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Ex parte Pete

Court of Criminal Appeals of Texas

April 26, 2017

EX PARTE ANDREW PETE, Appellant

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY

          Yeary, 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.

          OPINION

          Yeary, J.

         This 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.

         On 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 In an unpublished opinion, it reversed the order denying habeas corpus relief and remanded the cases to the trial court for further proceedings-presumably to retry them from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.[1] 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.

         BACKGROUND

         Trial 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.[2] 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 stand.
THE DEFENDANT: (Complies.)
[PROSECUTOR]: Judge?
[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 few minutes?
THE COURT: Yes.
THE BAILIFF: All ...

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