Opinion
No. 04-03-00247-CR
Delivered and Filed: September 17, 2003 DO NOT PUBLISH.
Appeal From the County Court at Law No. 5, Bexar County, Texas, Trial Court No. 804858, Honorable Timothy F. Johnson, Judge Presiding. AFFIRMED
Sitting: Alma L. LOPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jose Membreno appeals the trial court's denial of relief on his pretrial application for writ of habeas corpus. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's order in this memorandum opinion. See Tex.R.App.P. 47.4. Jose Membreno is charged with driving while intoxicated. When the case was called for trial on Monday, July 1, 2002, both sides announced ready. The trial was anticipated to last through Wednesday, July 3. During voir dire the trial judge informed the prospective jurors that, to avoid the July 4 holiday, they would work late on July 3 if necessary. A jury was chosen but not sworn on Monday, July 1, and told to return Tuesday morning. However, severe flooding prevented the jurors' return on Tuesday, July 2. When the flooding continued on Tuesday, the judge considered continuing the case until Friday, July 5. However, the judge was concerned that she had not discussed with the prospective jurors their availability after Wednesday, July 3; and the State informed the judge's coordinator that its expert would not be available on July 4 or 5 and one of its other witnesses was not available the week of July 8. In light of these circumstances, the judge, on her own initiative, dismissed the jury and reset the case. Membreno's pretrial application for a writ of habeas corpus, seeking dismissal of the charges, was granted; but the trial court denied relief. Membreno contends the trial court's dismissal of the jury violates the constitutional protection afforded him under the due process and double jeopardy clauses because he was denied the jury he had selected, he did not consent and was not given the opportunity to object, no motion for continuance was filed, dismissal of the jury was not manifestly necessary, and the trial court failed to attempt less drastic alternatives. We disagree. Considerations of Membreno's interest in being tried by a particular jury, consent, "manifest necessity," and "less drastic alternatives," are relevant only if jeopardy has attached. See Crist v. Bretz, 437 U.S. 28, 37-38 (1978); Downum v. United States, 372 U.S. 734, 735 (1963); Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2000); Ex parte Little, 887 S.W.2d 62, 67 (Tex.Crim.App. 1994); Harrison v. State, 767 S.W.2d 803, 806 (Tex.Crim.App. 1989). And jeopardy did not attach because the prospective jurors had not been sworn. See Hill, 90 S.W.3d at 313; Ortiz v. State, 933 S.W.2d 102, 105 (Tex.Crim.App. 1996). Membreno cites no authority, and we have found none, for his contention that due process prohibits the State from continuing its prosecution against him. We therefore affirm the trial court's denial of habeas relief.