NUMBER 13-19-00460-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE ABRAHAM MOLINA A/K/A ABRAHAM
MOLINA A/K/A JOSE MOLINA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Perkes
Memorandum Opinion by Chief Justice Contreras
Following a trial in August 2019, appellant Jose Abraham Molina a/k/a Abraham
Molina a/k/a Jose Molina was convicted of indecency with a child by contact and was
sentenced to thirteen years’ imprisonment. See TEX. PENAL CODE ANN. § 21.11(a)(1). On
appeal, he contends by four issues that the trial court erred by granting a mistrial when
the jury failed to reach a verdict after his initial trial for the offense in February 2019. We
affirm.
I. BACKGROUND
On May 23, 2018, appellant was indicted on one count of indecency with a child
by contact. See id. Jury selection took place on February 18, 2019, and testimony on
guilt/innocence was heard over the next three days. The record reflects that the jury
began deliberations at 2:21 p.m. on February 21, 2019. On February 22, 2019, the jury
sent the following note to the trial court: “What do we do if we are at a stalemate in this
deliberation?” Without objection, the trial court issued an Allen charge and instructed the
jury to continue deliberating.1 Later that day, at around 4:00 p.m., the jury sent another
note to the court stating: “After continued deliberation this jury is still deadlocked. There
are ‘strongly decideds’ on both sides—those have positively affirmed that they will NOT
change or surrender their honest conviction of guilt/innocence.” The trial court read the
note into the record and stated: “So I don’t think I have any choice but to declare a
1
An Allen charge is a supplemental charge that may be given to a jury that declares itself
deadlocked. See Allen v. United States, 164 U.S. 492, 501 (1896); Barnett v. State, 189 S.W.3d 272, 277
n.13 (Tex. Crim. App. 2006). The Allen charge in this case stated:
If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the
Court to declare a mistrial and discharge the jury. The Indictment will still be pending, and
it is reasonable to assume that the case will be tried again before another jury at some
future time. Any such future jury will be empanel[]ed in the same way this jury has been
empanel[]ed and will likely hear the same evidence which has been presented to this jury.
The questions to be determined by that jury will be the same questions confronting you,
and there is no reason to hope the next jury will find these questions any easier to decide
than you have found them.
With this additional instruction, you are requested to continue deliberations in an effort to
arrive at a verdict that is acceptable to all members of the jury, if you can do so without
doing violence to your conscience.
If you fail to reach a verdict, this case may have to be tried before another jury. Then all of
our time will have been wasted.
Accordingly, I return you to your deliberations.
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mistrial.” Defense counsel replied: “Yes, Your Honor.” The court then discussed potential
dates for a retrial.
Appellant was retried between August 26 and 28, 2019. This time, the jury reached
a verdict after about six hours of deliberation. Appellant was found guilty and sentenced
as set forth above, and this appeal followed.
II. DISCUSSION
A. Applicable Law
When a jury is unable to agree on a verdict, “the court may in its discretion
discharge it where it has been kept together for such time as to render it altogether
improbable that it can agree.” TEX. CODE CRIM. PROC. ANN. art. 36.31. If a jury is
discharged in this manner without having rendered a verdict, the code of criminal
procedure allows the cause to be tried again “at the same or another term.” Id. art. 36.33.
But a court’s ability to conduct a re-trial under this statute is limited by the United
States and Texas Constitutions, both of which prohibit a defendant from twice being put
in jeopardy for the same offense. See U.S. CONST. amend. V, XIV; TEX. CONST. art. I,
§ 14. Jeopardy attaches once a jury is empaneled and sworn, and the defendant
possesses the right to have his guilt or innocence determined by the first trier of fact. Ex
parte Garrels, 559 S.W.3d 517, 522 (Tex. Crim. App. 2018); Torres v. State, 614 S.W.2d
436, 441 (Tex. Crim. App. 1981). Consequently, if the jury is empaneled and sworn but
later discharged without having reached a verdict, double jeopardy principles will
generally bar retrial. Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995); see
Green v. United States, 355 U.S. 184, 188 (1957) (noting that “a defendant is placed in
jeopardy once he is put to trial before a jury so that if the jury is discharged without his
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consent he cannot be tried again”).
Retrial is not constitutionally barred, however, if the defendant consents to a retrial,
or if some form of “manifest necessity” mandates a retrial. Garrels, 559 S.W.3d at 522;
Torres, 614 S.W.2d at 441; see Oregon v. Kennedy, 456 U.S. 667, 683 (1982) (Stevens,
J., concurring) (observing the general rule that “the defendant’s motion for, or consent to,
a mistrial removes any double jeopardy bar to reprosecution”); United States v. Perez, 22
U.S. 579, 580 (1824) (“[T]he law has invested Courts of justice with the authority to
discharge a jury from giving any verdict, whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for the act, or the ends of
public justice would otherwise be defeated.”). “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.” Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002) (citing
Brown, 907 S.W.2d at 839).
A trial court’s discretion to grant a mistrial based on manifest necessity is limited
to “very extraordinary and striking circumstances.” Id. That said, “great deference” is given
to a manifest necessity finding when based on the trial court’s belief that the jury is unable
to reach a verdict. Arizona v. Washington, 434 U.S. 497, 509–10 (1978) (noting that a
deadlocked jury has “long [been] considered the classic basis for a proper mistrial”); see
Tibbs v. Florida, 457 U.S. 31, 42 (1982) (“A deadlocked jury, we consistently have
recognized, does not result in an acquittal barring retrial under the Double Jeopardy
Clause.”).
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B. Analysis
By his four issues on appeal, appellant contends: (1) the granting of a mistrial sua
sponte was error; (2) the trial court made no explicit finding of “manifest necessity”; (3)
the jury was given insufficient time to deliberate; (4) appellant’s failure to timely object to
the mistrial does not bar his claim; and (5) the doctrine allowing a mistrial based on
“manifest necessity” should be “revisited and rejected.”
In response, the State alleges in part that the issues have not been preserved for
review because appellant did not object below to the granting of a mistrial. We agree that
appellant’s issues have not been preserved. Not only did appellant fail to object to the
mistrial at the time it was ordered, he also failed to object to the retrial—on double
jeopardy or any other grounds—at any time, including in this appeal.
Appellant’s arguments focus on the notion that there was no “manifest necessity”
to grant a mistrial in February 2019, despite the fact that the jury deliberated for at least
seven hours, was given an Allen charge, and twice reported that it was deadlocked. But
appellant does not explicitly address whether he consented to the mistrial or the
subsequent retrial. See Garrels, 559 S.W.3d at 522. A defendant who does not object to
a declaration of mistrial, despite an adequate opportunity to do so, may impliedly consent
to the mistrial and thereby waive any complaint on appeal. Id.; Torres, 614 S.W.2d at 441.
Consent to a mistrial need not be express but “may be implied from the totality of
circumstances attendant to a declaration of mistrial.” Torres, 614 S.W.2d at 441 (citing
United States v. Gori, 367 U.S. 364, 369 (1961)); Garner v. State, 858 S.W.2d 656, 658
(Tex. App.—Fort Worth 1993, pet. ref’d).
Citing Garrels, appellant contends generally that “[a] defendant does not agree by
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his silence.”2 However, Garrels merely clarified that a defendant’s failure to object to
mistrial alone is not enough to establish the defendant’s consent—instead, consent must
“appear in the record as a deliberate ‘relinquishment’ on the defendant’s part . . . if it is to
be relied upon as a reason to allow the State to re-prosecute” the defendant. 559 S.W.3d
at 523; see id. at 525 (finding no consent where “the only fact that the State marshaled in
support of the conclusion that Garrels had impliedly consented to the mistrial was the lack
of an objection on the record”).
As in Garrels, the particular error that appellant alleges and seeks to redress here
is not the mistrial order itself—rather, it is the trial court allowing his reprosecution to
proceed in purported violation of his double jeopardy rights. See id. But in Garrels, the
defendant filed an application for writ of habeas corpus before her retrial, thereby alerting
the trial court to her specific complaint and preserving the issue for appeal after her
eventual conviction. Id.; see TEX. R. APP. P. 33.1(a)(1). Appellant, on the other hand, has
done nothing of the sort. He did not object to the mistrial when it was ordered—instead,
his counsel stated “Yes, Your Honor.” He did not file a special plea alleging that he was
already prosecuted for the charged offense and that the former prosecution was
improperly terminated. See TEX. CODE CRIM. PROC. ANN. art. 27.05(3); Torres, 614 S.W.2d
at 441 (noting that “appellant filed a special plea of former jeopardy that was overruled by
the court”). He did not alert the trial court to his complaint by any pleading or motion,
written or oral, either before, during, or after his retrial.
Considering the totality of the circumstances, we cannot say that appellant’s issues
2
By his fourth issue, appellant baldly contends that his failure to object to the mistrial does not bar
his complaint on appeal. However, aside from the general claim that “[a] defendant does not agree by his
silence,” appellant’s briefing as to this issue concerns only whether he suffered harm as a result of the
mistrial, not whether he consented to the mistrial.
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concerning the propriety of the mistrial have been preserved. Instead, appellant failed to
object to the mistrial or retrial despite being afforded an adequate opportunity to do so.
See Garrels, 559 S.W.3d at 522. The “deliberate relinquishment” of his right to object to
the mistrial or the retrial is firmly established in the record. See id. at 523; Torres, 614
S.W.2d at 441; see also Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008)
(noting that “even constitutional error . . . may be forfeited if the appellant failed to object”
in the trial court).3 Accordingly, we overrule appellant’s issues.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of December, 2020.
3
We note that, because of the “fundamental nature” of double jeopardy protections, a double
jeopardy claim may be raised for the first time on appeal if: (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 interest.” Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim.
App. 2006). Appellant does not argue that these prongs have been met. In any event, in light of our
conclusion that appellant consented to the mistrial, there is no double jeopardy violation clearly apparent
on the face of the record. See Oregon v. Kennedy, 456 U.S. 667, 683 (1982) (Stevens, J., concurring)
(“[T]he defendant’s motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution.”).
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