Opinion issued February 12, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00337-CR
____________
WILBERT SHURON JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1148489
MEMORANDUM OPINION
A jury found appellant, Wilbert Shuron Jones, guilty of the misdemeanor offense of assault of a family member and, after finding true an allegation in an enhancement paragraph that appellant had a prior misdemeanor conviction, assessed his punishment at confinement for 300 days and a $500 fine. In his sole point of error, appellant contends that, after granting the State’s motion for a mistrial in his previous trial, the trial court erred in proceeding to trial in violation of his right not to be placed in jeopardy twice for the same offense. We affirm.
Facts
On March 12, 2003, during appellant’s first trial, appellant and the State conducted a voir dire examination of a venire panel of 30 jurors. During appellant’s voir dire examination, a member of the venire, Hoy Miller, disclosed that, in 1969, he was tried and then acquitted of the offense of aggravated assault. At the close of voir dire, the State challenged Miller for cause, and the trial court denied the challenge. The parties then exercised their peremptory challenges, but neither side struck Miller and he was one of the six members of the venire empaneled on the jury. The trial court then swore in the jury and, before excusing the jury for lunch, gave the following instruction:
The Court:Wear those jury badges at all times, the reason I ask you to do that is I have asked the lawyers to instruct their witnesses that any witness they intend to call that those witnesses are not to approach you in anyways [sic] or attempt to talk to you about this case whatsoever. And that instruction also applies to the lawyers . . .
During the lunch break, an attorney for the State, Lincoln Godwin, saw Miller speaking with appellant’s mother, Debra Boneparte, outside of the courtroom. Godwin told the bailiff what he saw, and the bailiff subsequently relayed the information to the trial court. When the jury returned from lunch, the trial court questioned appellant’s mother and Miller as follows:
The Court:Mrs. Boneparte, you talked to Mr. Miller out there?
[Appellant’s mother]:Yes, I spoke to him.
The Court:Did you see his jury badge?
[Appellant’s mother]:Yes, I did.
The Court:Why did you talk to him?
[Appellant’s mother]:We were not really engaging in a conversation. He just said, made a comment about the cell phone and that was it.
The Court:No other conversation?
[Appellant’s mother]:No, sir.
The Court:All right. Bring out Mr. Miller. Hello, Mr. Miller, I understand that you were permitted to separate from the jury when they went to lunch, you went to your office and then came back - -
[Miller]:Picked up my briefcase.
The Court:- - to court. All right. In the course of that, we weren’t informed of your separation so we had no way to know that you were going to be over here, and I understand you were out in the hallway and a person who was identified as a potential witness, you engaged in conversation?
[Miller]:They wheeled her up, left her there, and she said that it was cold in here, and I said, yeah, and that’s about it, and that’s when this gentlemen came in.
The Court:Okay. So there was no exchange of - -
[Miller]:No, sir.
The Court:- - discussion about anything about this case?
[Miller]:None, whatsoever.
The Court:Okay. So even that brief encounter is not going to decide this case on what you hear from the witness stand?
[Miller]:No, sir.
The Court:Okay. If you’ll return to the jury room. Thank you.
At this point, the State moved for a mistrial and, in the alternative, requested that Miller be instructed that “it was not the State who necessarily brought this to the [C]ourt’s attention or made any issue in regards to [Miller] not following instructions so that he does not hold that against the State.” In response, appellant stated that the conversation between Miller and appellant’s mother was “innocuous” and “[he] [did not] think that there should be a mistrial.” While the trial court was considering the State’s motion and requested instruction, Godwin addressed the Court as follows:
. . . it was the [S]tate, a member of the State, as myself, who did see [Miller] in the hallway speaking with [Ms. Boneparte], who I understand to be their key critical witness in the case. I looked at [Miller], nodded at him, obviously realizing that he was a juror, saw Ms. Boneparte, obviously recognizable by a hairstyle and the fact that she is confined to a wheelchair engaging in conversation, I didn’t hear anything about their conversation, but one, I think that it would be, based on the eye contact that I made with [miller], I think without question, he would know who brought this to the [C]ourt’s attention . . .
Following Godwin’s statement, the State “more strongly urge[d]” its motion for a mistrial, and the trial court granted it. Appellant responded “please note for the record the [appellant’s] objection, Your Honor.” The trial court then rescheduled appellant’s case for trial for the following day.Double Jeopardy
In his sole point of error, appellant argues that the trial court violated his Fifth Amendment right “not to be placed in jeopardy twice for the same offense” because “there was no ‘manifest necessity’ for declaring a mistrial in [his] case.”
Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). But the double jeopardy clause does not provide that, every time a defendant is put to trial, he is entitled to go free if the trial ends in a mistrial. Id. If a mistrial was with the defendant’s consent or based on “manifest necessity” a re-trial is not jeopardy barred. Id. “Manifest necessity” exists when the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with the trial, or when the verdict would be automatically reversed on appeal because of trial error. Id.
A trial court must consider and rule out less drastic alternatives before granting a mistrial. Id. When a trial court grants a mistrial despite the availability of less drastic alternatives, there is no “manifest necessity” and the trial court abuses its discretion. Id. If the record shows that the trial court exercised sound discretion in finding a “manifest necessity” for a re-trial, the court’s declaration of a mistrial is not incorrect just because a reviewing court might have ruled differently. See Ledesma v. State, 993 S.W.2d 361, 365 (Tex. App.—Fort Worth 1999, pet. ref’d).
Here, although appellant objected to the State’s motion for mistrial, he never raised a double jeopardy objection in the trial court. The day after the trial court declared a mistrial and before the voir dire of the second venire panel, the trial court asked the parties whether “there were any pretrial matters or motions that needed to be addressed.” Appellant simply responded “[n]o, judge.” Accordingly, appellant failed to preserve error in the trial court. See Tex. R. App. P. 33.1(a)(1)(A).
An appellant waives his double jeopardy claim by not objecting at trial when the violation is not clearly apparent on the face of the record. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2002). However, an appellant is excused from this preservation requirement when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state interests. Id.
We conclude that a double jeopardy violation is not “clearly apparent” on the face of the record. The trial court could have reasonably believed that it was necessary to declare a mistrial because the circumstances rendered it impossible for Miller to arrive at a fair verdict. See Hill, 90 S.W.3d at 313. The trial court expressed concern as to why appellant’s mother, who had been identified as a witness and who was present in the courtroom when the trial court issued its instruction, spoke to Miller. Additionally, the trial court could have believed that, as a result of speaking with appellant’s mother, a “key critical witness” for appellant, Miller developed a pre-existing sympathy towards her because she was “wheeled” up and “left” outside the courtroom. Moreover, because Miller made eye contact with Godwin while speaking with appellant’s mother, the trial court could have believed it likely that Miller would know that Godwin reported the incident to the trial court. Accordingly, because a double jeopardy violation is not clearly apparent on the face of the record and appellant did not raise a double jeopardy objection in the trial court, appellant has waived error.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Higley.
Do not publish. Tex. R. App. P. 47.2(b).