Appeal from the 434th Judicial District Court Fort Bend
County, Texas Trial Court Cause No. 11-DCR-056797A
consists of Justices Christopher, Jamison, and Wise.
twelve jurors and an alternate were empanelled and sworn, and
jeopardy attached, the trial court recessed the trial. The
court attempted to recall the jurors four months later with
less than one day's notice. It appeared that two of the
jurors had moved out of the county, and only five jurors
actually showed up. The trial court declared a mistrial over
appellant's objection. In this appeal from a denial of
his application for a writ of habeas corpus, appellant
contends that his retrial is barred by double jeopardy.
that the State has failed to meet its heavy burden of
demonstrating that the mistrial was a manifest necessity. The
record does not reveal that it was simply impossible to
continue with trial and that the trial court entertained
every reasonable alternative to a mistrial. Thus,
appellant's second prosecution for the same offense is
barred by double jeopardy.
Recess for a Competency Evaluation
jury in the trial was empaneled and sworn in September 2015.
The trial court held a hearing on appellant's motion to
suppress his confession outside the jury's presence.
Appellant urged that his confession to stealing drugs from a
CVS pharmacy was involuntary because he was having
"flashbacks" to when he had been twice committed to
a mental institution in 2005.
ruling on the motion, the trial court acknowledged reports
stating that appellant had been found competent to stand
trial in 2013, incompetent to stand trial in February 2015,
and then "not meeting the criteria for inpatient or
outpatient commitment" in June 2015. The court took
these reports into account for its findings on the motion to
suppress. The court denied in part and granted in part the
motion to suppress and then recessed for lunch.
lunch, because the court had one competency evaluation saying
that appellant was incompetent and one saying that appellant
was competent, the court said that it sounded like there was
a competency trial issue. See generally Tex. Code
Crim. Proc. ch. 46B. The court remarked that no one had
included the court in the discussion of competency. The court
said, "Well I think we all had lots of things going and
we just didn't get that done. It's not a matter of
blame, there's nobody being harpooned here." The
court suggested to the parties that there needed to be a
competency trial because the court was "not ready to
concede that there is a competent individual that we're
deciding how the court would proceed on the competency issue,
the court expressed its inclination to release the jury:
"Now, first of all, I'm not really, at this point of
a mind to keep this jury either. . . . So my inclination
would be to release the jury." The State expressed
concern that jeopardy had attached. The court responded,
"They have been impaneled because they were sworn in,
that's the trigger point. But this is not-this is not an
error by the State or an error by the Defense." The
State asked whether the court would be taking a recess and
keeping the jury for a later date or releasing them. The
court said it was inclined to release the jury. The State
raised the possibility of a mistrial: "Perhaps there
will be a mistrial at this point to retry the
the court and parties had an off-the-record discussion, the
State explained that it had consulted with its appellate
division. The State asked the trial court, instead of
granting a mistrial, to inquire of the jurors whether they
could come back for trial after a recess. The State said,
"If they say they cannot, then at that point, we would
ask the Court-well, the Court would declare a
court then brought in the jury and told the jury that there
was a legal procedure that needed to happen before the trial
could resume, which could take as long as thirty days. The
court told the jury that the trial would probably take a day
and a half at most. The court asked, "Is there anyone
who could not come back if we gave you, say, seven days'
notice and be here for one or one and a half days?"
juror said he might have travel plans for work. Three other
jurors had travel plans in September or October. One juror
said he would be starting a new job in Vancouver, Washington,
on October 1.
the jury's presence, defense counsel acknowledged that
they could not expect the juror who was moving out of state
to serve on the jury. But, counsel noted that they still had
an alternate. The court said it would "leave them on
call because we do have an alternate." The court
expressed its concerns and the possibility of a mistrial:
I-from a practical standpoint, I think we're going to
have more problems by the time we call them back than even
were enunciated yet. But I'm willing to do that in order
to make certain we don't give away our jury too quickly.
I can always do the mistrial based upon things that occur
after today, but at least we have inquired today.
was set to resume on December 15, but the trial court granted
appellant's request for a continuance to January 26,
2016, so appellant could obtain medical records from his
January 26, the trial court told the parties that two of the
jurors moved out of the county, and therefore could not
qualify as jurors, so the court would be releasing the jury:
THE COURT: [The State], come up; [Defense Counsel]. We
have-we've lost our jury. Two of the people in the jury
have moved out of the county; no longer live here. So they
can't qualify as jurors.
DEFENSE: Is a mistrial being declared, Your Honor?
THE COURT: No. We'll pick another jury.
DEFENSE: I want-I want the same jury back. I'm just doing
THE COURT: Your request to have the same jury back is
overruled because I can't reconstruct a jury. It's
not the fault of anyone involved in this proceeding. So it
does not go against the prosecution. You don't get a free
ride out of it.
We're going to have another jury trial with a different
jury. We even talked about this at the time that we-that we
decided to wait and continue the case, and we
recognized-everyone recognized that there was some risk
Anytime you have a jury, it's a dynamic situation. Some
of them moved. And there's just things that nobody could
have anything-we called them all. And some of them are
outside waiting in the hall. I'm going to call them in
and I'm going to release them. You have on the record
your complaint about that.
DEFENSE: Yes, sir, Your Honor.
THE COURT: For whatever appellate purpose you think it might
achieve, you have it. And I don't want to hear anything
about it because we're done with that.
THE COURT: Are y'all ready to go to trial today?
State announced ready but said it needed to "flush out
State asked the court how many jurors were left given that
there was an alternate. The court said there were eleven. The
State then asked defense counsel if he wanted twelve jurors:
THE STATE: Okay. I want to clarify with Defense counsel. You
want to go with twelve, not with eleven; is that correct?
THE STATE: You wanted a full twelve; is that correct?
DEFENSE: That's correct.
bailiff announced that only four jurors were outside. Defense
counsel asked the court when the jurors were contacted:
DEFENSE: And, Your Honor, just so that we can have it on the
record, when were they contacted?
THE COURT: Yesterday afternoon.
THE COURT: Or yesterday, sometime. I'm not sure if it was
morning or afternoon. They called everybody on the list. They
talked to everybody, and then reported back to me that we
just couldn't get them together.
So, we'll just have to pick a new jury. I'll have a
panel come up this morning. We'll start the selection
process. We'll have a jury and get this thing done.
State asked for more time to look up the law about whether
there was a less drastic alternative to a mistrial. The trial
court and the State discussed whether Article 36.29 of the
Code of Criminal Procedure could require trial with eleven
jurors and whether a juror would be disabled if not
qualified. And the trial court concluded that it
could not "keep hold of" an out-of-county juror:
THE COURT: The problem is that when somebody moves out of the
county, you lose your ability to keep hold of them. You
can't get them in here to serve.
THE STATE: You can't attach them to come here because
they're not here anymore.
THE COURT: Right. So, you know, is that a disability? I
don't know if it's a disability. Certainly,
they've become unable to serve.
trial court then asked defense counsel if he would be willing
to go to trial with the four jurors who showed up. When
defense counsel declined, the court formally declared a
THE COURT: So, I'm going to declare a mistrial with that
jury. Since we have-the clerk's office has called and
made every effort to try to get everyone here.
It has been quite a-it seems like we stopped this in order to
get a competency evaluation or something of that nature.
DEFENSE: Yes, Your Honor.
THE COURT: And that was a request by the Defense,
which I thought was appropriate for us to go ahead and do.
But in doing it, we ran a risk that we would have a problem
getting a jury back together and that's exactly what
We've ended up with a horrific run where we have lost a
couple of jurors who moved out of the county. We've got
people who are no longer able to be ...