In re State

• Decision Date: 27 February 2013
• Docket Number: No. AP–76,916.,AP–76,916.
• Citation: 393 S.W.3d 751
• Parties: In re the STATE of Texas ex rel. Jennifer THARP, Relator.
• Court: Texas Court of Criminal Appeals

393 S.W.3d 751

In re the STATE of Texas ex rel. Jennifer THARP, Relator.

No. AP–76,916.

Court of Criminal Appeals of Texas.

Nov. 14, 2012.

Rehearing Denied Feb. 6, 2013.

Dissenting Opinion on Denial of Rehearing Feb. 27, 2013.

John G. Jasuta, David A. Schulman, Austin, Stanley G. Schneider, Houston, for Respondent.

Sammy M. McCrary, Asst. District Atty., New Braunfels, Lisa C. McMinn, State's Attorney, for State.

KELLER, P.J., delivered the opinion of the Court in which KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.

The State seeks the issuance of a writ of mandamus to require a trial judge to submit the entire case—both guilt and punishment—to the jury after the defendant pled guilty to the jury. We shall grant relief.

I. BACKGROUND

A. Plea Proceedings

Cary Faulkner was charged with felony DWI.¹ He reached an agreement with the State to plead guilty in exchange for a sentence of four years in prison, a $2000 fine, a two-year driver's-license suspension, and a deadly-weapon finding. When the trial judge, the Honorable Dibbrell Waldrip, asked Faulkner where he lived, Faulkner mentioned that he went to high school with the judge's brother. Judge Waldrip and Faulkner then engaged in a brief conversation unrelated to the case. Before deciding whether to accept the plea agreement, Judge Waldrip ordered a presentence investigation (PSI).

In a hearing after the PSI, Judge Waldrip and the parties discussed the fact that Faulkner's felony probation had been revoked in Guadalupe County and he had been sentenced to four years. The present DWI sentence was to run concurrently with the sentence in the revocation case, and Judge Waldrip expressed his thought that if the sentences were concurrent, then the present case should carry a five-year sentence. The prosecutor explained that the deadly-weapon finding would ensure that Faulkner would serve at least half of his four-year term, which was not guaranteed in the revocation case.

Judge Waldrip said he was not inclined to make a deadly-weapon finding so that he could have “all options available to us as need be.” The prosecutor would not agree to remove the deadly-weapon finding from the plea agreement, even in exchange for the higher sentence of five years. Judge Waldrip asked why, and the prosecutor responded that, without the deadly-weapon finding, the defendant “would then be eligible for shock probation, and I have no plans for Mr. Faulkner being on probation.” Judge Waldrip then asked, “How would you control that at a jury trial.” The prosecutor replied, “[O]nce the jury makes a finding of the deadly weapon, the court has a ministerial duty to enter it into the judgment and then he cannot get probation or shock probation.” Judge Waldrip responded, “[p]resuming I put it in the jury charge,” and asked if the prosecutor had a case to support his position. The judge asked the prosecutor if he wanted to “jump through those hoops” and concluded by suggesting that the prosecutor was “going to be doing a bunch of work for nothing.”

The prosecutor complained that the parties had worked out a deal, and he did not “know why there's a problem with that.” Judge Waldrip responded that punishing the defendant “is not going to cure his addiction.” The prosecutor then expressed discomfort with Judge Waldrip presiding over the case due to the judge's earlier conversation with Faulkner. Ultimately, Judge Waldrip rejected the plea agreement and set the case for a jury trial.²

B. Trial

Before the beginning of trial, Faulkner elected to have the trial judge assess punishment. At trial, after the jury was sworn, Faulkner pled guilty. The prosecutor then asserted that Faulkner's plea rendered the trial a unitary proceeding, and therefore, the jury was to assess punishment. But Judge Waldrip ruled that punishment would be assessed by himself, not the jury. ³

The State filed an application for emergency stay and a petition for a writ of mandamus with the Third Court of Appeals, which denied relief. The State then filed with this Court an application for emergency stay of the proceedings, a motion for leave to file a petition for a writ of mandamus, and a petition for a writ of mandamus. We granted a stay and requested a response from Judge Waldrip.⁴

II. ANALYSIS

A. Standards for Mandamus

To be entitled to mandamus relief, the relator must show that: (1) he has no adequate remedy at law, and (2) what he seeks to compel is a ministerial act.⁵ With respect to the second requirement, the relator must show a clear right to the relief sought.⁶ A clear right to relief is shown when the facts and circumstances dictate but one rational decision “under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.” ⁷

B. No Adequate Remedy

The relator and respondent agree that the State has no adequate remedy at law. We agree.⁸

C. Ministerial Duty

The State contends that, once a defendant pleads guilty before a jury, the law provides that the trial becomes unitary, requiring the jury to be instructed to return a verdict of guilty and to assess punishment. The State argues that Judge Waldrip's insistence that he will assess punishment usurps the legal requirement that the jury assess punishment in this type of situation.

Judge Waldrip contends that there is no existing case law or statutory law requiring the action which Relator suggests is appropriate. Judge Waldrip contends that the discussion of unitary trials is essentially irrelevant, because it begs the true question: “whether the State may, by refusing to consent to a defendant's waiver of a jury, cause the defendant's election of the trial court as assessor of punishment to be abrogated.” Arguing that the law is not clear or well settled, he attempts to distinguish some of the cases upon which the State relies. Judge Waldrip also contends that judge-assessed punishment after a plea of guilty to a jury is authorized by Articles 26.14 and 37.07 of the Texas Code of Criminal Procedure. Finally, he contends that the State's position would lead to absurd results because the defendant would be forced to play out a charade—in which he elects the trial judge to assess punishment, pleads not guilty to a jury, but then admits his guilt to the jury—in order to have punishment determined by the trial judge.

We disagree with Judge Waldrip's contention that the law does not clearly provide for the relief the State seeks. Article 26.14 provides:

Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury. ⁹

This statute makes a jury trial on punishment the default option for a defendant who pleads guilty in a felony case. To avoid the default option, the guilty-pleading defendant must waive his right to a jury under either Article 1.13 or Article 37.07. To waive a jury under Article 1.13, the defendant must have the State's consent.¹⁰ The relator and respondent agree that the State did not and will not consent in this case. Judge Waldrip's contention is that Faulkner could and did waive his right to a jury under Article 37.07. That contention is not correct.

Article 37.07 provides in relevant part:

(a) In all criminal cases, other than [certain] misdemeanor cases ..., which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed....

(b) [I]f a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that ... [in] cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury.... If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.¹¹

Over forty years ago, in Rojas v. State, we construed the interplay between Article 26.14 and this portion of Article 37.07.¹² In that case, after the defendant pled guilty to a jury, he objected that the court's charge did not instruct the jury to determine punishment.¹³ The trial judge overruled this objection and conducted a punishment hearing to the bench.¹⁴ We held, unequivocally, that “ Article 37.07, supra, by its terms applies to pleas of not guilty alone.” ¹⁵ We further explained that “[i]n cases where Article 37.07, supra, is applicable, the time for waiving the right to have the jury assess the punishment does not arrive until such jury has found the defendant guilty” and thus, it could not be said that the defendant had waived a jury “in accordance with Article 37.07.” ¹⁶ We further observed that a former draft of the Code “had made provisions for election prior to the selection of the jury” and that “[t]his, and the possibility that the plea of guilty may be withdrawn during the trial, may explain the reference to Article 37.07 in Article 26.14.” ¹⁷ So the trial judge erred in refusing to submit the question of punishment to the jury.¹⁸ Stated succinctly, Rojas construed Article 26.14 as providing that a plea of guilty results in punishment being determined by a jury unless the defendant waives a jury with the State's consent.

There are only two factual differences of any note between the present case and Rojas. In Rojas, it was the defendant, rather than the State, who was complaining that the trial judge had usurped the function of the jury. This factual difference is immaterial, as Article 26.14 codified ...