Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 366th District Court of Collin County, Texas.
Chief Justice Valdez and Justices Rodriguez and Benavides.
ROGELIO VALDEZ Chief Justice.
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.
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.
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.
Procedural History Leading Up to Traylor's First
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]."
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.
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.
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
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.
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.
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.
Traylor's First Trial
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.
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
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
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].
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."
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.
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.
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 ...