Gunnar Eric Austin v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00162-CR ______________________________



GUNNAR ERIC AUSTIN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 07F0245-202

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Gunnar Eric Austin ⁽¹⁾ has appealed from his conviction by a jury for the offense of endangering a child. See Tex. Penal Code Ann. § 22.041 (Vernon 2003). The jury found the enhancement paragraphs "true" and assessed Austin's punishment at five years' imprisonment, to run concurrently with his conviction for evading arrest. ⁽²⁾  

Because the issues raised in this appeal are identical to the issues raised in the companion appeal, for the reasons stated in our opinion dated this day in Austin v. State, cause number 06-07-00161-CR, we affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: November 4, 2008

Date Decided: November 18, 2008

Do Not Publish

1. Austin's first name as listed on the judgment is "Gunner." However, he testified at trial that the correct spelling of his first name is "Gunnar."

2. Austin has appealed this conviction in a companion appeal before this Court in cause number 06-07-00161-CR.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

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                                                             No. 06-10-00078-CR

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                                         EX PARTE:  ROY LEE HILL

                                        On Appeal from the 76th Judicial District Court

                                                              Titus County, Texas

                                                            Trial Court No. 15435

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

            Roy Lee Hill appeals the denial of his application for writ of habeas corpus.  He contends that his right to be free from double jeopardy was violated after the trial court previously declared a mistrial which allowed the State to amend its indictment and prosecute him.  Because the court’s mistrial was declared prior to the jury panel being sworn, we affirm the trial court’s judgment. 

            The Fifth Amendment to the United States Constitution and Article I, Section 14 of the Texas Constitution prohibit double jeopardy and protect individuals from being tried twice for the same offense, possibly receiving double punishments.  Albernaz v. United States, 450 U.S. 333, 343 (1981); Illinois v. Vitale, 447 U.S. 410, 415 (1980); Stephens v. State, 806 S.W.2d 812, 814–15 (Tex. Crim. App. 1990).  A prerequisite to the implication of double-jeopardy protections is the requirement that “jeopardy must have attached initially.”  State v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009).  In a jury trial, jeopardy attaches only when a jury is impaneled and sworn.  Id.; Ex parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992).  Once the panel is sworn, a defendant has a constitutional right to have his guilt or innocence decided by that particular jury.  Hubbard v. State, 798 S.W.2d 798, 799–800 (Tex. Crim. App. 1990) (citing Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App. 1981)).  Because the jury panel in this case was not sworn, jeopardy did not attach.   

            Despite the fact that a jury was not sworn, Hill argues that the trial court’s declaration of mistrial violated double jeopardy because no manifest necessity existed to justify the mistrial.^[1]  As stated in Dinkins v. State, “[t]he doctrine of manifest necessity is inextricably fused with the concept of jeopardy.”  894 S.W.2d 330, 343 (Tex. Crim. App. 1995).  We need not indulge Hill’s contention of lack of manifest necessity since “[j]eopardy principles pose no bar to declaration of a mistrial when the jury has not been impaneled or sworn.”  Reese v. State, 936 S.W.2d 327, 328 (Tex. App.––Tyler 1996, pet. ref’d) (citing Dinkins, 894 S.W.2d at 343).  In other words, because jeopardy did not attach, the trial court was not required to have manifest necessity to declare a mistrial to avoid double jeopardy. 

            We affirm the trial court’s judgment. 

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          August 9, 2010

Date Decided:             August 10, 2010

Do Not Publish

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^[1]Double jeopardy does not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that was justified under the manifest necessity doctrine.  Arizona v. Washington, 434 U.S. 497, 505–06 (1978).