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Traylor v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 3, 2017

PETER ANTHONY TRAYLOR, Appellant,
v.
THE STATE OF TEXAS, Appellee.

         On appeal from the 366th District Court of Collin County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Benavides.

          OPINION

          ROGELIO VALDEZ Chief Justice.

         We issued our original opinion in this cause on May 25, 2017. The State filed a motion for rehearing. After due consideration, and within our plenary power, we sua sponte withdraw our previous opinion and judgment and substitute the following opinion and accompanying judgment in their place. See Tex. R. App. P. 19.1(b). The State's motion for rehearing is denied.

         A jury found appellant Peter Anthony Traylor guilty of first-degree burglary of a habitation, and the trial court sentenced him to twenty years in prison. See Tex. Penal Code Ann. § 30.02 (West, Westlaw through Ch. 49, 2017 R.S.). By two issues, Traylor contends that his conviction violates two amendments to the United States Constitution: (1) the Sixth Amendment's speedy-trial clause, see U.S. Const. amend. VI; and (2) the Fifth Amendment's double jeopardy clause, see U.S. Const. amend. V. We reverse and render and remand.

         I. Background[1]

         We separate the chronological facts pertinent to Traylor's appellate issues into the following three categories: (1) procedural history leading up to Traylor's first trial; (2) Traylor's first trial; and (3) Traylor's second trial and conviction.

         A. Procedural History Leading Up to Traylor's First Trial

         On September 14, 2010, Traylor was arrested for burglary of a habitation. Three months later, the State charged him with first-degree burglary of a habitation, alleging that, on or about July 9, 2010, Traylor "intentionally and knowingly enter[ed] a habitation, without the effective consent of [his ex-mother-in-law], the owner thereof, and attempted to commit and committed aggravated assault against [her]."

         For fourteen months, Traylor awaited trial in custody. During this fourteen-month period, Traylor: (1) filed several pro se motions requesting that his case be "dismissed" on speedy trial grounds; (2) filed a civil lawsuit in federal court against his attorney for violating his right to a speedy trial, among other things; and (3) filed a motion requesting that his case be set for a "hearing" at the beginning of his thirteenth month in custody.

         While Traylor remained in custody making these filings, his appointed counsel filed: (1) a motion for the appointment of a private investigator, stating that "there are a number of witnesses who must be sought out and interviewed, [which] can only be done properly and effectively through the use of a private investigator;" (2) a motion requesting notice of the State's intent to offer evidence of an extraneous offense under Texas Rule of Evidence 404(b); and (3) a motion requesting discovery of the State's evidence.

         On the thirteenth month of Traylor's pretrial incarceration, Traylor's appointed attorney filed a motion to withdraw from the case after Traylor accused him of professional misconduct. The trial court granted counsel's motion to withdraw. Later that month, the trial court appointed new counsel for Traylor who filed a motion entitled, "Reservation of Speedy Trial Rights" on his behalf. This motion, in relevant part, stated that:

[Traylor] has frequently, consistently, and cogently filed written requests/demands for a speedy trial.
While reserving his rights to a speedy trial and without waiving them in any fashion, [Traylor] recognizes the equally important right to effective assistance of counsel secured by the Sixth Amendment of the United States Constitution and agrees to the continuance of his trial presently set [in the coming month] until sometime agreed upon by the parties and approved by the Court. In addition to the legitimate need of new counsel to conduct his own investigation into the facts surrounding this case, [Traylor] further understands that his new counsel has trials set in other felony courts [in the coming month, ] including a "set to go" Murder case[.]
WHEREFORE, PREMISES CONSIDERED, [Traylor] prays the Court acknowledge this Reservation of Speedy Trial, remain responsive to [his] desire for a speedy trial, [and] continue this cause to a time when undersigned counsel can be ready for an effective trial.

         In response to this motion, the trial court granted Traylor a seven-month continuance. In addition to continuing the case, the trial court released Traylor from custody on a personal recognizance bond pending trial.

         Six months after being released on bond, and one month before the scheduled trial date, Traylor requested another continuance in order "to properly prepare his case for trial." The trial court granted Traylor's request and continued the case for an additional five months. Traylor requested no more continuances, and he was tried for the first time at the expiration of the five-month continuance.

         B. Traylor's First Trial

         At the close of the evidence on Traylor's first trial, the trial court submitted its charge to the jury. The jury charge instructed the jury to first consider whether the State proved Traylor's guilt beyond a reasonable doubt with respect to first-degree burglary of a habitation as alleged in the indictment. The trial court further instructed the jury that, "if you have a reasonable doubt [regarding Traylor's guilt for that offense] . . ., you will next consider whether he is guilty of the lesser-included-offense of" second-degree burglary of a habitation. The only difference between the two offenses was that the jury did not have to find that Traylor used a deadly weapon in order to convict him of second-degree burglary. After receiving the jury charge, the jury retired to deliberate.

         During the first three hours of deliberation, the trial court responded to several routine notes sent by the jury foreperson concerning certain evidence admitted at trial. However, by the fourth hour of deliberation, the jury reported that it was deadlocked. In a follow-up note to the trial court, the foreperson indicated that, although the jury unanimously agreed that Traylor was "not guilty" of the first-degree burglary, they were split seven/five favoring "not guilty" on the lesser-included offense of second-degree burglary. In response to the jury note, the trial court sent the jury back to continue deliberating.

         After approximately three hours of additional deliberation, the foreperson delivered another note to the trial court, in which the foreperson indicated that the jury was now split eight/four favoring "not guilty." The foreperson's note further indicated that the jurors were at an "impasse with [two jurors] for 'not guilty' and [two jurors] for 'guilty' who have stated they will not (underlined in original) change their position." Upon receiving this note, the trial court called the jury into courtroom and made the following observations:

I received your note . . . indicating that the jury did not believe that [Traylor] was guilty of [first-degree burglary], but that there was disagreement amongst jurors [regarding the] lesser-included offense [of second-degree burglary] and that you were hung up on that issue and that the vote apparently changed by only one juror [after three additional hours of deliberation].

         After making these observations, the trial court asked the foreperson to state whether the jury is "hopelessly deadlocked." In response to the trial court's question, the foreperson replied: "I used the word impasse, but I suppose deadlock is probably the legal term. But we are at a point where we have [four jurors who] stated emphatically that they won't change their position."

         At this point, the State requested that the trial court declare a mistrial based on jury deadlock. Traylor did not join the State's request for a mistrial. Instead, Traylor asked the trial court to send the jury back to deliberate "a little bit longer" with the aid of an Allen instruction, which had not yet been submitted to the jury. An Allen instruction, or "dynamite charge, " is a supplemental charge sometimes given to a jury that declares itself deadlocked. See Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (citing Allen v. United States, 164 U.S. 492 (1896)). The Allen instruction reminds the jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pending, and there is no guarantee that a second jury would find the issue any easier to resolve. Id. Instead of sending the jury back to deliberate with an Allen instruction, the trial court declared a mistrial. The trial court stated:

The testimony [of] this case consisted of one day essentially, and the jury's been deliberating for about eight hours, almost as much time deliberating as time they spent hearing the evidence in this case. Based on the jury's statement that they don't believe that further deliberations would result in a verdict in this case, the Court declares a mistrial.

         After declaring a mistrial, the trial court discharged the jury, released Traylor on bond pending a retrial, and scheduled a retrial to take place five months later.

         One week before the scheduled retrial date, Traylor requested a continuance of the trial. The trial court denied Traylor's request. Later that week, Traylor filed a motion to dismiss the indictment on speedy trial grounds, stating that he had been "substantially prejudiced by [the] lengthy delay in prosecution [, which] likely allowed witness memory to fade and makes marshalling evidence for the defense more difficult." The trial court ...


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