Opinion
No. 05-08-00103-CV
Opinion issued February 15, 2008.
Original Proceeding from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause Nos. F03-01315-X, F03-41547-X, F03-15187-X.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Real party in interest Thomas James Davis is charged in three separate indictments with two indecency of a child offenses and one aggravated sexual assault offense. When the cases were called for trial on January 15, 2008, an assistant district attorney announced ready on all three cases, but said the State wished to hold the aggravated sexual assault case for separate trial. The judge denied the request and, on January 18, 2008, signed a written order requiring that the three cases be consolidated for trial in a single criminal proceeding. Relator filed this petition for writ of mandamus challenging the January 18, 2008 order. We conditionally grant relator's petition for writ of mandamus.
Standard of Review
To establish the right to mandamus relief, relator must show: (1) there is no adequate remedy at law to address the alleged harm; and (2) the act he seeks to compel is ministerial and not one involving a discretionary or judicial decision. In re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007); State ex rel. Hill v. Court of Appeals for Fifth Dist. 34 S.W.3d 924, 927 (Tex.Crim.App. 2001).
Adequate Remedy at Law
Both real party and the respondent argue relator has an adequate remedy at law because relator could have dismissed the aggravated sexual assault case or moved for a continuance of that case. Relator responds that those options are not adequate remedies. We agree with relator.
The consolidation order is not the type of order the State may challenge by interlocutory appeal. See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2007) (setting forth when State may appeal). Moreover, the options of dismissing the aggravated sexual assault case and seeking reindictment or moving for a continuance, while available, are uncertain at best. While a remedy at law may technically exist, "`it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.'" Greenwell v. The Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648-49 (Tex.Crim.App. 2005) (quoting Smith v. Flack, 728 S.W.2d 784, 792 (Tex.Crim.App. 1987)). We conclude relator had no adequate remedy at law to address the trial court's consolidation order.
Ministerial Duty/ Clear and Indisputable Right to Relief
To be ministerial, the act must be "`positively commanded and so plainly prescribed' under the law `as to be free from doubt.'" State ex rel. Hill, 34 S.W.3d at 928; see also In re State ex rel. Young, 236 S.W.3d at 210 (relator satisfies requirement of ministerial act if he shows clear right to relief in that facts and circumstances dictate only one rational decision under unequivocal, well-settled law). If the law is uncertain or unsettled on an issue, the trial court's ruling is not subject to mandamus review. See State ex rel. Hill, 34 S.W.3d at 928.
Section 3.02 of the Texas Penal Code provides that "[a] defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode." Tex. Pen. Code Ann. § 3.02(a) (Vernon 2003). The decision to consolidate prosecutions is not within the discretion of the trial court. Guia v. State, 723 S.W.2d 763, 768 (Tex.App.-Dallas 1986, pet. ref'd); see also Mock v. State, 848 S.W.2d 215, 219 (Tex.App.-El Paso 1992, pet. ref'd). Rather, the decision to consolidate or not consolidate cases for trial belongs to the District Attorney, subject only to an objection and motion to sever filed by the defendant. See Tex. Pen. Code Ann. §§ 3.02, 3.04 (Vernon 2003 Supp. 2007); Mock, 848 S.W.2d at 219; cf. Nelson v. State, 864 S.W.2d 496, 498 (Tex.Crim.App. 1993) (section 3.02 does not give defendant right to have two or more offenses consolidated for trial).
Although we do not reject the argument of the respondent and real party that a trial judge has the right to control the court's docket, we conclude the judge violated a ministerial duty in ordering relator to consolidate the three cases herein for trial.
Having concluded the trial judge violated a ministerial duty in ordering the consolidation of the cases for trial and that relator has no adequate remedy at law, we CONDITIONALLY GRANT relator's petition for writ of mandamus. We DIRECT the trial judge to vacate the January 18, 2008 consolidation order. We further DIRECT the trial judge to file, within thirty days of the date of this order, a certified copy of the order showing compliance with this Court's order. The writ of mandamus will issue only if the trial judge fails to do so.