Opinion issued August 24, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00279-CR
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THE STATE OF TEXAS, Appellant
V.
ANTHONY ANDREW VALLE, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1702650
MEMORANDUM OPINION
After a jury found appellee, Anthony Andrew Valle, guilty of the felony
offense of aggravated sexual assault of a child,1 but before the issue of appellee’s
1
See TEX. PENAL CODE ANN. § 22.021(a), (e).
punishment was submitted to the jury, appellee’s motion to recuse the original trial
court was granted, and the new trial court, who was assigned to the case, granted
appellee’s motion for mistrial, setting aside the jury’s finding of guilt. On appeal,
appellant, the State of Texas, challenges the trial court’s order granting appellee’s
motion for mistrial.2 In its sole issue, the State contends that the trial court erred by
setting aside the jury’s finding of guilt based on an error that affected only the
punishment phase of trial.
We affirm in part, reverse in part, render in part, and remand.
Background
A Harris County Grand Jury issued a true bill of indictment, alleging that
appellant, on or about June 1, 1997, “unlawfully, intentionally and knowingly
cause[d] the penetration of the mouth of [the complainant], a person younger than
fourteen years of age, with the sexual organ of [appellant].”3
A jury was selected on November 8, 2021. On November 9, 2021, appellee
filed an election as to punishment, choosing “for the jury to assess [his] punishment
in the event of conviction.”
2
See TEX. CODE OF CRIM. PROC. ANN. art. 44.01(a)(3); State v. Gallien, 631 S.W.3d
885, 887 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d).
3
See TEX. PENAL CODE ANN. § 22.021(a).
2
The guilt phase of the trial began on November 9, 2021. After evidence was
presented, the jury heard closing arguments by both parties and began their
deliberations on November 23, 2021. The proceedings were then recessed. The jury
returned from recess on January 4, 2022 and found appellee guilty of the felony
offense of aggravated sexual assault of a child.
The punishment phase of trial began on February 1, 2022. On February 3,
2022, the State called a Harris County Sheriff’s Office deputy as a witness and
questioned him about his participation in an investigation involving an extraneous
offense that allegedly occurred at appellee’s home on September 20, 2018. Evidence
found at the home included a purse and its contents.
Appellee’s trial counsel, Sam Cammack, stipulated to the admissibility of the
purse into evidence. The State asked Cammack whether appellee was stipulating
“to the items inside [the purse],” and Cammack answered that he was. The State
then began questioning the deputy about photographs depicting the purse and its
contents, which had previously been admitted into evidence.
Subsequently, Cammack asked, “for clarification[] of [the] stipulation,” as to
whether the items were still inside the purse or whether they had been “individually
removed from the [purse] and marked” as separate exhibits. The State responded
that the contents had been “individually moved . . . out of the purse.”
3
Cammack clarified that if the exhibits were “in the courtroom,” he did not
“have objections to them being offered.” The original trial court asked whether the
State was “offering those exhibits,” and the State responded that it was. Cammack
then objected that “th[o]se exhibits would be the best evidence as opposed to the
photographs of them.” The trial court reminded Cammack that the photographs had
already been admitted into evidence. The State proceeded with its examination of
the deputy about the various items that he found in the purse until Cammack asked
for a bench conference.
At the bench conference, Cammack explained to the original trial court that
he had asked the State “if [it] had” the purse’s contents so that Cammack “could
present [them]” to the jury if the State was not going to do so, but the State had not
brought them “to . . . court.” Cammack then “asked [the State] if [it] could retrieve”
the purse’s contents, but the State told Cammack that it “couldn’t get” them until
later that afternoon.
The original trial court responded that Cammack “could ask about it on
cross[-examination],” but Cammack stated that he “need[ed] the evidence,” and
because it was in the State’s “possession,” Cammack could not “retrieve [the purse’s
contents] unless” the State brought them to him. The trial court replied, “Well, what
do you want me to do about it?” and ended the bench conference.
4
The State continued questioning the deputy about photographs depicting other
various pieces of evidence. After Cammack began his cross-examination of the
deputy, the original trial court dismissed the jury for “a brief break,” called the court
into recess, and went off the record. When the trial court went back on the record,
it stated:
Since we were last on the record, [Cammack] engaged in
arguments with the court reporter over the admission of evidence. He’s
engaged in arguments with the [c]ourt repeatedly.
He’s been ejected from the courtroom.
[Carson Joachim], who’s been here for the entirety of the trial
with the defense in both guilt/innocence and during punishment, will
continue in his place.
We’ll be bringing the jury back in to continue.
The trial court then ordered Joachim to “pick up the cross-examination” of the
deputy “where [Cammack had] left off.”
Joachim, an attorney who had assisted Cammack at certain points during
appellee’s trial, protested that he had “not been present” in the courtroom for the
State’s examination of the deputy, except for “the five minutes prior to the
exchange” between Cammack and the original trial court. And he was “not really
sure of the entire genesis” of the argument between Cammack and the original trial
court. In any event, Joachim noted that appellee “ha[d] represented to [Joachim]
that he [did] not want [Joachim] to handle th[e] case as the primary attorney or the
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secondary attorney at th[at] point” and “would prefer to have [Cammack]” represent
him. As such, Joachim requested that the trial court give Cammack an opportunity
“to visit with [appellee] before continuing” with the punishment phase of trial.
In response, the original trial court stated that it was “not going to proceed
with [Cammack]” in the courtroom and “have his disruptions for the remainder of
[appellee’s] trial.” And it stated that if appellee “would like to have another attorney
other than [Joachim] represent him, he [could] have them come in now.” The
original trial court then ordered that the jury be brought back into the courtroom.
Before the jury returned, the State interjected that it was “requesting a 20, 30-minute
stave off in time to consult regarding what . . . the State’s position should be in
regard[] to proceeding with [appellee’s] case as it is.” The State explained that it
wanted the “time just to research and confer with [its] appellate [counsel].” The trial
court responded that the State “[c]ould do that” or “have someone else do that,” but
the punishment phase of trial “[was] going to proceed.”
After the jury returned to the courtroom, Joachim attempted to cross-examine
the deputy until eventually, the State requested a bench conference, and the trial
court granted the request. The following exchange then occurred:
[The State]: . . . [T]he State just wants to re-urge for time for
counsel to continue to have time to evaluate this
witness [be]cause he didn’t hear most of the direct.
And we’d like to just take up again outside the
6
presence of the jury to discuss the best path going
forward as far as --
THE COURT: Please proceed.
The State then questioned the deputy on redirect. When the State’s redirect
was completed, the original trial court informed the jury that the proceeding would
“break for lunch.” After the jury left the courtroom, the trial court had the bailiff
bring Cammack back into the courtroom, and the original trial court made the
following statement:
Mr. Cammack, you will not speak until I give you permission to
speak.
Your behavior since this case has been pending in front of me
has been reprehensible. The rudeness that you’ve displayed to the
district attorney’s office and to everyone in [the] court including myself
has been reprehensible.
Your disruptions throughout this trial from when it began in
November until today have been reprehensible. I’m going to ask: Are
you going to conduct yourself in this courtroom in a professional
manner, yes or no?
Cammack responded that he was “going to [his] office and filing a motion to
recuse.” And the trial court replied, “You may do so,” and then went off the record.
Back on the record, Joachim made the following statement:
. . . My participation [in appellee’s trial] has been consistent, but
still in and out of the courtroom at various times. I do not feel prepared
to the point that it could marginally be ineffective at some point along
the way if I continue to participate in this trial.
7
. . . [O]ut of full fairness to [appellee], he does not want me to
move forward as his primary attorney. He has indicated to me -- and I
can have him put that on the record -- that he would prefer [Cammack]
to be his lawyer moving forward.
We would at least like a continuance briefly -- I know that [the
State] has asked for that as well -- so that we can kind of collect our
thoughts.
I have a lot of respect for this [c]ourt and I hope you know that.
I do. And I appreciate, you know, the liberty that you’ve given me here.
But at the same time, I need to do what’s not only best for
[appellee], but also best for me professionally moving forward. No
disrespect to the [c]ourt. I enjoy being in your courtroom. It’s not that
at all.
So, I respectfully ask for a continuance, at a minimum. If we
can’t do that, then I would obviously ask for a mistrial, if -- you know,
I would have to urge that at this particular point in time. But I think it’s
fair if we put [appellee] on the record indicating to the [c]ourt that he
does not want me to be his attorney moving forward, if you would allow
me to do that.
Appellee then testified that he had hired Cammack as his primary attorney and
Cammack had helped appellee prepare for both the guilt and punishment phases of
the trial. Appellee stated that he did not meet Joachim until the beginning of his trial
and Joachim’s participation had been limited, for the most part, to the times that
Joachim had appeared in the courtroom for the purposes of the trial. Appellee
explained that he had never conferenced or prepared for trial with Joachim and he
had not reviewed any evidence with Joachim. And appellee confirmed that he
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wanted Cammack to be his “primary attorney” in the case and did not want Joachim
to represent him “going forward.”
Following appellee’s testimony, the original trial court recessed. When the
trial court returned, Cammack appeared in the courtroom and the following colloquy
took place:
THE COURT: [Appellee] would like to proceed with
[Cammack]. I do not want the
behavior and the disruption to be
prejudiced against [appellee]. I’m
going to allow [Cammack] to proceed,
but [he] cannot be disruptive and
disrespectful to this [c]ourt any longer.
[Cammack]: May I speak, Judge?
THE COURT: No.
[Cammack]: Okay.
THE COURT: We’re going to bring in the jury to --
[Cammack]: Well, I just want to let the [c]ourt know
one thing.
I have notified the administrative law
judge that I . . . file[d] a motion to
recuse. . . .
And I believe the proper remedy . . . is
to halt the trial until we’ve had a
motion to recuse hearing.
The trial court then brought the jury into the courtroom and stated that the court
would be in recess.
9
After a hearing on appellee’s motion for recusal, the motion was granted and
appellee’s case was assigned to the 338th District Court of Harris County, Texas.
Appellee then filed a motion for mistrial.
In his motion, appellee asserted that he “was deprived of his Sixth
Amendment right to counsel[4] when the [original] trial court . . . ordered another
lawyer . . . take over [appellee’s] trial . . . , over the objection of both [appellee] and
[his] new counsel.” Appellee also maintained that he “ha[d] not waived or limited
the scope of [Texas Code of Criminal Procedure section 37.07].” Thus, according
to appellee, “the only remedy available to afford [him] his right to [d]ue [p]rocess,
[wa]s to grant a mistrial and place [appellee] in his original, pretrial status pending
a new trial on the merits.”
In his brief in support of the motion for mistrial, appellee noted that he had
filed a motion for mistrial “at the conclusion of the State’s case-in-chief,” which was
denied, and he had subsequently filed his motion for recusal of the original trial
court. Appellee observed that “[t]he Sixth Amendment violation that formed the
basis of [his motion for mistrial] was addressed in [his] [m]otion for [r]ecusal.”
Appellee then recited the circumstances that precipitated the original trial court’s
4
See U.S. CONST. amend. VI.
10
removal of Cammack from the courtroom during the punishment phase of appellee’s
trial.
Appellee also referred to the thirteen instances of “conduct exhibited by the
[trial court]” that he had set forth in his motion for recusal, which was attached as
an exhibit to his motion for mistrial. According to appellee, such conduct, which
“occurred during both the guilt[] and punishment phase[s] of the trial,” “showed a
complete lack of impartiality” and the original trial court’s “bias against [appellee].”
In asserting that the original trial court had violated his Sixth Amendment
right to counsel, appellee cited specifically to the original trial court’s removal of
Cammack from the courtroom, his order that Joachim represent appellee and
cross-examine the deputy, and his later order that Cammack return to the courtroom.
Appellee argued that he was entitled to a “mistrial as to both phases of the
bifurcated trial” because he had invoked Texas Code of Criminal Procedure article
37.07 and thus was “statutorily entitled to have punishment heard by the same jury
that [had] adjudicated him [guilty].”
In its response to appellee’s motion for mistrial, the State did not contest
appellee’s entitlement to a new trial on punishment. But it asserted that the trial
court could “not grant a new trial on guilt for error that occurred during the
punishment phase” of appellee’s trial.
11
After a hearing on appellee’s motion, the trial court granted appellee’s motion,
declared a mistrial, discharged the jury “from all further consideration of this
matter,” placed appellee “in his original pretrial status with the pretrial bonds
reinstated,” and adjourned the case “for a new trial at a later date.”
Standard of Review
When, as here, the trial court’s order granting a mistrial is rendered after the
guilty verdict, but before the punishment verdict, the order, for purposes of its
appealability, is functionally indistinguishable from an order granting a new trial
because it returns the case to the posture it was in before trial. State v. Gallien, 631
S.W.3d 885, 890, 891 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d). “[W]hen
an order is functionally indistinguishable from or the functional equivalent of an
order granting a new trial, a reviewing court can look past the label assigned to the
order by the trial court.” State v. Boyd, 202 S.W.3d 393, 400 (Tex. App.—Dallas
2006, pet. denied); see also State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App.
1996); State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992).
We review a trial court’s ruling on a motion for mistrial under an
abuse-of-discretion standard. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). The test for
abuse of discretion is not whether, in the opinion of the appellate court, the facts
present an appropriate case for the trial court’s action, but rather, “whether the trial
12
court acted without reference to any guiding rules or principles.” State v. Herndon,
215 S.W.3d 901, 907 (Tex. Crim. App. 2007); Gallien, 631 S.W.3d at 891. A trial
court abuses its discretion when it applies “an erroneous legal standard, or when no
reasonable view of the record could support the trial court’s conclusion under the
correct law and facts viewed in the light most favorable to its legal conclusion.”
DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996), overruled on
other grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997).
Motion for Mistrial
In its sole issue, the State argues that the trial court erred in granting appellee’s
motion for mistrial as to the guilt phase of trial because the trial court’s error affected
only the punishment phase of appellee’s trial.
In his motion for mistrial, appellee, as his sole basis for claiming that he was
entitled to a mistrial as to the guilt phase of his trial, relied on a statutory right to
have the same jury that decided his guilt also decide his punishment. The pertinent
statute, Texas Code of Criminal Procedure article 37.07, provides:
Except as provided by Article 37.071 or 37.072, if a finding of guilty is
returned, it shall then be the responsibility of the judge to assess the
punishment applicable to the offense; provided, however,
that . . . where the defendant so elects in writing before the
commencement of the voir dire examination of the jury panel, the
punishment shall be assessed by the same jury, except as provided in
[s]ection 3(c) of this article and in [a]rticle 44.29.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2(b).
13
The Texas Court of Criminal Appeals has explained that “[a] defendant who
has followed the procedural steps necessary to trigger his statutory right to jury
assessment of punishment has the statutory right to have that punishment assessed
by “the same” jury as the one that found him guilty.” Ex parte Pete, 517 S.W.3d
825. 831 (Tex. Crim. App. 2017) (internal quotations omitted). As to the nature of
that statutory right, the Court of Criminal Appeals observed that the right “is wholly
subject to forfeiture, since it is lost by mere inaction.” Id. at 832.
Thus, to preserve the right to have the same jury decide both a defendant’s
guilt and his punishment, a defendant must comply with the statutory requirement
that he make the election to do so “in writing before the commencement of the voir
dire examination of the jury panel.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2(b).
Here, voir dire and jury selection took place on November 8, 2021, but appellee did
not file a written election to have the same jury decide both his guilt and his
punishment until November 9, 2021. Because appellee’s written election was
untimely, he forfeited any right to have the same jury decide his guilt and his
punishment. See Ex parte Pete, 517 S.W.3d at 832.
Because Texas Code of Criminal Procedure article 37.07 does not provide a
valid basis for granting appellee’s motion for mistrial as to the guilt phase of trial,
we hold that the trial court erred in granting appellee a mistrial as to the guilt phase
of trial.
14
We sustain the State’s sole issue.
Conclusion
We reverse the portion of the trial court’s order granting appellee’s motion for
mistrial as to the guilt phase of trial and render judgment denying appellee’s motion
for mistrial as to the guilt phase of trial. We affirm the remaining portion of the trial
court’s order granting appellee’s motion for mistrial as to the punishment phase of
trial. We remand the case to the trial court for further proceedings consistent with
this opinion.
Julie Countiss
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
15