IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NOS. 1879-00 & 1880-00

 

EX PARTE ABEL LUNA FIERRO, III, Appellant





ON APPELLANT'S PETITIONS FOR DISCRETIONARY

REVIEW FROM THE EIGHTH COURT OF APPEALS

BREWSTER COUNTY


Holcomb, J., filed a dissenting opinion, in which Keller, P.J., joined.



OPINION





On February 24, 1999, a Brewster County grand jury returned two indictments charging appellant with two counts of aggravated sexual assault of a child. See Tex. Pen. Code 22.021. On April 8, 1999, the State filed a motion to consolidate the cases for trial, and the trial court granted the motion. On June 21, 1999, the cases were called for trial. On that same day, a petit jury of twelve persons was selected and sworn. On the next day, one of the jurors, Sonia Jacquez, informed the trial court that she was related to appellant. The State then challenged Juror Jacquez for cause on the ground she was related to appellant within the third degree of consanguinity. See Tex. Code Crim. Proc. art. 35.16(b)(2); Tex. Gov't Code 573.023. Appellant responded, not surprisingly, that Juror Jacquez was "acceptable" to him. The trial court then found, on the record, that Juror Jacquez was in fact related to appellant within the third degree of consanguinity. (1) The trial court granted the State's challenge and declared a mistrial on its own motion. Defense counsel then asked the trial court to "[p]lease note our objection against the mistrial," and the trial court responded, "I cannot proceed with eleven jurors." (2) Neither appellant nor the State mentioned the possibility of proceeding to trial with eleven jurors.

On July 14, 1999, before appellant could be re-tried, he filed motions to dismiss both indictments with prejudice. See Tex. Code Crim. Proc. art. 27.05(3). In the motions, appellant argued that a re-trial on the indictments would violate his federal and state constitutional rights not to be put in jeopardy twice for the same offense. See U.S. Const. amends. 5 & 14; Tex. Const. art. I, 14. Appellant acknowledged that the trial court "properly decided" that Juror Jacquez was related to him within the third degree, but he argued that no manifest necessity existed for the mistrial since the trial court declared the mistrial without first asking the parties for less drastic alternatives. Appellant argued further that, had he been asked, he would have been willing to proceed to trial with an eleven-member jury, as our decision in Hatch v. State, 958 S.W.2d 813 (Tex.Crim.App. 1997), allowed. See footnote two, supra. On August 6, 1999, appellant filed applications for habeas corpus relief, in which applications he made arguments identical to those in his motions to dismiss.

On August 12, 1999, the trial court heard the motions and the applications and denied the requested relief. In doing so, the trial court explained:

"The rulings of the court on [the State's challenge for cause] were basically on the premise that the State was denied its right to use a peremptory challenge because the juror did not answer the question correctly. The court felt like at that time it had no alternative but to grant a new trial. The court does not feel that the Hatch case is appropriate in this case. Both the State and the defendant are entitled to a jury of twelve people. If they both decide and make an agreement to waive that, then it can be waived. But that was not the facts in this case. There was no agreement to proceed between the State and the defendant for eleven jurors, and the court feels that it made proper rulings in this case."

In interlocutory appeals to the Eighth Court of Appeals, appellant argued that the trial court erred in refusing to grant his motions to dismiss and his applications for habeas corpus relief because a re-trial was prohibited by his federal and state constitutional rights not to be put in jeopardy twice for the same offense. According to appellant, the trial court "abused any discretion it had in declaring a mistrial when it failed to consider [the] less drastic alternativ[e]" of proceeding to trial with eleven jurors. Appellant did not argue that the trial court erred in finding that Juror Jacquez was related to him within the third degree of consanguinity.

On August 31, 2000, the Eighth Court of Appeals rejected appellant's argument and affirmed the trial court's refusal to dismiss the indictments. Ex parte Fierro, No. 08-99-00293 (Tex.App.-El Paso 2000) (not published); Ex parte Fierro, No. 08-99-00294 (Tex.App.-El Paso 2000) (not published). (3)

On January 31, 2001, we granted appellant's petition for discretionary review to determine the answer to the only question he raised within it: Whether the court of appeals erred in upholding the trial court's rulings when the trial court found manifest necessity without first asking the parties whether they were willing to proceed to trial with eleven jurors. See Tex. R. App. Proc. 66.3(c). In his brief before this Court now, appellant argues that the court of appeals erred in affirming the trial court's refusal to dismiss the indictments because the trial court abused its discretion in declaring a mistrial without first asking the parties whether they were willing to proceed to trial with eleven jurors. (4)

The Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States guarantees that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This guarantee was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). For the purposes of the Double Jeopardy Clause, a defendant is "put in jeopardy" in a jury trial when the jury is selected and sworn. Crist v. Bretz, 437 U.S. 28, 35 (1978). (5) If, after the jury is selected and sworn, a mistrial is declared over the defendant's objection, the Double Jeopardy Clause bars a re-trial unless a manifest necessity existed for the mistrial. (6) Arizona v. Washington, 434 U.S. 497, 505 (1978). The prosecutor must demonstrate manifest necessity for any mistrial declared over the defendant's objection. Ibid. In other words, the prosecutor has the burden of demonstrating that there are no reasonable alternatives to a mistrial. The determination of whether a manifest necessity exists for a mistrial rests within the sound discretion of the trial court. Id. at 514. A trial court abuses its discretion if it finds a manifest necessity for a mistrial without first considering possible alternatives. Torres v. State, 614 S.W.2d 436, 440 (Tex.Crim.App. 1981).

Since, in the cases at bar, the trial court found one of the jurors to be disqualified, a manifest necessity existed for a mistrial unless both parties agreed to proceed with eleven jurors. Hatch v. State, 958 S.W.2d at 816 n. 5. See footnote two, supra. Appellant argues, however, that the trial court abused its discretion in finding a manifest necessity without first, on its own motion, asking the parties whether they were willing to proceed with eleven jurors. Two decisions, one from the United States Supreme Court and one from this Court, lead me to reject appellant's argument.

In Arizona v. Washington, 434 U.S. 497, the defendant was tried in Arizona state court on a charge of murder. During the voir dire examination of prospective jurors, defense counsel made certain improper and prejudicial comments. After opening statements were completed, the prosecutor moved for a mistrial, but the trial court denied the motion. The following morning, the prosecutor renewed his motion. Both the prosecutor and defense counsel argued the merits of the motion before the trial court, which ultimately granted the motion. The Arizona Supreme Court denied review of the trial court's mistrial ruling. In a subsequent habeas corpus proceeding, a federal district court held that the Double Jeopardy Clause protected the defendant from another trial in part because the trial court, before it granted the mistrial, did not consider on the record the possible alternatives to a mistrial. The Ninth Circuit Court of Appeals affirmed. The United States Supreme Court reversed, holding that the record showed that the trial court did not abuse its discretion in finding a manifest necessity for the mistrial:

"Defense counsel aired improper and highly prejudicial evidence before the jury, the possible impact of which the trial judge was in the best position to assess. The trial judge did not act precipitately in response to the prosecutor's request for a mistrial. On the contrary, evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. We are therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent's interest in having the trial concluded in a single proceeding. Since he exercised 'sound discretion' in handling the sensitive problem of possible juror bias created by the improper comment of defense counsel, the mistrial order is supported by the 'high degree' of necessity which is required in a case of this kind." Id. at 835 (emphasis added).



In Ex parte Brown, 907 S.W.2d 835 (Tex.Crim.App. 1995), the trial court and the parties were faced with a problem: the very limited availability of a key witness for both the State and the defense. In an attempt to solve the problem, defense counsel offered to allow the witness, Lorna Beasley, to testify out of sequence or to allow her supervisor, Manuel Valadez, to testify in her place. The State rejected the proposed alternatives, and the trial court, on its own motion, declared a mistrial on the ground of manifest necessity. Before the defendant could be re-tried, he sought habeas corpus relief, arguing that re-trial was barred by the Double Jeopardy Clause. The trial court denied relief, and the Second Court of Appeals affirmed. We reversed, explaining that the trial court abused its discretion in finding a manifest necessity for the mistrial:

"The record clearly reveal two less drastic alternatives which were available to the trial judge in lieu of a mistrial: (1) Beasley was available to testify out-of-sequence ... or (2) Valadez could have testified in Beasley's stead. The trial judge was aware of these alternatives but neglected to address them. Moreover, the Court of Appeals did not address the trial judge's failure to consider and rule out these alternatives. Because less drastic alternatives were available, the record does not support the trial judge's conclusion that there was manifest necessity for a mistrial." Id. at 843 (emphasis in original).



In my view, it is fairly implicit in the Arizona v. Washington and Ex parte Brown decisions that the trial court's duty to consider possible alternatives to a mistrial is met if the parties have an opportunity to suggest possible alternatives and the trial court carefully considers the alternatives that the parties suggest and that are within the trial court's authority. Contrary to appellant's argument, the trial court itself has no duty to suggest possible alternatives.

The trial court did not abuse its discretion in finding a manifest necessity for the mistrial without first, on its own motion, asking the parties whether they were willing to proceed to trial with eleven jurors. Therefore, the court of appeals did not err in affirming the trial court's denial of appellant's pre-trial motions to dismiss and pre-trial applications for habeas corpus relief. I would affirm the judgments of the court of appeals. Because the majority fails to do so, I respectfully dissent.



DELIVERED JUNE 26, 2002

PUBLISH

1. The majority holds that "the challenged juror was not, in fact, challengeable for cause because of consanguinity with appellant" and that "[t]he trial court erred in excluding her for that reason." However, appellant has never argued that the trial court erred in finding Juror Jacquez related to him within the third degree of consanguinity, and, therefore, it is inappropriate for us to consider that question. As a reviewing court, we must limit ourselves to questions that were raised in the courts of appeals. Owens v. State, 827 S.W.2d 911, 918 n.7 (Tex.Crim.App. 1992).

2. In Ex parte Hernandez, 906 S.W.2d 931, 932 (Tex.Crim.App. 1995), we held that, under Article 36.29(a) of the Texas Code of Criminal Procedure, a felony trial may not proceed with fewer than twelve jurors unless one of the jurors dies or is disabled from sitting. In Hatch v. State, 958 S.W.2d 813, 816 (Tex.Crim.App. 1997), decided just eighteen months before appellant's trial, we overruled Hernandez and held that, under Texas Government Code 62.201, a felony trial may proceed with fewer than twelve jurors if both parties agree. (Section 62.201 provides: "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.")

3. In its opinions, the court of appeals stated that the trial court declared the mistrial on its own motion "[b]ecause the State would not proceed [to trial] with only eleven jurors." Slip ops. at 1. The record reflects, however, that no one in the trial court mentioned the possibility of proceeding to trial with eleven jurors.

4. In his brief, appellant cites the guarantees against double jeopardy contained in both our federal and state constitutions. However, because appellant offers no argument or authority as to the protection provided by the state constitutional provision or how that protection differs meaningfully from that provided by the federal constitutional provision, his claim based on the state constitutional provision is inadequately briefed and not properly presented for our review. Ex parte Granger, 850 S.W.2d 513, 515 n. 6 (Tex.Crim.App. 1993).

5. The point at which a defendant is "put in jeopardy" is usually known as the point at which jeopardy "attaches." See Ex parte Ward, 964 S.W.2d 617, 624-625 (Tex.Crim.App.), cert. denied, 525 U.S. 823 (1998).

6. The protection afforded by the Double Jeopardy Clause



"embraces the defendant's valued right to have his trial completed by a particular tribunal. The reasons why this 'valued right' merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial." Arizona v. Washington, 434 U.S. 497, 503-505 (1978) (footnotes and some punctuation omitted).