Via Liberty and Justice for Y’all, In Re Escamilla (PDF), in which the Travis County Attorney (Escamilla, who is the elected official responsible for prosecuting misdemeanor cases in that county) filed a mandamus against a judge for allowing a defendant to plead open (that is, without an agreed recommendation) to the judge without the state’s consent.
The Austin Court of Appeals granted mandamus (conditionally) because the Texas Code of Criminal Procedure doesn’t allow a defendant to waive a jury trial without the state’s consent. That’s black-letter law, and not the interesting thing about the case.
The judge sentenced the defendant to thirty days in jail on each case (four counts of possession of marihuana, one count of possession of a controlled substance, and one count of bail jumping). There’s no intimation in the opinion that these were illegal sentences.
If the parties had tried the case to a jury, the judge could have set punishment. In fact, judge-assessed punishment is the default condition; when a jury is to decide guilt the defendant can elect before trial for the jury to decide punishment instead of the judge. There is an abstruse argument that when the defendant pleads guilty to the jury the jury must set punishment, but this argument only becomes interesting when the judge will give deferred-adjudication probation but the prosecutor objects.
The interesting thing about the case is that the judge could have set the same punishment if he had followed the correct procedure: pick a jury, have the state put on evidence, let the jury find the defendant guilty, then set punishment at thirty days in jail on each case, concurrent. If the state still won’t waive a jury, that’s one of the possible outcomes on remand. The same result, but the state can’t appeal it.
Or the judge could decide, after hearing the evidence, that the state hadn’t proven its case and direct a verdict of acquittal. The state can’t appeal that either.
So what did the state gain by filing this mandamus (to which the defendant’s lawyer didn’t even bother replying)?
Why would they insist on taking the time first of the court of appeals and then wasting a jury’s time to get to the same legal result? Would not doing so have set some sort of precedent that might have led to illegal results?
Help me out.
four counts of possession of marihuana, one count of possession of a controlled substance, and one count of bail jumping