Bowles v. State

606 S.W.2d 875, 1980 Tex. Crim. App. LEXIS 1358

• Court: Court of Criminal Appeals of Texas
• Decided: September 17, 1980
• Docket: 59178
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for felony delivery of marihuana. Punishment was assessed at five years and appellant was placed on probation.

In his only ground of error appellant contends the trial court erroneously overruled his plea of former jeopardy. His argument is based on an earlier trial in which the jury was discharged when it was unable to reach a verdict. Specifically, appellant asserts the jury in that trial was discharged too soon, in violation of Art. 36.31, V.A.C.C.P. That statute provides:

“After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree.”

Appellant relies strictly on the second part of the statute, arguing that the jury, at the time it was discharged, had not “been kept together for such time as to render it altogether improbable that it can agree.”

At the hearing on the motion for new trial following the second trial, counsel for appellant at the first trial testified that during a conference in chambers he requested the court to discharge the jury. In view of counsel’s affirmative request we hold that the second part of Art. 36.31, supra, does not control disposition of this case.

Under the first part of Art. 36.31, supra, a jury that cannot agree may properly be discharged if both parties agree. Although it has been held that this requires the personal consent of the defendant, and that counsel’s consent is not sufficient, Hippie v. State, 80 Tex.Cr.R. 531, 191 S.W. 1150, 1155, on motion for rehearing, and see Davis v. State, 144 Tex.Cr.R. 474, 164 S.W.2d 686, in this case appellant’s counsel actually requested that the jury be discharged. In an analogous situation, regarding whether a mistrial created a jeopardy bar to subsequent prosecution, the court in Bios v. State, Tex.Cr.App., 557 S.W.2d 87, held the jeopardy protection was not violated by retrial where defense counsel had requested the mistrial, and Hippie v. State, supra, was found not dispositive. Similarly, in this case, the decision to discharge the jury was not initiated by the court, but was at the request of defense counsel. Since the court did not initiate the action to discharge, but simply acted on counsel’s request, we hold it was not necessary for the court to secure appellant’s personal consent.

We therefore hold that the first trial did not constitute a jeopardy bar to a second trial, and overrule the ground of error.

The judgment is affirmed.