Opinion
04-21-00273-CR
08-24-2022
The STATE of Texas, Appellant v. Marco Antonio GLORIA, Appellee
DO NOT PUBLISH
From the 365th Judicial District Court, Maverick County, Texas Trial Court No. 19-02-07982-MCRAJA Honorable Amado J. Abascal III, Judge Presiding
Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
OPINION ON MOTION FOR REHEARING
MEMORANDUM OPINION
BETH WATKINS, JUSTICE
DISMISSED FOR WANT OF JURISDICTION
The State of Texas appeals the district court's order granting appellee Marco Antonio Gloria's motion for mistrial. On July 27, 2022, this court issued an opinion and judgment dismissing the case for want of jurisdiction. The State filed a motion for rehearing and a motion for en banc reconsideration. After consideration, we deny the motion for panel rehearing, withdraw our July 27, 2022 opinion and judgment, and substitute this opinion in their place. We again dismiss the case for want of jurisdiction.
Background
Gloria was indicted on three separate charges. All three charges were tried to a jury simultaneously.
During its deliberations, the jury sent a note to the trial court, which was read in open court:
Your Honor Abascal,
We the jury have come to a final decision on:
Indictment #1
10 Not guilty
2 Guilty Indictment #2
12 Guilty Indictment #3
10 Not guilty
2 Guilty
The jurors have been going back + forth and looking at the evidence. However two of the jurors are Not in consences [sic] with indictment 1 + 3. Two of the jurors stated that they will not change their vote.
The jury acknowledged it had signed only one of the three verdict forms. Gloria moved for a mistrial on the entire case, while the State moved to accept the guilty verdict on Indictment 2 and to dismiss Indictments 1 and 3. The court released the jury for the evening to allow the parties to perform legal research and asked the jurors to return the next day.
The following day, the court found that it had yet to receive a verdict, and it allowed the jurors to reassemble "to give them an opportunity to discuss whether anyone wishes to change their vote. . . ." When questioned by the court, the foreperson indicated that the jury had reached a unanimous verdict on Indictment 2, but not Indictments 1 or 3. However, the verdict forms the foreperson signed did not reflect this. The court then instructed the jury to retire and correct the verdict forms to accurately reflect its verdict.
When the jury returned to the courtroom, the court asked a second time whether it had reached a unanimous decision on Indictment 2. This time, the foreperson said the jury had not reached a unanimous verdict on that count, then reversed course and stated that it had, then returned to her first response and stated that it had not reached a unanimous verdict. The verdict forms showed that the jury had not reached a unanimous verdict. When polled on each indictment separately, ten jurors stated that no unanimous verdict had been reached on any of the indictments. After additional argument of counsel, the court granted a mistrial on all three indictments.
The State appealed the mistrial as to all three indictments. On the State's motion, we dismissed the appeals of the mistrials on Indictments 1 and 3. See State v. Gloria, No. 04-21-00272-CR, 2021 WL 5336603, at *1 (Tex. App.-San Antonio Nov. 17, 2021, no pet.) (not designated for publication); State v. Gloria, No. 04-21-00274-CR, 2021 WL 5336635, at *1 (Tex. App.-San Antonio Nov. 17, 2021, no pet.) (not designated for publication). We subsequently ordered the State to show cause why this appeal of the mistrial on Indictment 2 should not be dismissed for want of jurisdiction. The State responded that we have jurisdiction because the trial court's order granting a mistrial is the functional equivalent of an order granting a new trial.
Analysis
Standard of Review and Applicable Law
The State has limited rights to appeal orders in criminal cases but can appeal orders that grant new trials. Tex. Code Crim. Proc. Ann. § 44.01(a)(3). A new trial is "the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt." Tex.R.App.P. 21.1(a). Reviewing courts evaluate the effect of a trial court's order, not its label; therefore, an order which is the functional equivalent of an order granting a new trial is appealable. State v. Garcia, 638 S.W.3d 679, 682 (Tex. Crim. App. 2022).
Application
The Court of Criminal Appeals has expressly distinguished between a mistrial granted "mid-trial, prior to any finding or verdict of guilt" and a mistrial that sets aside a jury's verdict. Rodriguez v. State, 852 S.W.2d 516, 518 (Tex. Crim. App. 1993). A mistrial that sets aside a jury's verdict has the same effect as an order granting a new trial after a trial has been completed and judgment has been rendered. Id. A mistrial setting aside a jury's properly rendered verdict is therefore functionally indistinguishable from an order for new trial. Id.; State v. Garza, 774 S.W.2d 724, 726 (Tex. App.-Corpus Christi-Edinburg 1989, pet. ref'd).
In contrast, a mistrial granted mid-trial-prior to a finding of guilt or innocence-is different than an order granting a new trial because there is no finding of guilt or innocence to set aside. Rodriguez, 852 S.W.2d at 518. In such a circumstance, the Texas Court of Criminal Appeals reasoned, "there is still an indictment to confer subject-matter and personal jurisdiction over the cause." Id. at 520-21.
The State contends that the trial court's order here is the functional equivalent of an order granting a new trial. As support for this proposition, it relies on cases in which courts had jurisdiction over appeals by the State after a verdict had been entered or a judgment had been signed. See Garcia, 638 S.W.3d at 680 (State's appeal of post-conviction grant of habeas corpus relief); State v. Savage, 933 S.W.2d 497, 498 (Tex. Crim. App. 1996) (State's appeal of order granting defendant's motion for JNOV); State v. Evans, 843 S.W.2d 576, 577-78 (Tex. Crim. App. 1992) (State's appeal of order allowing defendant to rescind guilty plea after judgment of guilt signed); Garza, 774 S.W.2d at 725 (State's appeal of order granting mistrial after jury returned verdict). Here, however, the record shows the trial court never received a jury verdict to set aside. See Tex. R. App. P. 21.1(a). Although the trial court gave it multiple opportunities to reach a verdict, the jury presented itself as deadlocked and unable to reach a unanimous decision on any of the indictments.
As a result, the record does not support a conclusion that the trial court "set aside a finding or verdict of guilt." Id. We therefore conclude the mistrial order at issue here is not the functional equivalent of an order granting a new trial. Accordingly, this court lacks jurisdiction over this appeal. See Tex. Code Crim. Proc. art. 44.01(a)(3).
Conclusion
We dismiss the State's appeal for want of jurisdiction.