ACCEPTED
13-14-00611-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
6/4/2015 4:38:22 PM
CECILE FOY GSANGER
CLERK
CAUSE NO. 13-14-00611-CR
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
6/4/2015 4:38:22 PM
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CECILE FOY GSANGER
Clerk
CORPUS CHRISTI - EDINBURG, TEXAS
THE STATE OF TEXAS,
Appellant
v.
SERGIO BOCANEGRA,
Appellee.
On appeal from the Cameron County Court at Law Number One
Trial Court Cause Number 12-CCR-3028-A
STATE’S APPELLATE BRIEF
ORAL ARGUMENT REQUESTED Luis V. Saenz
Cameron County District Attorney
Omar A. Saenz
Assistant District Attorney
964 East Harrison Street, Fourth Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax:(956) 544-0869
Attorneys for the State of Texas
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument pursuant to Tex. R. App. P. 39.1, stating
that the facts and legal arguments as to the issues presented herein would be
significantly emphasized and clarified by oral argument.
IDENTIFICATION OF THE PARTIES
Counsel for the State of Texas- Appellant:
Cameron County District Attorney
Luis V. Saenz
964 E. Harrison St.
Brownsville, Texas 78520
Assistant District Attorney
Omar A. Saenz
Counsel for Sergio Bocanegra- Appellee:
Trial Court Attorneys:
Fred Kowalski
902 E. Madison St.
Brownsville, Texas 78520
Carlos Cisneros
1002 Taylor St.
Brownsville, Texas 78520
Trial Court Judge, County Court at Law Number One, Cameron County,
Texas
Hon. Arturo McDonald
TABLE OF CONTENTS
Table of Contents ........................................................................................................i
Index of Authorities .................................................................................................. ii
Salutation.................................................................................................................... 1
Statement of the Case................................................................................................. 1
Issue Presented ........................................................................................................... 2
Statement of Facts ...................................................................................................... 2
Summary of the Argument......................................................................................... 3
Argument and Authorities.......................................................................................... 3
State’s First Sub-issue on Appeal .................................................................... 3
State’s Second Sub-issue on Appeal……………...........................................6
State’s Third Sub-issue on Appeal………………………..............................8
Conclusion ……………………………………………………………………...….9
Prayer ......................................................................................................................... 9
Certificate of Compliance ........................................................................................ 10
Certificate of Service ............................................................................................... 11
i
INDEX OF AUTHORITIES
Case law Page
Arizona v. Washington
434 U.S. 497 (1978)......................................................................................... 8
Brown v. State
907 S.W.2d 835 (Tex. Crim. App. 1995) ........................................................ 6
Ex Parte Garza
337 S.W.3d 903 (2011)................................................................................. 4,5
Ex Parte Rodriguez
366 S.W.3d 291 (Tex. App. – Amarillo 2012) .......................................... 6,7,8
Hatch v. State
958 S.W.2d 813 (Tex. Crim. App. 1997) ........................................................ 4
Hill v. State
90 S.W.3d 308 (Tex. Crim. App. 2002) .......................................................... 6
United States v. Fisher
624 F.3d 713 (5th. Cir. 2010) .......................................................................... 6
Constitution and Statutes
U.S. Const. amends. V ............................................................................................... 8
Tex. Gov. Code Ann. §62.201 (1985) ................................................................. 3,4,7
Tex. Gov. Code Ann. §62.301 (1985) .................................................................... 4,5
Tex. R. Crim. P. 36.29 ............................................................................................ 3,4
ii
CAUSE NO. 13-14-00611-CR
____________________________________
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS
____________________________________
THE STATE OF TEXAS, Appellant
v.
SERGIO BOCANEGRA, Appellee
____________________________________
STATE’S APPELLATE BRIEF
____________________________________
TO THE HONORABLE COURT OR APPEALS:
COMES NOW, Appellant, the STATE OF TEXAS, by and through the
Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to
Rule 38.1 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief
in the above-styled and -numbered cause of action, and in support thereof, would
show this Honorable Court as follows:
STATEMENT OF THE CASE
This is a criminal prosecution by the State of Texas against defendant Sergio
Bocanegra for the misdemeanor offense of Driving While Intoxicated. The trial
court dismissed this prosecution herein when it granted Defendant’s Motion to
State’s Brief Page 1
Dismiss Based on Double Jeopardy.
ISSUE PRESENTED
The trial court erred in granting the Defendant’s Motion to Dismiss Based
on Double Jeopardy, and in dismissing the criminal prosecution of Defendant
Bocanegra herein. In determination of the trial court’s error, appellant argues
three sub-issues.
STATEMENT OF FACTS
Defendant Sergio Bocanegra was charged, by way of misdemeanor
complaint and information, with the offense of Driving While Intoxicated (a class
“B” misdemeanor), on May 18, 2012. On August 5, 2013, the state and the
defense selected a six panel jury and proceeded to trial. (R.R. 2-1). After the
jury was sworn, a background check revealed that one of the jurors was dishonest
on the jury questionnaire. (R.R. 3-3). The juror in question did not disclose a
prior Driving While Intoxicated conviction when questioned by the state during
voir dire. (R.R. 3-3). On August 6, 2013, the state raised the issue of juror
misconduct to the court and the defense did not object to dismissal of the juror in
question. (R.R. 3-8). Prior to declaring a mistrial, the trial court considered the
less drastic alternative of proceeding with the five remaining jurors. (R.R. 3-7).
The State did not wish to proceed with a five panel jury and asked the trial court
for a mistrial based on a finding of manifest necessity. (R.R. 3-10,11). The
State’s Brief Page 2
Defense was willing to proceed with five jurors and objected to the mistrial.
(R.R. 3-6). The trial court made a finding of manifest necessity, mistrial was
declared, and the case was reset for trial. (R.R. 3-11). On August 20, 2014, the
defense filed its Motion to Dismiss Based on Double Jeopardy. On October 3,
2015, oral argument on the motion was heard in the trial court and, over the state’s
objection, the defendant’s Motion to Dismiss Based on Double Jeopardy was
granted. (R.R. 4-5). The Order granting defendant’s Motion to Dismiss Based
on Double Jeopardy was signed by the trial court on October 15, 2014. (C.R. 4).
This appeal ensues.
SUMMARY OF ARGUMENT
The State raises three sub-issues on appeal. First, Tex. Gov. Code Ann.
§62.201 (1985), Tex. Gov. Code Ann. §62.301, and Tex. R. Crim. P. 36.29
together require an agreement of both the prosecution and the defense before
proceeding with less than six jurors in a misdemeanor trial. Second, manifest
necessity existed for a mistrial in this case. Finally, the trial court erred in
granting appellee’s motion for dismissal based on a finding of double jeopardy.
ARGUMENT & AUTHORITIES
First Issue: Is agreement by both the Defense and prosecution required to
consent to a five member jury panel in a misdemeanor jury trial?
State’s Brief Page 3
Yes. The Defendant has a constitutional and statutory right to a jury of six
persons in a county court case. Texas Gov. Code Ann. §62.201 (1985) provides
that the parties may agree to try a particular case with fewer than 12 jurors in a
district court case. Emphasis added. Tex. Gov. Code Ann. §62.301 (1985),
simply states that a jury in county court cases “is composed of six persons.”
Although Tex. Gov. Code Ann. §62.301 (1985) does not expressly provide for an
exception to the six person jury requirement in county court cases, settled Texas
case law supports the permissibility of a five person jury panel with the
defendant’s consent based on an inclusive reading of §62.301.
In Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997) the Court
addressed whether a Defendant could waive the requirement to a twelve panel jury
in a district court case. In Hatch, the State and the Defense agreed to proceed in a
felony delivery of cocaine trial after discovering that an empaneled juror was not a
United States citizen. Id. The appellant was found guilty and appealed the
conviction on the sole issue that the eleven panel jury could not render verdict
based on the requirements of Tex. R. Crim. P. 36.29(a), requiring a twelve member
jury in a district court case. The Hatch Court held appellant waived the right to a
twelve member jury based on Tex. Gov. Code Ann. §62.201 (1985) of the Texas
Government Code which provides:
State’s Brief Page 4
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.
In Ex Parte Garza, 337 S.W.3d 903, 905 (Tex. Crim. App. 2011) the
Defendant was on trial for Driving While Intoxicated and a six member jury was
selected. One of the jurors experienced a medical episode after the jury was
sworn but before the presentation of evidence. Id. at 905. The juror was
excused from the jury and the trial court declared a mistrial based on a finding of
manifest necessity over the objection of both the defendant and the state. Id. at
907. In affirming the court of appeals, the Texas Criminal Court of Appeals
found that the trial court abused its discretion by not first exploring the less drastic
alternative of continuing the trial with five jurors. Id. at 918.
Significantly, the Court in Ex Parte Garza ruled that a Defendant may waive
the constitutional and statutory requirement of a six member jury panel in a
misdemeanor case, if the trial court and the State are willing to consent to do so.
Emphasis added. Id. at 915. The Court held that although Texas Government
Code does not expressly allow for a waiver to a full six panel jury in Tex. Gov.
Code Ann. §62.301 (1985), judicial precedence consistently regards the lack of
statutory language prohibiting a waiver as implicitly permitting a waiver. Id. at
913. Furthermore, the Court held that the state holds the burden to show that the
trial court made a determination as to whether the state was willing to consent to
State’s Brief Page 5
the Defendant’s waiver of a six panel jury. Id. at 918.
Second Issue: Was there manifest necessity for the trial court to declare a
mistrial?
Yes. Manifest necessity for a mistrial in a criminal trial exists in three
circumstances: (i) the circumstances render it impossible to arrive at a fair verdict,
(ii) it is impossible to continue with the trial, or (iii) a verdict would be
automatically reversed on appeal because of trial error. Brown v. State, 907
S.W.2d 835 (Tex. Crim. App. 1995). The trial court must consider and rule out
less drastic alternatives to a mistrial before finding manifest necessity. Id. at 840.
A trial court abuses its discretion when it fails to inquire into whether there
existed less drastic alternatives to declaring a mistrial. Hill v. State, 90 S.W.3d
308 (2002). The State maintains the burden of proving manifest necessity for a
mistrial after a preliminary showing by the defendant that he was tried for the same
offense after a mistrial. Id. at 313.
The standard of review for a trial court’s determination of manifest necessity
necessitating a mistrial is a dynamic abuse of discretion standard. United States
v. Fisher, 623 F.3d 713, 718 (5th Cir. 2010). The circumstances of the mistrial
determine the degree of scrutiny. Id. Circumstances outside of the control of
the state or the court, jury-bias cases and deadlocked juries, are afforded the
broadest deference; while cases involving the unavailability of prosecution
State’s Brief Page 6
evidence or delay based on the unavailability of government witnesses are
evaluated under a strict scrutiny standard. Id.
A trial court’s decision to declare a mistrial is given broad discretion on
appellate review due to the trial court’s unique position to evaluate less drastic
alternative to a mistrial. Ex Parte Rodriguez, 366 S.W.3d 291, 296 (Tex. Crim.
App. 2012). Manifest necessity must be apparent on the record, however the trial
court’s reasoning for declaring a mistrial may be absent. Id. at 297. In
Rodriguez, the state failed to disclose the existence of expert photographs to the
defense. Id. at 294. Despite the Court of Criminal Appeals applying a strict
scrutiny standard, the trial court’s declaration of a mistrial based on a finding of
manifest necessity was upheld based on the trial court’s evaluation of less drastic
alternatives. Id. at 299.
Here, the circumstances surrounding the manifest necessity were not based
on the fault of either party or the trial court. Juror misconduct in this case based
on the failure of a juror to disclose a prior Driving While Intoxicated conviction
necessitated removal of said juror based on juror bias. (R.R. 3-3).
Subsequently, the trial court explored the less drastic alternative of continuing the
trial with a five panel jury. (R.R. 3-9,10). Continuation of the trial with five
jurors was not a viable alternative because the state did not agree to the reduced
jury as required by Tex. Gov. Code §62.201. Therefore, the trial court’s
State’s Brief Page 7
declaration of a mistrial based on a finding of manifest necessity was reasonable
and should be upheld by this court.
Third Issue: Did the trial court abuse its discretion by granting Defendant’s
Motion to Dismiss based on a finding of double jeopardy?
Yes. The prohibition against retrial of any person for the same offense is a
constitutional guarantee. U.S. Const. amend. V. However, the Supreme Court
held that the fifth constitutional amendment allows reprosecution when there exists
a manifest necessity for the mistrial. Arizona v. Washington, 434 U.S. 497
(1978). Here, the trial court granted Defendant’s motion for habeas corpus relief
based on double jeopardy, despite the same trial court granting a mistrial based on
a finding of manifest necessity. (R.R. 4-5)
The standard of review for a trial court’s decision to grant or deny habeas
corpus relief is an abuse of discretion standard. Ex Parte Rodriguez, 366 S.W. 3d
at 295. An abuse of discretion will be found when the decision of the trial court
is outside the “zone of reasonable disagreement.” Id. at 296-97.
The trial court in this case abused its discretion by granting appellee’s
motion dismissing the prosecution against the Defendant. At the time of trial on
August 6, 2013, the trial court was in the best position to determine less drastic
alternatives to declaring a mistrial based on the circumstances before the court.
The trial court made the reasonable determination that manifest necessity existed
State’s Brief Page 8
for a mistrial at that time. On October 3, 2014, the same trial court, despite the
apparent manifest necessity on the record, dismissed the prosecution because the
trial court did not find a manifest necessity for its own decision for a mistrial.
Therefore, the trial court’s decision to grant appellee’s double jeopardy motion fell
well outside the “zone of reasonable disagreement” as evaluated by the Rodriguez
court.
CONCLUSION
The trial court’s decision in granting a mistrial based on a finding of
manifest necessity was sound in this case. The court, on the record, discussed the
possible alternative of avoiding a mistrial by continuing the trial with five jurors.
Consistent with Texas case law and legislative intent, the trial court could not
continue the trial with five jurors without the consent of both parties. Here, the
State did not agree to a reduced jury panel. Therefore, the trial court clearly
abused its discretion in granting appellee’s Motion for Dismissal Based on Double
Jeopardy.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that this Court will sustain appellant’s sole issue on appeal, and reverse the trial
court’s judgment of dismissal herein and remand this case for trial.
State’s Brief Page 9
Respectfully Submitted,
LUIS V. SAENZ
Cameron County District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax:(956) 544-0869
By: /s/ Omar Antonio Saenz
Omar A. Saenz
Assistant District Attorney
State Bar No. 08131380
omar.saenz@co.cameron.tx.us
Attorneys for the State of Texas
CERTIFICATE OF COMPLIANCE
I certify that this document contains 2,139 words (excluding the cover, table
of contents and table of authorities). The body text is in 14 point font, and the
footnote text is in 12 point font.
/s/ Omar Antonio Saenz
Omar A. Saenz
State’s Brief Page 10
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s appellate Brief was served upon
Fred Kowalski, Attorney at Law, via email at kowalskilaw@yahoo.com, on the 4th
Day of June, 2015.
/s/ Omar Antonio Saenz
Omar A. Saenz
State’s Brief Page 11