Ex Parte John Ray Falk, Jr. , 2014 Tex. App. LEXIS 8083 ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00233-CR
EX PARTE JOHN RAY FALK, JR.
From the 272nd District Court
Brazos County, Texas
Trial Court No. 13-001409-CV-272
OPINION
John Ray Falk, Jr., asserting five issues, appeals the trial court’s denial of relief on
his pretrial application for writ of habeas corpus and plea in bar brought to avoid retrial
for capital murder. We will affirm.
Background
Falk is under indictment and awaiting retrial for the prison-escape-related capital
murder of Susan Canfield, a correctional officer. The factual background of the alleged
offense is set forth in our and the Court of Criminal Appeals’ mandamus opinions. In re
State ex rel. Weeks, 392 S.W.3d 280, 283 (Tex. App.—Waco 2012, orig. proceeding) (Weeks
I); In re State ex rel. Weeks, 391 S.W.3d 117, 119-20 (Tex. Crim. App. 2013) (orig.
proceeding) (Weeks II).
On December 3, 2012, the State sought a stay of Falk’s first trial at the jury-charge
portion of the trial’s guilt-innocence phase, and on December 4, we ordered a stay of the
trial. Weeks I, 392 S.W.3d at 283. On December 12, in an opinion ultimately denying
mandamus relief for the State, we addressed the State’s complaints about the trial
judge’s proposed charge. Id. at 287, 289. The State then sought mandamus relief on the
charge issues in the Court of Criminal Appeals, which conditionally granted relief and
ordered us to grant mandamus relief for the State in an opinion dated January 16, 2013.
Weeks II, 391 S.W.3d at 126. We complied by issuing a January 18 order. In re State ex
rel. Weeks, 392 S.W.3d 339 (Tex. App.—Waco 2012, orig. proceeding) (order) (Weeks III).
On January 28, fifty-five days after our stay, the trial judge reconvened the jury
and sua sponte ordered a mistrial on the ground of manifest necessity. The trial judge
read his prepared and signed order to the jury and then expressed to the jury his
personal views about some aspects of the case. After he finished his comments and
reiterated the mistrial, the State objected to the mistrial and suggested that the trial
judge recuse himself. Falk did not object to the mistrial1 or make any response to the
trial judge’s actions.
The trial judge subsequently recused himself, and the Honorable John Delaney
was assigned to preside over the case. Falk then filed his habeas application to bar
retrial. He alleged two Double Jeopardy grounds: (1) the sua sponte mistrial was
ordered without manifest necessity; and (2) the original trial judge’s decision that
1
Just before the trial judge brought the jury in, Falk had argued for a directed verdict and had also stated:
“Furthermore, we believe that the State’s attorney has done things in this case to goad us into a mistrial
that we do not want.”
Ex parte Falk Page 2
insufficient evidence existed to warrant the submission of a law-of-parties instruction
was an acquittal. Falk also alleged that the two mandamus proceedings initiated by the
State violated Falk’s due-process rights and that the exercise of mandamus jurisdiction
by the Court of Criminal Appeals violated the separation of powers of the Texas
Constitution and also violated state and federal guarantees of due process, equal
protection, and open courts. The habeas trial court denied Falk’s request for habeas
relief, and this appeal followed.
Standard of Review
We review the trial court’s denial of a habeas corpus application for
an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
App. 2006). … We review “the record evidence in the light most favorable
to the trial court’s ruling and [we] must uphold that ruling absent an
abuse of discretion.” Id.
Ex parte Rodriguez, 378 S.W.3d 486, 489 (Tex. App.—San Antonio 2012, pet. ref’d); see also
Ex parte Graves, 271 S.W.3d 801, 803 (Tex. App.—Waco 2008, pet. ref’d), cert. denied, 130
S. Ct. 261 (2009).
[I]n reviewing the trial judge’s decision to grant or deny double jeopardy
relief by way of habeas corpus, the standard of review is not static and it
must vary depending on the cause of the mistrial. See Arizona v.
Washington, 434 U.S. 497, 507-508, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978);
Cherry v. Dir., State Bd. of Corr., 635 F.2d 414, 418-19 n.6 (5th Cir. 1981)
(recognizing that the standard of review can vary from the “highest
degree of respect” to the “strictest scrutiny” depending on the reason for
the mistrial). At one end of the spectrum, broad deference is appropriate
because the trial judge is in the best position to assess the relevant
considerations. Washington, 434 U.S. at 513-14, 98 S. Ct. 824 (broad
discretion appropriate where mistrial necessitated by a need to prevent
jury-bias); Ex parte McMillian, No. 05-11-00642-CR, 2011 WL 3795727, at *2-
3, 2011 Tex. App. LEXIS 6912, at *6 (Tex. App.—Dallas Aug. 29, 2011, pet.
ref’d) (broad discretion appropriate where mistrial involved potentially
deadlocked jury). At the other end of the spectrum, strict scrutiny is
Ex parte Falk Page 3
appropriate when the basis of the mistrial is the unavailability of critical
prosecution evidence. Washington, 434 U.S. at 508, 98 S. Ct. 824. Therefore,
part of our task is to determine the correct standard of review by
identifying the cause of the mistrial. United States v. Fisher, 624 F.3d 713,
719 (5th Cir. 2010).
Ex parte Rodriguez, 366 S.W.3d 291, 296 (Tex. App.—Amarillo 2012, pet. ref’d).
Findings and Conclusions
We begin with Falk’s fifth issue, which argues that the habeas trial court
committed reversible error by refusing to make requested findings of fact and
conclusions of law on the denial of Falk’s habeas application. Before submission, Falk
made the same argument by motion, which we denied.
While a trial court’s findings and conclusions are helpful in a habeas proceeding,
they are “not legally required.” Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App.
2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App.
2007). Because no error was committed, we overrule issue five.
Manifest Necessity
In his first issue, Falk contends that manifest necessity did not exist to allow the
sua sponte mistrial and that he did not give implied consent to the mistrial.
In cases tried before a jury, a defendant is placed in jeopardy when the
jury is empaneled and sworn, and “because jeopardy attaches before the
judgment becomes final, the constitutional protection also embraces the
defendant’s ‘valued right to have his trial completed by a particular
tribunal.’” Arizona v. Washington, 434 U.S. 497, 504 (1978) (quoting Wade v.
Hunter, 336 U.S. 684, 689 (1949)); see Hill, 90 S.W.3d at 314. Despite the
general prohibition against jeopardy-barred trials, there are two
exceptions when a criminal defendant may be tried a second time without
violating double-jeopardy principles if the prosecution ends prematurely
as the result of a mistrial: (1) if the criminal defendant consents to retrial
or (2) there was a manifest necessity to grant a mistrial. Ex parte Garza, 337
Ex parte Falk Page 4
S.W.3d 903, 909 (Tex. Crim. App. 2011); see Washington, 434 U.S. at 505–06.
These exceptions are recognized because valid reasons exist for a jury to
be discharged before the conclusion of a trial and not all of those reasons
“invariably create unfairness to the accused[.]” Thus, a defendant’s right
to have his trial conducted by a particular tribunal “is sometimes
subordinate to the public interest in affording the prosecutor one full and
fair opportunity to present his evidence to an impartial jury.” Washington,
434 U.S. at 505.
To prevail in a double-jeopardy claim, a criminal defendant must
first show that he or she is being tried for the same offense for which the
mistrial was declared over the defendant’s objection. The burden then
shifts to the State to demonstrate a “manifest necessity” (also referred to as
a “high degree” of necessity) for the mistrial. A trial court’s decision to
declare a mistrial is limited to the inquiry of if there was a “manifest
necessity” to grant a mistrial. See Garza, 337 S.W.3d at 909. We have
stated that a trial court abuses its discretion if it declares a mistrial
“without first considering the availability of less drastic alternatives and
reasonably ruling them out[,]” although the basis for the mistrial need not
be expressly articulated in the record. Id. And the Supreme Court has
stated that “the overriding interest in the evenhanded administration of
justice requires that we accord the highest degree of respect to the trial
judge’s evaluation of the likelihood that the impartiality of one or more
jurors may have been affected by the improper comment.” Washington,
434 U.S. at 511. As an appellate court, it is our function to review the
record and determine if the trial judge exercised “sound discretion” when
granting a mistrial. Id. at 514.
Pierson v. State, 426 S.W.3d 763, 769-70 (Tex. Crim. App. 2014).
In evaluating manifest necessity, a reviewing court must consider
the nature of the case, its procedural posture, the cause of the mistrial, the
interests of the parties, the availability of less drastic alternatives, and the
ends of public justice. The classic formulation of the test for manifest
necessity was penned by United States Supreme Court Justice Joseph
Story in United States v. Perez, 22 U.S. 579, 580, 6 L. Ed. 165, 9 Wheat. 579
(1824) as follows:
[w]e think, that in all cases of this nature, the law has invested
Courts of justice with authority to discharge a jury for giving any
verdict, whenever, in their opinion, taking all circumstances into
consideration, there is a manifest necessity for the act, or the ends of
public justice would otherwise be defeated. They are to exercise a
Ex parte Falk Page 5
sound discretion on the subject; and it is impossible to define all the
circumstances, which would render it proper to interfere. To be
sure, the power ought to be used with the greatest of caution, under
urgent circumstances, and for very plain and obvious causes... . But,
after all, they have the right to order the discharge; and the security
which the public have for the faithful, sound, and conscientious
exercise of discretion, rests, in this, as in other cases, upon the
responsibility of the Judges, under their oaths of office.
Manifest necessity exists only in very extraordinary and striking
circumstances demonstrating a high degree of necessity that the trial come
to a premature end. Washington, 434 U.S. at 505-06, 98 S. Ct. 824; Ex parte
Fierro, 79 S.W.3d 54, 56 (Tex. Crim. App. 2002); Brown v. State, 907 S.W.2d
835, 839 (Tex. Crim. App. 1995). The circumstances must (1) render it
impossible to arrive at a fair verdict before the initial tribunal, (2) render it
impossible to continue the trial, or (3) involve trial error that would
trigger an automatic reversal on appeal if a verdict was returned. Ex parte
Garza, 337 S.W.3d at 909.
Manifest necessity is not a standard that can be applied
mechanically or without attention to the particular problem confronting
the trial court. In reviewing a trial court’s determination of manifest
necessity, we apply a dynamic abuse of discretion standard depending on
the cause of the mistrial. Fisher, 624 F.3d at 719. A trial court’s decision to
declare a mistrial is a matter committed to the trial court’s broad
discretion and such a decision should be accorded great deference on
appeal. See Washington, 434 U.S. at 509-10, 98 S. Ct. 824. A trial court
abuses its discretion, however, whenever it declares a mistrial without
first considering the availability of less drastic alternatives and reasonably
ruling them out. Ex parte Garza, 337 S.W.3d at 909. The record need not
contain the trial court’s reasoning for declaring the mistrial so long as the
manifest necessity is apparent from the record. Id. at 909-10.
Rodriguez, 366 S.W.3d at 296-97.
The trial judge’s January 28, 2013 mistrial order reads:
A 55 day interruption of this Capital Murder trial by the 10 th Court
of Appeals and the Court of Criminal Appeals, constitutes a manifest
necessity for the declaration of a mistrial. The ends of public justice and
justice for the parties cannot be furthered by a continuation of a trial so
interrupted. Asking jurors to return a fair and impartial verdict after such
a delay in a complicated case such as this, places an unconscionable and
Ex parte Falk Page 6
impossible burden on them. The court finds there is no adequate
alternative to remedy the delay in the progression of this trial other than
the declaration of a mistrial.
Before the granting of the mistrial, the trial court proceedings resumed on
Friday, January 25. In addition to both sides’ continuing arguments and objections to
the charge, the trial judge and the parties addressed Falk’s motion for directed verdict,
motion in limine, and request to interview jurors.
The trial judge expressed concern over what to tell the jury after the fifty-five-
day delay, and with there being twenty-four witnesses, he was also concerned with
how well the jury would be able to remember the trial testimony after the lengthy
delay. The trial judge was skeptical of the State’s proposal of extra time for closing
argument so they could spend more time reviewing the trial testimony for the jury to
refresh the jurors’ memories; at several times during argument on Falk’s motion for
directed verdict, there was substantial argument and disagreement over the testimony
of certain witnesses. Falk noted that extra time “will just turn into a contest of who
remembers the facts better.” The following colloquy then occurred:
THE COURT: You don’t agree on what the witnesses said.
[PROSECUTOR]: My theory, Your Honor, was that if we put a little time
in up front it might save a little on the back.
THE COURT: I think argument will be a nightmare. There has been some
misquotes from the record already here today. And if you get up there
and try to review this in front of the jury and she objects or he objects that
is outside the record - -
[PROSECUTOR]: Your Honor, that happens in every closing argument.
We disagree on what a witness says.
Ex parte Falk Page 7
THE COURT: Yes. But usually it is less than fifty-six days ago.
In the motion in limine, Falk asserted: “If the State of Texas through its
prosecutors is allowed to mention this interlocutory appellate process or any alleged
action they took against the trial court, Defendant will be harmed and prejudiced
thereby.”2 The State did not oppose the motion, and the trial judge stated, “They
probably all read about it in the Bryan Eagle by now.”
In his motion to interview jurors, Falk asserted that because he was entitled to a
fair and impartial jury, the trial judge should interview on the record each juror in
camera and individually to determine whether the jury had complied with the court’s
instructions and has not been tainted during the delay. Falk requested that each juror
be asked: (1) During the stay of these proceedings have you read, viewed or heard any
information about this case? (2) If so, what information have you read, viewed, or
heard? (3) Has that information influenced you in any way? and, or (4) Can you follow
the court’s instructions and only make your decision in this case based solely on
evidence entered in the courtroom and hold the state to their burden of proof? The
State did not disagree with Falk’s request.
In the hearing, Falk argued that these questions could help “determine whether
or not this panel can still sit.” The trial judge expressed concern about asking the jurors
2
When we stayed proceedings in the trial court on December 4, the trial judge told the jury that the State
had occasioned the stay and thus the delay in the trial: “I hate to tell you this but the State has filed an
application for a stay of these proceedings. And the Court of Appeals has set an argument on their
motion for tomorrow afternoon at 2:00 o’clock. So I have no alternative but to stay these proceedings
until the outcome of that. … I do apologize for this … and I do regret that this has happened.” In his
habeas application, Falk asserted that the jury would thus hold the delay against the State: “Defendant
had every reason to believe the delay would be held against the State by the jury as the Trial Judge had
informed them at the time of recess that the stay was a result of a State filing.”
Ex parte Falk Page 8
if they “confess or admit to doing things” that he had ordered them not to do and said
that he was reluctant to “have any conversation with a juror;” “I really don’t like to do
that.” He also explained that it puts a judge “in a funny situation when you send him
in there to interview jurors by himself.” And finally, he suggested that if he did
interview the jurors, he should also ask them if “they have enough memory of what
was said during this case” to “reach a true verdict.”
Plainly, both sides and the trial judge were concerned with potential juror bias
occasioned by the delay, and the trial judge was even more concerned about the delay’s
effect on the jury’s ability to recall the trial testimony to be able to return a fair and
impartial verdict in a case in which the State was seeking the death penalty. Also, the
trial judge considered but ruled out less drastic alternatives such as allowing for longer
closing argument and interviewing the jury.
In this extraordinary situation, we give “great deference” to the trial judge. See
Pierson, 426 S.W.3d at 773 (noting “great deference should be accorded to the ruling of a
court granting a mistrial [when it] turned on the trial judge’s unique ability to evaluate
whether the complained of action biased the jury”) (citing Washington, 434 U.S. at 512-
13).
There are compelling institutional considerations militating in favor of
appellate deference to the trial judge’s evaluation of the significance of
possible juror bias. He has seen and heard the jurors during their voir
dire examination. He is the judge most familiar with the evidence and the
background of the case on trial. He has listened to the tone of the
argument as it was delivered and has observed the apparent reaction of
the jurors. In short, he is far more “conversant with the factors relevant to
the determination” than any reviewing court can possibly be.
Ex parte Falk Page 9
Id. at 773-74 (quoting Washington) (emphasis added in Pierson).
According great deference to the trial judge’s determination that the
extraordinary and unprecedented fifty-five day delay and the potential for juror bias
warranted a mistrial on the basis of manifest necessity, we conclude that the habeas trial
court did not abuse its discretion in denying Falk relief on the ground that manifest
necessity did not exist. Having so concluded, we need not address Falk’s no-implied-
consent argument, and we overrule issue one.
Acquittal or Final Resolution
In issue two, Falk contends that the trial judge acquitted him on the State’s
section 7.02(a)(2) theory of party liability and that Double Jeopardy thus bars retrial on
that theory. See Weeks I, 392 S.W.3d at 286-87. After the State rested in Falk’s trial, Falk
orally moved for a directed verdict on several grounds, during which Falk argued as
follows:
The State is not entitled to a jury charge under the parties theory. They
are not entitled to 7.02(a) because there is no evidence that John Falk aided
and abetted and solicited and encouraged Jerry Martin to drive the truck
into the horse that Susan Canfield was riding. There is no credible
evidence that a reasonable juror could believe beyond a reasonable doubt
that John Falk did anything to encourage Jerry Martin to make that action
that ultimately caused her death.
Before the State responded, the trial judge commented:
… under 7.02 parties, 7.02(a)(2), I do not see any evidence where he - - this
is talking about John Falk, Jr. This is the aiding, abetting part of the
driving the vehicle into Canfield or her horse. I don’t see any evidence
where he solicited, encouraged it, directs it, aids it, or attempts to aid the
other person to commit the offense of driving the vehicle into the horse or
her. So I don’t think you can go under 7.02(a)(2) of the parties statute.
Ex parte Falk Page 10
The evidence, as I recall it, particularly from Mr. Isaacs - - and there
was another witness who was under the shed, I can’t remember his name,
but they testified, as I recall, that Mr. Falk had already gotten the rifle and
that he was on down the road at the time of the collision of this vehicle
and Mrs. Canfield, okay?
Thereafter, the parties argued charge issues on escape and conspiracy, and in the
midst of those arguments and despite the trial judge’s initial statements, the State
interjected further argument on the law of parties:
[PROSECUTOR]: Your Honor, the killing came out of the two of them
working together. I mean, we have them going to Jeffcoat together, we
have Falk coming behind Jeffcoat pushing him off, Martin getting the gun,
Martin - -
THE COURT: They didn’t kill Jeffcoat.
[PROSECUTOR]: Martin getting the gun and throwing it to Falk. Then
they go through the fence, one after the other. There is some testimony
that Falk started in the direction of that building and then turned to meet
Officer Canfield. His engagement of Officer Canfield enabled Martin to
get to that vehicle. Without him there then Canfield would have had free
reign to go to that vehicle. So I think 7.02(a) and (b) both apply because he
is working to assist him to get to the vehicle. Without Falk’s actions
Martin - -
THE COURT: You’re ignoring the evidence where he was already away
from her. He was walking on down the road.
[PROSECUTOR]: Nobody says he was walking down the road.
THE COURT: Oh, yes, Mr. Isaac did. He was running - -
[PROSECUTOR]: When the truck [sic] got hit everybody said it was a
bang-bang thing. He gets the gun, comes out with it and moves away
from the horse as the horse gets hit. That he was in the immediate area of
the horse.
THE COURT: I guess you didn’t hear Mr. Isaac and the guy that was in
the shed.
Ex parte Falk Page 11
[PROSECUTOR]: Mr. Isaac did not see when the horse got hit, if the
Court recalls. Mr. Wilson said that he was right there.
[DEFENSE COUNSEL]: No, he didn’t. There is one guy that said that and
that is it. That was it.
THE COURT: If Mr. Falk was still there at the horse I would like to know
why the vehicle didn’t hit him. Why did the vehicle not hit Falk.
[PROSECUTOR]: Because he moved out of the way enough, he moved to
the side enough that he didn’t get hit. Both Grissom and Jeffcoat said he
was right there when - -
[DEFENSE COUNSEL]: No, they didn’t. Jeffcoat says he is twenty feet
away and Mr. Grissom said he couldn’t see them, that he wasn’t near the
horse. He was somewhere behind it, couldn’t see it.
[PROSECUTOR]: And he was - - they were struggling together which
kept her again from going after Martin and gave him free reign. Any
reasonable jury - -
At that point, the trial judge switched topics and again began discussing escape
and conspiracy. Without explicitly ruling on Falk’s motion for directed verdict on
section 7.02(a)(2) party liability, the trial judge then recessed for lunch. Upon
reconvening, the trial judge still made no explicit ruling.
After putting on one witness, the defense rested. Falk orally moved for a
directed verdict on additional grounds, and the trial judge explicitly denied the motion.
After another recess, the trial judged asked for any objections to the proposed charge.
The State objected to the lack of inclusion of an instruction under section 7.02(a)(2) and
to the proposed application paragraph on conspiracy. The trial judge overruled the
State’s objections, and the State then informed the trial judge that it was going to seek
mandamus relief and an emergency stay.
Ex parte Falk Page 12
On the next day, we stayed the trial. After the mandamus proceeding in the
Court of Criminal Appeals was concluded, in Weeks III we issued an order conditionally
granting mandamus relief for the State. Weeks III, 392 S.W.3d 339. Thereafter, Falk filed
a written motion for directed verdict that, among other things, sought a partial directed
verdict on the State’s section 7.02(a)(2) party theory of capital murder. In arguing the
motion for directed verdict before the trial judge declared the mistrial, Falk argued in
part: “And we also request a directed verdict based on the 7.02(a) parties Charge which
the Court has already found was insufficient in response to our first request on directed
verdict.” The following colloquy then occurred:
[DEFENSE COUNSEL]: Your Honor, can I get a ruling?
THE COURT: Beg your pardon?
[DEFENSE COUNSEL]: Can I get a ruling? I have to have a ruling, Your
Honor, on the record.
THE COURT: Okay, denied.
[DEFENSE COUNSEL]: As to all my requests? Did you say to all of them,
Your Honor?
THE COURT: Yes. …
Falk contends that the trial judge’s initial comments on the evidence pertaining
to Falk’s criminal responsibility under section 7.02(a)(2) were an acquittal on that theory
of party liability. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). Falk relies on
Evans v. Michigan:
[O]ur cases have defined an acquittal to encompass any ruling that the
prosecution’s proof is insufficient to establish criminal liability for an
offense. Thus an “acquittal” includes “a ruling by the court that the
Ex parte Falk Page 13
evidence is insufficient to convict,” a “factual finding [that] necessarily
establish[es] the criminal defendant’s lack of criminal culpability,” and
any other “rulin[g] which relate[s] to the ultimate question of guilt or
innocence.”
Evans v. Michigan, 133 S. Ct. 1069, 1074-75 (2013) (citations omitted).
For several reasons, we disagree that the trial judge’s initial comments were an
acquittal on the State’s section 7.02(a)(2) theory of party liability. First, in the context of
Falk’s argument on his original motion for directed verdict, the trial court never ruled,
explicitly or otherwise, that the motion was granted on the State’s section 7.02(a)(2)
theory of party liability. Cf. Ex parte Crenshaw, 25 S.W.3d 761, 763 (Tex. App.—Houston
[1st Dist.] 2000, pet. ref’d) (trial court granted defense motion for directed verdict on
State’s .10 theory of DWI). Rather, the record reflects continuing debate and argument
on that theory after the trial judge’s initial comments without a ruling. That the trial
judge never granted a directed verdict for Falk on the State’s section 7.02(a)(2) theory of
party liability is reflected by Falk’s filing a post-mandamus written motion for directed
verdict that sought a partial directed verdict on the State’s section 7.02(a)(2) theory of
party liability.3 The trial judge indisputably denied that motion in its entirety.
Finally, we agree with the State that the trial judge’s actions—his initial
comments that he did not “see any evidence” to support a section 7.02(a)(2) jury
instruction and his overruling the State’s objection to the proposed charge’s exclusion of
an instruction under section 7.02(a)(2)—lacked the finality necessary to constitute an
3
That the trial judge did not rule is also reflected by Falk’s statement to the trial judge when proceedings
reconvened on January 25: “[W]e had numerous issues before the Court on a directed verdict that were
not ruled on. And the Judge said he would rule on them the next day and they were never ruled on and
it’s our duty to make sure they get ruled on.” The trial judge agreed, stating: “I did tell you I would let
you know at 8:30 in the morning and 8:35 I received notice of the stay.”
Ex parte Falk Page 14
acquittal on the State’s section 7.02(a)(2) theory of party liability because there was no
final decision by the trial judge on the charge. See Blueford v. Arkansas, 132 S. Ct. 2044,
2050-51 (2012) (after jury foreperson reported jury had unanimously voted against
capital and first-degree murder but was told to continue deliberating on other charges,
defendant could be retried after mistrial because jury’s continued deliberations
deprived report of necessary finality); cf. Crenshaw, 25 S.W.3d at 766-67 (holding that,
while trial court’s directed verdict on “theory” of criminal liability was not cognizable,
State could not retry defendant on that theory because trial court took theory from jury
and it was “conceptually similar to an acquittal”). The trial judge could “revisit” his
preliminary decision. See Blueford, 132 S. Ct. at 2051 (noting that it was possible for jury
to revisit its prior vote because deliberations continued).
The proposed charge was necessarily tentative; it “was not a final resolution of
anything.” Id. at 2050. We agree with the State that the parties had no expectation of
finality with the proposed charge until the trial judge actually read the charge “as
finally written” (TEX. CODE CRIM. PROC. ANN. art. 36.16 (West 2006)); the proposed
charge was subject to further objections by the parties and reconsideration by the trial
judge. See id. (“After the judge shall have received the objections to his main charge,
together with any special charges offered, he may make such changes in his main charge as
he may deem proper, and the defendant or his counsel shall have the opportunity to
present their objections thereto and in the same manner as is provided in Article 36.15,
and thereupon the judge shall read his charge to the jury as finally written”) (emphases
added). It is notable that, after we had ruled on the State’s mandamus petition but
Ex parte Falk Page 15
before the Court of Criminal Appeals had ruled, Falk and the trial judge (who was
represented by his own counsel in the two mandamus proceedings) contended in the
Court of Criminal Appeals “that the State now has an adequate remedy at law because
Judge Keeling has agreed to reconsider his rulings [on the charge].”4 Weeks II, 391
S.W.3d at 123.
In conclusion, because the trial judge’s initial comments and proposed charge
were not an acquittal or a final resolution of the charge issue on the State’s section
7.02(a)(2) theory of party liability, we overrule issue two.
Due Process and Separation of Powers
In issue three, Falk alleges that the mistrial caused by the two mandamus
proceedings initiated by the State deprived Falk of due process and due course of law
and access under the open courts provision. In issue four, Falk contends that the
exercise of mandamus jurisdiction by the Court of Criminal Appeals violated the
separation of powers of the Texas Constitution and also violated state and federal
guarantees of due process, equal protection, and open courts.
The State, citing Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. Crim. App. 2001),
responds that these claims are not cognizable in a pretrial habeas application and that
they are better addressed in a postconviction appeal. We agree, and Falk cites no
authority that supports the propriety of these claims in a pretrial habeas setting.
4
In his “Response to State’s Motion for Leave to File Petition for Writ of Mandamus and Prohibition,”
Falk noted that, after we had issued our opinion in Weeks I but before the State sought mandamus in the
Court of Criminal Appeals, the State had filed a “Motion to Reconsider Court’s Charge.” That motion
requested the trial judge to reconsider the proposed charge in light of our opinion and specifically
requested the trial judge to instruct the jury on section 7.02(a)(2).
Ex parte Falk Page 16
Furthermore, we decline to create a new basis for pretrial habeas relief premised on the
State’s successful mandamus proceeding in the Court of Criminal Appeals. Issues three
and four are overruled.
Conclusion
Having overruled all of Falk’s issues, we affirm the trial court’s order denying
Falk’s application for writ of habeas corpus and special plea in bar.
REX D. DAVIS
Justice
Before Justice Davis,
Justice Lang,5 and
Justice Scoggins
Affirmed
Opinion delivered and filed July 24, 2014
Publish
[CRPM]
5The Honorable Douglas S. Lang, Justice of the Fifth Court of Appeals, sitting by assignment of the Chief
Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(a) (West 2005).
Ex parte Falk Page 17