Sewell v. State ( 1983 )

OPINION

McCORMICK, Judge.

Appellant was convicted of murder. Punishment was assessed at eighty years.

Appellant, in a single ground of error, complains that the trial court committed an abuse of discretion in declaring a mistrial on its own motion. At his first trial, appellant, prior to voir dire of the jury, filed a motion to shuffle the jury panel in accordance with Article 35.11, V.A.C.C.P. The trial judge denied the motion. Thereafter, appellant proceeded with the State to select a jury which was impaneled and sworn. After the jury had been impaneled and sworn, the trial judge determined that he had erred in refusing appellant’s motion to shuffle and announced that he felt compelled to declare a mistrial. Prior to ordering a mistrial, the trial judge inquired if the appellant or the State desired a mistrial. Both the State and the appellant declined to ask for a mistrial and announced they desired to continue the trial with the jury they had selected. The trial court on its own motion declared a mistrial determining that there was a “manifest necessity” to do so. Appellant objected to the court’s order of a mistrial. On retrial, appellant urged a special plea of double jeopardy in that the jury had already been impaneled and sworn in his first trial at the time that a mistrial was ordered. The plea of double jeopardy was denied by the trial judge.

Whether there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on whether there is a “manifest necessity” for the mistrial or the ends of public justice would otherwise be defeated. Chvojka v. State, 582 S.W.2d 828 (Tex.Cr.App.1979). However, only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by “manifest necessity.” Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Thus, we must first determine if jeopardy attached. In a jury trial, jeopardy attaches after the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). The record shows that the jury had been impaneled and sworn when the judge declared a mistrial. Jeopardy had attached.

Next, we must determine if a “manifest necessity” existed.

“A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve the ‘ends of public justice’ to require the government proceed with its proof when, if it succeeded before the jury it would automatically be stripped of that success by an appellate court.” Illinois v. Somerville, 410 U.S. 458, at 464, 93 S.Ct. at 1070, 35 L.Ed.2d at 431.

In Somerville, the trial court declared a mistrial after it determined it was faced with a defective indictment. The trial court in the instant case faced a similar situation. In Texas, the right to shuffle a jury panel is provided for under Article 35.11, supra, and upon timely demand, it is an absolute right, denial of which constitutes reversible error. Davis v. State, 573 S.W.2d 780, 781 (Tex.Cr.App.1978); Como v. State, 557 S.W.2d 93, 94 (Tex.Cr.App. 1977); Woerner v. State, 523 S.W.2d 717, 718 (Tex.Cr.App.1975); Alexander v. State, 523 S.W.2d 720 (Tex.Cr.App.1975). Since reversal automatically would have followed for failure to grant appellant’s motion to shuffle the jury panel, the trial court did not abuse its discretion in granting a mistrial on its own motion. Under Illinois v. Somerville, supra, “manifest necessity” existed. See also, Durrough v. State, 620 S.W.2d 134 (Tex.Cr.App.1981). Appellant’s ground of error is overruled.

The judgment is affirmed.

Before the court en banc.