Opinion
03-22-00271-CR
08-09-2023
Ex parte Ray Leo Rodriguez
Do Not Publish
FROM COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY NO. 2019CR1445, THE HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING
Before Justices Baker, Kelly, and Theofanis.
MEMORANDUM OPINION
Thomas J. Baker, Justice.
Ray Leo Rodriguez was charged with driving while intoxicated. See Tex. Penal Code § 49.04. After the jury deliberated, the trial court declared a mistrial and scheduled a new trial. Rodriguez then filed a pretrial application for writ of habeas corpus, alleging that the new trial was barred by double jeopardy. Following a hearing, the trial court denied the habeas application. We will affirm the trial court's order denying Rodriguez's habeas application.
BACKGROUND
In 2019, Rodriguez was charged with the offense of driving while intoxicated. See id. During a trial three years later, the jury retired to deliberate after both sides rested their cases. When the jury finished and returned to the courtroom, the trial court asked the presiding juror if the jury reached a verdict in this case and if the verdict was unanimous, and the presiding juror answered affirmatively to both questions and then handed the verdict form to the bailiff to give to the trial court. The trial court announced the jury's guilty verdict and identified the presiding juror by her name. At that point, the trial court realized that the alternate juror had been designated as the presiding juror and participated in the deliberations. The trial court then briefly excused the jury and discussed the issue with the parties. The trial court then called the jury back, thanked them for their service, and discharged the jury. Once the jury left, the trial court stated that it had told the parties that it would provide an instruction that the alternate juror not participate in deliberations but ultimately failed to "admonish the[ jury] with respect to the seventh juror." The trial court then allowed the parties to discuss the issue with each other.
In a subsequent hearing held three days later, Rodriguez objected to the alternate's participation and explained that he was unaware of her participation until she stated that she had served as the presiding juror. At the hearing, the trial court acknowledged that the alternate juror had not been instructed not to participate despite the trial court's intending to give that instruction prior to the jury's beginning its deliberations. The trial court asked Rodriguez what relief he was requesting, and Rodriguez requested that the trial court order a mistrial. When questioned by the trial court about whether he wanted to have another trial, Rodriguez explained that he believed "that's the proper . . . relief." The trial court granted the motion for mistrial, and both the State and Rodriguez agreed to the trial court's proposed new trial date.
Over three months later and before the new trial began, Rodriguez filed a pretrial application for writ of habeas corpus asserting that another trial would constitute double jeopardy and requesting that the case be dismissed with prejudice. At the end of the habeas hearing, the trial court denied the habeas application without a written order.
Rodriguez appeals the trial court's order denying his habeas application.
STANDARD OF REVIEW AND GOVERNING LAW
When reviewing a trial court's decision on a pretrial application for writ of habeas corpus, we review the facts in the light most favorable to the trial court's ruling and, absent an abuse of discretion, uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.-Austin 2012, pet. ref'd). "An abuse of discretion does not occur unless the trial court acts 'arbitrarily or unreasonably' or 'without reference to any guiding rules and principles,'" State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)), or unless the trial court's decision "falls outside the zone of reasonable disagreement," Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). When no findings of fact are made, as in this case, appellate courts "infer all implied findings of fact that are necessary to support" the ruling and defer to the implied findings of fact "that are supported by the record." See State v. Garcia, 651 S.W.3d 506, 511 (Tex. App.-Houston [14th Dist.] 2022, pet. ref'd). Reviewing courts "afford almost total deference to the trial court's determination of historical facts supported by the record, especially when the fact findings are based upon credibility and demeanor." Ex parte Estrada, 573 S.W.3d 884, 891 (Tex. App.-Houston [1st Dist.] 2019, no pet.). That same deference is given "to the trial judge's rulings on applications of law to fact questions if resolving those ultimate questions turns on evaluating credibility and demeanor." Id. However, "[i]f resolving those ultimate questions turns on applying legal standards," appellate courts "review the determination de novo." Id. Further, appellate courts uphold the ruling "if it is correct under any theory of law." Id.
DISCUSSION
On appeal, Rodriguez contends that the trial court erred by denying his pretrial habeas application because a second trial is barred by double jeopardy under the federal and Texas constitutions. See U.S. Const. amend. V; Tex. Const. art. I, § 14.
Cognizability
"[P]retrial habeas, followed by an interlocutory appeal, is an 'extraordinary remedy,' and 'appellate courts have been careful to ensure that a pretrial writ is not misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.'" Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (quoting Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). This remedy is reserved "for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review." Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). "Appellate courts must be careful, on interlocutory review, not to entertain a pretrial application for writ of habeas corpus when there is an adequate remedy by direct, post-conviction appeal." Ex parte Estrada, 573 S.W.3d at 891.
"Consequently, whether a claim is even cognizable on pretrial habeas is a threshold issue that should be addressed before the merits of the claim may be resolved." Ex parte Ellis, 309 S.W.3d at 79; see Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.-Dallas 2016, pet. ref'd). "A defendant may use a pretrial writ of habeas corpus only in very limited circumstances," Ex parte Estrada, 573 S.W.3d at 891, and bears the burden of proving facts entitling him to relief, Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). A "pretrial writ application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release." Ex parte Weise, 55 S.W.3d at 619.
As set out above, Rodriguez argues on appeal that the trial court erred by denying his habeas application because a second trial would constitute double jeopardy. The Double Jeopardy Clause of the Fifth Amendment protects a defendant against being placed twice in jeopardy for the same offense. U.S. Const. amend. V. The Fifth Amendment is made applicable to states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969). The prohibition against double jeopardy found in the Texas Constitution provides substantially identical protection as its federal counterpart does. Tex. Const. art. I, § 14; see Bien v. State, 530 S.W.3d 177, 180 (Tex. App.-Eastland 2016), aff'd on other grounds, 550 S.W.3d 180 (Tex. Crim. App. 2018); Ex parte Hill, 464 S.W.3d 444, 446 (Tex. App.-Dallas 2015, pet. ref'd).
The double-jeopardy prohibition embodies three separate guarantees-protection against prosecution for the same offense following an acquittal, protection against prosecution for the same offense following a conviction, and protection against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). These guarantees encompass two protections-the protection against successive prosecutions and the protection against multiple punishments. See United States v. Dixon, 509 U.S. 688, 696 (1993); Ex parte Chaddock, 369 S.W.3d 880, 882 (Tex. Crim. App. 2012). In the context of successive prosecutions, the underlying idea "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Ex parte Robinson, 641 S.W.2d 552, 554 (Tex. Crim. App. 1982) (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)); see Missouri v. Hunter, 459 U.S. 359, 365 (1983) (confirming that Court "ha[s] consistently interpreted [the Double Jeopardy Clause] 'to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense'" (quoting Burks v. United States, 437 U.S. 1, 11 (1978))).
The Court of Criminal Appeals has explained that a defendant "may use pretrial writs to assert his or her constitutional protections with respect to double jeopardy," Ex parte Weise, 55 S.W.3d at 619, in cases where the double-jeopardy protection being asserted concerns the protection against successive prosecutions, see Ex parte Castillo, 469 S.W.3d 165, 168 (Tex. Crim. App. 2015); Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010), because a violation of that right "must be reviewable before the exposure occurs," Ex parte Robinson, 641 S.W.2d at 555; see also Gonzalez v. State, 8 S.W.3d 640, 643 n.9 (Tex. Crim. App. 2000) (observing that Court of Criminal Appeals has "decided that a pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant should raise a 'successive prosecutions for the same offense' double jeopardy claim"). Accordingly, the denial of Rodriguez's "double-jeopardy claim is cognizable in his pretrial habeas application and is reviewable on the merits on appeal." Ex parte Estrada, 573 S.W.3d at 892.
Double Jeopardy
Pertaining to the merits, double-jeopardy protections are implicated only when jeopardy has attached. See Ex parte Macias, 541 S.W.3d 782, 785 (Tex. Crim. App. 2017); see also Serfass v. United States, 420 U.S. 377, 388 (1975) (explaining that "[t]he Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application," regardless of whether trier of fact is judge or jury, until defendant is put to trial before trier of fact); State v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009) (observing that "jeopardy must have attached initially" before double-jeopardy protections are implicated). For jury trials, "jeopardy ordinarily attaches when the jury is empaneled and sworn." Ex parte Macias, 541 S.W.3d at 785.
"Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's 'valued right to have his trial completed by a particular tribunal.'" Ex parte Hunter, 256 S.W.3d 900, 903 (Tex. App.-Texarkana 2008) (quoting Arizona v. Washington, 434 U.S. 497, 503 (1978)), pet. dism'd, 297 S.W.3d 292 (Tex. Crim. App. 2009). "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." Ex parte Fierro, 79 S.W.3d 54, 56 (Tex. Crim. App. 2002). "An exception to this rule exists when the defendant consents to a re-trial or a mistrial is mandated by 'manifest necessity.'" Id.; see also Sullivan v. State, 874 S.W.2d 699, 701 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd) (noting that double-jeopardy protections do not prohibit new trial following mistrial where defendant requested mistrial). Regarding manifest necessity, the Court of Criminal Appeals has concluded that a trial court abuses its discretion when declaring a mistrial against the defendant's wishes if it does not first consider less drastic alternatives. Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011).
On appeal, Rodriguez recognizes the double-jeopardy exceptions listed above, but he asserts that neither exception applies. Regarding consent, he argues that he "was placed in an impossible position through no fault of his own" in which he either had to consent "to a verdict that was rendered by an improper jury-thus a violation of his constitutional right" to a decision by the required number of jurors "and the error would not have been preserved for appeal-or he had to object and request a mistrial." See Tex. Const. art. V, § 13; see also Castillo v. State, 319 S.W.3d 966, 970 (Tex. App.-Austin 2010, pet. ref'd) (specifying that "[t]o preserve error caused by juror misconduct, the defendant must either move for mistrial or file a motion for new trial"). In light of the preceding, he urges that although he requested a mistrial, he had no alternative and should not be deemed to have consented to another trial.
Regarding manifest necessity, he argues that this exception does not apply because the trial court did not consider "less drastic alternatives" before granting a mistrial. Further, Rodriguez contends that there were less drastic alternatives available, including requiring the jury to deliberate again without the alternate juror's participation or allowing the issue to be presented in a motion for new trial. When presenting this argument, Rodriguez emphasizes that the trial court erred in this case by failing to exclude the alternate juror or instruct the jury that the alternate may not participate in deliberations and thereby allowed the alternate to vote on the verdict. Additionally, Rodriguez asserts that granting the mistrial and allowing another trial will benefit the State because it knows what his defensive strategy will be and will burden him with the additional financial and psychological strain stemming from repeated prosecutions. For these reasons, Rodriguez urges this court to reverse the trial court's order and direct the trial court to dismiss the charge against him with prejudice.
As set out above, there is an exception to the general rule barring a retrial when the defendant consents to a retrial. See Ex parte Fierro, 79 S.W.3d at 56; Sullivan, 874 S.W.2d at 701. In addressing this exception, the Supreme Court explained as follows:
We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.Oregon v. Kennedy, 456 U.S. 667, 679 (1982); see United States v. Scott, 437 U.S. 82, 93 (1978) (noting that defendant's motion for mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact" and that "the Double Jeopardy Clause is not offended by a second prosecution" when "a defendant successfully" pursues "a motion for mistrial"). The Supreme Court also explained that the conduct giving rise to the motion may come from the trial court or the prosecution. See Kennedy, 456 U.S. at 678-79 (discussing cases involving actions by trial courts and prosecutors).
The Court of Criminal Appeals adopted the standard set out in Kennedy and further explained that it is "[o]nly when the prosecutor intends to provoke the defendant's mistrial motion can it be said that the prosecutor, rather than the defendant, has exercised primary control over the decision to seek the trial'[s] termination." Ex parte Lewis, 219 S.W.3d 335, 358-59, 371 (Tex. Crim. App. 2007); see also id. at 358 (noting that double-jeopardy protection applies "to a defense-requested mistrial" only in narrow circumstance where "the defendant's consent to a mistrial" is "a sham"). Further, the Court related that "[t]he question, for double jeopardy purposes, is . . . whether requesting a mistrial was ultimately [the defendant's] decision." Id. at 358. Stated differently, "the question is not whether the decision was 'free' in the sense of being unconstrained but whether the decision was his own, albeit in the face of a dilemma." Id. It is not enough "that the defendant faced a 'Hobson's choice' between giving up his first jury and continuing" trial. Id.
In this case, Rodriguez requested the relief of a mistrial after considering his options, and the trial court confirmed that Rodriguez wanted to go through another trial. Although Rodriguez claims that he really had no choice in the matter because he was stuck between accepting the jury's improperly reached verdict or moving for a mistrial, the Court of Criminal Appeals has determined that these types of choices do not-without more-warrant application of double-jeopardy protections when a defendant moves for a mistrial. See id; see also Ex parte Rothmeier, No. 14-95-01356-CR, 1996 WL 491663, at *2 (Tex. App-Houston [14th Dist] Aug. 29, 1996, no writ) (op., not designated for publication) (concluding that trial court correctly denied habeas relief where defendant either requested mistrial or, at least, consented to it). Moreover, the trial court acknowledged that it did not give an instruction, but it explained that it had intended to provide the instruction before the deliberations began and did not recognize the oversight until the jury returned with a verdict. See Ex parte Lewis, 219 S.W.3d at 358-59 (rejecting proposition that conduct that was less than intentionally performed could warrant double-jeopardy protection).
Viewing the record in the light most favorable to the trial court's ruling, the trial court could have reasonably determined that there was no intention to provoke Rodriguez into moving for a mistrial and that his request was his own decision and, therefore, concluded that the consent exception to the double-jeopardy protections applied. See Ex parte Fierro, 79 S.W.3d at 56; see also Kennedy, 456 U.S. at 679 (concluding that because "trial court found" that "conduct culminating in the termination of the first trial in this case was not so intended . . ., that is the end of the matter for purposes of the Double Jeopardy Clause"). In light of this determination, we need not address Rodriguez's argument alleging that manifest necessity did not justify a new trial. See Ex parte Jackson, Nos. 09-14-00138-00140-CR, 2014 WL 3845780, at *3 n.1 (Tex. App-Beaumont Aug. 6, 2014, pet. ref d) (mem. op., not designated for publication); see also Ex parte Garza, 337 S.W.3d at 906-07, 909-18 (addressing issue of manifest necessity, including consideration of less drastic alternatives, when defendant objected to mistrial).
For these reasons, we conclude that the trial court did not abuse its discretion by denying Rodriguez's habeas application and, therefore, overrule his issue on appeal.
CONCLUSION
Having overruled Rodriguez's issue on appeal, we affirm the trial court's order denying his habeas application.
Affirmed.