TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00585-CR
Trent Kendall Stanley, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
NO. 094017, HONORABLE ROBERT UPDEGROVE, JUDGE PRESIDING
MEMORANDUM OPINION
Trent Kendall Stanley appeals from the trial court’s denial of relief requested in his
pretrial application for a writ of habeas corpus. He contends that the trial court erred by declaring
a mistrial without him or his counsel present, by sua sponte declaring a mistrial based on the absence
of a juror without finding manifest necessity, and by planning to conduct a trial after the mistrial in
violation of the federal constitution’s protections against double jeopardy. We will affirm the order
denying relief.
BACKGROUND
Appellant was charged with driving while intoxicated and pleaded not guilty. A jury
was selected and sworn, and the jurors and parties left for the day. One of the jurors then called
the trial court to say that she would not return because she was going to her grandmother’s funeral
out of state. After a series of phone calls involving trial participants, the trial court signed an order
declaring a mistrial before presentation of opening statements, testimony, or evidence. Although
the order stated that appellant moved for a mistrial, the trial court later expressly found that he did
not move for mistrial. The State denied seeking a mistrial. The order does not specify a basis for
the mistrial such as manifest necessity or consent.
The court set a new trial date and another jury was chosen. Before the jury was
sworn, the trial court held a hearing on whether double jeopardy barred that trial. Appellant later
filed a pretrial application for writ of habeas corpus arguing that, because jeopardy attached when
the first jury was empaneled and sworn, the impending trial was barred by protections against
double jeopardy. The trial court concluded that jeopardy did not attach in the first trial and denied
appellant relief.
STANDARD OF REVIEW
An appellate court reviews a trial court’s decision to grant or deny an application for
writ of habeas corpus under an abuse-of-discretion standard. Pierson v. State, 426 S.W.3d 763, 770
(Tex. Crim. App. 2014). When raising a double-jeopardy claim on a pretrial writ of habeas corpus,
the applicant bears the burden of proof under a preponderance of the evidence standard. Ex parte
Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003), overruled in part on other grounds,
Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). Once the defendant shows he is
being tried for the same offense after declaration of a mistrial to which he objected, a heavy burden
shifts to the State to justify the trial court’s declaration of the mistrial. Ex parte Garza, 337 S.W.3d
903, 909 (Tex. Crim. App. 2011). We review the application of legal standards de novo and review
findings of fact, implied findings of fact, or mixed questions of fact and law with nearly complete
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deference to the trial court’s determination—especially when that decision turns on an evaluation
of credibility and demeanor. Peterson, 117 S.W.3d at 819. We review evidence in the light most
favorable to the trial court’s ruling. Id.
DISCUSSION
Appellant complains about three aspects of the trial court’s declaration of mistrial.
He contends that declaring a mistrial without anyone from the defense side present was improper,
that the mistrial was not supported by necessary findings, and that it precluded future prosecution.
The declaration of mistrial did not violate the defendant’s right to be present at trial.
Appellant contends that the trial court’s declaration of a mistrial in his
absence violated his statutory right to be present at his trial.1 See Tex. Code Crim. Proc. art. 33.03.
Article 33.03 requires in relevant part as follows:
In all prosecutions for felonies, the defendant must be personally present at the trial,
and he must likewise be present in all cases of misdemeanor when the punishment
or any part thereof is imprisonment in jail; provided, however, that in all cases,
when the defendant voluntarily absents himself after pleading to the indictment or
information, or after the jury has been selected when trial is before a jury, the trial
may proceed to its conclusion.
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On appeal, appellant ties the statutory right to the constitutionally-based rights to confront
witnesses against him and to have his trial completed by a particular tribunal. Appellant did not raise
this argument at the trial-court level and has waived it. See Seghelmeble v. State, 390 S.W.3d 576,
581 (Tex. App.—Dallas 2012, no pet.). Further, there were no witnesses against him involved in
the mistrial process. Finally, his interest in the particular tribunal is not absolute. See Pierson
v. State, 426 S.W.3d 763, 769-70 (Tex. Crim. App. 2014).
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Id. The jury was selected and sworn, and appellant did not return to court. Appellant’s attorney
stated at the hearing on the double-jeopardy motion that he was told that a juror was absent and that,
unless he agreed to proceed with five jurors, the trial court would declare a mistrial. The record
indicates that, rather than contact the court, request a hearing on the issue, file an objection, or
appear at the time set for trial, appellant’s attorney told his staff to tell appellant that the trial was not
going to occur and that he could go home to Houston. That sequence of events describes a voluntary
absence by the defendant after the jury has been selected, a circumstance under which the declaration
of mistrial did not violate article 33.03.
Even if there were a violation of article 33.03, we would find it harmless. Courts
must determine whether the exclusion of a defendant and his counsel bears a substantial relationship
to the defendant’s opportunity to defend himself. See Adanandus v. State, 866 S.W.2d 210, 219-20
(Tex. Crim. App. 1993). Although there was no hearing before the court on the mistrial issue,
appellant’s counsel undisputedly knew of the circumstances and the court’s perceived options. The
trial court’s comments indicate that it used an informal discussion process to avoid requiring
appellant’s counsel to travel from San Antonio to San Marcos for the formality of a hearing on the
mistrial. The double-jeopardy hearing, the habeas application and hearing, and this appeal illustrate
the risks inherent in that attempted courtesy. Appellant and his attorney chose not to appear at the
time for trial and make a record. Appellant has not hinted at how his attendance at an actual hearing
on what to do in the absence of the sixth juror would have affected the mistrial or his defense on
the merits of the underlying charge. On this record, any error in the declaration of mistrial outside
of appellant’s presence was harmless under the standards for constitutional or “other” errors. See
Tex. R. App. P. 44.2(a), (b).
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The court did not abuse its discretion by declaring a mistrial without an express finding of
manifest necessity, and the new trial setting does not violate double-jeopardy protections.
Appellant complains that the trial court erred by declaring the mistrial without finding
it manifestly necessary. He also contends that requiring him to undergo a trial on the same charges
after an improper mistrial violates constitutional provisions against double jeopardy.
Although appellant was placed in jeopardy when the jury was empaneled and sworn,
a criminal defendant may be tried after a mistrial without violating double-jeopardy prohibitions if
the prosecution ends prematurely under two circumstances: (1) if the criminal defendant consents
to retrial or (2) if the mistrial was required by manifest necessity or it served the ends of public
justice. Pierson, 426 S.W.3d at 769-70; see also Illinois v. Somerville, 410 U.S. 458, 462-63 (1973);
Schaffer v. State, 649 S.W.2d 637, 638-39 (Tex. Crim. App. 1983). The State undisputedly seeks
to try appellant for the same offense as before. Although the record could be read to support a
finding that appellant consented to the mistrial, it contains no express consent from appellant or his
attorney. We will assess whether there was a manifest necessity for the mistrial.
Trial courts have the discretion to declare a mistrial based on manifest necessity in
extraordinary circumstances. Ex parte Garza, 337 S.W.3d at 909. As the court of criminal appeals
wrote in Garza:
That discretion is abused, we have said, whenever the trial court declares a mistrial
without first considering the availability of less drastic alternatives and reasonably
ruling them out. But the trial court appropriately exercises its discretion to declare
a mistrial—that is to say, manifest necessity for the mistrial exists—when the
particular circumstances giving rise to the declaration render it impossible to arrive
at a fair verdict before the initial tribunal, when it is simply impossible to continue
with trial, or when any verdict that the original tribunal might return would
automatically be subject to reversal on appeal because of trial error. The trial court
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need not expressly articulate the basis for the mistrial on the record in order to justify
it to a reviewing court, so long as manifest necessity is apparent from the record.
Id. (footnotes and citations contained therein omitted). The United States Supreme Court has
held that states cannot require defendants to accept a jury of five persons. See id. at 910 (citing
Ballew v. Georgia, 435 U.S. 223, 245 (1978)). A defendant’s right to have his trial completed by a
particular tribunal or jury is sometimes subordinate to the public interest in affording the prosecution
one full and fair opportunity to present evidence to an impartial jury. Pierson, 426 S.W.3d at 770
(citing Arizona v. Washington, 434 U.S. 497, 505 (1978)). There are many valid reasons to
discharge a jury before the conclusion of a trial and not all of them create unfairness to the accused.
Id. (citing Washington, 434 U.S. at 505).
The record reveals no abuse of discretion in the trial court’s declaration of a mistrial
based on an implicit finding of manifest necessity. There is no hint in the record that the State
requested a mistrial or was responsible for the circumstances prompting the mistrial. The trial court
found without dispute that after the six-member jury was sworn and released for the day, a juror
stated that she would not return due to a death in her family and “gave no idea when [she] would be
available.” Although jury selection had concluded, the jurors had heard no argument or evidence.
The trial court considered proceeding with five jurors, but appellant’s counsel later agreed in open
court that he had told the prosecutor he would not proceed with fewer than six jurors. Appellant did
not at the trial court and has not on appeal offered any “less drastic alternative” to mistrial. Under
these circumstances, the trial court did not act irrationally or irresponsibly when it concluded that
continuing with the trial was impossible and that a mistrial was manifestly necessary. See Garza,
337 S.W.3d at 909. We find no abuse of discretion in the declaration of the mistrial.
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Because there is no abuse of discretion in the implicit finding of manifest necessity
for a mistrial, the pending trial on the same charges does not violate the Constitution’s protections
against double jeopardy. See Pierson, 426 S.W.3d at 769-70.
CONCLUSION
We affirm the denial of relief on the application for writ of habeas corpus.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Puryear and Goodwin
Affirmed
Filed: August 14, 2015
Do Not Publish
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