Ex Parte McAfee

OPINION

CLINTON, Judge.

This a post conviction application for ha-beas corpus pursuant to Article 11.07, V.A. C.C.P. Applicant is contesting validity of a conviction for theft of an automobile, contending that it was obtained in violation of his right against being twice placed in jeopardy vouchsafed by the Fifth Amendment to the Constitution of the United States and by Article I, § 14, Bill of Rights in the Constitution of Texas.

Applicant was initially indicted in Cause No. 275,709 on two counts for offenses alleged to have been committed on the same day, viz: theft of a motor vehicle and unauthorized use of the identical motor vehicle. There were also two enhancement paragraphs.

Trial by jury commenced September 6, 1978. In its charge to the jury the court submitted only the offense of unauthorized use of an automobile. The prosecutor had no independent recollection of abandoning the theft count, but admitted that her practice in such cases was to present evidence on all counts and before the jury charge was drafted to elect whether to abandon one or more counts. Here the charge instructed the jury that the State had abandoned the theft count and it was not to consider that for any purpose. After some two hours of deliberation, the trial judge determined it altogether improbable that the jury could agree on a verdict and, applicant consenting, the court discharged the jury, over objection by the State.

On September 11, 1978, practically the same scenario was played. Only the offense of unauthorized use of a motor vehicle was submitted; the jury deliberated for about two hours without reaching a verdict; with consent of applicant but over objection of the State the trial court discharged the jury.

The case was again called for trial February 27,1979. On motion of the State the trial court dismissed the second count alleging unauthorized use of a motor vehicle and both enhancement paragraphs. Applicant pleaded guilty to the offense of theft alleged in the first count. The court found him guilty and assessed punishment at three years confinement.

Applicant now asserts that the continual prosecution on the one indictment was barred by principles of double jeopardy. He argues that because the State abandoned the theft count after the jury had been empaneled and sworn in the first trial, failure of the trial court to submit that count was tantamount to an acquittal of the offense of theft of the motor vehicle. He relies squarely on the “general rule” followed in Garza v. State, 658 S.W.2d 152 (Tex.Cr.App.1982).

For its part the State contends, and the convicting court opined, “By not making a contemporaneous objection [to the plea proceedings], Applicant has waived any such complaint.” We first address that threshold question, and find both federal and state law clearly resolve that issue against the State.

Failure to object at trial does not constitute waiver of the right to raise a jeopardy claim by way of a collateral attack in a post conviction habeas corpus proceeding. Ex parte Pleasant, 577 S.W.2d 256 (Tex.Cr.App.1979); Ex parte Hilliard, 538 S.W.2d 135 (Tex.Cr.App.1976); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976). That applicant entered a plea of guilty to the first count will not preclude him from that claim in an application for habeas corpus. Ex parte Morehead, 596 S.W.2d 895 (Tex.Cr.App.1980); Ex parte Hilliard, supra; Ex parte Jewel, supra; Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.1974). See Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Broussard, 645 F.2d 504 (CA5 1981); Green v. Estelle, 524 F.2d 1243 (CA5 1975). Accordingly, we reject the contention by the State, and now turn to the merits of the habeas application.

Since the majority opinions in Garza v. State, 658 S.W.2d 152 (Tex.Cr.App.1982), upon which applicant relies, the Supreme Court of the United States has reaffirmed a core proposition of jeopardy law, viz:

“[A] trial court’s declaration of mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected.”

Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984).¹

“This rule accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978). Rather than frustrate that purpose by denying courts power to put him to trial again, “the defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 836-837, 93 L.Ed. 974 (1949).

Therefore, as the Supreme Court insisted in Richardson, supra:

“The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree.”

Id., at 326, 104 S.Ct., at 3086.

Both the Fifth Amendment and Article I, § 14, Bill of Rights, bar the Government and the State, respectively, from subjecting any person “for the same offense to be twice put in jeopardy of life or limb.” Thus “an accused must suffer jeopardy before he can suffer double jeopardy,” Serfoss v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975). The Double Jeopardy Clauses do not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment,” Wade v. Hunter, supra, at 336 U.S. 688, 69 S.Ct., at 837. Absent a final judgment, he remains under the initial jeopardy. Therefore, a retrial for the same offense is not double jeopardy.²

Garza aside, there is not authority, state or federal, supporting what applicant claims today. Indeed, to deny the State its right to one complete opportunity to convict by obtaining a final judgment is to disregard all public policy considerations still extant after more than one hundred and sixty years since first articulated in United States v. Perez, supra.

The majority in Garza and now applicant take the view that Double Jeopardy Clauses prevent a second “trial” of a count alleging an offense that is not presented to a jury because the prosecution elected to have the court submit another count. Its theory must be that once it attaches in a trial jeopardy is terminated as to any count that is “abandoned” through an election. That is essentially what the majority in its opinion on rehearing in Garza called “this general rule,” id., at 159. But as all the cases discussed and cited by the Garza majority reveal, “this general rule” is found and applied only in cases where the jury in the first trial did return a verdict on the count that was submitted, and upon that verdict the trial court entered a judgment of conviction. Although not necessarily articulated the reason for that rule is that when the State obtains a conviction for one offense out of two or more alleged in a single indictment, jeopardy has been terminated.

Jeopardy is not terminated, however, when there is not a verdict returned upon which a judgment may be rendered. The theory that it has been terminated is contrary to “a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course,” Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed. 2d 300 (1970), citing Green ¶. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 225, 2 L.Ed.2d 199, 205, 61 ALR2d 1119 (1957).

In Green v. United States, supra, the first trial was on an indictment alleging first degree murder and the jury was charged on that offense as well as the lesser included offense of second degree murder; it found accused guilty of the latter. That conviction was overturned on appeal and on retrial the prosecution obtained a conviction for first degree murder. The Supreme Court held the second conviction was barred by the Double Jeopardy Clause because having been given a choice of finding accused guilty of either first or second the jury’s latter finding constituted “an implicit acquittal on the charge of first degree murder,” and also because jeopardy on the greater charge ended when the first jury “was given a full opportunity to return a verdict” on the higher charge but instead reached verdict on the lesser.

Thus an imperative for terminating jeopardy is that the issue of guilt of an offense be determined by verdict of the jury. The Supreme Court restated the proposition in Price v. Georgia, supra, viz:

“[T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge.”

Id., at 329, 90 S.Ct., at 1761. Until a verdict is returned jeopardy continues — unless, of course, the court discharges the jury without “manifest necessity” for doing so.

To the extent of conflict with this opinion, Garza v. State, supra is overruled.

The relief sought by applicant is denied.

1 . All emphasis is supplied throughout by the writer unless otherwise indicated.

2 . When jurors are unable to reach a verdict and the trial court is of the opinion that there is a “manifest necessity” for discharging the jury and declaring a mistrial, lest ends of public justice would otherwise be defeated, such action is not a bar to further proceedings, and the accused is not exempt from being again put upon trial. United States v. Perez, 22 U.S. [9 Wheat] 579, 6 L.Ed. 165-166 (1824).

Contrary to the notion expressed on original submission in Garza, supra, at 155-156, and again by the dissenting opinion today at page 775, the doctrine of "manifest necessity” measures actions of trial courts in terminating a trial before final judgment, whether on its own motion or on motion of a party for a mistrial. Richardson v. United States, supra, at 324, 104 S.Ct., at 3085. As the dissenting opinion emphasized in Garza, supra, the doctrine is “the test to examine exercise by the trial court of its discretionary authority ‘to discharge a jury from giving any verdict,' United States v. Perez, [supra, 22 U.S. at 580, 6 L.Ed., at 165]” — even “ 'over the objection of the defendant,’ Arizona v. Washington, [supra, 434 at 505, 98 S.Ct., at 830].” Id., at 158. It is not a standard "for deciding whether a trial court is justified in withholding one or more counts of an indictment from consideration by the jury[.]” Ibid.