Ex Parte Octabiano CANTU, Jr.

120 S.W.3d 519, 2003 Tex. App. LEXIS 9469, 2003 WL 22512026

• Court: Court of Appeals of Texas
• Decided: November 6, 2003
• Docket: 13-03-00003-CR
• Status: Published

Opinions

OPINION

Opinion by

Justice GARZA.

Appellant, Octabiano Cantu, Jr., challenges the trial court’s denial of relief on his petition for a writ of habeas corpus. Appellant currently stands indicted for aggravated sexual assault on a child,¹ but he claims that in an earlier trial, he was acquitted of the offense giving rise to the indictment. In a pre-trial habeas corpus petition, appellant asked the trial court to bar the State from prosecuting him for aggravated sexual assault on the grounds that it would constitute double jeopardy.² The court held a habeas hearing but ultimately denied relief. Appellant now challenges that denial of relief. After reviewing the record, we conclude that relief is improper because appellant does not face double jeopardy. We affirm the trial court’s decision.

In evaluating a challenge to a trial court’s decision on a habeas corpus petition, we view the facts in the light most favorable to the court’s ruling, and absent an abuse of discretion, we will uphold the challenged ruling. Ex parte Kubas, 83 S.W.3d 366, 368 (Tex.App.-Corpus Christi 2002, pet. ref'd). We give the trial court almost total deference with regard to findings of historical fact supported by the record, but we give de novo review to the trial court’s determination of the law as well as its application of the law to the facts. Id. at 368-69.

In October 2002, a jury tried appellant on charges of aggravated sexual assault on a child (the “greater offense”) and the lesser-included offense of indecency with a child (the “lesser included offense”).³ The jury deadlocked, and the trial court granted appellant’s motion for a mistrial. In his habeas petition, appellant argued that the jury implicitly acquitted him of the greater offense because its notes to the trial judge indicated that it was deadlocked on the lesser-included offense. The trial court disagreed with appellant’s “implied verdict” theory. So do we.

Appellant’s argument is based on the instructions given to the jury and three notes the jury passed to the judge during its deliberations. In relevant part, the jury instructions explained, “Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of the [greater] offense ... and next consider whether he is guilty of the lesser included offense.” Appellant argues that this language prohibited the jury from considering the lesser included offense unless it first acquitted him of the greater offense.

During its deliberations, the jury sent a note that read, <cYour honor, we are at a split vote 10-2(G/N) on [the] lesser charge. What do we do now?” The court instructed the jury to keep deliberating, but then a second jury note later declared, “Your honor, we are sorry-but we are hopelessly deadlocked ... [at] 10-2 (G-NG) on [the] lesser charge.” This second note prompted appellant to move for a mistrial. After declining to grant the motion, the court admonished the jury as follows:

If this jury finds itself unable to reach a unanimous verdict, it will be necessary for the court to declare a mistrial and dismiss the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. You are requested to continue your deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury if you can do so without doing violence to your own conscience.

After further deliberations, the jury sent a third note to the judge, which stated, “We are still deadlocked — do you wish us to continue tonight? Or do you want us to continue tomorrow? The panel is firm in their [sic] deliberations. We are still ... [at] 10-2 (G-NG).” After reading the note and bringing the jury back into the courtroom, the judge instructed, “If you feel that further deliberations will result in a verdict, whether tonight or tomorrow, then please hold up your hand.” No hands went up, and the court subsequently granted appellant’s second motion for a mistrial.

At the habeas hearing, appellant argued that the jury notes constitute an implied acquittal on the greater offense, but the court ruled as follows:

There’s a presumption that the juries follow the instructions given to them in the Charge of the Court, and with that presumption in mind, the jury took the higher offense first, considered it, and moved on to the lesser charge; however, the jury made no specific finding in this case. There was no verdict returned.

We agree with the trial court’s conclusion that the jury never reached a verdict.

Our Court has decided appeals similar to the one now before us. See, e.g., Zavala v. State, 956 S.W.2d 715, 718-19 (Tex.App.-Corpus Christi 1997, no pet.) (holding that appellant faced no double jeopardy where a mistrial was granted because the jury could not reach a unanimous verdict on both charges). In those cases, we, like our sister courts, have concluded that even where a jury indicates that it has reached a verdict of not guilty on the greater offense, as a matter of law, a verdict is not reached until the jury has answered all the charges against a defendant. See, e.g., id. (following State ex rel. Hawthorn v. Giblin, 589 S.W.2d 431, 432-33 (Tex.Crim.App.1979)); see generally Pullin v. State, 827 S.W.2d 1, 2-3 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (“A verdict, however, is not complete until all submitted issues are resolved by the jury.”). Consequently, we hold that because the jury did not return an answer to both charges presented to it, there was no verdict in this case. The trial judge did not err in concluding that the jury had not returned a verdict.

The law regarding double jeopardy in such cases is well-settled. A trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which a defendant is subjected. Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); see also Ex parte McAfee, 761 S.W.2d 771, 772 (Tex.Crim.App.1988); Woodson v. State, 777 S.W.2d 525, 526 (Tex.App.-Corpus Christi 1989, pet. ref'd). Appellant faces only one jeopardy. His appeal is overruled.

We affirm the trial court’s denial of relief.

Concurring Opinion by Justice LINDA REYNA YÁÑEZ.

1 . Tex Penal Code Ann. § 22.021 (Vernon 2003).

2 . As the Texas Court of Criminal Appeals has explained:

The doctrine of double jeopardy is derived from the Fifth Amendment to the Constitution of the United States and is applied to the states through the Fourteenth Amendment. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); and Downum v. U.S., 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). In a jury trial, jeopardy attaches when the jury is impaneled and sworn. Crist, 437 U.S. at 38, 98 S.Ct. at 2162. After jeopardy attaches, any charge which is dismissed, waived, abandoned or on which the jury returns an acquittal, may not be retried. Ex Parte Seelies, 511 S.W.2d 300, 301 (Tex.Cr.App.1974).

Ex parte Preston, 833 S.W.2d 515, 517 (Tex.Crim.App.1992) (internal footnotes omitted).

3 . Tex. Penal Code Ann. § 21.11 (Vernon 2003).