in Re the State of Texas Ex Rel, Kim Ogg, Harris County District Attorney

Petition for Writ of Mandamus Conditionally Granted, Petition for Writ of
Prohibition Dismissed, and Memorandum Opinion filed March 16, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00874-CR
NO. 14-20-00875-CR
IN RE THE STATE OF TEXAS EX REL, KIM OGG, HARRIS COUNTY
DISTRICT ATTORNEY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
WRIT OF PROHIBITION
County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Cause Nos. 2269615
MEMORANDUM OPINION
On December 31, 2020, relator the State of Texas ex rel. Kim Ogg, Harris
County District Attorney, filed a petition for writ of mandamus and 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, the State asks this court to compel
the Honorable Andrew Wright, presiding judge of County Criminal Court at Law
No. 7 of Harris County, to set aside his December 9, 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 Wright from conducting a
nonjury trial in the underlying case.
The State argues that the trial court has no discretion to act as factfinder where
the State has not consented to the defendant’s waiver to a jury trial. The Texas Court
of Criminal Appeals agreed 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, 2021 WL
800761, at *4 (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 December 9, 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 January 4, 2021.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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