DocketNumber: 1385-01
Citation Numbers: 90 S.W.3d 308, 2002 Tex. Crim. App. LEXIS 213, 2002 WL 31468241
Judges: Keasler, Meyers, Price, Womack, Johnson, Hervey, Keller, Cochran, Holcomb
Filed Date: 11/6/2002
Status: Precedential
Modified Date: 10/19/2024
OPINION
delivered the opinion of the Court
The trial judge declared a mistrial for reasons undisclosed on the record. Under
I. Facts and Procedural History
Samuel Hill was charged with capital murder. Voir dire began on a Tuesday morning and concluded the following morning. The jury was sworn in at noon on Wednesday and told to return the next day for the trial to begin. On Wednesday afternoon, one of the jurors called the court “hysterical,” saying “she couldn’t continue.” The following morning, the juror presented the court with two notes, one from her doctor and one from herself. In her note, she informed the court that health problems would prevent her from performing her duties as a juror. She explained that she suffered from “debilitating panic attacks when placed under stressful situations” and should not “participate in jury decision-making due to the emotional stress.” The note from her physician stated that she suffered from “generalized anxiety disorder and possible panic disorder with stressful situations.”
At a brief hearing, the defense admitted into evidence the two notes, plus the juror’s blood pressure card and jury questionnaire. Defense counsel argued that the juror had not informed the court of any problem during the two days of jury selection. Then the judge stated the following: “All right. There’s been lengthy discussions in chambers about this. The Court, having weighed all the options, is now going to, on Court’s own motion, declare a mistrial.” The State and Hill both objected, and the judge overruled the objections. The defense requested that another panel be summoned immediately, and the judge said they would get another . panel the following morning.
That morning, a Friday, before viewing the panel, Hill stated that he would be ready to proceed with trial “subject to a motion to dismiss on the grounds of a double jeopardy claim that I'anticipate will be filed prior to Monday when we begin jury selection.” He reiterated that “if the Court — if the Court will allow me to file that motion on Monday and deem it timely filed, then we can proceed with that portion of it, the jury selection.” He further stated:
Likewise, if you’ll allow me to file that motion to dismiss on the double jeopardy claim. As the Court will recall, yesterday over the objection of the State and the defense, the Court declared a mistrial as to what the Court perceived there was a problem with a juror, and as I’ve done a little research in that matter, it’s necessary for me to file a motion to dismiss this case as a result of that. Having only a matter of hours since that mistrial was declared, I have not prepared that motion yet. I will have it ready by Monday.
The trial judge responded that Hill would “be allowed to file it Monday” and it would be “deemed timely filed.”
On Monday morning, before beginning voir dire, the court recognized that “the defense has a motion.” Hill then stated, “Judge, this morning, we have filed, as I indicated on Friday we would, a Defendant’s motion to dismiss based on double jeopardy. We don’t need to argue the motion. The motion speaks for itself.”
Hill’s motion asserted that the jury was selected and sworn on November 10th, and that on November 11th the judge declared a mistrial “Sua Sponte over the objection of both the State and the Defendant. The Defendant alleges that there was no Manifest Necessity that would have allowed the
The second voir dire then began,- with the second jury being sworn in that afternoon. Trial began the following day. Hill was convicted of capital murder and sentenced to life in prison.
On appeal, Hill argued that the second prosecution violated double jeopardy. The Court of Appeals agreed and reversed the conviction.
The Court of Appeals also rejected the State’s argument that, in lieu of reversing the conviction, the court should abate the proceedings and permit a hearing in the trial court to supplement the record with evidence of what occurred during the in-chambers conference. The appellate court concluded that it lacked authority to order an abatement because the trial court was not required by law to make findings of fact on the issue.
We granted the State’s petition for discretionary review on six grounds. The first four grounds assert that an abatement was permissible and preferable and that we should order one now. The last two grounds contend that Hill failed to meet his burden of proving that the judge failed to consider less drastic alternatives to a mistrial and, therefore, the subsequent prosecution was not barred by double jeopardy. We address the latter two grounds first.
II. Preservation of Error
Since the dissent contends that Hill’s claim fails due to his failure to present supporting evidence at trial, we first address whether he has preserved his double jeopardy claim for our review. The dissent relies on Anderson v. State
We disagree. In both of those cases, the defendant presented considerable evidence in support of his double jeopardy claim; there was no issue about whether he had presented enough evidence to justify a review of his claim on appeal. Much more relevant to our case is State v. Torres.
We explained the rationale behind these lax requirements some twenty years before Torres in Shaffer v. State.
This case, like Torres, presents a situation in which requiring a defendant to present evidence in support of his double jeopardy claim would exalt form over substance. Here, the plea was not only before the same court and judge — it was made just a few days after the first trial ended in a mistrial. Requiring Hill to have presented evidence to the trial judge would “serve no .purpose”
Furthermore, Hill did make clear to the trial judge the substance of his complaint: that the judge declared a mistrial sua sponte over the objections of the parties and that no manifest necessity existed for the mistrial. There was nothing additional which Hill needed to present to the judge to make his claim clear. Appellate Rule 33.1 states that error is preserved for appellate review if the complaint “[i]s made to the trial court by a timely request, objection, or motion that ... state[s] the grounds for the ruling that the complaining party [seeks] from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context.”
III. Analysis
A.
The Fifth Amendment prohibits the State from putting a defendant in jeopardy twice for the same offense.
Although the Supreme Court has not set forth precise circumstances in which manifest necessity exists, a trial judge’s discretion to declare a mistrial based on manifest necessity is limited to “very extraordinary and striking circumstances.”
The judge is required to consider and rule out “less drastic alternatives” before granting a mistrial.
The initial burden of proving a double jeopardy violation is on the defendant.
In this case, the State cannot satisfy its burden of proving manifest necessity for the mistrial because the record does not reflect that the trial court considered less drastic alternatives.
The State argues that it could satisfy its burden of proof if we abated this case and allowed it to establish what occurred during the in-chambers conference. The State contends that this conference reflects that the judge granted the mistrial because the defense objected to proceeding to trial with eleven jurors, but the defense would not request a mistrial. There is nothing in the record to support the State’s claim. Although the State relies on an affidavit attached to its motion to abate, that affidavit is not part of the appellate record and may not be considered.
To show manifest necessity for the mistrial, the State would have to show that there was no less drastic alternative available. In order to determine whether an abatement is a reasonable remedy to allow the State to meet its burden of proof, we must first determine whether proceeding to trial with eleven jurors was an available alternative in this case. We look to Art. 36.29(a) of the Code of Criminal Procedure and Government Code § 62.201, as well as our opinions in Ex parte Fierro,
Article 36.29(a) states the general rule that “[n]ot less than twelve jurors can render and return a verdict in a felony case.” It then sets forth an exception: “however, when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict.” Government Code § 62.201 provides another exception: “The jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors.” So our laws provide two instances in which a trial can proceed with eleven jurors: (1) when the parties consent under § 62.201, and (2) regardless of the parties’ consent, when a juror dies or becomes disabled under Art. 36.29(a).
We discussed the interplay of these two statutes in Hatch. We had previously held in Ex parte Hernandez
This case is different. Here, the juror was disabled. A juror is disabled if she has a “physical illness, mental condition, or emotional state” which hinders her ability to perform her duties as a juror.
We essentially said this in Carrillo, although we did not mention Art. 2191 of the Civil Statutes, which was § 62.201’s predecessor. Nevertheless, we stated that the language of Art. 36.29 “and the cases applying it make it clear that the Legislature’s intent was to limit the Article’s application to those cases where the juror was physically or mentally impaired in some way....”
Manifest necessity exists when the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversed on appeal because of trial error.
We must reject the State!s request for an abatement because, since the juror was disabled, Hill’s consent was not necessary to proceed to trial. Even if we granted the State’s request and abated this case for a hearing in the trial court, there is nothing that the State could possibly establish at that hearing which would demonstrate manifest necessity. Regardless of what happened in that in-chambers conference, there was no manifest necessity for this mistrial. Under Art. 36.29(a), there couldn’t be. The judge abused his discretion in granting the mistrial, and the subsequent prosecution was barred by double jeopardy.
IY. Conclusion
We conclude that proceeding to trial with eleven jurors was not just an available alternative in this case. It was a mandatory alternative under our constitutional, statutory, and case law. Regardless of Hill’s consent, the judge was required to proceed to trial with eleven jurors. As a result, there could not be manifest necessity for a mistrial under these facts. Therefore, we need not decide whether abatement is permissible,
. Hill v. State, No. 02-99-00527-CR (Tex.App.-Fort Worth, opinion delivered May 17, 2001) (not designated for publication).
. Id., slip op. at 8-9.
. Id.
.Id., slip op. at 9-10.
. 635 S.W.2d 722, 725-26 (Tex.Crim.App.1982).
. 750 S.W.2d 194, 209 (Tex.Crim.App.1988).
. Dissenting opinion, slip op. at 4.
. Id.
. 805 S.W.2d 418 (Tex.Crim.App.1991).
. Id. at 421.
. Id.
. 477 S.W.2d 873 (Tex.Crim.App.1971).
. Id. at 875.
. Id.
. Id.
. Id. at 875-76.
. Id.
. Tex.R.App. P. 33.1.
. Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Alvarez v. State, 864 S.W.2d 64, 65 (Tex.Crim.App.1993).
. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Downumv. United States, 372 U.S. 734, 735-736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).
. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); State v. Torres, 805 S.W.2d 418, 422 (Tex.Crim.App.1991); Alvarez, 864 S.W.2d at 65.
. United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum, 372 U.S. at 736, 83 S.Ct. 1033; Brown v. State, 907 S.W.2d 835, 839 (Tex.Crim.App.1995).
. Brown, 907 S.W.2d at 839.
. Brown, 907 S.W.2d at 839; Ex parte Little, 887 S.W.2d 62, 66 (Tex.Crim.App.1994); Harrison v. State, 788 S.W.2d 18, 22 (Tex.Crim.App.1990); Torres, 614 S.W.2d at 442.
. Brown, 907 S.W.2d at 839; Harrison, 788 S.W.2d at 21.
. Washington, 434 U.S. at 516-17, 98 S.Ct. 824.
. Brown, 907 S.W.2d at 839; Little, 887 S.W.2d at 66; Harrison, 788 S.W.2d at 23-24.
. Anderson v. State, 635 S.W.2d 722, 725 (Tex.Crim.App.1982); Torres, 805 S.W.2d at 421.
. Washington, 434 U.S. at 505, 98 S.Ct. 824; Kennedy, 456 U.S. at 683-84, 102 S.Ct. 2083 (Stevens, J., concurring). See also Grady v. Corbin, 495 U.S. 508, 522 n. 14, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
. See Little, 887 S.W.2d at 66; Washington, 434 U.S. at 516-17, 98 S.Ct. 824.
. Moore v. State, 999 S.W.2d 385, 398-99 (Tex.Crim.App.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000).
. 79 S.W.3d 54, 2002 Tex.Crim.App. LEXIS 142 (Tex.Crim.App., 2002).
. 958 S.W.2d 813 (Tex.Crim.App.1997).
. 597 S.W.2d 769 (Tex.Crim.App.1980)
. See Hatch, 958 S.W.2d at 816 n. 4.
. 906 S.W.2d 931 (Tex.Crim.App.1995).
. Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App.1990).
. Brown, 907 S.W.2d at 839.
. Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).