IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,515

STATE OF TEXAS ex. rel.

CHARLES A. ROSENTHAL, JR., DISTRICT ATTORNEY

OF HARRIS COUNTY, Relator

v.

THE HONORABLE TED POE, JUDGE 228^TH DISTRICT COURT

OF HARRIS COUNTY, Respondent

ORIGINAL MANDAMUS PROCEEDING

FROM HARRIS COUNTY

Keller, P.J., filed a dissenting opinion.

DISSENTING OPINION

To show entitlement to mandamus relief, a relator must demonstrate two things: (1) there is no other adequate legal remedy, and (2) the act sought to be compelled is purely ministerial. ⁽¹⁾ I believe that the State fails to satisfy the second requirement, and therefore is not entitled to mandamus relief.

This Court has variously characterized a "ministerial act" as one that "does not involve the exercise of any discretion" or involves "a clear right to the relief sought." ⁽²⁾ We have explained that "the relief sought must be clear and indisputable such that its merits are beyond dispute." ⁽³⁾ We have further explained that, even for pure questions of law, the ministerial act requirement is not met if the law is unsettled or uncertain:

Thus, under the ministerial act/clear legal right requirement, the law must clearly spell out the duty to be performed with such certainty that nothing is left to the exercise of discretion or judgment. Even a trial court's ruling on a pure question of law is not subject to writ review where that law was unsettled or uncertain. The act must be positively commanded and so plainly proscribed under the law as to be free from doubt. ⁽⁴⁾

We reaffirmed these comments as recently as May of last year. ⁽⁵⁾

Today, the State seeks to prevent the trial court from allowing an unmanned camera to be present in the jury room while the jury is deliberating on a death penalty case. Jury deliberations would be recorded and shown, after editing, upon a date after the conclusion of the trial. The defendant has agreed to the procedure. These circumstances present a case of first impression in this jurisdiction. Although we have found mandamus to be improper in several cases in which the issue presented was one of first impression, the denial of relief in each of those cases was based upon a finding that the law was unsettled or uncertain, not solely on the "first impression" nature of the case. ⁽⁶⁾ There are two situations in which the law is not "unsettled or uncertain" even when the case presents the judiciary with an issue of first impression. The present case is not one of those situations.

First, the ministerial act requirement is satisfied in a case of first impression if the respondent indisputably lacks jurisdiction or authority to engage in the act the relator seeks to prohibit. We confronted such a case in State v. Patrick, where the trial court ordered post-conviction DNA testing without statutory authority. ⁽⁷⁾ Because Patrick's case was already final, the trial court had jurisdiction to act only to the extent required to carry out the judgment or appellate mandate or where jurisdiction was specifically conferred by statute. ⁽⁸⁾ The trial court's order was not based upon the newly enacted post-conviction DNA statute, ⁽⁹⁾ and no application for writ of habeas corpus was pending at the time. ⁽¹⁰⁾ Consequently, there was no source of jurisdiction from which the trial court could act, and so the trial court was indisputably without jurisdiction to issue its order. ⁽¹¹⁾

Unlike Patrick, the present case involves a pending prosecution, in which the trial court has general jurisdiction. When a trial court has such general jurisdiction, it is generally given broad discretion to conduct the trial - even to the point of implementing procedures that are not specifically authorized, so long as those procedures are not expressly forbidden: "The trial court is necessarily vested with broad discretion to conduct a trial. Such discretion is necessary to allow him to deal with the infinite variety of unusual situations...which can arise in the trial context." ⁽¹²⁾ For example, absent constitutional concerns, the trial court can order testimony by closed-circuit television, even where such a procedure is not specifically authorized by statute. ⁽¹³⁾ So, although no statute specifically authorizes the recording of jury deliberations, the trial court has the authority to permit such recording absent a statute or rule to the contrary.

That conclusion leads me to the second situation in which the ministerial act requirement may be satisfied in a case of first impression: where a statute is unambiguous concerning the conduct in question. In Boykin v. State, we established the rule of statutory construction that requires that we effectuate the plain meaning of a statute's language unless the language is ambiguous or leads to absurd results that the Legislature could not possibly have intended. ⁽¹⁴⁾ Part of the justification for the rule is that "the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted." ⁽¹⁵⁾ Given our constitutional obligations to the Legislature, in an appropriate case, this Court should be prepared to enforce compliance with an unambiguous statute even though the Court has not yet had an occasion to address the matter. In the somewhat analogous situation of ineffective assistance of counsel claims, where the unsettled nature of the law will ordinarily defeat any claim that an attorney was ineffective, we have held that an attorney can be found ineffective when his failure to properly advise his client involves a statutory provision with clear language, even though the case is one of first impression. ⁽¹⁶⁾

Article 36.22 of the Texas Code of Criminal Procedure provides, in relevant part: "No person shall be permitted to be with a jury while it is deliberating." ⁽¹⁷⁾ I believe that this statutory language does not unambiguously answer the question of whether the camera should be considered a "person" for purposes of the statute. It is not clear to me from the statutory language whether persons who later view the recorded deliberations can fairly be said to be "with" the jury at the time the jury deliberates, such that the statute may be said to prohibit the procedure proposed here. To hold that the statute proscribes the use of cameras proposed here, a court would have to look beyond the statutory language and construe the statute with the aid of extratextual factors, including the legislative history, the purpose of the statute, and the consequences of a particular construction. ⁽¹⁸⁾

I have serious doubts about whether extratextual sources can show a clear and indisputable right to relief. It may simply be impossible for the meaning of a statute with ambiguous language to be beyond dispute, however clear the extratextual factors may seem to be. The ambiguity of the statutory language would seem to create at least some doubt about the proper interpretation, and any such doubt defeats the ministerial act requirement for mandamus.

But even if one assumes that extratextual factors might, in an appropriate situation, render a statute's meaning beyond dispute, they do not do so here. Even if we were to assume arguendo that we would ultimately reject Respondent's arguments and find the State's arguments more persuasive, that is not the same as rendering an issue indisputable, free from all doubt. ⁽¹⁹⁾

I respectfully dissent.

KELLER, P.J.

Date filed: February 11, 2003

Publish

1. Banales v. Court of Appeals for the Thirteenth District, S.W.2d , , 2002 Tex. Crim. LEXIS 108, *3 (May 22, 2002).

2. State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.2d 924, 927 (Tex. Crim. App. 2001).

3. Id. at 927-928 (internal quotation marks omitted).

4. Id. at 928 (citations, ellipses, brackets, and quotation marks omitted).

5. Banales, 2002 Tex. Crim. LEXIS at *4.

6. Banales, 2002 Tex. Crim. LEXIS at *4-*5; State ex rel. Hill v. Court of Appeals for the Fifth District, 67 S.W.3d 177, 181 (Tex. Crim. App. 2001); Hill, 34 S.W.3d at 928.

7. 86 S.W.3d 592 (Tex. Crim. App. 2002).

8. Id. at 594.

9. TEX. CODE CRIM. PROC., Art. 64.01, et seq.

10. Patrick, 86 S.W.3d at 594-595.

11. Id.

12. Sapata v. State, 574 S.W.2d 770, 771 (Tex. Crim. App. 1978); see also Wheatfall v. State, 882 S.W.2d 829, 838 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1086 (1995).

13. Marx v. State, 987 S.W.2d 577, 582-583 (Tex. Crim. App.), cert. denied, 528 U.S. 1034 (1999).

14. 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

15. Id.

16. Welch v. State, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998).

17. TEX. CODE CRIM. PROC., Art. 36.22.

18. See Brown v. State, 943 S.W.2d 35, 37-38 (Tex. Crim. App. 1997); Tex. Gov't. Code, § 311.023.

19. Relying upon standing concepts associated with errors under Batson v. Kentucky, 476 U.S. 79 (1986), the State also contends that it is entitled to assert the rights of jurors who were excused because the camera would affect their deliberations. But error is forfeited by the failure to object. Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002); see also Cockrell v. State, 933 S.W.2d 73, 94 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)(Batson error forfeited by failure to object). Here, the State waived the error by agreeing to the excusal of the jurors in question.