Â
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00206-CR
ERNEST S. WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
                                             Â
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 12,896
                                                Â
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
            Ernest S. Wilson appeals from the revocation of his felony community supervision. Wilson
was convicted of forgery on February 14, 2002. The trial court assessed punishment at two years'
imprisonment, but probated the sentence for a period of five years in accordance with the terms of
the negotiated plea agreement. Thereafter, the State filed a motion to revoke Wilson's community
supervision, alleging Wilson (among other things) failed to report to his community supervision
officer, used cocaine, consumed alcohol, did not provide evidence of a sixth-grade education, failed
to pay several fees, and did not attend a treatment facility as required.
            On July 8, 2003, Wilson pled true to having violated the conditions of his community
supervision. The trial court revoked the community supervision and sentenced Wilson to eighteen
months' confinement in a state jail facility pursuant to a negotiated plea agreement on revocation.
Griffin filed a pro se notice of appeal.
            Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Wilson's
notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended
rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, in
pertinent part:
(2) A defendant in a criminal case has the right of appeal under Code of
Criminal Procedure article 44.02 and these rules. The trial court shall enter a
certification of the defendant's right of appeal in every case in which it enters a
judgment of guilt or other appealable order. In a plea bargain case âthat is, a case in
which a defendant's plea was guilty or nolo contendere and the punishment did not
exceed the punishment recommended by the prosecutor and agreed to by the
defendantâa defendant may appeal only:
(A) those matters that were raised by written motion filed and ruled
on before trial, or
(B) after getting the trial court's permission to appeal.
Tex.  R.  App.  P.  25.2(a).  The  trial  court  filed  a  certification  of  defendant's  right  of  appeal
in accordance with Rule 25.2(a)(2). It states that this "is in a plea-bargain case, and the defendant
has NO right of appeal."
            We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d
519, 523 (Tex. Crim. App. 1996). Wilson pled true, and when adjudged guilty of that crime, he
entered into a negotiated plea agreement as to punishment that the trial court did not exceed at
sentencing. Under amended Rule 25.2(a)(2), Wilson was entitled to appeal only "those matters that
were raised by written motion filed and ruled on before trial," or "after getting the trial court's
permission to appeal." The trial court certified that neither of these circumstances apply by stating
that there is no right of appeal. See Comb v. State, 101 S.W.3d 724 (Tex. App.âHouston [1st Dist.]
2003, no pet.).
            We lack jurisdiction over this appeal, so we dismiss it.
                                                                                    Josh R. Morriss, III
                                                                                    Chief Justice
Date Submitted:Â Â Â Â Â Â Â Â Â Â October 21, 2003
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â October 22, 2003
Do Not Publish
d whether he wanted to be tried by
the existing jury of twelve or a different jury of twelve. We believe, from the context of the
discussion, he was opting to be tried later by a new jury of twelve; but that is not at all clear.
On appeal to this Court--and for the first time anywhere--Hunter asserts that one option
available to the trial court in lieu of mistrial was to proceed to trial with the existing twelve jurors.
At the time, the trial court appeared to believe it could not continue the trial with the existing twelve
jurors--saying that she was "disqualified." Hunter did not suggest to the trial court that the juror
could remain and serve, instead following the trial court's colloquy down the path to the court's
logical conclusion: that a mistrial was required. Additionally, Hunter did not even suggest at the
habeas hearing below that the challengeable juror could have continued her service. None objected
to the trial court's discharge of the problem juror, either early in the colloquy when it was obvious
the trial court intended to discharge her, or later in the colloquy when it declared a mistrial. Clearly,
no error was preserved in connection with the juror's dismissal. But we must address the question
of whether the erroneous, though unpreserved, dismissal can support a finding that a mistrial became
manifestly necessary as a result.
In Fierro, the parties discovered during trial that one of the jurors was a cousin of the
accused, and the State challenged the juror for cause. Notably, Fierro stated on the record that he
had no objection to the juror continuing to serve, though he interposed no objection to the juror's
dismissal. See Fierro, 79 S.W.3d at 57. In spite of that, the trial court ruled that the juror was
related within the third degree of consanguinity to the accused, a fact that, if true, would have made
good the State's challenge for cause. See Tex. Code Crim. Proc. Ann. art. 35.16(b)(2). The trial
court thereafter found "manifest necessity" existed for a mistrial. See Fierro, 79 S.W.3d at 55. After
the intermediate appellate court affirmed the trial court's action, the Texas Court of Criminal Appeals
reversed. By law, cousins are not related within the third degree of consanguinity, noted that court.
Id. at 56; see also Tex. Gov't Code Ann. § 573.023(c) (Vernon 2004) (defining such relationships
as those of parent and child, siblings, grandparent and grandchild, great-grandparent and great-grandchild, and aunts or uncles and nieces or nephews; list does not include cousins). Because the
trial court erroneously determined the juror and the accused were related within the third degree, in
spite of the fact that the error was not preserved with an objection, it followed that manifest necessity
did not exist to declare the mistrial in that case. Fierro, 79 S.W.3d at 56-57. The court further noted
that the trial court had failed to consider options less drastic than declaring a mistrial. (9) Id. at 57. The
court ruled that the trial court erred by denying Fierro's application for writ of habeas corpus based
on double jeopardy grounds due to the absence of manifest necessity. Id.
We conclude Fierro is controlling precedent for us, though there are some differences
between the case at hand and Fierro. In both cases, a decision to dismiss a juror led to a mistrial
declaration. Also in both, the decision to dismiss the juror was error. In neither case was error
preserved with an objection to the juror's dismissal. While Fierro dealt with a challenge for cause
which was erroneously granted, the case before us is an erroneous, sua sponte dismissal of a juror
who was challengeable for cause. But, in both cases, there was unpreserved error. The only real
difference in these cases is that, in Fierro, after the State asked that the juror be dismissed for cause,
Fierro stated that he had "no problem" with the juror, at least calling to the trial court's attention a
possible alternative, keeping the juror. Central to our decision is whether that distinction actually
makes a difference in whether a mistrial was manifestly necessary. We believe that, in light of
Fierro and of the Constitutional dimensions imposed by the Double Jeopardy Clause, the distinction
makes no difference.
We read Fierro to rule that an erroneous dismissal of a juror, which dismissal leads to a
mistrial declaration, cannot provide support for a finding that the resulting mistrial was manifestly
necessary. In Fierro, the erroneous decision to dismiss the juror was made without objection, though
after it was at least suggested that the juror might be kept. Here, though the problem juror was
subject to challenge for cause by either Hunter or the State, see Tex. Code Crim. Proc. Ann. art.
35.16(a)(7), neither party challenged her, objected to her dismissal, or suggested to the trial court that
the juror could be kept. Because the dismissal was error, Fierro requires reversal to avoid putting
Hunter in double jeopardy. Put another way, since the manifest-necessity threshold requires the trial
court to explore all less drastic alternatives before declaring a mistrial, and the trial court did not
consider the less drastic alternative of keeping the problem juror and continuing the trial with the
then-constituted jury, manifest necessity did not require the mistrial. See Fierro, 79 S.W.3d at 57.
Two venerable United States Supreme Court cases parsing double jeopardy and manifest
necessity could be argued as allowing Hunter's retrial, but we believe them to be distinguishable on
key points.
In 1894, the United States Supreme Court decided a case strikingly similar to the one before
us. See Thompson v. United States, 155 U.S. 271, 272-74 (1894). In Thompson, a murder case
arising from the United States Federal District Court for the Western District of Arkansas, the trial
court learned, in the midst of trial, that "one of the jury was disqualified by having been a member
of the grand jury that found the indictment . . . ." Id. at 273. The Court stated that its rulings
regarding double jeopardy claims had well established that
courts of justice are invested with the authority to discharge a jury from giving any
verdict, whenever in their opinion, taking all the circumstances into consideration,
there is a manifest necessity for the act, or the ends of public justice would otherwise
be defeated, and to order a trial by another jury; and that the defendant is not thereby
twice put in jeopardy within the meaning of the 5th Amendment to the Constitution
of the United States.
Id. at 274. In Thompson, however, the Court termed the juror in question "disqualified," presumably
under Arkansas law; distinguishing Thompson on that key point from the case before us, in which
the questioned juror was, under Texas law, challengeable only--and stood unchallenged by a party.
That is a telling difference.
In Simmons v. United States, 142 U.S. 148 (1891), a jury was empaneled and sworn to try
a case involving embezzled funds. During voir dire, the jurors had all stated they did not know the
accused; during trial, however, it was discovered that one of the jurors knew the accused, was the
accused's neighbor, and had a long-standing feud with the accused. Id. at 148-49. The trial court
ordered a mistrial, stating,
I am of the opinion that the facts presented make it necessary to discharge the present
jury from further consideration of the case, in order to prevent the defeat of the ends
of justice, and to preserve the rights of the people and also to preserve the rights of
the accused to be tried by a jury, every member of which can render a verdict free
from constraint. It is manifest that the knowledge respecting the State made by [the
witness who informed the court about the feud], conveyed to the jury by the
publication of the letter of the defendant's counsel, makes it impossible that in the
future consideration of this case by the jury there can be that true independence and
freedom of action on the part of each juror which is necessary to a fair trial of the
accused.
Id. at 150. In affirming the trial court's denial of the accused's double jeopardy claim, Justice Gray,
writing for the United States Supreme Court, noted,
There can be no condition of things in which the necessity for the exercise of this
power [to grant a mistrial] is more manifest, in order to prevent the defeat of the ends
of public justice, than when it is made to appear to the court that, either by reason of
facts existing when the jurors were sworn, but not then disclosed or known to the
court, or by reason of outside influences brought to bear on the jury pending the trial,
the jurors or any of them are subject, to such bias or prejudice as not to stand
impartial between the government and the accused. As was well said by Mr. Justice
Curtis in a case very like that now before us, "It is an entire mistake to confound this
discretionary authority of the court, to protect one part of the tribunal from corruption
or prejudice, with the right of challenge alleged to a party. And it is, at least, equally
a mistake to suppose that in a court of justice, either party can have a vested right to
a corrupt or prejudiced juror, who is not fit to sit in judgment in the case." United
States v. Morris, 1 Curt. 23, 37.
Id. at 155. In Simmons, however, the bias of the juror had been expressly established on the record.
Here, the bias of the problem juror was presumed only. That is a telling difference.
We believe the trial court was not consciously aware (10) that it had the option of keeping the
problem juror and thus continuing with Hunter's trial; it is clear that no one suggested that the juror
could be kept. But, because the record fails to show that manifest necessity supported the trial
court's declaration of a mistrial, double jeopardy bars the retrial of Hunter. We reverse the denial
of Hunter's application for writ of habeas corpus and remand this case to the trial court with
instructions to grant Hunter's application. See Fierro, 79 S.W.3d at 57.
Josh R. Morriss, III
Chief Justice
DISSENTING OPINION
This case presents us with a circumstance in which a trial judge, in an effort to protect a
defendant from any influence from a possibly tainted juror, dismissed (albeit erroneously) a seated
juror after a trial had been commenced. The trial court then declared a mistrial. When the case was
again set for trial, the defendant filed a pretrial application for writ of habeas corpus, alleging that
to proceed once again to trial would violate his protections against being subject to double jeopardy
pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, and similar
protection afforded in Article I, Section 14 of the Texas Constitution. See U.S. Const. art. 1, § 14.
The similarities between this case and Ex parte Fierro, 79 S.W.3d 54 (Tex. Crim. App.
2002), are striking. In both this case and in Fierro, after a trial had been commenced, a juror who
had been seated was discovered to have potential conflicts and was disqualified sua sponte by the
trial court; in fact, in each case, there was no statutory disqualification of the juror which actually
did apply. In each of these cases, it is quite likely that on voir dire, a challenge for cause would have
been granted to exclude the juror. In both cases, the defendant's case was then called for trial again
and in both circumstances, the defendant has attempted to interpose a claim of double jeopardy.
However, one should also examine the dissimilarities. In Fierro, the disadvantage posed by
having the disqualified juror remain seated would presumably have been the State's and not the
defendant's; here, the damage would have certainly been to Hunter. In Fierro, although there is no
mention in the opinion that the defendant lodged a formal objection to the dismissal of the juror, it
is noted specifically that "the juror was acceptable to the defense"; quite understandably, Hunter
made no objection to the dismissal of the juror and made no representation to the trial court that the
juror was acceptable. (11) Most importantly, the trial court in Fierro did not examine alternatives to
the declaration of a mistrial; here, the trial court specifically sought the acquiescence of Hunter and
the State to proceed with only eleven jurors, an alternative to mistrial which Hunter refused.
The Texas Court of Criminal Appeals indicated in Fierro that "[t]here is nothing in the record
to demonstrate that the trial court considered any less drastic alternatives, as is required by Brown.
One less drastic alternative would have been allowing that juror to serve on the jury." Fierro, 79
S.W.3d at 57. Later, the Texas Court of Criminal Appeals went further to explain that
[t]he judge is required to consider and rule out "less drastic alternatives" before
granting a mistrial. The judge must review the alternatives and choose the one which
best preserves the defendant's "right to have his trial completed before a particular
tribunal." The judge need not expressly state his reasons in the record as long as the
basis for his ruling is adequately disclosed by the record. When a trial judge grants
a mistrial despite the availability of a less drastic alternative, there is no manifest
necessity and he abuses his discretion.
Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). Although the trial court here did not
entertain the idea of proceeding to trial with the apparently tainted juror, (12) it did consider and propose
a less drastic alternative to mistrial, an alternative which would have required the consent of both
Hunter and the State. When Hunter objected to this alternative, there was not then another option
known to or available to the trial court. Accordingly, quite extraordinary circumstances existed and
there was a "manifest necessity" that a mistrial be declared. Ex parte Little, 887 S.W.2d 62, 65 (Tex.
Crim. App. 1994).
Granted, as the majority has very accurately explained, the trial court's sua sponte dismissal
of the juror was error. Since the juror was not patently disqualified by statute or rule from serving
on the jury, the procedure to have been followed would have been to call this problem to the
attention of both counsel, determine (if necessary) whether the juror's grand jury service on Hunter's
matter would prejudice the juror sufficiently to warrant the juror's dismissal, and then act
accordingly. However, that error--standing alone-- was not necessarily fatal, though it eventually
led to the chain of events which precipitated the manifest necessity of the declaration of a mistrial.
With the circumstances at hand, one could likely presume that the trial court would have
reasonably determined that proposing an agreement for the continuation of a trial with such a tainted
juror would have been an exercise in futility; although no record was made of the discourse between
the juror and the court to document the impact of prejudice on the juror, the practical effect could
have been devastating to the object of conducting a fair trial. Under the circumstances, there is no
evidence that the trial court did not consider the possibility of proceeding to trial with that juror and,
considering the type of taint the juror had explained and the certain and reasonable reservations any
competent defense attorney would voice, believed that posing such a proposal to Hunter would have
been fruitless. Plainly, the actions of the trial court in dismissing the juror were motivated by a
good-faith effort to protect Hunter's right to an impartial jury and a fair trial. Hunter benefitted from
it. Had the trial court proceeded to trial with the tainted juror over the objection of Hunter and the
trial resulted in a conviction, Hunter would probably be promptly before this Court arguing a perhaps
strong case for reversal.
As the record before us reveals, the trial court did make the analysis it was required to
perform in exploring the only alternative to mistrial: proceed with eleven jurors. When the
defendant refused to accede to a jury of less than twelve, the sole option to mistrial was foreclosed.
Unable to proceed further, mistrial was dictated by manifest necessity.
Looking at the fact that the motivation of the trial court in having dismissed the juror was
obviously for the purpose of protecting Hunter's rights and taking into account that he, indeed,
explored the alternatives to the drastic remedy of mistrial, these two factors distinguish this case
from Fierro.
The majority has a good, reasoned, comprehensive, and well-drafted opinion. However, I
maintain that the interests of justice dictate a very narrow application of the precedent established
by Fierro. When one places a narrow application of Fierro, it is not a precedent; it can be
distinguished.
In a totally different context, the Texas Court of Criminal Appeals has recently repeated the
maxim that "[t]he Constitution gives the defendant the right to a fair trial, not a perfect one." Davis
v. State, 203 S.W.3d 845, 849 (Tex. Crim. App. 2006). The actions of the trial court to assure that
Hunter was afforded a fair trial did not precipitate an injustice.
I would deny Hunter's plea.
Bailey C. Moseley
Justice
Date Submitted: June 16, 2008
Date Decided: June 17, 2008
Publish
1. Trial began the week of February 11, 2008. During jury selection, one or both sides asked
prospective jurors whether anyone had served on the grand jury that returned an indictment against
Hunter; none of the panel members responded affirmatively. The parties ultimately selected a jury,
and a trial on the merits began that Wednesday.
2. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(i), (2)(B) (Vernon Supp. 2007).
3. The initial indictment (the one in which the problem juror participated) was ultimately
dismissed but later replaced by a second indictment--from a different grand jury--that levied the
same criminal charges against Hunter based on the same alleged assault. The second indictment was
the charging instrument in the initial effort to try Hunter and is the charging instrument in the
impending trial.
4. The suggestion that using an alternate juror was an option available to the trial court--at the
time of discovery of the juror's prior service on a grand jury that addressed Hunter's case--is, of
course, incorrect. Had an alternate juror been selected with the jury, he or she could have been
seated in place of the problem juror. But, in this case, no alternate juror had been selected. Thus,
Hunter's suggestion was hindsight and did not suggest a viable alternative available to the trial court
at the time it was faced with the problem. We will, however, use hindsight to suggest to trial courts
that, when seating a jury, appointing at least one alternate juror is a valuable safety measure, to avoid
just this sort of problem and to protect trial proceedings. See Tex. Code Crim. Proc. Ann. art.
33.011 (Vernon Supp. 2007).
5. Hunter makes no effort to distinguish the rights, protections, and privileges afforded by the
Federal Constitution from those guaranteed by Texas law. We will, therefore, proceed under the
presumption that our state charter and laws afford no greater rights than those guaranteed under
federal law. Cf. Wood v. State, 18 S.W.3d 642, 648 n.5 (Tex. Crim. App. 2000) (where appellant's
brief makes no distinction between federal and state protections, review federal only).
6. In double jeopardy appeals, the strictness of the reviewing court's scrutiny depends on the
situation. If the State is somehow blameworthy, the appellate court applies the strictest appellate
scrutiny. Such heightened review is required when, for example, the basis for the mistrial is the
unavailability of prosecution evidence. Washington, 434 U.S. at 508. The same level of analytical
inspection applies to situations in which there is reason to believe the prosecutor is using the State's
superior resources to harass or otherwise achieve a tactical advantage over the defendant. Id. We
perceive no State blame for this situation.
On the other hand, a deferential view of the trial court's decision to declare a mistrial is
appropriate in situations in which either the defense was somehow blameworthy or there is no blame
to lay at the feet of either party. There is generally no blame on a party when a jury is hung. In
reviewing such cases, appellate courts are directed to accord "great deference" to the trial court's
decision to declare a mistrial when the trial court believes the jury to be hopelessly deadlocked. Id.
at 509-10. Similar leniency should be shown when the mistrial is the result of improper or
prejudicial remarks made by the defendant or defense counsel. Id. at 510-11. In these situations,
"the overriding interest in the evenhanded administration of justice requires that we accord the
highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one
or more jurors may have been affected by the improper comment." Id. at 511. Certainly, here, the
presence of the problem juror was not caused by any blameworthy behavior by Hunter or his counsel.
That arose through no apparent fault of either party. On the other hand, once the situation had arisen
and the trial court seemed inclined to dismiss the problem juror, apparently to protect Hunter,
Hunter's counsel could have attempted to keep that juror, had he wished to do so. He could have
objected or even simply suggested retention of the juror, but remained mute. Thus, whether we view
this as occurring wholly without the fault of either party, or occurring with some blame at the feet
of Hunter, we should afford some measure of deference to the trial court's decision.
7. Our reading of the record suggests that, until the mistrial was declared and the entire jury
was discharged, the problem juror still sat with the jury and had not yet been dismissed. Nothing in
the record suggests that the juror had actually formally been discharged or had physically left the
scene.
8. We see little substantive difference between striking a juror who served on the grand jury
that returned the indictment then on trial and striking a juror who served on the grand jury that
returned a previous (but virtually identical) indictment that was later dismissed. In both cases, the
trial court may rightfully presume that the juror, as a result of prior grand jury service, has formed
an opinion adverse to the accused. Webb v. State, 232 S.W.3d 109, 113 (Tex. Crim. App. 2007);
Mitchell v. State, 116 Tex. Crim. 65, 27 S.W.2d 800, 801 (1930); Self v. State, 39 Tex. Crim. 455,
47 S.W. 26, 28 (1898). In either case, the juror would be challengeable for cause.
9. The trial court's options included, we note, the known option of keeping the juror as
suggested by Fierro just before the trial court dismissed the juror.
10. In some contexts, the trial court's awareness of options might be important. See Brown, 907
S.W.2d 835 (witness unavailable, mistrial declared).
The record clearly reveals two less drastic alternatives which were available to the
trial judge in lieu of a mistrial: (1) Beasley [the "unavailable" witness] was available
to testify out-of-sequence on April 1 and could have been compelled by writ of
attachment to remain throughout the trial, or (2) Valadez could have testified in
Beasley's stead. The trial judge was aware of these alternatives but neglected to
address them.
Id. at 843 (emphasis added). Here, though the alternative of keeping the juror was not uttered by
anyone, we conclude that, in the face of Constitutional rights, the trial court here should have
considered, sua sponte, the alternative of keeping the juror, even though no party suggested it. We
believe Fierro requires that result.
11. Hunter, for the first time on appeal, indicates that he would, perhaps, have been willing to
proceed to trial with the juror who had been disqualified by the trial court, an incredible proposition.
When one considers that a grand juror hears a one-sided presentation of evidence (which does not
necessarily meet the requirements of the Texas Rules of Evidence), almost any competent trial
counsel representing Hunter would, of necessity, use every means possible to exclude such a
potential juror from the panel. One imagines that a face-to-face representation by a defense counsel
that he would have acquiesced to continuing with such a juror would almost necessarily be
accompanied with an obvious wink and a broad smile or with eyes turned toward the ceiling and two
fingers crossed behind the back.
12. The record does not definitively state whether the questionable juror was still in attendance
or not; the trial court said, "Let the record reflect that we're outside the presence of the jury. At this
time, the Court has determined that one of the jurors that is seated during this case was on the grand
jury that originally indicted Mr. Hunter. . . ."