No. 05-07-01713-CR
Opinion issued March 10, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. WX07-90056-L.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
Opinion By Justice WHITTINGTON.
Keivin Hervy appeals the trial court's order denying the relief sought in his application for writ of habeas corpus. In one issue, appellant asserts the trial judge erred in denying appellant relief because further prosecution is barred by double jeopardy. We affirm the trial court's order.
Background
Appellant is charged with burglary of a habitation with intent to commit sexual assault. On the second day of the jury trial, the State announced its intent to introduce an expert to testify in rebuttal of previously undisclosed fingerprint evidence recovered at the scene, and to compare the evidence to fingerprints of appellant taken during trial. Appellant objected at length to the introduction of the evidence and requested a mistrial. The judge overruled appellant's objection and denied the mistrial. Appellant requested a continuance to prepare for his own fingerprint expert, which the trial judge denied. The trial judge recessed for the day. On the third day of trial, after additional discussion regarding the time required to permit appellant to secure his expert, the trial judge determined that if the State "push[ed] for admission of] the fingerprint evidence, it's going to be a mistrialed case." The State confirmed its intent to proceed with introduction of the fingerprint evidence, and there was further discussion regarding, among other things, continuing with fewer jurors, the anticipated amount of time needed to resume the trial with the empaneled jury, and potential outside influences during any hiatus. The State asked the judge set a date for reconvening the trial and to make a record showing the jurors responses to their future availablilty on that later date so as to determine whether a mistrial was a manifest necessity. The judge asked if appellant's counsel had a response to the State's request, and defense counsel said, "We would leave that to the discretion of the Court." The judge ultimately declared a mistrial and dismissed the jury. The record contains no objection by appellant to the trial judge either considering or declaring a mistrial. Appellant later filed an application for writ of habeas corpus contending double jeopardy bars retrial because the judge granted the mistrial without appellant's consent and without considering lesser options, and there was no manifest necessity. The judge denied appellant the relief he sought and this appeal followed. Standard of Review and Applicable Law
In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006). We afford almost total deference to the court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007). We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d at 819. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. See Ex parte Peterson, 117 S.W.3d at 819. The Double Jeopardy Clauses of the United States and Texas Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. See U.S. Const. amend. V; Tex. Const. art. I, § 14. Jeopardy attaches when a jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35 (1978); Ex parte Brown, 907 S.W.2d 835, 839 (Tex.Crim.App. 1995). Therefore, as a general rule, if, after the defendant is placed in jeopardy, the jury is discharged without reaching a verdict, double jeopardy will bar retrial. Ex parte Brown, 907 S.W.3d at 839 (citing Green v. United States, 355 U.S. 184, 188 (1957)). Exceptions to this rule exist if the defendant consents to a retrial or if retrial is mandated by some form of manifest necessity. Ex parte Brown, 907 S.W.2d at 839. A defendant who does not object to the trial court's sua sponte declaration of mistrial, despite an adequate opportunity do so, has impliedly consented to the mistrial. See Torres v. State, 614 S.W.2d 436, 441-42 (Tex.Crim.App. [Panel Op.] 1981) (citing United States v. Gori, 367 U.S. 364 (1961)); Ledesma v. State, 993 S.W.2d 361, 365 (Tex.App.-Fort Worth 1999, pet. ref'd). Analysis
Appellant argues reprosecution is barred by double jeopardy because he did not consent to the mistrial and it was not required by manifest necessity. The State responds that reprosecution is not barred because appellant either requested the mistrial or consented to it and because the record shows manifest necessity for the mistrial. We agree the record shows appellant consented to the mistrial. When the State announced its intent to call a fingerprint expert to testify, appellant objected and requested a mistrial. The trial judge denied the motion for mistrial, and appellant thereafter requested a continuance to obtain his own expert. Appellant never retracted the mistrial request. In fact, when the State sought clarification as to whether the issue was a mistrial or a continuance, defense counsel responded, "Well, actually, Your Honor, we've already requested the mistrial." The trial judge entertained suggestions and arguments from counsel, and considered several issues relevant to continuing the trial versus declaring a mistrial. The discussions included keeping the jury intact, continuing with fewer jurors, an intervening holiday, re-questioning the jury members about their availability at a future date and the original estimate given to the venire of trial length, the time needed by the defense to secure and prepare its expert, the risk of outside influence on the jury during the interim, and the amount of evidence the jury would recall after a potential break of four weeks in the trial. Thus, the record is clear the trial judge considered at length the possibility of continuing the trial, and articulated to the jury the determination that mistrial was necessary due to "a matter of evidence that needs to be examined that can't be examined in a practical period of time." See Ex parte Brown, 907 S.W.2d at 839. Appellant did not object to the court's declaration of mistrial, either when it was first proposed by the trial judge or at any subsequent time. In fact, the record shows that only the prosecutor truly objected to a mistrial, especially without the judge making a record of the jurors' responses to questioning about their future availability. Conversely, appellant expressed concerns about the effect of a delay upon the jurors. Reviewing the record as a whole, we conclude it shows appellant consented to the mistrial. See Torres, 614 S.W.2d at 441-42; Ledesma, 993 S.W.2d at 365. Therefore, double jeopardy does not bar reprosecution of the case. We resolve appellant's issue against him. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.