Ex parte Hernandez

• Decision Date: 13 September 1995
• Docket Number: No. 200-94,200-94
• Citation: 906 S.W.2d 931
• Parties: Ex Parte Chris HERNANDEZ.
• Court: Texas Court of Criminal Appeals

Page 931

906 S.W.2d 931

Ex Parte Chris HERNANDEZ.

No. 200-94.

Court of Criminal Appeals of Texas En Banc.

Sept. 13, 1995.

David C. Guaderrama, El Paso, for appellant.

Bruce W. Weathers, El Paso, Robert Huttash, State's Atty., Austin, for the State.

OPINION ON STATE'S MOTIONS FOR REHEARING

McCORMICK, Presiding Judge.

We granted the State Prosecuting Attorney's and the District Attorney's motions for rehearing in order to reexamine our holding that if a juror has become disqualified in a felony trial it is error for the trial court to grant a mistrial over a defendant's objection as opposed to proceeding with eleven jurors. We withdraw our original opinion and affirm the decision of the habeas court and the Court of Appeals.

Appellant was indicted for aggravated robbery. On February 17, 1993, a jury of twelve was empaneled and sworn, and the trial commenced. The State presented its evidence and rested. After the first defense witness testified, juror Ponce requested to speak to the trial judge outside of the presence of the other jurors. Ponce then informed the trial judge that he wished to be disqualified as a juror as he knew appellant's father from grade school and high school. ¹ When questioned whether he would be biased one way or the other, juror Ponce answered, "[o]ne way or not, not for guilty, but either way, I don't want to be put in that position."

Appellant's counsel advised the trial judge that the defense had no objection to excusing Ponce from the jury and proceeding with eleven jurors, or in alternative, to allow juror Ponce to remain on the jury. After a recess, the State formally moved for a mistrial, refusing to proceed without the mandatory twelve jurors required under Article 36.29(a), V.A.C.C.P. ² The trial judge determined that juror Ponce had become biased, and therefore, must be excused from the jury. He also determined that juror Ponce was not disabled under Article 36.29(a), V.A.C.C.P. Finding manifest necessity existed because of juror Ponce's bias and the resulting jury composed only of eleven members, the trial judge declared a mistrial.

Before he could be retried, appellant filed an application for habeas corpus seeking to bar further prosecution, claiming retrial would violate the constitutional prohibition against double jeopardy. Article V, United States Constitution. The habeas judge denied relief, and the Court of Appeals affirmed. Hernandez v. State, No. 8-93-100-CR (Tex.App.--El Paso December 1, 1993). We granted appellant's petition for discretionary review and reversed the decision of the Court of Appeals, holding that it was error to refuse to give appellant the opportunity to proceed with eleven jurors in that this was a significantly less drastic alternative to granting a mistrial over appellant's objection.

Article 36.29(a) commands that a felony verdict may not be returned by fewer than twelve jurors unless one of the jurors "may die or be disabled from sitting at any time before the charge of the court is read to the jury[.]". Article 36.29(a), supra. It is also well established that a bias or prejudice in favor of or against the defendant is not a disability within the meaning of Article 36.29(a). Carrillo v. State, 597 S.W.2d 769, 771 (Tex.Cr.App.1980). As well, Texas Constitution Article V, Section 13 states in part that, "Grand and petit juries in the District Courts shall be composed of twelve men; ..." This constitutional requirement has been held to be non-waivable even with the consent of the State and the defendant. Jones v. State, 52 Tex.Crim. 303, 106 S.W. 345, 347 (1907) (opinion on rehearing). Accordingly, the trial judge could not allow appellant's felony trial to proceed with only eleven jurors.

There can be a new trial after a mistrial has been declared without the defendant's consent if there is a "manifest necessity" for the mistrial or the ends of public justice would otherwise be defeated. Sewell v. State, 696 S.W.2d 559, 560 (Tex.Cr.App.1985). In determining whether a trial judge exercises sound discretion in declaring a mistrial this Court has held that the trial judge must consider less drastic alternatives and give adequate consideration to the defendant's double jeopardy right before declaring a mistrial. Torres v. State, 614 S.W.2d 436, 442 (Tex.Cr.App.1981).

Juror Ponce became biased after the trial commenced, and it was within the sound discretion of the trial judge to excuse him from the jury. Manifest necessity existed for the trial judge to declare a mistrial in that it was not an alternative for the trial court to continue the appellant's felony trial without the mandatory twelve jurors required under Article 36.29(a), V.A.C.C.P. Accordingly, appellant's retrial is not jeopardy barred. Sewell, 696 S.W.2d at 560.

Accordingly, we withdraw our original opinion and affirm the decision of the habeas court and the Court of Appeals.

CLINTON, J., dissents in that there is no manifest necessity to excuse a juror and then declare a mistrial simply because "either way" the juror did not "want to be put in that position."

MEYERS, Judge, concurring opinion on state's motion for rehearing of appellant's petition for discretionary review.

Appellant is the defendant in an aggravated robbery prosecution. Midway through trial of the case, one of the jurors realized that appellant's father is a close friend of his. He informed the trial judge that he could no longer be fair and asked to be excused from further jury service. The State then moved for a mistrial, claiming that the juror could not render an impartial verdict. The appellant objected, announcing that he would be content to proceed in spite of the juror's bias or, in the alternative, with only eleven jurors.

The law provides that a felony verdict may not be returned by fewer than twelve jurors unless one of the jurors "may die or be disabled from sitting at any time before the charge of the court is read to the jury[.]" Tex.Code Crim.Proc. art. 36.29(a). Our precedents establish that a bias or prejudice in favor of or against the defendant is not a disability within the meaning of this statute. Carrillo v. State, 597 S.W.2d 769 (Tex.Crim.App.1980). Accordingly, the trial judge was not authorized by article 36.29 to resume trial of this case with only eleven jurors sitting. Evidently believing that he should not continue with a biased juror either, the judge decided to declare a mistrial and begin again with a new panel. Appellant initiated the instant habeas corpus proceeding in the district court to contest this decision.

Appellant insists that any further prosecution of the case will violate double jeopardy prohibitions of the United States Constitution. Both the district court and the El Paso Court of Appeals disagree. We granted discretionary review to examine the latter's rationale for this conclusion.

The Court of Appeals reasoned that the biased juror was not disabled, and that the trial judge did not therefore excuse him from further service under authority of article 36.29. Instead, the Court of Appeals explained, the trial judge evidently believed that the juror could not render an impartial verdict, that declaring a mistrial was manifestly necessary on account of the juror's bias, and that no reasonable alternatives were available. Hernandez v. State, 08-93-00100-CR (Tex.App.--El Paso 12/1/93).

Today, we give our approval to this assessment, concluding that "[m]anifest necessity existed for the trial judge to declare a mistrial in that it was not an alternative for the trial court to continue the appellant's felony trial without the mandatory twelve jurors required under Article 36.29(a), V.A.C.C.P." Op. at 932. Although I am willing to join the Court's opinion, this conclusory declaration is a bit too perfunctory for my taste. In particular, it fails to address germane precedent upon which appellant relies and which, in some respects, supports his position. Accordingly, I write separately to put a little flesh on the bare bones of our lead opinion.

The main authority for appellant's view that less drastic alternatives than the declaration of a mistrial were available in this case is Carrillo. That case presented a similar factual scenario in which the trial judge and the parties took positions opposite to those of the parties in this case. Thus, when the juror in Carrillo decided that she could no longer be fair, the trial judge overruled appellant's demand for a mistrial and proceeded over appellant's objection with only eleven jurors. Holding that personal bias does not count as a disability under article 36.29, a three-judge panel of this Court then proceeded gratuitously to hold, without citation of any authority, that

the trial court before discharging the juror should have advised the appellant he would continue the trial without discharging the juror unless the appellant either agreed to continue the trial with eleven jurors or asked for a mistrial. The court should then, depending on the appellant's election, have granted a mistrial or continued with eleven jurors. If the appellant refused to make an election the court should not have discharged the juror, but continued the trial without discharging the juror. The trial court erred in failing to give the appellant an opportunity to choose between continuing with eleven jurors or seeking a mistrial.

Carrillo, 597 S.W.2d at 771.

In my opinion, this is just nonsense. Apart from the fact that these observations were entirely unnecessary to disposition of the issue presented on appeal and were evidently cut from whole cloth on the spot, they are also plainly contrary to the express language of the statute. Our law absolutely and unambiguously requires that no less than twelve jurors subscribe to all felony verdicts unless, before the case is submitted for jury consideration, one of them dies or becomes disabled. This is plainly not a right of the defendant which he can waive or forfeit at his...