in Re Daniel Ray Morris

Opinion filed May 25, 2006 Opinion filed May 25, 2006 In The Eleventh Court of Appeals __________ No. 11-05-00381-CR __________ IN RE DANIEL RAY MORRIS On Appeal from the 91st District Court Eastland County, Texas Trial Court Cause No. CR-03-20161 O P I N I O N Daniel Ray Morris filed an application for a pretrial writ of habeas corpus asserting that former jeopardy precludes the State from trying him a second time for indecency with a child. The trial court denied relief. We affirm. Background Facts Appellant was charged with indecency with a child. A jury was empaneled and sworn. The presentation of evidence lasted approximately two days. The State offered evidence through four witnesses. Appellant testified and also presented twelve character witnesses. The testimony concluded a little before 4:30 p.m. on the second day. Around 5:20 p.m., the jury sent a note to the court stating that it was unable to reach an immediate decision and questioning whether it should continue to deliberate or return in the morning. The trial court told the jury to continue to deliberate and that refreshments would be provided upon request. Around 6:15 p.m., the jury communicated with the court that there was a disagreement among the jurors regarding some of the testimony. The disputed testimony was read back to the jury. About two hours later, the jury sent another note to the court stating that it was Aunable to come to a unanimous decision. Two votes have been taken and yet no decision has been agreed upon.@ The trial court responded by calling the jury into the courtroom and further instructing it. The further instruction provided that, if it was unable to reach a unanimous verdict, another jury would have to be empaneled and determine the same questions confronting this jury. The trial court instructed the jury: ADon=t do violence to your conscience, but continue deliberating.@ The jury continued to deliberate for about another hour. Around 9:22 p.m., the trial court sent a note to the jury asking for the numerical division of the jury. The jury returned with a note stating that the split was eight to four. The trial court then sua sponte granted a mistrial over appellant=s objection under Tex. Code Crim. Proc. Ann. art. 36.31 (Vernon 1981) stating: The court specifically finds this jury, having been together after two days of testimony, a day and a half, a day and three-quarters of testimony, and having been in deliberations continuously for five hours, that this jury has been kept together for such time as to render it altogether improbable that the jury will reach a verdict. Appellant=s case was set for a subsequent trial in October 2005. A jury was empaneled and sworn. Prior to the trial commencing, however, the State moved for a mistrial based on juror misconduct. The trial court granted a mistrial and again set appellant=s trial for November 2005. Prior to the start of the November trial, appellant filed a writ of habeas corpus in the trial court complaining of the mistrial that was granted in the first trial. In his writ, appellant asserts that a retrial would violate his right not to be placed under double jeopardy pursuant to the United States Constitution and the Texas Constitution. The trial court denied the writ, and this appeal followed. Issues on Appeal In his first issue, appellant contends that the trial court abused its discretion under the Fifth Amendment of the United States Constitution and Article I, section 14 of the Texas Constitution in declaring a mistrial sua sponte because there was not a showing of manifest necessity. In his second issue, appellant asserts that the trial court abused its discretion under Texas law in declaring a mistrial sua sponte because it was not shown that it was improbable that the jury would reach a verdict. Standard of Review We will review the trial court=s ruling for an abuse of discretion. Ex parte Bruce, 112 S.W.3d 635 (Tex. App.CFort Worth 2003, pet. dism=d, untimely filed). In reviewing the trial court=s decision, we view the evidence in the light most favorable to the ruling and give great deference to the trial court=s findings and conclusions. Id. at 639. A trial court abuses its discretion when it acts irrationally or irresponsibly and without guiding legal principles. Id. at 640. We will not substitute the conclusion we may have reached for that of the trial court=s conclusion. Dubose v. State, 915 S.W.2d 493 (Tex. Crim. App. 1996). Constitutional Arguments The Fifth Amendment to the United States Constitution and Article I, section 14 of the Texas Constitution prohibit a State from twice putting a defendant in jeopardy for the same offense.[1] Alvarez v. State, 864 S.W.2d 64 (Tex. Crim. App. 1993). Jeopardy attaches once a jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35 (1978); Brown v. State, 907 S.W.2d 835 (Tex. Crim. App. 1995). Generally, if after jeopardy attaches and the jury is discharged without reaching a verdict, double jeopardy will bar retrial. Brown, 907 S.W.2d at 839. An exception to this general rule is if the defendant consents to a retrial or if some manifest necessity exists for a judge to declare a mistrial. Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App. 1981). A[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.@ United States v. Perez, 22 U.S. 579, 580 (1824). Courts have found manifest necessity to discharge a jury without the defendant=s consent in cases where the jury is unable to arrive at a unanimous verdict. Brown, 907 S.W.2d at 839. Before finding a manifest necessity exists to grant a mistrial, the trial court must review alternative courses of action and choose the one that best preserves the defendant=s right to have his trial completed before a particular tribunal. Id. Factors that a court may consider in determining whether manifest necessity exists to grant a mistrial include the time the jury deliberates in relation to the length of the trial, the amount of evidence admitted, and the nature of the case and the evidence admitted. O=Brien v. State, 455 S.W.2d 283 (Tex. Crim. App. 1970); Johnson v. State, 137 S.W.3d 777 (Tex. App.CWaco 2004, pet. ref=d). Here, the trial lasted approximately two days. There were five fact witnesses, including the defendant. The other twelve witnesses were character witnesses for the defendant. Appellant admitted to all the elements of the offense except for the element of Athe intent to arouse or satisfy his sexual desire.@ That left the jury with a single issue to deliberate. The jury deliberated for a total of five hours. The jury disagreed on specific testimony and requested that the testimony be read back to it. Even after hearing the disputed testimony again, the jury was unable to reach a unanimous verdict. Then, the trial court took the alternative action of giving the jury further instructions and telling it to continue to deliberate. The jury was still unable to agree on a verdict. Viewing the evidence in the light most favorable to the trial court=s ruling, we hold that the trial court did not abuse its discretion in discharging the jury and declaring a mistrial. We overrule appellant=s first issue. Texas Law Article 36.31 provides that, after a cause has been submitted to the jury, the jury may be discharged when it cannot agree and both parties consent to its discharge and that the trial court may discharge the jury when it has been kept together for such time as to render it altogether improbable that it can agree. It is within the trial court=s discretion to determine if a jury has been together for so long that it is improbable that it will reach a verdict. Galvan v. State, 869 S.W.2d 526 (Tex. App.CCorpus Christi 1993, pet. ref=d). A trial court is in the best position to determine if a jury would be able to reach a verdict because it knows the amount of evidence and the difficulty of the evidence that the jury must weigh. Id. at 528. A court must consider the length of time the jury deliberated in light of the nature of the case and of the evidence when making the decision of whether or not to discharge the jury. Id. There is not a fixed length of time that a jury must deliberate before it may be discharged for failure to agree. Ex parte Templin, 945 S.W.2d 254 (Tex. App.CSan Antonio 1997, pet. ref=d). This was a single-issue case without complicated scientific facts. The testimony lasted two days and consisted of only five fact witnesses including the defendant. The jury deliberated for a total of five hours. The trial court told the jury to continue to deliberate on two different occasions. On the second occasion, the court gave the jury further instructions. It was still unable to reach a unanimous verdict. Considering the nature of the case and the evidence before the jury, the trial court did not abuse its discretion when it discharged the jury on the basis that it was improbable the jury would reach a verdict. Appellant=s second issue is overruled. Consent The State argues that appellant consented to a retrial because he announced Aready@ in the second trial in October 2005. Appellant did not complain of a double jeopardy violation until prior to the start of the third trial in November. Because we find that the trial court did not err in declaring a mistrial, we do not need to address whether or not appellant consented to the retrial. Conclusion The trial court did not abuse its discretion in discharging the jury and declaring a mistrial. We affirm the trial court=s judgment. RICK STRANGE May 25, 2006 JUSTICE Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., and McCall, J., and Strange [1]The double jeopardy clause found in Article I, section 14 of the Texas Constitution does not provide broader protections than the double jeopardy clause of the United States Constitution. Ex parte Beeman, 946 S.W.2d 616 (Tex. App.CFort Worth 1997, no pet.). Accordingly, our analysis is the same under both provisions.