rojas we 2 5 quoted the curr ent lang uag e in italics to e mphasize that Article 37.07’s bifurcated proce dure is not applicable to pleas of g uilty in a felony case befor e a jury

. We explained: “Since the very purpose 2 6
of off ering evidenc e bef

ore a jury on a plea of guilty in a fe lony

case is to enable them to prope rly

assess the punishment, it seems a rathe r useless thing to empane l a jury and then not permit them to

assess the punishment afte r hear ing evidenc e offe red for that purpose.” Even in a capital case , we 2 7
have he ld, based on the rule for non-capital felonies, that a plea of g uilty to a jury eliminates g uilt

as an issue to be deter

mined and makes it “prope r for the trial judge in his char g e to instruct the jury

to return a verdic t of g uilty , char g e the jury on the law as to the punishment issues and then instruct
them to decide only those issues.” We have more rec ently decla red that “plea s of g uilty in felony 2 8

Id. at 35. See T E X
. C O D E C R I M
. P R O C . art. 37.07, § 2(b) (Ve rnon’s 1966). 2 4
See T E X
. C O D E C R I M
. P R O C . art. 37.07, § 2(b) and historical note ( Ver non’s 1981). 2 5 Ring v. State , 450 S.W .2d 85, 87 (Tex. Crim. App. 1970) (statutory lang uag e italicized in 2 6 orig inal); see also Basaldua v. State , 481 S.W .2d 851, 853 (Tex. Crim. App. 1972) (italicizing the same langua g e for the s am e p roposition); Brown v. Stat e , 507 S.W .2d 235, 237 (Tex. Crim. App. 1974) (sa me). Ring ; 450 S.W .2d at 87; see also Brown v. State , 487 S.W .2d 86, 87 n.1 (Tex. Crim. 2 7 App. 1972) (“ Where, a s here , there is a plea of g uilty befor e the jury , there is no reason f or a separ ate tria l as to punishment.”).

Holland v. State , 761 S.W .2d 307, 313 (Tex. Crim. App. 1988). 2 8THARP — 10

case s either before a judge or jury have alway s been unitary ,” and that, “[o] nce the g uilty plea is 2 9

enter ed, the proce dure become s a ‘unitary trial’ to deter mine the rema ining issue of punishment.” 3 0
We do not ag ree with J udg e Waldrip’s claim that the “di s cu s s ion of unitary trials is essentially

irrele vant.” We think it is crucial. I f g uilt and punishment are deter mined by differ ent finders of fac t, then the trial is nece ssarily a two-stag e trial. By definition, a unitary trial is not a twostag e trial. As the above discussion indicates, both statute and case law are unequivoca l that a plea
of g uilty cause s the trial to become unitary

. So, in such a trial there is only one finder of fac t and that
finder of fac t determines the issue of punishment.
J udg e Wal d ri p contends that an absurd result flows from this rule beca use the defe ndant
would mere ly g o throug h the char ade of pleading not g uilty but admitting g uilt. One answe r to this
contention is that the statutory scheme never theless require s that g uilty pleas g ive rise to unitary trials, whateve r one may think of the wisdom of that scheme

. Another is that the fac ts of the prese nt

case ref ute J udg e Waldrip’s contention. During the plea proce eding s, the State expressed its intent

to have the deadly -we apon issue decide d by a jury

. The State may be able to obtain a deadly -we apon finding from the jury at the g uilt phase of trial either throug h the wording of the offe nse submissi on in the jury char g e or throug h a specia l issue. And al s o , t h e defe ndant’s plea of g uilty , being an 3 1

Carroll v. State , 42 S.W .3d 129, 134 n.1 (Tex. Crim. App. 2001). 2 9
State v. Davis , 349 S.W .3d 535, 540 (Tex. Crim. App. 2011) (quoting Carroll v. State , 975 3 0 S.W .2d 630, 631 (Tex. Crim. App. 1998)).

See D richas v. State , 175 S.W .3d 795, 798 (Tex. Crim. App. 2005) (the law “ direc ts 3 1 the trial cour

t to submi t to the jury

any issue that is raised by

the fa cts” includingdeadly -we apon finding s); Hill v. State , 913 S.W .2d 581, 584 (Tex. Crim. App. 1996) (dea dly -we apon question could be de cided a t guilt or punishment phase of trial); Luken v. State , 780 S.W .2d 264, 268 (Tex. Crim. App. 1989) (same) ; Polk v. State , 693 S.W .2d 391, 396 (Tex. Crim. App. 1985) (jury finding of g uilt of offense as pled in the indictment ca n constitute a dea dly -we apon finding ).THARP — 11

acknow ledg ment of res p o nsibili ty , could conce ivably favor ably impact the punishment
deter mination. 3 2

. D. Clean Hands and Righ t to a F air Trial
J udg e Waldrip contends that the State has unclea n hands beca

use it ke pt se cre t its plans to have the jury deter

mine punishment via a unitary trial, and that by failing to share its plans, the State
has wasted the time of the trial judge , the venire , and the jury that was actually selec ted. He also
contends that, if the State succe eds, Fa ulkner will have been deprive d of his c onstitut ional rig ht to

a fair trial beca

use the State’s strateg y of having the jury assess punishment cause d defe nse counsel not to conduct a vig orous voir dire on tha t issue. 3 3
Fur ther, J udg e Waldrip contends that, if we rule in the State’s favor , Fa ulkner’s lawy er will undoubtedly

move for a

mistrial, and if a mi strial is g rante d, further prosec ution will be barre d by
double jeopar dy beca

use the State g oaded the defe nse into moving for a mistrial. J udg e Waldrip also
contends that if retria l is not barr ed, then Fa ulkner will plead “not g uilty ” befor e the jury , admit g uilt at trial, and the trial judg e will still assess punishment. 3 4
But the fac t that a g uilty plea to a jury results in a unitary trial befor e that jury , even afte r the

See Randolph v. State , 353 S.W .3d 887, 892 (Tex. Crim. App. 2011) (“O ne can acc ept 3 2 responsibility by pleading g uilty ” though a plea of not g uilty is not itself an acc eptanc e or denial of responsibility ).

I n an aff idavit attache d to J udg e Waldrip’s response , defe nse counsel states that, had she 3 3 known the State would take the position that a g uilty plea require d a jury trial on punishment, then her voir dire examination would have been “much more ag g res s i v e and expansive, and more importantly , would have included punishment issues and, specific ally , examination conce rning the use of my Client’s vehicle a s a dea dly wea pon.”
I n her aff idavit, defe nse counsel also states that, had she known about the position the 3 4 State intended to take, she would have counsele d her client “that the only way the trial court could have a ssessed punishment, as he de sired, would be to plea d not guilty .”THARP — 12

enac tment of Article 37.07, has been well-e stablished law for over forty y ear s. I t was the defe ndant’s
d ec ision to plead guilty

. He could have chosen to plead not g uilty , and the trial wo u l d h av e b ee n bifurca ted, with the trial judge assessing punishment. T h e S t at e is not responsible for the
defe ndant’s strateg ic choice s. There never was an option to plead g uilty befor e the jury and have the
trial judge assess punishment. I f Fa ulkner and his defe nse attorney wanted the trial judge to assess punishment, Faulkne r’s only option was to plead not g uilty

. And if that’s the option Fa ulkner would have chosen if he had been corr ectly advised about
the law, then he still had the opportunity to do so afte r the State reve aled its belief that the trial had
become unitary

. He could have chang ed his plea of g uilty to not g uilty and ca u s ed t he trial to become bifurca

ted. He ma

y still have tha t option.
As for the arg ument that the State has wasted the jury ’s time, no one has sug g ested that the

statutes permit J udg e Wal d ri p to decide both g uilt and punishment without the State’s consent.
Some sort of

jury trial was g oing to occur reg ardle ss of when the State reve aled its belief that a g uilty plea would cause the trial to become unitary

. I t was inevitable that the jurors would sit throug h the jury -selec tion process a

nd listen to evidence prese nted at some sort of he aring

. But, if the prese nt case had proce eded on a plea of g uilty in the m an n er J udg e Waldrip orig inally intended, a jury trial would have o cc urre d in which the only issue the jury would
decide —g uilt—was alre ady deter mined by a g uilty plea. Under those circ umstances, the jurors
would have been sent back to t h e j u ry ro om with a jury char g e that instructed them to find the
defe ndant g uilty and did not direc t them to decide any other matter. Conducting jury selec tion, but
g iving the jury no rea l decision-making power , woul d seem like more of a waste of time. By

contra st, the State’s intended course of action would result in jurors deciding punishment if Fa ulknerTHARP — 13

pled g uilty

or dec iding g uilt if Faulkner pled not g uilty . Even if F aulkner pled not g uilty , and that plea we re ac co m p anied by a defe nse conce ssion at trial that Fa ulkner was in fac t g uilty , the jury
would at least ha ve something to de cide, even if that dec ision seems like a for eg one conc lusion. But, as explained a

bove, there may be other conseque nces to ha ving a trial on a plea of not
g uilty

. The State may be able to obtain a deadly -we apon finding from the jury at the g uilt phase of trial. And plea ding not g uilty forg oes the e x plicit a cknowledg ment of responsibility that a plea of
g uilty provides. A defe ndant who pleads not g uilty could expli citly acknow ledg e responsibility by testify ing, but then he would be subjec t to cross-examination.
We conditionally g rant mandamus and direc t J udg e Waldrip to proce ed with trial, submitt ing
all rele vant issues, including punishment, to the jury so long as Fa ulkner’s plea of g uilty rema ins in place

. The writ of mandamus will issue only in the event J udg e Waldrip fails to comply within thirty day s of the date of this opinion.
Deliver ed: Novembe r 14, 2012 Publis h