Ex Parte Bernadette Perusquia.

• Decision Date: 24 November 2010
• Docket Number: No. 04–10–00164–CR.,04–10–00164–CR.
• Citation: 336 S.W.3d 270
• Parties: Ex Parte Bernadette PERUSQUIA.
• Court: Texas Court of Appeals

336 S.W.3d 270

Ex Parte Bernadette PERUSQUIA.

No. 04–10–00164–CR.

Court of Appeals of Texas, San Antonio.

Nov. 24, 2010.Rehearing Overruled Feb. 22, 2011.Discretionary Review Refused June 15, 2011.

Robert H. Featherston, Law Offices of Correa & Featherston, P.C., San Antonio, TX, for Appellant.Pedro Garza, Jr., Assistant District Attorney, Laredo, TX, for Appellee.Sitting: PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by: PHYLIS J. SPEEDLIN, Justice.

In this interlocutory appeal, Bernadette Perusquia contends the trial court erred in denying her pre-trial application for habeas corpus relief because her retrial for murder is barred by double jeopardy. Specifically, Perusquia argues the trial court that presided over her trial abused its discretion by prematurely declaring a mistrial during the jury's deliberations, over her objection and without manifest necessity; therefore, a retrial is barred by double jeopardy. Based on the record before us, we are unable to say the trial court abused its discretion. Accordingly, we affirm the denial of the writ.

Factual and Procedural Background

In 2003, Bernadette Perusquia was indicted for the murder of her husband, Juan Perusquia, in Cause No. 2003–CRN–651–D1. She claimed self defense, asserting that during the course of their marriage, her husband had routinely beaten and raped her two to three times per week. On May 14, 2003, Bernadette told Juan that she was going to leave him and they had a confrontation in their home during which Juan physically assaulted Bernadette. When Bernadette tried to leave the house with her young child, Juan attempted to stop her and she fired one shot with a handgun from a distance of two to five feet as Juan approached. Juan's cause of death was a single gunshot wound to the abdomen.

A one-week jury trial commenced on Monday, September 18, 2006, during which the jury considered thirty-four exhibits and heard three days of testimony consisting of eleven State's witnesses, including a firearms expert and medical examiner, plus five defense witnesses, including Bernadette and a clinical psychologist who testified about battered women's syndrome and post-traumatic stress disorder. The jury charge contained an instruction on self defense, and included the corollary issues of duty to retreat, degree of force necessary, real and apparent danger, and provoking the difficulty. The jury heard closing arguments on Friday morning, and began deliberating at approximately 10:00 a.m. on Friday. During the course of the day, the jury sent out three notes containing questions about the evidence and the charge. At 5:55 p.m., the jury sent out Note # 4, which stated, “We are at a standstill and have not been able to reach a decision, What is our next step,” with a note in parenthesis stating that, “We have taken four votes.” In conferring with counsel, the trial court listed the options as simply instructing the jury to continue deliberating as requested by the defense, declaring a mistrial, or giving an Allen charge.¹ The defense objected that an Allen charge was unduly coercive and premature because the issues in the case were complex, and the jury had only deliberated for eight hours and had not stated it was “deadlocked.” The defense objections were based on due process and due course of law. The State stated it had no objection to the Allen charge. The trial court expressed its concern that the jury's use of the term “standstill” meant they were deadlocked, “[j]ust no longer deliberating, no longer talking, no longer willing to consider changing their minds.” The court reasoned that the jury needed to understand there was a remedy if they were hopelessly deadlocked and rejected the idea of sequestering them. Expressing its uncertainty as to how to proceed, the court overruled the defense objection and delivered the Allen charge.² The court also commented, “And I'll tell you now if either sides [sic] asks for a mistrial I would be inclined to grant it at this point.” Both sides responded they were not asking for a mistrial. The court then sent the Allen charge in to the jury at 6:04 p.m.

At 8:30 p.m., the trial court sua sponte told the parties on the record,

I believe the time has come to quiz the jury to see whether they can continue to deliberate or whether they have become hopelessly deadlocked. It's now been since 10:00 this morning that they have been deliberating. On a three-day trial with the instructions that I gave them I think that they have had enough time if they were going to reach a verdict. I don't want to declare a mistrial unless they tell me that they have become hopelessly deadlocked but because of the instructions that I gave them under the Allen Charge I also do not want to keep them there indefinitely.

A defense objection was overruled; the State had no objection. The court brought the entire jury into open court and inquired of the foreperson whether the jury wanted to continue to deliberate. The foreperson replied, “We were in the process of doing so. And I know that we have continued to discuss this. So I don't know which way....” The court interrupted, stating it was not asking where the jury stood. The court explained, “I know it's been a long day for you but under the law once that I give you the instructions you cannot separate. And so I know you must be tired but if you feel that you can continue to deliberate then I, of course, would ask you to continue to deliberate without doing violence to your conscience.” The court then repeated its question asking whether the jury is able to continue to deliberate, to which the foreperson responded, “Yes,” and “We were in the process of doing so.” The court excused the jury to continue its deliberations.

Approximately one hour later, at 9:20 p.m., the jury sent out Note # 5 stating, “We are not able to reach a unanimous decision at this time.” The defense requested the jury be instructed to continue deliberating. When asked what the State's wishes were, the prosecutor replied, “I don't know, Judge.” The court stated, “Well, they've been at it since 10:00 this morning. It's approximately, 9:25—or 9:20. That's eleven hours and a fraction ... I had previously given them the Allen Charge. I had asked them if they were willing to continue to deliberate a short while ago and they said, yes. And now they have delivered this to me. I think there is a manifest necessity for me to declare a mistrial.” The defense objected on due process and due course of law grounds, requesting that the jury continue deliberating. The court brought the jury into court, and confirmed that the note meant they were “deadlocked and cannot reach a decision” before declaring a mistrial and releasing the jury.

On July 28, 2009, the State re-indicted Bernadette Perusquia for her husband's murder under Cause No. 2009–CRN–882–D 1. She filed a pre-trial application for writ of habeas corpus alleging that her retrial is barred by double jeopardy. At a writ hearing held October 5, 2009, defense counsel presented Perusquia's arguments to the trial court; the current presiding judge in that court did not conduct the first trial. After the State filed a written response, another hearing was held on January 7, 2010, during which additional arguments were presented by both sides. The trial court subsequently denied habeas relief, but entered no written findings of fact or conclusions of law. Perusquia now appeals the denial of habeas corpus relief.

Double Jeopardy

On appeal, Perusquia argues that the trial court erred in denying her petition for a writ of habeas corpus to prohibit a second murder trial based on double jeopardy. Specifically, Perusquia asserts she may not be re-tried for the murder of her husband because, after jeopardy attached in her first trial, the trial court abused its discretion by prematurely declaring a mistrial, over defense objection and without manifest necessity, when the jury was unable to reach a unanimous decision on Friday evening. Perusquia contends the trial court denied her a full and fair opportunity to receive a verdict from the jury who heard the evidence in her criminal trial in violation of her constitutional rights to due process and due course of law. U.S. Const. amends. V, XIV; Tex. Const. art. I, §§ 14, 19.

Standard of Review. In reviewing a trial court's denial of a pre-trial petition for habeas corpus, we must defer to the court's assessment of the facts. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006). We view the facts in the light most favorable to the court's ruling and will uphold it absent an abuse of discretion. Id. We afford almost total deference to the trial court's determination of historical facts that are supported by the record, and to mixed questions of law and fact, when the resolution of those questions turn on evaluations of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007). If the resolution of the ultimate question turns on an application of the law, we review the determination de novo. Id. Reviewing courts must also grant deference to implicit fact findings that support the trial court's ultimate ruling. Id.; Wheeler, 203 S.W.3d at 324 n. 23.

Analysis. A defendant may not be twice put in jeopardy for the same offense. U.S. Const. amend. V; Tex. Const. art. I, § 14; Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Jeopardy attaches when a jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Ex parte Little, 887 S.W.2d 62, 64 (Tex.Crim.App.1994). When a jury in Texas is unable to agree on a verdict, it may be discharged by agreement of the parties, or in the court's discretion when the jury “has been kept together for such time as to render it altogether improbable that...