STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH
COURT OF APPEALS DALLAS COUNTY
J., delivered the opinion of the Court in which Keller, P.J.,
and Hervey, Alcala, Richardson, Newell and Keel, JJ., joined.
Keasler, J., concurred in the result. Walker, J., dissented.
case involves an appeal from a district court judge's
denial of relief in a pre-trial application for writ of
habeas corpus. Appellant was under indictment for three
charges of aggravated sexual assault of a child, and, in a
consolidated trial, a jury had found him guilty of those
offenses. Having elected to go to the jury for punishment,
Appellant chose to testify at that stage of trial. When he
stood to approach the witness stand, it became apparent to
the jury that he was shackled. Appellant asked for a
mistrial, and the trial court took that request under
advisement, meanwhile allowing the punishment proceedings to
continue. After Appellant had testified on
direct-examination, and following brief cross-examination by
the State, the trial court interrupted the proceedings to
announce that it had decided to grant a mistrial-but only as
to the punishment phase of trial. Before the trial court was
able to empanel a new jury to assess punishment, however,
Appellant filed a combined application for writ of habeas
corpus and motion to reinstate his pre-trial bond. He argued
that, by granting a mistrial, the trial court had necessarily
restored the cases to their pre-trial status, and that he
should therefore be released on bond pending trial. The trial
court denied both the writ application and the motion.
appeal from denial of the writ application, the court of
appeals sustained Appellant's claim. In an unpublished
opinion, it reversed the order denying habeas corpus relief
and remanded the cases to the trial court for further
proceedings-presumably to retry them from scratch, including
a new guilt phase of trial. The court of appeals reasoned
that, "[w]hen a mistrial is declared, the proceedings
before the granting of the mistrial become legally
ineffective, and the case stands as it did before the
mistrial was declared." Ex parte Pete, Nos.
05-15-01521-CR, 05-01522-CR, & 05-15-01523-CR, 2016 WL
3344224, at *2 (Tex. App.-Dallas 2016) (memo. op., not
designated for publication). For this proposition, the court
of appeals ultimately relied upon this Court's opinion in
Bullard v. State, 168 Tex. Crim. R. 627, 331 S.W.2d
222, 223 (1960), a case that was decided at a time before
criminal prosecutions in Texas were bifurcated. Id. We
granted the State's petition for discretionary review to
address the question whether, under our present bifurcated
system, when irremediable error or misconduct occurs during a
jury trial, but not until the punishment phase, trial courts
should have the authority to grant a mistrial as to the
punishment phase of trial only.
was consolidated on three indictments, charging Appellant
with aggravated sexual assault on three different dates
against the same victim. A jury found Appellant guilty on all
three charges. Apparently, Appellant attempted to elect to
have the jury assess his punishment. At the conclusion of the
State's case-in-chief at the punishment phase, Appellant
presented several witnesses, and then rose to take the stand
to testify in his own behalf:
THE COURT: Okay, Mr. Pete, come on up here to the witness
THE DEFENDANT: (Complies.)
[DEFENSE COUNSEL]: Judge, I forgot that --
THE COURT: Okay. Just -- you can testify from right here.
[DEFENSE COUNSEL]: Can we instruct the jury to disregard
that, I guess?
[PROSECUTOR]: Can we ask that the jury please step out for a
THE COURT: Yes.
THE BAILIFF: All ...