ACCEPTED 03-13-00585-CR 7156326 THIRD COURT OF APPEALS October 2, 2015 AUSTIN, TEXAS 9/29/2015 6:53:56 PM JEFFREY D. KYLE CLERK
NO. 03-13-00585-CR RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE COURT OF APPEALS 9/29/2015 6:53:56 PM JEFFREY D. KYLE FOR THE THIRD SUPREME JUDICIAL DISTRICT Clerk
AUSTIN, TEXAS
TRENT KENDALL STANLEY § APPELLANT § vs. § § THE STATE OF TEXAS § APPELLEE
APPELLANT'S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
This MOTION is filed on behalf of TRENT KENDALL STANLEY
by his attorney pursuant to the Texas Rules of Appellate Procedure:
Appellant addresses this Court's opinion in the order of decision. The
Court's opinion begins with a decision concerning point of error number
two. The first question on the motion for rehearing, then, is whether this
Court of Appeals has decided an important question of state or federal law in
a way that conflicts with the applicable decisions of the Court of Criminal
Appeals or the Supreme Court of the United States. The rehearing should
1 also involve the question of whether this Court of Appeals has declared a
statute, rule, regulation, or ordinance unconstitutional, or appears to have
misconstrued a statute, rule, regulation, or ordinance.
First, counsel would like to have the opinion correctly to reflect under
"BACKGROUND" that there is no evidence that "[a]fter a series of phone
calls involving trial participants, the trial court signed an order." In fact, the
trial judge stated on the record that "I don't know-I don't know how we got
to that point." RR vol 5 of 6, page 4. Additionally, there is evidence
presented only by defense counsel that he had a single telephone
conversation with a prosecutor. There is no evidence that the conversation
was communicated to the trial court, and that fact is supported by the trial
court's own statement. Therefore, this Court's statement of fact on page one
of the opinion is not supported by the record.
WAIVER
Stanley's point of error number two was "WHETHER THE TRIAL
COURT ERRED IN DECLARING A MISTRIAL WITHOUT THE
DEFENDANT OR HIS COUNSEL PRESENT." Stanley cited Article
33.03 of the Code of Criminal Procedure as authority for his right to be
present at any motion for mistrial.
2 In a footnote of the Court's opinion the Court holds that Stanley's
Point of error number one is waived:
On appeal, appellant ties the statutory right to the constitutionally-based rights to confront witnesses against him and to have his trial completed by a particular tribunal. Appellant did not raise this argument at the trial-court level and has waived it. See Seghelmeble v. State, 390 S.W.3d 576, 581 (Tex. App.-Dallas 2012, no pet.). Further, there were no witnesses against him involved in the mistrial process. Finally, his interest in the particular tribunal is not absolute. See Pierson v. State, 426 S.W.3d 763, 769-70 (Tex. Crim. App. 2014). [Slip op. page 3]
The Court goes on to hold that a defendant's right to determine whether or
not to proceed to trial with 5 or 6 jurors in his trial does not "bear a
substantial relationship to the defendant's opportunity to defend himself," 1
citing Adanandus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993).
In support of these holdings, the Court cites the following summation of
facts:
The jury was selected and sworn, and appellant did not return to court. Appellant's attorney stated at the hearing on the double- jeopardy motion that he was told that a juror was absent and that, unless he agreed to proceed with five jurors, the trial court would declare a mistrial. The record indicates that, rather than contact the court, request a hearing on the issue, file an objection, or appear at the time set for trial, appellant's attorney
1See, Illinois v. Allen, 397 U.S. 337, 338 (1970) ("One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial.")[emphasis supplied]
3 told his staff to tell appellant that the trial was not going to occur and that he could go home to Houston. That sequence of events describes a voluntary absence by the defendant ... [Slip op. page 4]
The findings of fact of the trial court differ from this Court's summation. For example:
3. After the jury was empanelled and sworn, the jury was
released and instructed to return to the court the next day,
March 20th, 2012 at 9 a.m. to begin with the guilt/innocence
phase of the jury trial.
4. The parties and their counsel were also released and
instructed to return to court the next day, March 20th, 2012.
[emphases supplied]
Thus, both counsel for defendant and the defendant were instructed by
the court to be released and to return the next day. There was no
voluntary absence from the court by either the defendant or his
counsel who then returned to his office in San Antonio, a city more
than 50 miles distant from the court.
Voluntary absence under Art. 33.03, Tex. Code Crim. Proc. has
been construed recently to mean:
It is true that the Code provides that, if a defendant's absence from the trial was voluntary, Article 33.03 permits the trial to continue until its conclusion in the defendant's absence.
4 Ordinarily, this provision applies when a defendant jumps bail and absconds ...
Brown v. State, PD-1723-12, slip opinion at page 13 (Tex.Cr.App. 3-19-
2014) In contrast, this Court cites Seghelmeble v. State, 390 S.W.3d 576,
581 (Tex. App.-Dallas 2012, no pet.):
The only overlap between appellant's motion for continuance and his argument on appeal is his reliance on his alleged incompetency to stand trial. But a jury refused to find him incompetent only a few days before trial, and appellant offered no evidence of a change of circumstances to justify a delay for a second inquiry into his competency. To justify a postponement of the trial for another competency hearing, appellant needed to offer new evidence of a change in his mental condition after the prior competency hearing. (emphases supplied)
Unlike the defendant in Seghelmeble v. State, Stanley was told by the court
to leave and return the next day. That was the last and most recent order of
the trial court to Stanley. By contrast to the holding in Seghelmeble v. State,
the Court of Criminal Appeals in Brown v. State held that
... some evidence about appellant's competence immediately after his gunshot wound was introduced at a hearing on that issue. During that hearing, the trial court decided this case on the basis of the voluntariness of appellant's absence. "Some evidence" is a low bar; it requires a showing of only a quantity more than none or a scintilla.
Brown v. State, PD-1723-12, slip opinion at page 14 (Tex. Cr. App. 3-19-
2014). Thereafter, the Court of Criminal Appeals remanded the case for a
5 . retroactive determination of competency. Therefore, by comparison of the
trial court's findings of fact in Stanley's case with the facts found in Brown
v. State, supra, there was certainly more than a scintilla of evidence that
Stanley did not make himself voluntarily absent from the trial. In addition,
the events occurring at the time of the mistrial order herein occurred outside
the presence of both the defendant and his counsel.
Furthermore, any defendant in a criminal case has a right to be present
" ... in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S.
337, 338, supra (emphasis supplied). Article 33.03 and the Court of
Criminal Appeals' determination in Brown v. State, PD-1723-12, supra, slip
opinion at page 13, make the point clearly that since Stanley did not jump
bond or abscond and since he was instructed by the trial court to be released,
he did not voluntarily absent himself from the trial. While this Court
appears to confine the effect of Art. 33.03 within only "the statutory right to
the constitutionally-based rights to confront witnesses against him." [slip
opinion, note 1] the Supreme Court in Illinois v. Allen, supra, and the Court
of Criminal Appeals in Brown v. State, supra, both appear to take a broader
view of the defendant's right to presence in his trial. Thus, a question arises
herein whether Art. 33.03 as this Court interprets it is limited in its scope, a
novel proposition in this State's jurisprudence.
6 On the issue of procedural waiver of the point for failure to adhere to
this novel proposition in the trial court and on appeal, Stanley points to the
record in the case:
20 Now under Article 33.03 of the Code of Criminal
21 Procedure the Defendant must be personally present at trial in
22 a misdemeanor for all cases. And the jury in this case was
23 selected, it was impaneled and sworn, and under the case law,
24 jeopardy attaches at that point. Now in terms of a Mistrial
25 Motion, that is part of the trial, and the Defendant in this
7 1 case -- there wasn't one apparently. And the Defendant in
2 this case did not consult with anybody, didn't know anything
3 about five versus six jurors, and he didn't authorize a
4 mistrial. He wasn't present to .talk about a mistrial. And I
5 think the record is clear that there wasn't a motion in court
6 for a mistrial. However, regardless of whether there was such
7 a motion, there is no record of my client being informed about
8 it, nor was he in the courtroom. And the absence of the
9 record is -- is demonstrated by this court reporter's
10 affidavit.
11 The State decided not to go forward with any
12 evidence, so they can't show that there was a hearing and
13 cannot show that there was a hearing. And I believe the
14 record stands that by a preponderance of the evidence, or
15 more, that there was no hearing. And regardless of whether or
16 not there was a hearing, my client did not participate in a
17 decision of whether or not to move for a mistrial.
18 Now Article 33.03 applies to DWI cases. And the
19 case here is Warren vs. State, 532, 2d, 588, Texas Court of
20 Criminal Appeals 1976. So in a misdemeanor DWI case, Article
21 33.03 applies.
RR. vol. 6 of 6, pp. 9-10
Clearly, in the trial court counsel argued that Stanley had a right to be
present at the mistrial under Art. 33.03, aside from the issue of confrontation
and cross examination of witnesses. The point of error recites:
8 WHETHER THE TRIAL COURT ERRED IN DECLARING A MISTRIAL WITHOUT THE DEFENDANT OR HIS COUNSEL PRESENT.
This point is a simple statement of what was argued in the court and
on appeal, and Stanley argues that he did not procedurally default by
failing to tie his objection in court and on appeal to the right to
confront and cross examine witnesses.
HARM
On the Issue of harm, the Court finds that a motion for a
mistrial which excludes the defendant and his counsel does not
"bear[] a substantial relationship to the defendant's opportunity to
defend himself," citing Adanandus v. State, 866 S.W.2d 210, 219-20
(Tex. Crim. App. 1993) However, in Adanandus v. State defense
counsel was present at the "in-chambers meeting" [id, page 219]
which was later found to be a pre-trial hearing within the meaning of
Art. 28.01, Tex. Code Crim. Proc. The Court of Criminal Appeals
held that Mr. Adanandus' presence at the in-chambers hearing did not
bear a reasonably substantial relationship to the opportunity to defend
because he was "zealously represented by counsel at the in-chambers
meeting," and a record was made of the proceeding. Adanandus v.
State, supra, pp. 219-220. Nevertheless, the Court held:
The meeting was a "pre-trial proceeding" within the
9 meaning of article 28.01 and therefore the trial court erred in conducting the meeting in appellant's absence.
Adanandus v. State, supra, p. 219.
Thus, the finding of harmless error was based upon the premise that
Mr. Adanandus was represented by counsel at the hearing and a record of
that proceeding was made. In this case defense counsel was not present and
was in another city 50 miles distant from the courtroom. In fact, this Court's
opinion does not cite any authority that holds that neither the defendant nor
his counsel need be present for a mistrial order being rendered, sua sponte,
by the court in circumstances where jeopardy has attached to the case.
Entry of an order involving a defendant's fundamental right to be free
from jeopardy in a criminal case without counsel or the defendant present is
error. Adanandus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993)
Mr. Stanley had a right to determine whether to go forward with five jurors
or wait for the return of the sixth juror. Ex Parte Garza. 337 S.W.3d 903,
(Tex. Crim. App. 2011), He had the right to the advice of counsel on the
question as well. The defense lawyer cannot make the decision about these
matters alone, over the telephone from 50 miles away. Additionally
Adanandus v State, the authority cited in this Court's opinion as holding the
error harmless involves: 1) the presence of counsel at the hearing from
which the defendant was excluded and 2) the making of a record of the
10 hearing. Neither of those factors are present in this case. Therefore,
Appellant argues that this Court's harm analysis is faulty or incomplete. In
fact, it was error under Art. 33.03 for the court to enter a mistrial order
without counsel or the defendant being present, and it was not harmless.
This matter should be reheard by the Court.
OTHER POINTS OF ERROR
This Court next addresses Appellant Stanley's points of error
numbers one and three by holding: "The court did not abuse its
discretion by declaring a mistrial without an express finding of manifest
necessity, and the new trial setting does not violate the double-jeopardy
protections." The question is whether this Court of Appeals has decided an
important question of state or federal law in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals or the Supreme Court
of the United States.
This Court cites Arizona v. Washington, 434 U.S. 497, 505 (1978)
for the proposition that Stanley's right to be free from double jeopardy
may be "subordinate to the pubic interest in affording the prosecution
one full and fair opportunity to present evidence to an impartial jury."
The court also refers to the same quoted language in Pierson v. State,
426 S.W.3d 763, 770 (Tex. Crim. App. 2014). However, both of those
11 cases apply this standard in trials which had been halted during the
presentation of evidence where a mistrial was moved for and granted
over the defendant's objection. It is clear in this case that Stanley's
counsel had no opportunity to object.
The entirety of this Court's quoted language in context is:
Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate "manifest necessity" for any mistrial declared over the objection of the defendant.
Arizona v. Washington, 434 U.S. at 505, supra. This fact situation does not
exist in Stanley's case. There is no presence of counsel either for the State
or for the defense herein. There was no record made contemporaneously of
any proceeding. There was no motion for a mistrial. The defendant was not
present, and he did not consent to a mistrial because he was not consulted.
Stanley's is a completely different fact situation than those which occur in
Pierson v. State, and Arizona v. Washington. This Court's holding is in
conflict with the law set out in these cases which do not apply to Stanley's
12 set of facts. Therefore, this Court has rendered a decision in conflict with
the Court of Criminal Appeals and the Supreme Court.
This Court also cites Ex parte Garza, 337 S.W.3d 903, 909
(Tex.Crim.App. 2011) for the proposition that "[t]rial courts have the
discretion to declare a mistrial based on manifest necessity in extraordinary
circumstances." [slip op. p. 5] In that case the Court of Criminal Appeals
was presented with a fact situation very similar to this case. The Court there
found:
[The trial court's] discretion is abused, we have said, whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out .. . a mistrial-that is to say, manifest necessity for the mistrial exists-when the particular circumstances giving rise to the declaration render it impossible to arrive at a fair verdict before the initial tribunal, when it is simply impossible to continue with trial ... (emphases supplied)
Jd., page 909. In this case the trial court failed to make these emphasized
findings. There is no record either in the court's order or otherwise that
these findings were made. On its face the court's order demonstrates an
abuse of discretion under this standard unless it is supported by some other
record. Everything else concerning the matter is post hoc, and therefore, not
considered by the trial court. In fact, during the habeas hearing the trial
court did not make findings considering his ruling.
This Court then goes on to discuss what the trial court could have
13 considered under Ex Parte Garza, supra, and Ballew v. Georgia, 435 U.S.
223, 245 (1978) should it have chosen to do so. However, there is no
evidence in the record that the trial court did.
1 mistrial. Because I didn't even know about it until he
2 called. So I would like the record to reflect that I did not 3 move for a mistrial.
4 THE COURT: I don't remember it either.
5 And I saw where I signed it on the 20th, which 6 would be that Tuesday morninq. 7 MR. SCHARMEN: Riqht.
8 THE COURT: And so I don't know -- I don't know 9 how we got to that point. I just know that we can't go 10 forward with five.
RR, val. 5 of 6, p. 4
As this Court finds, the trial court erroneously thought that he could
not proceed with fewer than six jurors. This statement from the trial court is
the only information which informs the record. Otherwise, he did not "know
how we got to that point." The opinion of this Court seems to give
significance to the fact that at a later hearing there was an off record
14 telephone conversation between a prosecutor and defense counsel that
counsel would not proceed with six jurors. However, that information was
not communicated to the trial court, and the record does not disclose it. At
this point it is clear that Appellant Stanley should have had some
involvement in the decision as to whether to go forward either with five
jurors or with a new panel.
Certainly there was no manifest necessity in this case for the trial court to declare a mistrial without at least exploring the option to wait a week, possibly then to conduct the trial with only five jurors. So long as the appellant may waive his constitutional right to a six-member jury, it cannot be said that it was impossible to arrive at a fair verdict, impossible as a practical matter to continue with the trial, or that reversal on appeal would automatically ensue.
Ex parte Garza, 337 S.W.3d 903, 911 (Tex. Crim. App. 2011) There is no
evidence that Appellant Stanley waived his rights in this situation or asserted
his rights in any way because there was no hearing, and nothing was
communicated about it to the trial court. The testimony from the habeas
hearing is:
25 Q. All right. After that did you ever attend a Motion
15 1 for Mistrial? 2 A. No, sir. 3 Q. Did you ever discuss with the Court or with counsel 4 whether or not you wished to move for mistrial? 5 A. No, sir. 6 Q. Did you ever receive advice concerning -- from the 7 Court or from counsel whether or not you can proceed in a jury B trial with fewer than six jurors? 9 A. No, sir. 10 Q. Did you move for mistrial? 11 A. No, sir. 12 Q. Did you authorize me to move for a mistrial? 13 A. No, sir.
RR vol. 6 of 6, pp. 5-6. Thus, there is no evidence in the record that counsel
was in contact with Stanley prior to the trial court's action or that Stanley's
interest in the matter was communicated to the trial court.
Thus, this court's finding that "the trial court did not act irrationally or
irresponsibly when it concluded that continuing with the trial was
impossible" is not supported by the record and contravenes the record, the
trial court's statement of knowledge and the content of the order for mistrial.
As the Court of Criminal Appeals held in Ex parte Garza:
We think the Supreme Judicial Court of Massachusetts properly assigned the burden to the State rather than (as the State seems to advocate) the accused when it recently observed:
[T]he question is not whether [the accused] executed
16 a valid waiver, but whether there was a "manifest necessity" for declaring a mistrial. Such a necessity would have presented itself if [the accused] had declined to execute a waiver, but the record is clear that neither the judge nor counsel was aware of or even considered the option. Rather, the judge quickly concluded, without taking time to check the law, or offering counsel the opportunity to research the issue and report back, that there were no alternatives to a mistrial.
See also Torres v. State, 614 S.W.2d 436,442 (Tex.Crim.App. 1981)
(in exercising discretion whether to declare mistrial, trial court "must give
adequate consideration to the defendant's double jeopardy right") (emphasis
supplied). Appellant Stanley suggests that this Court has rendered an
opinion in conflict with the applicable decisions of the Court of Criminal
Appeals and with those of the United States Supreme Court.
WHEREFORE Appellant Stanley prays that the Court will rehear this
matter.
itted,
R E SCHARMEN 315 Dwyer San Antonio, Texas 78204 Telephone: 210-226-8021 Facsimile: 210-224-5722 State Bar No. 17727500 ATTORNEYFORAPPELLANT
17 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
motion has been mailed~ Office of the District Attorney of Hays
County, Texas this th~ oay of September, 2015.
18 CERTIFICATE OF COMPLIANCE
Undersigned counsel hereby certifies that using Microsoft Word a
computer-generated brief in this cause was produced containing 3311
words including a footnote and this certificate. The font is Times New
Roman at 14-point type. The footnote is 12-