in Re: Jonathan Taylor ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00097-CV ______________________________





IN RE: JONATHAN TAYLOR

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Original Mandamus Proceeding

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION

Jonathan Taylor petitions this Court for a writ of mandamus and seeks an emergency stay ⁽¹⁾ of the bench trial set for this Thursday, July 26, 2007. The petition asks us to order the trial judge to accept Taylor's withdrawal of his waiver of trial by jury.

Procedural Posture

The underlying case is intoxication manslaughter and manslaughter stemming from an incident in August 2005 and indictment in April 2006. A pre-guilty-plea jury trial waiver was signed June 20, 2007, in anticipation of the entry of a guilty plea on July 6, but no plea was entered. Taylor then decided to enter a plea of not guilty on July 6 and sought to withdraw his waiver of trial by jury. The trial court set a hearing for July 16 on the motion to withdraw the waiver and set a bench trial for July 26. On July 16, the trial court denied Taylor's motion to withdraw the jury waiver.

Standard of Review

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). We must initially determine whether the relator has another adequate remedy at law, such as a normal appeal; such a remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842.

To establish entitlement to mandamus relief, the relator must show that there is no adequate remedy at law to redress the alleged harm and that the act to be compelled must be purely ministerial. Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex. Crim. App. 1995); Alvarez v. Eighth Court of Appeals, 977 S.W.2d 590, 592 (Tex. Crim. App. 1998). An act is ministerial "where the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment." Tex. Dep't of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981) (orig. proceeding).

Withdrawal of Jury Waiver

"When an accused validly waives trial by jury, a subsequent request by the accused to withdraw the jury waiver is addressed to the discretion of the trial court." Marquez v. State, 921 S.W.2d 217, 221 (Tex. Crim. App. 1996). The court should permit a defendant's withdrawal of a prior jury waiver if the defendant "establishes on the record that his request to do so is made sufficiently in advance of trial such that granting his request will not: (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the State." Id. at 223. "If the defendant's claims are rebutted by the State, by the trial court, or by the record itself, the trial court does not abuse his discretion in refusing to allow withdrawal of the waiver." Id. Indeed, should the defendant establish in the record the lack of adverse consequences, as set forth in Marquez, to the withdrawal of his or her waiver, then the "[d]enial of a criminal defendant's constitutionally guaranteed right to a jury trial is structural constitutional error and, therefore, reversible without a harm analysis." Green v. State, 36 S.W.3d 211, 216 (Tex. App.--Houston [14th Dist.] 2001, no pet.).

Nonetheless, the wealth of cases assessing the denial of a jury waiver withdrawal have all been decided on direct appeal. ⁽²⁾ Because a court, on direct appeal, may reverse a conviction and remand on a court's error in denying an attempt to withdraw a waiver of trial by jury, there is an adequate remedy at law. As such, mandamus does not lie.

We deny the petition for writ of mandamus, and the motion for emergency stay is overruled.  

   Jack Carter

Justice

Date Submitted: July 24, 2007

Date Decided: July 24, 2007

1. See Tex. R. App. P. 52.10(b)

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2. See,  e.g.,  Marquez,  921  S.W.2d  at  223;  Green,  36  S.W.3d  at  215-16;  Sigarst  v. State, No. 09-06-00212-CR, 2007 WL 764711 (Tex. App.--Beaumont Mar. 14, 2007, pet. filed) (mem. op.); In re J.I.C., No. 08-02-00239-CV, 2004 WL 596217 (Tex. App.--El Paso Mar. 26, 2004, no pet.) (juvenile direct appeal); Terrell v. State, No. 05-01-01412-CR, 2002 WL 1478617 (Tex. App.--Dallas July 11, 2002, no pet.); Bensley v. State, No. 05-98-01783-CR, 2000 WL 726687 (Tex. App.--Dallas June 7, 2000, no pet.); Ramos v. State, No. 03-97-00485-CR, 1998 WL 830512 (Tex. App.--Austin Dec. 3, 1998, pet. ref'd).

tten, informed the defendant of the charge against him or her sufficiently to allow him or her to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted information would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248 (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).

There is considerable evidence Millage was not surprised or prejudiced by the variance. The State provided Millage with full access to its file and the police reports. The manner and means description in the information notified Millage the State was alleging that, on a specified date, he committed the offense of deadly conduct by reckless conduct that placed Tony and Marilyn Elmi in imminent danger of serious bodily injury by running someone off the road with a motor vehicle. Furthermore, evidence indicates Millage knew the State intended to prove he ran the Elmis off the road. Witson testified Millage told him he had been arrested for "running or chasing down a four-wheeler . . . ." Millage prepared an adequate defense to the conduct proved. Millage presented evidence he did not run the Elmis off the road, but rather pulled over and allowed them to pass. Millage also presented evidence of a motive for the Elmis to lie, including the dispute over the chain gate. The record indicates Millage was not surprised by the variance and had sufficient notice in order to adequately prepare for trial.

Millage also contends the variance would subject him to additional prosecutions for the same crime. Any subsequent prosecution would involve the same offense with the same statutory elements and involve the same set of facts arising out of the same incident on the same date. The variance in this case would not subject Millage to the risk of a later prosecution for the same crime. While we note that variances in manner and means may provide insufficient notice in some situations, the variance at issue in this case is immaterial because Millage did not prove prejudice to his substantial rights.

The Texas Court of Criminal Appeals has held that evidence sufficiency should be measured against a "hypothetically correct" jury charge. See Gollihar, 46 S.W.3d at 253; Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The jury charge in this case did not include the immaterial variance in question. However, Malik controls "even in the absence of alleged jury charge error." Gollihar, 46 S.W.3d at 255. A "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.2d at 240. In Curry, the Texas Court of Criminal Appeals held that the "'law' as 'authorized by the indictment' must be the statutory elements" of the offense charged "as modified by the charging instrument." Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). The "hypothetically correct" jury charge cannot "wholly re-write the indictment," but is not required to "track exactly all of the allegations in the indictment." Gollihar, 46 S.W.3d at 253. If the essential elements of the offense are modified by the indictment, the modification must be included. Id. at 254. However, the hypothetically correct charge "need not incorporate allegations that give rise to immaterial variances." Id. at 256. The variance at issue is not a material variance and does not modify the essential elements of the offense of deadly conduct. Therefore, since the variance at issue is immaterial, it does not need to be included in the "hypothetically correct" jury charge.

Millage cites Planter v. State, 9 S.W.3d 156 (Tex. Crim. App. 2000), for the proposition that the variance at issue requires a reversal. Planter involved an indictment that alleged the defendant attempted to induce Lex Baquer to kill Bob Frata. Id. at 157. However, the defendant attempted to induce Baquer to pay the defendant to kill Frata. Id. The Texas Court of Criminal Appeals held that the variance resulted in the defendant being convicted based on proof of an offense for which he was never charged. Id. at 159. The Texas Court of Criminal Appeals based its decision on the fact the variance resulted in a different statutory offense being proven than the offense alleged in the indictment. Id. However, Planter is distinguishable from the facts in this case. The information alleged Millage committed the offense of deadly conduct, and the evidence at trial proved the offense of deadly conduct. The variance in this case did not result in a different offense being proven than alleged in the information. The essential elements of deadly conduct were unaffected by the variance.

When viewed in the light most favorable to the prosecution and measured against the "hypothetically correct" jury charge, sufficient evidence exists for a rational juror to have found Millage guilty beyond a reasonable doubt. Credibility of the witnesses is within the sole province of the jury. Jones, 944 S.W.2d at 648-49. The jury is entitled to believe the Elmis' version of the facts over Millage and Witson. Further, when viewed in a neutral light and measured against the "hypothetically correct" jury charge, we cannot say the verdict was against the great weight and preponderance of the evidence. While there is evidence supporting Millage's version of the facts, the great weight of the evidence does not indicate the result was clearly wrong. Therefore, legally and factually sufficient evidence exists to support the jury's verdict.

We affirm the judgment of the trial court.

   Jack Carter

Justice

Date Submitted: October 7, 2003

Date Decided: October 8, 2003

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