Opinion
NO. WR-87,818-01
03-07-2018
IN RE STATE OF TEXAS EX REL. WESLEY MAU, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 16-1347 CR IN THE COUNTY COURT AT LAW NO. 2 FROM HAYS COUNTY
Per curiam. ORDER
Relator has filed a motion for leave to file an application for a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that the Judge of the County Court at Law No. 2 of Hays County violated a ministerial duty by failing to enter judgment on the verdict of the jury and submit the issue of punishment to the jury following the real party in interest's plea of guilty to the jury. Relator argues that he has no other adequate remedy at law because the State has no right of appeal under Article 44.01 of the Texas Court of Criminal Procedure.
The real party in interest, Jose Rivera entered a plea of "not guilty" to a misdemeanor charge, and elected a jury trial. During the State's presentation of evidence, Rivera changed his plea to "guilty" without an agreed sentence. The trial court instructed the jury to find Rivera guilty, then dismissed the jury and conducted a punishment hearing before the court, apparently without objection by the State. Following the punishment hearing, the trial court did not enter the judgment of conviction, but instead placed Rivera on deferred adjudication community supervision. After the trial court announced its intention and placed Rivera on deferred adjudication community supervision, the prosecutor made objections on the record, noting that upon finding of guilt by the jury, Rivera was convicted and the judgment should have been entered.
Relator filed a mandamus application in the Third Court of Appeals, which denied relief. In re the State of Texas, ex rel. Wesley Mau, No. 13-17-00588-CV (Tex. App. —Austin, December 1, 2017). Relator now seeks relief in this Court.
We order that this application be filed and set for submission to determine whether the trial court failed to perform a clear ministerial duty, and whether the State had an adequate remedy at law other than mandamus. We order the parties, Relator and the Judge of the County Court at Law No. 2 of Hays County or his representative, to brief the issues raised in Relator's Petition. We also invite the Respondent, the Third Court of Appeals, and the real party in interest to brief the issues. All briefs shall be filed with this Court within 45 days of the date of this order. Filed: March 7, 2018
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