Bowles v. State, 59178

• Decision Date: 17 September 1980
• Docket Number: No. 3,No. 59178,59178,3
• Citation: 606 S.W.2d 875
• Parties: Brandon BOWLES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 875

606 S.W.2d 875

Brandon BOWLES, Appellant, v. The STATE of Texas, Appellee.

No. 59178.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 17, 1980.

Rehearing Denied Nov. 5, 1980.

Louis Dugas, Jr., Orange, for appellant.

Jim Sharon Bearden, County Atty., and Michael W. Shuff, Asst. County Atty., Orange, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for felony delivery of marihuana. Punishment was assessed at five years and appellant was placed on probation.

In his only ground of error appellant contends the trial court erroneously overruled his plea of former jeopardy. His argument is based on an earlier trial in which the jury was discharged when it was unable to reach a verdict. Specifically, appellant asserts the jury in that trial was discharged too soon, in violation of Art. 36.31, V.A.C.C.P. That statute provides:

"After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree."

Appellant relies strictly on the second part of the statute, arguing that the jury, at the time it was discharged, had not "been kept together for such time as to render it altogether improbable that it can agree."

At the hearing on the motion for new trial following the second trial, counsel for appellant at the first trial testified that during a conference in chambers he requested the court to discharge the jury. In view of counsel's affirmative request we hold that the second part of Art. 36.31, supra, does not control disposition of this case.

Under the first part of Art. 36.31, supra, a jury that cannot agree may properly be discharged if both parties agree. Although it has been held that this requires the personal consent of the defendant, and that counsel's consent is not sufficient, Hipple v. State, 80 Tex.Cr.R. 531, 191 S.W. 1150, 1155, on motion for rehearing, and see Davis v. State, 144 Tex.Cr.R. 474, 164 S.W.2d 686, in this case appellant's counsel actually requested that the jury be discharged. In an analogous situation, regarding whether a mistrial created a jeopardy bar to subsequent prosecution, the court in Rios v. State, Tex.Cr.App., 557 S.W.2d 87, held the jeopardy protection was not violated by retrial where defense counsel had requested the mistrial, and Hipple v. State, supra, was found not dispositive. Similarly, in this case, the decision to discharge the jury was not initiated by the court, but was at the request of defense counsel. Since the court did not initiate the action to discharge, but simply acted on counsel's request, we hold it was not necessary for the court to secure appellant's personal consent.

We therefore hold that the first trial did not constitute a jeopardy bar to a second trial, and overrule the ground of error.

The judgment is affirmed.

CLINTON, Judge, dissenting.

In adjudicating procedural issues the duty, responsibility and function of the Judicial Department are to take statutory expressions of legislative judgment as it finds them as at least a starting point. Authority need not be cited for the most basic constitutional proposition that judges are to interpret, construe and apply pertinent statutes-they are not to make the law. The Legislative Department has provided but two situations in which a jury that cannot agree may be discharged by a trial court; today the Court engrafts on the statute a third. To this kind of judicial lawmaking I must dissent.

The record below reflects that in the initial trial of this cause to the jury, the State called two witnesses and the defense called three, all of whom were vigorously cross examined. The presentation of evidence by both sides constituted the better part of Tuesday, February 8, 1977 and Wednesday February 9, 1977. The jury received the court's charge at 11:10 a. m. on February 10, 1977 and deliberated for some fifty minutes before recessing for lunch. They deliberated an additional twenty-five minutes before they were brought into the courtroom at which time the following colloquy ensued:

THE COURT: I believe your note indicates that Mr. Melton is the Foreman?

MR. MELTON: Yes, sir.

THE COURT: You are Mr. Melton?

MR. MELTON: Yes.

THE COURT: You have indicated that you have not been able to agree, to this point, is that correct?

MR. MELTON: That is correct.

THE COURT: Do you feel like further deliberation would be fruitful? Is there any possibility that deliberating further would serve any purpose?

MR. MELTON: It doesn't seem so, Sir.

THE COURT: Have each of you expressed your own opinions and listened, and has everyone had their say?

MR. MELTON: Yes, sir.

THE COURT: Is the impasse so great you feel like it would-are you able to deliberate further; let me ask you that?

MR. MELTON: No, sir, I don't think so.

THE COURT: Would you step up to the bench, please.

After an off the record discussion between the court and counsel, the trial court announced its decision:

"I will declare that you are hung, and will discharge you. I thank you for your attention during the course of the trial..." ¹

Before his second trial appellant presented and the trial court heard his verified special plea of double jeopardy, contending that the first trial had been "improperly terminated" and setting out the pertinent timetable much as I have outlined it above. The only testimony came from trial counsel for appellant, called by the State as an adverse witness. As the State now sees the matter, the following testimony is material to our inquiry:

"Q: Do you recall when we were first presented with a note from the Jury as to them being deadlocked seven to five?

A: Yes.

Q: Do you recall that it was seven to five for 'guilty'?

A: Yes, that's correct.

Q: And you recall shortly after that being in Chambers-right at that time being in Chambers-did you ask the Court to inquire of the Jury where, in all probability, they would not be able to reach a verdict, or the standard question to the jury?

A: I believe I did... My memory is hazy on that.

Q: Do you recall that the Jury was, in fact, brought into the Courtroom and that question put to the Jury?

A: Yes.

Q: And do you have any recollection, or did you, ask the Court to inquire further of other members of the Jury, as to whether they would be able, in all probability, to reach a verdict?

A: I have no recollection of that.

Q: ... Did you, at any time, ask the Court to have the Jury taken back to the Jury room for further deliberation on the case?

A: I did not.

Q: And do you recall, in Chambers, when the matter first came up, asking that the Jury go ahead and be brought in, and to be discharged?

A: Yes.

Q: Do you recall lodging any type of objection that the Jury be discharged?

A: No, I did not.

Q: But you in no way objected to the Court discharging the Jury?

A: No."

The State also requested the trial court to take judicial notice of the filed papers and records of the first trial that would reflect "a fairly short trial" and, as I understand the statement, that the State did not agree with the discharge of the jury. ³ The plea was denied by written order.

Though the parties cite us cases construing the constitutional jeopardy provisions, I am satisfied that this case turns on the meaning of our statute that treats the matter, Article 36.31, V.A.C.C.P., in these terms:

"After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree."

Thus, whatever the case when a mistrial is granted at the instance of an accused for some asserted trial error, ⁴ this discharge of a deadlocked jury is contemplated by the statute in but one or the other described situations: the parties consent or the trial court determines the "altogether improbability" of agreement. The first instance is for the desired protection of the respective rights of parties, according to their rights, where, as here, one party believes it advantageous to insist on more deliberation. The second situation, however, regarding the public interest in completed trials as paramount, takes discharge of reportedly disputatious jurors out of the hands of the parties, ⁵ requiring instead a judicial determination of futility in continued deliberations by them. The statute does not contemplate a third situation that the Court now creates-a naked request of counsel for the accused-and plainly no considerations of public policy are served in the doing. Indeed, quite valid public interests are defeated by the Court's creation.

It is well settled that a trial court, in its discretion, may dismiss a jury when it has been kept together long enough to make it "altogether improbable " that the jury can agree on a verdict. Muniz v. State, 573 S.W.2d 792, 794 (Tex.Cr.App.1978); Article 36.31, V.A.C.C.P. It is similarly settled that the exercise of discretion in declaring a mistrial will be judged by the amount of time the jury deliberates in light of the nature of the case and the time that it took the parties to put on the evidence. Muniz v. State, supra; Beeman v. State, 533 S.W.2d 799 (Tex.Cr.App.1976); O'Brien v. State, 455 S.W.2d 283 (Tex.Cr.App.1970). As this Court noted in the early case of Powell v. State, 17 Tex.Cr.R. 345 (1885):

"This discretion, then, must be measured by the time they are kept together since the improbability that they will agree is made to depend upon the time .... Reasonable time is not the measure of his (judge's) discretion.... The jury must have been kept together for such time as to render it altogether improbable that they can agree.... Not that they would, but...