IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NOS. 1879-00 and 1880-00

 

EX PARTE ABEL LUNA FIERRO, III, Appellant



ON APPELLANT'S PETITIONS FOR DISCRETIONARY

REVIEW FROM THE EIGHTH COURT OF APPEALS

BREWSTER COUNTY


Johnson, J., delivered the opinion of the court in which Meyers, Price, Womack, Keasler and Hervey, JJ., joined. Cochran, J. joined Part I, otherwise concurred in the result. Holcomb, J. filed a dissenting opinion in which Keller, P.J., joined.

O P I N I O N



I.



Appellant, by separate indictments, was charged with two incidents of aggravated sexual assault. The day after a petit jury of twelve persons was selected and sworn for trial of both causes, one of the jurors informed the trial court that she was appellant's cousin. The state then challenged that juror for cause pursuant to Tex. Code Crim. Proc., Art. 35.16(b)(2), claiming that she was related to appellant within the third degree of consanguinity. Appellant personally and by his attorney stated that the juror was acceptable to the defense. The trial court granted the state's challenge for cause, stating, "The law gives both the State and the Defendant certain legal reasons to challenge a juror, which means that I have to excuse them if they meet the requirements under the statute and this is one of the mandatory challenges that I have to grant." The trial court then declared a mistrial, over appellant's objection. Immediately thereafter, before discharging the entire jury, the trial court explained to the jury that, because the juror was "related within the third degree of consanguinity ... to the defendant," it had to excuse her. It further stated that it was going to have to declare a mistrial because they could not proceed to a verdict in a criminal case with eleven jurors.

Appellant subsequently filed motions to dismiss and petitions for writ of habeas corpus seeking to preclude re-trial of these causes since jeopardy had attached when the jury had been previously selected and sworn and that there was no showing that the mistrial had been mandated by manifest necessity. After a hearing, the trial court denied appellant's motions to dismiss and habeas corpus petitions. Appellant appealed that denial.

Before the court of appeals, appellant claimed that the trial court erred when it denied his writ of habeas corpus based upon his plea of double jeopardy. The court of appeals held that there was no abuse of discretion "in granting the [s]tate's challenge for cause and excusing [the juror] from further service as a juror due to her relationship with [a]ppellant." Ex parte Fierro, Nos. 08-99-00293-CR and 08-99-00294-CR (Tex.App. - El Paso, delivered August 31, 2000, slip op. at 5). The court of appeals also held that "a manifest necessity existed requiring the trial court to declare a mistrial[,]" and thus the trial court did not err in denying habeas corpus relief. Id., slip op at 8. Appellant's petitions for discretionary review reassert that the mistrial granted by the trial court was not justified by manifest necessity and that re-trial is therefore barred by double jeopardy protections.

The juror at issue, as appellant's cousin, (1) was not, in fact, related to appellant within the third degree of consanguinity. Article 35.16(b)(2), which was referred to by the state, provides that a challenge for cause may be made by the state if a juror is related within the third degree of consanguinity, as determined under Chapter 573 of the Government Code, to the defendant. Tex. Govt. Code, 573.023 specifies the manner of computing the degree of consanguinity between two persons (2) and explicitly names the relationships which fall within the third degree; a cousin is not included among such relatives. (3) Thus the trial court erred in concluding that the juror was challengeable for cause under Article 35.16(b)(2).

Appellant objected to a subsequent re-trial because such would violate his rights not to be placed in jeopardy twice for the same offense. As a general rule, after a jury has been impaneled and sworn, thus placing the defendant in jeopardy, double jeopardy bars a re-trial if the jury is discharged without reaching a verdict. Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995). An exception to this rule exists when the defendant consents to a re-trial or a mistrial is mandated by "manifest necessity." Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

Manifest necessity is limited to very extraordinary and striking circumstances. Ex parte Little, 887 S.W.2d 62, 65 (Tex. Crim. App. 1994). There must be a "high degree" of necessity that the trial come to an end. Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. 1981). As we said in Brown,

The import of Harrison is not simply that a trial judge make a perfunctory recitation of the alternatives before granting a mistrial, but that he carefully and deliberately consider which of all the alternatives best balances the defendant's interest in having his trial concluded in a single proceeding with society's "interest in fair trials designated to end in just judgments." Arizona v. Washington, 434 U.S. at 516, 98 S.Ct. at 836 (quoting Hunter, 336 U.S. at 689, 69 S.Ct. at 837). Otherwise, consideration of less drastic alternatives equates to little more than a pro forma exercise to mask the trial judge's preferred course of action. Accordingly, where the trial judge fails to explicitly or implicitly rule out a less drastic alternative in favor of granting a mistrial, he has abused his discretion.



Brown, at 840. See also, Ex Parte Little at 66; Harrison v. State, 788 S.W.2d 18, 23-24 (Tex. Crim. App. 1990); Torres at 442-43.

Here, the challenged juror was not, in fact, challengeable for cause because of consanguinity with appellant. The trial court erred in excluding her for that reason. (4)

II.

The record reflects that after erroneously discharging that juror, the trial court immediately declared a mistrial. There is nothing in the record to demonstrate that the trial court considered any less drastic alternatives, as is required by Brown. One less drastic alternative would have been allowing that juror to serve on the jury. Appellant affirmed on the record that he would not object to her serving. Another less drastic alternative would have been to determine if the parties would be willing to proceed with fewer than twelve jurors under Tex. Govt. Code, 62.201. (5) Without evidence that the trial court considered such alternatives, as it was required to do, a mistrial was not "necessary," manifestly or otherwise. We therefore conclude that the trial court abused its discretion in declaring a mistrial.

Appellant's pretrial applications to preclude retrial of the charges against him under the instant indictments should have been granted. We reverse the court of appeals and remand the instant causes to the trial court for action consistent with this opinion.



Johnson, J.

En banc

Delivered: June 26, 2002

Publish

1. The juror made two statements about her relationship to appellant; she said that her mother had told her that appellant was her second cousin, then that appellant was her brother's cousin. Unless we assume that her brother's moiety set is different from her own, her brother's cousin is also her cousin. Cousins of any variety do not fall within the proscribed degree of consanguinity.

2. In cases where neither of the two persons is descended from the other, the degree of consanguinity is determined by adding the number of generations between the individual and the nearest common ancestor of the individual and individual's relative, and the number of generations between the relative and the nearest common ancestor.

3. Section 573.023 (c) states:

An individual's relatives within the third degree by consanguinity are the individual's:

(1) parent or child (relatives of the first degree);

(2) brother sister, grandparent, or grandchild (relatives of the second degree)

(3) great-grandparent, great-grandchild, aunt who is a sister of a parent of the individual, uncle who is the brother of a parent of the individual, nephew who is a child of a brother or sister of the individual, or niece who is a child of a brother or sister of the individual (relatives of the third degree).

4. See, also, U.S. v. Meza-Soria, 935 F.2d 166 (9th Cir. 1991) and Commonwealth of Pennsylvania v. Kelly, ___ Pa.Super. __, ___ A.2d ___ (2002), where re-trials were precluded because of double jeopardy protections when trial courts had erroneously granted mistrial in the absence of manifest necessity.

5. Section 62.201 states, "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." We have held that this provision applies to criminal trials. Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997).