Mau v. Third Court of Appeals (In re State)

• Decision Date: 31 October 2018
• Docket Number: NO. WR-87,818-01,WR-87,818-01
• Citation: 560 S.W.3d 640
• Parties: In re STATE of Texas EX REL. Wesley MAU, Hays County Criminal District Attorney, Relator v. THIRD COURT OF APPEALS, Respondent
• Court: Texas Court of Criminal Appeals

560 S.W.3d 640

In re STATE of Texas EX REL. Wesley MAU, Hays County Criminal District Attorney, Relator

v.THIRD COURT OF APPEALS, Respondent

NO. WR-87,818-01

Court of Criminal Appeals of Texas.

DELIVERED: October 31, 2018

Daniel R. LaBruyere, Ariane Flores, Assistant District Attorney, 712 South Stagecoach Trail, Ste. 2057, San Marcos, Texas 78666, for Appellant.

Honorable David S. Glickler, Bar No. 00787549, Judge, Hays County Court-at-Law No. 2, 712 So. Stagecoach Trail, Ste. 2292, San Marcos, TX 78666, Stacey Soule, State's Attorney, Austin, for State of Texas.

YEARY, J., delivered the opinion of the Court in which KELLER, P.J., and KEASLER, RICHARDSON, KEEL, and WALKER, JJ., joined. ALCALA, J., filed a concurring opinion in which HERVEY and NEWELL, JJ., joined. NEWELL, J., filed a concurring opinion in which HERVEY and ALCALA, JJ., joined.

OPINION

This mandamus proceeding arose from a misdemeanor prosecution for family-violence assault in which the convicting court granted deferred adjudication community supervision. Although the defendant originally pled not guilty and invoked his right to a jury trial, in the middle of that trial he changed his plea to guilty. The trial court then instructed the jury to return a guilty verdict predicated upon the defendant's guilty plea, which the jury did. But then, rather than permit the jury to go on to assess punishment, the trial court dismissed the jury. And rather than assess punishment, the trial court placed the defendant on deferred adjudication community supervision.

In this mandamus proceeding, the State, through its elected district attorney, now first argues that the trial court was not authorized to defer the adjudication of the defendant's guilt. The State further contends that the trial court lacked authority to take over the role of assessing punishment from the jury because the defendant's change of plea converted the trial into a unitary proceeding, at which the jury should have assessed punishment. The State prays that we order the trial court to withdraw its order granting deferred adjudication community supervision and empanel a new jury to assess the defendant's punishment. We will indeed grant mandamus relief, but of a more limited scope than that requested. We hold that the trial court plainly lacked the authority to defer adjudication of guilt following a jury verdict on a plea of guilty, and we will conditionally order the trial court to withdraw its order of deferred adjudication.

I. BACKGROUND

Jose Rivera, Jr., the real party in interest, was charged by information with the misdemeanor offense of family-violence assault for punching or choking his younger brother. TEX. PENAL CODE § 22.01(a)(1). He did not waive his right to a jury trial, and the State never gave written consent to his waiving a jury trial. The cause therefore proceeded to a jury trial on Rivera's plea of not guilty. After several witnesses had testified, Rivera unexpectedly changed his plea to guilty.¹ The trial court accordingly retired the jury with an instruction that it return a verdict of guilty on the basis of Rivera's plea, which the jury immediately did.

But the trial court did not submit the issue of punishment to the jury. Instead, it dismissed the jury upon its return of the guilty verdict. Neither party objected to the jury's dismissal. The prosecutor then noted that Rivera had not been properly admonished prior to pleading guilty before the jury. Again without objection, the trial court proceeded to admonish Rivera, obtaining waivers of his various trial rights, including (as the trial court told Rivera) "the right to trial by jury, which we did begin here." Only at this point—after the jury had already returned a verdict of guilty—did Rivera purport to waive his right to jury trial. The State did not object to this belated waiver. But neither did the State consent in writing, before the entry of the guilty plea, as required by Article 1.13 of the Code of Criminal Procedure.² Rivera then again purported to plead guilty.

After hearing additional witnesses with respect to punishment, the trial court announced on the record that it would defer adjudication, explaining:

THE COURT: All right. Let me go on the record and make a couple of notations.

I spent my lunch hour thinking about the case and potential ramifications, also thinking about the procedure we utilized this morning.

A jury was selected, sworn, seated and testimony was initiated. During the course of that testimony, the defendant elected to change his plea and he did enter on the record in front of the jury a plea of guilty to the charge. In an abundances [sic] of caution, the Court then crafted a jury charge that resulted in an instructed verdict and instructed the jury to find the defendant guilty, but at no time was a judgment entered or conviction of adjudication made.

As it turns out, based on the law and utilizing the case of State versus Sosa and Article 42.12, it is within the trial court's discretion if a defendant does plead guilty, even after trial has been initiated, the Court still possesses the authority to defer adjudication of guilt.³

Based on the extreme circumstances in this case that led to that moment, as well as the entire punishment hearing, I believe the interest of justice out -- extraordinarily outweigh and weigh in favor of the Court's exercising that discretion; and therefore I will accept your plea of guilty that was made, which would then terminate the need for the jury at that time.

And having received your voluntary plea of guilty, which we've received multiple times today, I will find it in the interest of justice to set aside and defer any adjudication on your guilt today and place you on deferred adjudication community supervision for a period of six months with no fine.

Only then did the State object:

[PROSECUTOR]: Judge, our objection respectfully is that this was a jury trial. This defendant pled guilty to a jury and [ State v. Sosa ] is a case involving a non jury trial. It is therefore distinguishable.

It's the State's belief that upon that finding of guilt by the jury, the defendant was convicted and there is no judgment non obstante verdicto in a criminal case.

The trial court replied:

THE COURT: I understand. And I want the record to be clear that it's my interpretation as the Court that once the defendant changed his plea to guilty, even though the jury had been sworn and impaneled, the procedure for submitting the case to the jury for a directed verdict was improper and once having received the guilty plea, the authority to allow a deferred adjudication to be the punishment in this case remain[s] with the Court and I'm exercising my discretion in that regard.

The trial court accordingly entered a written order deferring adjudication of guilt and placing Rivera on six months' deferred adjudication community supervision.⁴

The State sought a writ of mandamus from the Third Court of Appeals in Austin.⁵ That court denied relief in a brief, unpublished memorandum opinion in which it simply declared that, "[h]aving reviewed the petition, the response of the real party in interest, relator's reply, and the record, we conclude that relator has not demonstrated that he is entitled to relief." In re State ex rel. Mau , No. 03-17-00588-CV, 2017 WL 5985510, at *1 (Tex. App.—Austin Dec. 1, 2017) (mem. op., not designated for publication). Relator now asks this Court to issue the writ of mandamus against the Third Court of Appeals, compelling that court to mandamus the trial court in this cause to withdraw its order deferring adjudication, enter judgment on the jury's verdict of guilty in the minutes of the court, and empanel a jury to determine Rivera's punishment.

Under these circumstances, this Court applies the two-pronged test for granting relief in mandamus proceedings: (1) whether the relator has an adequate remedy at law to address his complaint, and (2) whether what he seeks is a ministerial act, not involving discretion or judicial decision-making. In re State ex rel. Young v. Sixth Judicial Court of Appeals , 236 S.W.3d 207, 210–11 (Tex. Crim. App. 2007). A relator may satisfy the second prong by establishing that he has a clear right to the relief he seeks under law that is definite and unambiguous, and that "unquestionably applies to the indisputable facts of the case." Id. at 210.

II. ANALYSIS

A. The Trial Court's Authority to Assess Punishment

In making its second argument—that the trial court lacked authority to assess punishment after a guilty plea to a jury—the State places principal reliance upon this Court's opinion in In re State ex rel. Tharp , 393 S.W.3d 751 (Tex. Crim. App. 2013). Tharp , in contrast to this case, involved a prosecution for a felony offense. Id. at 752. As in the instant case, the defendant in Tharp changed his plea from not guilty to guilty after his jury trial had already commenced. Id. at 753. Unlike this case, in Tharp the defendant had expressly elected to have the trial court assess his punishment, even though the guilt phase of his trial was before the jury. Id. The State argued that, by changing his plea before the jury from not guilty to guilty, the defendant had converted his trial into a unitary proceeding in which, notwithstanding his pre-trial election to have the judge assess his punishment, the jury would be required to assess punishment instead. Id. The trial court disagreed with the State, and ruled that it, not the jury, would assess punishment. Id.

In the mandamus proceeding that ensued, we held that the State was plainly correct, and ordered the trial court to submit the issue of punishment to the jury. Id. at 759. The trial court in Tharp relied upon the defendant's pretrial election of judge-assessed punishment under Article 37.07 of the Code of Criminal Procedure.⁶ But we held that the controlling statute was, instead, Article 26.14, which requires that, in a felony case, when a defendant persists in pleading guilty, a jury shall...