Ex Parte Mary Lou Garza

MEMORANDUM OPINION
No. 04-09-00332-CR
EX PARTE Mary Lou GARZA
From the 79th Judicial District Court, Brooks County, Texas
Trial Court No. 07-07-09768-CR
Honorable Richard C. Terrell, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 31, 2009
AFFIRMED
Mary Lou Garza, a Starr County elections office employee, was tried for the unlawful
delivery of “a [voter] registration certificate to a person other than the applicant or the
applicant’s agent.” See TEX. ELEC. CODE ANN. § 13.145 (Vernon 2003). After the jury failed to
reach a verdict, the trial court declared a mistrial and, just before Garza’s retrial, denied her
application for a writ of habeas corpus. Because the trial court did not abuse its discretion in
determining there was “manifest necessity” to declare a mistrial, Garza’s previous prosecution
does not bar her retrial. Thus, we affirm the order of the trial court.
04-09-00332-CR
BACKGROUND
On May 6, 2008, Mary Lou Garza was tried by a jury for the offense of unlawful delivery
of a voter registration certificate. See TEX. ELEC. CODE ANN. § 13.145 (Vernon 2003). The
evidentiary part of Garza’s trial lasted about six hours. The State presented six witnesses for the
prosecution; the defense presented four witnesses. There was no expert testimony, and neither
side admitted any exhibits into evidence. The jury charge contained only the elements of a
single offense: Unlawful Delivery of Registration Certificate. The charge did not require the
jury to consider any affirmative defenses, lesser included offenses, or novel issues. After
deliberating for about one and one-half hours, the jury sent a note to the court indicating the jury
was split evenly: six for guilty, six for not guilty, and asked “What’s next step?” The court
instructed the jury to continue deliberating, which the jury did for approximately thirty minutes.
The jury’s second note indicated one juror had changed position: five jurors for guilty and seven
for not guilty. The second note also gave the jurors’ reasons for their positions: “Guilty—party
say there is enough evidence to convict. Not guilty—party say there was a poor investigation on
the State’s part. Not [sic] physical evidence presented to we the jurors to make a solid guilty
conviction.” The court told counsel the case “might be at the mistrial stage,” and Garza’s
counsel remarked: “Realistically, we’re not going to have any movement.” Nevertheless, the
court again instructed the jury to continue deliberating. After approximately one more hour of
deliberation, the jury sent a third note stating: “Judge[:] Deliberation has not changed.” Upon
receiving the third note, the trial court advised the parties that the jury appeared to be “hopelessly
deadlocked” and, over Garza’s objection, declared a mistrial. Garza did not ask the trial court to
poll the jurors about the deadlock and did not object to the trial court’s failure to do so.
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When the State sought to retry Garza, she filed an application for writ of habeas corpus
based on double jeopardy. Garza asserted there was no manifest necessity to declare a mistrial
because, inter alia, the trial court could have instructed the jurors to continue deliberating. The
trial court denied Garza’s application and prepared for her retrial. On June 5, 2009, this court
ordered Garza’s retrial stayed pending this appeal. In her sole issue on appeal, Garza asserts the
trial court abused its discretion by denying her application because her retrial is barred by the
constitutional protection against double jeopardy.
STANDARD OF REVIEW
When a trial court determines that a mistrial was necessary because the jury could not
reach a verdict, we review that determination for an abuse of discretion. See Brown v. State, 907
S.W.2d 835, 839 (Tex. Crim. App. 1995); Husain v. State, 161 S.W.3d 642, 645 (Tex. App.—
San Antonio 2005, pet. ref’d). “The rule is well settled that the exercise of discretion in
declaring a mistrial is determined by the amount of time the jury deliberates considered in light
of the nature of the case and the evidence.” Patterson v. State, 598 S.W.2d 265, 268 (Tex. Crim.
App. [Panel Op.] 1980) (citing Beeman v. State, 533 S.W.2d 799, 800 (Tex. Crim. App. 1976));
Husain, 161 S.W.3d at 645. The reviewing court considers “‘the type and complexity of the
evidence, whether expert testimony is involved, the number of witnesses, the number of exhibits
. . . , the complexity of the charge, whether the jury [. . .] moved towards agreement during the
period of deliberation, and the nature and extent of communication from the jury.’” Torres v.
State, 961 S.W.2d 391, 393 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (first alteration in
original) (quoting Galvan v. State, 869 S.W.2d 526, 528 (Tex. App.—Corpus Christi 1993, pet.
ref’d)).
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ANALYSIS
In a jury trial, “[j]eopardy attaches when [the] jury is impaneled and sworn.” Brown, 907
S.W.2d at 839; Husain, 161 S.W.3d at 645. Generally, once a “defendant is placed in jeopardy,
[if] the jury is discharged without reaching a verdict, double jeopardy will bar retrial.” Brown,
907 S.W.3d at 839. However, “where manifest necessity exists to declare a mistrial,” the
defendant may be retried. Id. (citing Oregon v. Kennedy, 456 U.S. 667, 672 (1982)). Manifest
necessity may exist “where a jury is unable to arrive at a verdict after considerable deliberation.”
See id. (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 579–80 (1824)); cf. TEX. CODE
CRIM. PROC. ANN. art. 36.31 (Vernon 2006) (“[T]he court may . . . discharge [the jury] where it
has been kept together for such time as to render it altogether improbable that it can agree.”).
On the other hand, there is no manifest necessity to order a mistrial if the court fails to
exercise a less drastic alternative. Brown, 907 S.W.2d at 839; Husain, 161 S.W.3d at 645.
When a jury advises the court that it is at an impasse, the court’s instruction to continue
deliberating is an available, less drastic alternative to declaring a mistrial. Husain, 161 S.W.3d at
647 (“[T]he only available less drastic alternative . . . was to allow the jury more time to
deliberate.”); Torres v. State, 961 S.W.2d 391, 394 (Tex. App.—Houston [1st Dist.] 1997, pet.
ref’d) (“[T]he trial court did take a less drastic alternative before declaring a mistrial when the
jurors were instructed to continue deliberating after they initially announced they were hung.”).
The trial court has discretion to determine the length of time the jury deliberates. Guidry
v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999); Husain, 161 S.W.3d at 645. When
reviewing a trial court’s exercise of its discretion, an appellate court considers numerous factors
including the amount of testimony, the trial court’s communications with the jurors, and the
length of jury deliberation. Husain, 161 S.W.3d at 646–47; Galvan, 869 S.W.2d at 528. If the
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trial court keeps a split jury deliberating until it is “altogether improbable that [the jurors] can
agree,” the trial court may discharge the jury even over a party’s objection. See TEX. CODE
CRIM. PROC. ANN. art. 36.31 (Vernon 2006); accord Galvan, 869 S.W.2d at 528. Before
declaring a mistrial because it is altogether improbable that the jury can reach a decision, the trial
court should poll the jurors as to whether they could reach a decision if they continued
deliberating. Boone v. State, 506 S.W.2d 227, 229 (Tex. Crim. App. 1974); see Willis v. State,
518 S.W.2d 247, 248–49 (Tex. Crim. App. 1975). However, if the defendant does not ask for
the jury poll or object to the trial court’s failure to poll, the court’s error does not warrant
reversal. Boone, 506 S.W.2d at 229; see Willis, 518 S.W.2d at 248–49.
Jeopardy attached to Mary Lou Garza when the jury was sworn, but she may be retried if
there was manifest necessity to declare a mistrial. See Brown, 907 S.W.2d at 839; Husain, 161
S.W.3d at 645. The jury deliberated for approximately three and one-half hours on a single, non-
complex charge with no novel issues, yet only one juror changed position in the first two
deliberation periods, and none changed position in the last hour of deliberations. Having
reviewed the circumstances of the case including “the amount of time the jury deliberate[d]
considered in light of the nature of the case and the evidence,” and noting the trial court’s
exercise of less drastic alternatives to mistrial, we cannot say the trial court abused its discretion
in deciding that there was a manifest necessity to declare a mistrial because the jury was unable
to reach a verdict. See Patterson, 598 S.W.2d at 268; Husain, 161 S.W.3d at 647.
CONCLUSION
In Mary Lou Garza’s trial for unlawful delivery of a voter registration certificate, the
court acted within its discretion in declaring a mistrial. Therefore, Garza’s retrial is not barred
by double jeopardy protections, and the trial court did not err when it denied Garza the relief she
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requested in her application for writ of habeas corpus. Accordingly, we affirm the order of the
trial court.
Rebecca Simmons, Justice
DO NOT PUBLISH
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