O'Brien v. State, 42737
| Decision Date | 17 June 1970 |
| Docket Number | No. 42737,42737 |
| Citation | 455 S.W.2d 283 |
| Parties | Jimmie O'BRIEN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robinson & Wilson, by Don R. Wilson, Abilene (Court Appointed), for appellant.
Ed Paynter, Dist. Atty., Abilene, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is burglary; the punishment, ten years.
The record reveals that the appellant was first tried under the present indictment on March 17, 1969, at which trial the judge declared a mistrial based on the failure of the jury to reach an agreement as to guilt or innocence. The second trial resulted in the present conviction.
Appellant assigns as error the failure of the trial court to grant his plea of former jeopardy, which plea was made at the start of the second trial. It appears from the record that the jury in the first trial deliberated approximately one hour and ten minutes at the guilt or innocence stage of the trial before returning to the courtroom to report that they were unable to reach a verdict, whereupon the court inquired of the jury if they felt that they would reach a verdict if additional time was spent in deliberations, to which the foreman replied, 'Not unless someone gives a little'. The court then asked how the jury stood and the reply was 'seven to five'. The court then declared a mistrial and ordered the jury discharged.
The record does not show that the appellant consented to the discharge. He relies upon Article 1, Sec. 14, Vernon's Annotated Texas Constitution, which provides that no person shall be twice put in jeopardy for the same offense, and upon Article 36.31, Vernon's Ann.C.C.P., to support his plea of former jeopardy. Article 36.31, supra, 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.' (Emphasis supplied.)
At the hearing on the motion for new trial, the State contended that neither appellant nor his counsel objected to the dismissal of the jury. In Davis v. State, 144 Tex.Cr.R. 474, 164 S.W.2d 686, the jury deliberated for an hour and a half in an assault with intent to rob case. When the judge announced his intention to discharge the jury, the accused said nothing. This Court held that an accused was under no duty to object to the discharge of the jury and that jeopardy had attached. We must then look to the record to determine if the trial court abused his discretion in discharging the jury without the consent of appellant.
It appears that at the first trial of appellant testimony was taken for a total of approximately two hours. The testimony consisted entirely of circumstantial evidence given by three witnesses. The jury considered this testimony for approximately one hour and ten minutes.
The rule is well-settled that the exercise of discretion is determined by the amount of time the jury deliberates considered in light of the nature of the case and the evidence. Villarreal v. State, 172 Tex.Cr.R. 213, 355 S.W.2d 516, cert. denied 371 U.S. 867, ...
To continue reading
Request your trial
-
Bowles v. State, 59178
...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 "This discretion, then, must be measured by th......
-
Brown v. State
...deliberated in light of the nature of the case and evidence. Satterwhite v. State, Tex.Cr.App., 505 S.W.2d 870 (1974); O'Brien v. State, Tex.Cr.App., 455 S.W.2d 283; Art. 36.31, Vernon's Ann.C.C.P. In order to determine whether a jury has been prematurely discharged, we must '. . . know som......
-
Koehler v. State
...in light of the nature of the case and the evidence. Beeman v. State, 533 S.W.2d 799, 800 (Tex.Cr.App.1976); O'Brien v. State, 455 S.W.2d 283, 285 (Tex.Cr.App.1970). The record indicates the jury had deliberated for 18 hours and 55 minutes less time for meals. Although there were seven days......
-
Muniz v. State
...799. The improbability that the jury will agree depends in large measure on the amount of time they have been kept together. O'Brien v. State, 455 S.W.2d 283; Powell v. State, 17 Tex.Cr.R. 345. The case before the jury in this instance was capital murder. The testimony lasted six days. The ......