Trimboli v. MacLean
| Decision Date | 27 August 1987 |
| Docket Number | No. 2-87-181-CV,2-87-181-CV |
| Citation | 735 S.W.2d 953 |
| Parties | Ronald Steven TRIMBOLI, Relator, v. Hon. John MacLEAN, Respondent. |
| Court | Texas Court of Appeals |
Alley & Alley, and Richard Alley, Fort Worth, for relator.
Chris Marshall, Asst. Dist. Atty., Tarrant County, for State, for respondent.
Before FENDER, C.J., and HILL and FARRIS, JJ.
In this original proceeding, Ronald Steven Trimboli has filed his motion for leave to file application for a writ of prohibition. He seeks an order from this court prohibiting the Hon. John MacLean, Judge of the 249th District Court of Johnson County, from proceeding to trial on Monday, August 31, 1987, on the pending indictments in Cause Nos. 0272401R, 0272461R, and 0272464R. These causes were transferred to that court in a change of venue from the Criminal District Court Number Two of Tarrant County. Trimboli asserts that proceeding to trial at this time would infringe upon his right to have appellate review of his claim of double jeopardy before trial.
We deny the motion for leave to file application for a writ of prohibition, because we agree with the trial court's determination that Trimboli's claim of double jeopardy is frivolous.
The record reflects that during Trimboli's prior trial, it was learned that a juror had spoken in the hallway with two persons who were related to a victim. All concerned testified concerning the incident. The relatives testified first. They both said that they had told the juror during their conversation that they were relatives of a victim. The juror, however, later testified that he did not know that they were relatives of a victim. The juror's testimony appeared to upset the trial judge, not only because of the disregard of both oral and written instructions that the jurors were not to discuss the case with anyone, but also because the judge felt, based on the relatives' testimony, that the juror was not being truthful. The juror later clarified his testimony to the effect that he was not told at first that they were relatives. Following the testimony of the relatives and the juror, counsel for Trimboli moved for mistrial, and the court granted the motion.
The trial court granted Trimboli's motion for mistrial in February, 1987. Trimboli did not file his application for writ of habeas corpus asserting a double jeopardy claim until August 17, 1987, approximately six months after the mistrial but only fourteen days before the scheduled retrial. He has appealed the denial of his double jeopardy claim to this court. We have the record but briefs have not yet been filed.
In responding to this motion, we must first consider Trimboli's assertion that because he had the right to appellate review of the denial of his double jeopardy claim prior to retrial, that he has an absolute right to a stay pending our determination of that claim.
After examining all the authorities presented to us, we hold that in cases where the movant has appealed the trial court's denial of his double jeopardy claim, the movant is entitled to a stay of further proceedings unless the trial court has determined that the double jeopardy claim is frivolous and the appellate court is in agreement, after a review of the record before it, that the double jeopardy claim is frivolous. See United States v. Dunbar, 611 F.2d 985, 989 (5th Cir.1980), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980); and see Com. v. Brady, 508 A.2d 286, 291 (Pa.1986). Such a procedure ensures that a defendant's double jeopardy claim is considered both by the trial court and by an appellate court prior to retrial, while avoiding the possibility of such a claim being frivolously filed just as a tactic for delay.
Trimboli urges that ...
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Bauder v. State
...intentionally withheld the evidence in order to provoke a mistrial request), rev'd on other grounds 766 S.W.2d 792 (1989); Trimboli v. MacLean, 735 S.W.2d 953, 955 (Tex.App.--Fort Worth 1987, no writ) ("Nothing in the record would lead to a conclusion that the trial court got angry at the j......
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Hawthorne v. State
...in the trial court while an appeal from the denial of the pretrial writ of habeas corpus is pending in the appellate court. Trimboli v. MacLean, 735 S.W.2d 953, 954 (Tex. App.—Fort Worth 1987, no pet.) (citing United States v. Dunbar, 611 F.2d 985, 989 (5th Cir. 1980)). Here, the trial cour......
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In re Davis
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Ex parte Sheffield
...1987, no pet.). There, the relator Trimboli had filed a pretrial application for writ of habeas corpus which was denied by the trial court. Id. at 954. Trimboli appealed the court's judgment, but at the same time he also sought a writ of prohibition from the court of appeals to prevent the ......