Defendant sets DWI case for a trial to the court, but does not file a jury waiver prior to the court date. When the court asks for announcements of ready for trial, State announces not ready and informs court that State will not approve jury waiver. Court "denies the State's request for a jury trial" and orders the prosecutor to read the information. Rather than be jailed for contempt, the prosecutor reads the information under protest and states that we have no witnesses available to call. The defense attorney calls the bailiff as a witness, asks him if he knows anything about the case, which bailiff denies, and then rests (I'm not sure why he thinks he had to do this, but I guess he felt like a witness needed to be called to invoke jeopardy or something). The judge, of course, finds the defendant not guilty and enters a judgment of acquittal.
Can we appeal from this? If the court refuses a stay to seek mandamus, how can we prevent this from happening if we cannot appeal.
Posts: 622 | Location: San Marcos | Registered: November 13, 2003
Hey Wes -- just saw your post -- The Lewellen case David cited is great. Here's a couple others. State ex rel. Turner v. McDonald, 767 SW2d 371, 373-74 (TCA 1984) -- "if a prosecutor believes that it is essential to the interest of doing justice that a particular accused be tried by a fair and impartial jury of his peers, our Legislature has provided the means for vindicating that interest, and we hold that nothing in our constitution is contravened thereby." Also, XP George, 913 SW2d 523 (TCA 1995) (judge has no discretion to act as factfinder).
Good luck -- tell us what happens!
Posts: 62 | Location: Fort Worth, TX | Registered: November 02, 2001
Wes: the law is clear that the state has the right to a jury trial. If the judge, after being educated, still refuses to honor it, and if you really want to light a fire, why not a complaint to the judicial conduct commission? I just feel that prosecutors need to aggressively protect this important right...
