Ex parte Perez

• Court: Texas Court of Appeals
• Writing for the Court: Ken Wise, Justice
• Citation: Ex parte Perez, 525 S.W.3d 325 (Tex. App. 2017)
• Decision Date: 13 April 2017
• Docket Number: No. 14-16-00332-CR.,14-16-00332-CR.
• Parties: EX PARTE Jorge Alberto PEREZ

525 S.W.3d 325

EX PARTE Jorge Alberto PEREZ

No. 14-16-00332-CR.

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 13, 2017

Tristan LeGrande, Houston, TX, for Appellant.

Jason Travis Bennyhoff, Richmond, TX, for State.

Panel consists of Justices Christopher, Jamison, and Wise.

OPINION

Ken Wise, Justice

After twelve jurors and an alternate were empanelled and sworn, and jeopardy attached, the trial court recessed the trial. The court attempted to recall the jurors four months later with less than one day's notice. It appeared that two of the jurors had moved out of the county, and only five jurors actually showed up. The trial court declared a mistrial over appellant's objection. In this appeal from a denial of his application for a writ of habeas corpus, appellant contends that his retrial is barred by double jeopardy.

We hold that the State has failed to meet its heavy burden of demonstrating that the mistrial was a manifest necessity. The record does not reveal that it was simply impossible to continue with trial and that the trial court entertained every reasonable alternative to a mistrial. Thus, appellant's second prosecution for the same offense is barred by double jeopardy.

I. BACKGROUND

A. Recess for a Competency Evaluation

The jury in the trial was empaneled and sworn in September 2015. The trial court held a hearing on appellant's motion to suppress his confession outside the jury's presence. Appellant urged that his confession to stealing drugs from a CVS pharmacy was involuntary because he was having "flashbacks" to when he had been twice committed to a mental institution in 2005.

Before ruling on the motion, the trial court acknowledged reports stating that appellant had been found competent to stand trial in 2013, incompetent to stand trial in February 2015, and then "not meeting the criteria for inpatient or outpatient commitment" in June 2015. The court took these reports into account for its findings on the motion to suppress. The court denied in part and granted in part the motion to suppress and then recessed for lunch.

After lunch, because the court had one competency evaluation saying that appellant was incompetent and one saying that appellant was competent, the court said that it sounded like there was a competency trial issue. See generally Tex. Code Crim. Proc. ch. 46B. The court remarked that no one had included the court in the discussion of competency. The court said, "Well I think we all had lots of things going and we just didn't get that done. It's not a matter of blame, there's nobody being harpooned here." The court suggested to the parties that there needed to be a competency trial because the court was "not ready to concede that there is a competent individual that we're dealing with."

Before deciding how the court would proceed on the competency issue, the court expressed its inclination to release the jury: "Now, first of all, I'm not really, at this point of a mind to keep this jury either.... So my inclination would be to release the jury." The State expressed concern that jeopardy had attached. The court responded, "They have been impaneled because they were sworn in, that's the trigger point. But this is not—this is not an error by the State or an error by the Defense." The State asked whether the court would be taking a recess and keeping the jury for a later date or releasing them. The court said it was inclined to release the jury. The State raised the possibility of a mistrial: "Perhaps there will be a mistrial at this point to retry the case."¹

After the court and parties had an off-the-record discussion, the State explained that it had consulted with its appellate division. The State asked the trial court, instead of granting a mistrial, to inquire of the jurors whether they could come back for trial after a recess. The State said, "If they say they cannot, then at that point, we would ask the Court—well, the Court would declare a mistrial."²

The court then brought in the jury and told the jury that there was a legal procedure that needed to happen before the trial could resume, which could take as long as thirty days. The court told the jury that the trial would probably take a day and a half at most. The court asked, "Is there anyone who could not come back if we gave you, say, seven days' notice and be here for one or one and a half days?"

One juror said he might have travel plans for work. Three other jurors had travel plans in September or October. One juror said he would be starting a new job in Vancouver, Washington, on October 1.

Outside the jury's presence, defense counsel acknowledged that they could not expect the juror who was moving out of state to serve on the jury. But, counsel noted that they still had an alternate. The court said it would "leave them on call because we do have an alternate." The court expressed its concerns and the possibility of a mistrial:

I—from a practical standpoint, I think we're going to have more problems by the time we call them back than even were enunciated yet. But I'm willing to do that in order to make certain we don't give away our jury too quickly. I can always do the mistrial based upon things that occur after today, but at least we have inquired today.

Trial was set to resume on December 15, but the trial court granted appellant's request for a continuance to January 26, 2016, so appellant could obtain medical records from his commitment.

B. Mistrial Declared

On January 26, the trial court told the parties that two of the jurors moved out of the county, and therefore could not qualify as jurors, so the court would be releasing the jury:

THE COURT: [The State], come up; [Defense Counsel]. We have—we've lost our jury. Two of the people in the jury have moved out of the county; no longer live here. So they can't qualify as jurors.

DEFENSE: Is a mistrial being declared, Your Honor?

THE COURT: No. We'll pick another jury.

DEFENSE: I want—I want the same jury back. I'm just doing my—as my—

THE COURT: Your request to have the same jury back is overruled because I can't reconstruct a jury. It's not the fault of anyone involved in this proceeding. So it does not go against the prosecution. You don't get a free ride out of it.

We're going to have another jury trial with a different jury. We even talked about this at the time that we—that we decided to wait and continue the case, and we recognized—everyone recognized that there was some risk involved.

Anytime you have a jury, it's a dynamic situation. Some of them moved. And there's just things that nobody could have anything—we called them all. And some of them are outside waiting in the hall. I'm going to call them in and I'm going to release them. You have on the record your complaint about that.

DEFENSE: Yes, sir, Your Honor.

THE COURT: For whatever appellate purpose you think it might achieve, you have it. And I don't want to hear anything about it because we're done with that.

THE COURT: Are y'all ready to go to trial today?

The State announced ready but said it needed to "flush out the record."

The State asked the court how many jurors were left given that there was an alternate. The court said there were eleven. The State then asked defense counsel if he wanted twelve jurors:

THE STATE: Okay. I want to clarify with Defense counsel. You want to go with twelve, not with eleven; is that correct?

DEFENSE: Yes.

THE STATE: You wanted a full twelve; is that correct?

DEFENSE: That's correct.

The bailiff announced that only four jurors were outside. Defense counsel asked the court when the jurors were contacted:

DEFENSE: And, Your Honor, just so that we can have it on the record, when were they contacted?

THE COURT: Yesterday afternoon.

DEFENSE: (Nods.)

THE COURT: Or yesterday, sometime. I'm not sure if it was morning or afternoon. They called everybody on the list. They talked to everybody, and then reported back to me that we just couldn't get them together.

So, we'll just have to pick a new jury. I'll have a panel come up this morning. We'll start the selection process. We'll have a jury and get this thing done.

The State asked for more time to look up the law about whether there was a less drastic alternative to a mistrial. The trial court and the State discussed whether Article 36.29 of the Code of Criminal Procedure could require trial with eleven jurors and whether a juror would be disabled if not qualified.³ And the trial court concluded that it could not "keep hold of" an out-of-county juror:

THE COURT: The problem is that when somebody moves out of the county, you lose your ability to keep hold of them. You can't get them in here to serve.

THE STATE: You can't attach them to come here because they're not here anymore.

THE COURT: Right. So, you know, is that a disability? I don't know if it's a disability. Certainly, they've become unable to serve.

The trial court then asked defense counsel if he would be willing to go to trial with the four jurors who showed up. When defense counsel declined, the court formally declared a mistrial:

THE COURT: So, I'm going to declare a mistrial with that jury. Since we have—the clerk's office has called and made every effort to try to get everyone here.

It has been quite a—it seems like we stopped this in order to get a competency evaluation or something of that nature.

DEFENSE: Yes, Your Honor.

THE COURT: And that was a request by the Defense,⁴ which I thought was appropriate for us to go ahead and do. But in doing it, we ran a risk that we would have a problem getting a jury back together and that's exactly what happened.

We've ended up with a horrific run where we have lost a couple of jurors who moved out of the county. We've got people who are no longer able to be available, for one reason or another.

We've got—we're down to four outside, when we started off with twelve—thirteen—twelve and an alternate. I call that at least a good faith effort to keep our jury together that just has turned into sand in our hands.

So, now we can sit and worry about this or

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