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In re State ex rel. Ogg

State of Texas in the Fourteenth Court of Appeals
Mar 16, 2021
631 S.W.3d 384 (Tex. App. 2021)

Opinion

NO. 14-20-00809-CR NO. 14-20-00810-CR

03-16-2021

IN RE the STATE of Texas EX REL. Kim OGG, Harris County District Attorney, Relator

Kim K. Ogg, Houston, John Crump, Chadwick Scott, for Relator. Nicholas Mensch, for Real party in interest.


Kim K. Ogg, Houston, John Crump, Chadwick Scott, for Relator.

Nicholas Mensch, for Real party in interest.

Panel consists of Justices Jewell, Poissant, and Wilson.

MEMORANDUM OPINION

PER CURIAM

On December 7, 2020, relator the State of Texas ex rel. Kim Ogg, Harris County District Attorney, filed a petition for writ of mandamus and a petition for writ of prohibition in this court. See Tex. Gov't Code Ann. § 22.221 ; see also Tex. R. App. P. 52. In the petition for writ of mandamus, relator asks this Court to compel the Honorable Franklin Bynum, presiding judge of the County Criminal Court at Law No. 8 of Harris County, to vacate his November 30, 2020 order setting the underlying case for a nonjury trial without the State's consent. The State also filed a petition for writ of prohibition seeking to prevent Judge Bynum from conducting a nonjury trial in the underlying case.

The State argues that the trial court has no discretion to act as a factfinder when the State has not consented to the defendant's waiver of a jury trial. The Texas Court of Criminal Appeals agrees and recently held that the COVID-19 Emergency Orders did not authorize the trial court to proceed to a bench trial without the State's consent or waiver to a jury trial. See In re State ex rel. Ogg , No. WR-91,936-01, 618 S.W.3d 361, 365–66 (Tex. Crim. App. Mar. 3, 2021).

Accordingly, we grant the State's petition for writ of mandamus and direct the trial court to vacate its November 30, 2020 order setting the underlying case for a nonjury trial. We are confident the trial court will act in accordance with this opinion. The State's petition for writ of prohibition is dismissed as moot. We lift our stay entered on December 8, 2020.


Summaries of

In re State ex rel. Ogg

State of Texas in the Fourteenth Court of Appeals
Mar 16, 2021
631 S.W.3d 384 (Tex. App. 2021)
Case details for

In re State ex rel. Ogg

Case Details

Full title:IN RE THE STATE OF TEXAS EX REL. KIM OGG, HARRIS COUNTY DISTRICT ATTORNEY…

Court:State of Texas in the Fourteenth Court of Appeals

Date published: Mar 16, 2021

Citations

631 S.W.3d 384 (Tex. App. 2021)