### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00585- CR

Trent K endall S tanley, Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F H AY S CO UNTY NO. 094 017, H ONO RAB LE ROB ERT UP DEGROVE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Trent Kenda ll Stanley appea ls from the trial court’s denial of relief reque sted in his pretria l application for a

writ of habe as cor

pus. He c ontends that the trial court err ed by decla ring

a mistrial without him or his counsel prese nt, by sua sponte decla ring a mistrial based on the absenc e of a juror without finding manifest nece ssity , and by planning to conduct a trial afte r the mistrial in violation of the fede ral constitution’s protec tions ag ainst double jeopar dy

. We will aff irm the order denying r elief.

BACK GR OUND

Appellant was char g ed with driving while intox icated and pleade d not g uilty

. A jury

was selec ted and sworn, and the jurors and parties left for the day

. One of the jurors then called the trial court to sa

y that she would not r eturn beca use she was g oing to he r g randmother ’s funer al out of state. After a series of phone calls involving trial participa nts, the trial court signe d an orderdecla

ring a mistrial befor e prese ntation of opening statements, testimony , or evidenc e. Al t h oug h the order stated that appellant moved for a mistrial, the trial court late r expressly found that he did not move for mistrial. The State de nied see king a mistrial. The order

does not specif

y a basis for the mistrial such as manife st nece ssity or conse nt. The court set a new trial date and another jury was chosen. Be fore t he jury was sworn, the trial court he l d a h ea ri n g on whether double j eopar dy barr ed that trial. Appellant later filed a pr etrial a

pplication for writ of habeas corpus arguing that, beca use jeopa rdy attache d when the first jury was empane led an d s wo rn , the impending trial was barr ed by protec tions ag ainst double jeopar dy

. The trial court conclude d that jeopar dy did not attach in the first trial and denied appellant r elief.

STANDARD OF REVIEW

An appellate court revie ws a trial court’s decision to g rant or deny an application for writ of habea s corpus under an abuse- of-discr etion standard. Pierson v. State , 426 S.W .3d 763, 770 (Tex. Crim. App. 2014). When raising a double-jeopa rdy claim on a pretria l writ of habea s corpus, the applica

nt bear s the burden of proof under a preponde ranc e of the evidenc e standa rd. Ex parte Peterson , 117 S.W .3d 804, 818 (Tex. Crim. App. 2003), overruled in part on other grounds, Ex parte Lewis , 219 S.W .3d 335, 371 (Tex. Crim. App. 2007). On ce the defe ndant shows he is being tried for the same offe nse afte r decla ration of a mistrial to which he objected, a heavy burden shifts to the State to justify the trial court’s decla ration of the mistrial. Ex parte Garza , 337 S.W .3d 903, 909 (Tex. Crim. App. 2011). We revie w the application of leg al standards de novo and revie w finding s of fa ct, implied findings of fac t, or mix ed questions of fact and law with nearly complete

2defe renc e to the t rial court’s deter mination—especia lly when that decision t urns on an ev aluation of cr edibility

and deme anor. Peterson , 117 S.W .3d at 819. We revie w evidenc e in t he li g ht most favor able to the tria l court’s ruling

. Id

. DISCUSSIO N

Appellant complains about t hree aspec ts of t he trial court’s declar ation of m istrial. He contends that decla

ring a mistrial without a

ny one from the defe nse side prese nt was improper, that the mistrial wa s not suppor ted by nece ssary

finding s, and that it pr eclude d future prosec ution.

The declaration of mistr ial di d not viol ate t he defend ant’s right to be pre sent at tr ial.

Appellant contends that the trial court’s decla ration of a mistrial in his absenc e violated his statutory rig ht to be prese nt at his trial. See Tex. Code Crim. Proc. art. 33.03. 1 Article 33.03 r equire s in releva nt part as f

ollows:

In all prosec utions for felonies, the defe ndant must be persona lly prese nt at the trial, and he must likewise be prese nt in all case s of m isdemeanor when the punishment or any part t here of is imprisonment in jail; provided, howeve r, that in all case s, when the defe ndant voluntarily absents himself af t er pleading to the indictment or information, or afte r the jury has b een selec ted when trial is befor e a jury , the trial may proce ed to its conclusion.

On appea l, appellant ties the statutory rig ht to the constitutionally -base d rig hts to confr ont 1 witnesses ag ainst him and to have his trial completed by a particula r tribunal. Appellant did not raise this argument at the trial-cour t level and has waived it. See Seghelme ble v. State , 390 S.W .3d 576, 581 (Tex

. Ap p.—Dallas 2012, no pet.). Fur ther, there were no witnesses aga inst him involved in the mistrial proce ss. Finally , his int er es t i n the particula r tribunal is not absolute. See Pierson v. State , 426 S.W .3d 763, 769-70 (Te x . Crim. App. 2014). 3Id. The jury was selec ted and sworn, and appellant did not return to cour t
. Ap p el l ant’s attorney

stated at the hear ing on the double-jeopa rdy motion that he was told that a juror was absent and that, unless he ag ree d to proce ed with fiv e j u rors, the trial court would decla re a mistrial. The rec ord indicates that, rathe r than contac t the court, reque s t a h ea ri n g o n the issue, file an objection, or appea r at the time set for trial, appellant’ s attorney told his staff to tell appellant that the trial was not g oing to occur and that he could g o home to Houston. That sequenc e of events descr ibes a voluntary absenc e by the defe ndant afte r the jury has been selec ted, a circ umstance under which the decla ration of mistrial did not viol ate a rticle 33.03. Even if there we re a v iolation of article 33.03, we would find it harmless. Courts must deter

mine whether the exclusion of a defe ndant and his counsel bear s a substantial rela tionship to the defe ndant’s opportunity to defe nd himself. See Adanandus v. State , 866 S.W .2d 210, 219-20 (T ex . C ri m. App. 1993). Although there was no hear ing befor e the court on the mistrial issue , appellant’ s counsel undisputedly knew of the circ umstances and the court’s perc eived options. The t ri al court’s comments indicate that it used an informal discussion proce ss to avoid requiring appellant’ s counsel to tr avel from San Antonio to San Marc os for the formality of a hear ing on the mistrial. The double-jeopa rdy hear ing, the habea s application and hear ing, and this appea l illust rate the risks inhere nt in that attempted courte sy . Appellant and his attorney chose not to appea r at the time for trial and make a rec ord. Appellant has not hinted at how his attendanc e at an actua l hear ing

on what t o d o i n t h e ab sence of the six th juror would have aff ecte d the mistrial or his defe nse on the merits of the underlying char g e. On this re cord, any err or in the decla ration of mistrial outside of appellant’s prese nce was har mless under the standards for constit utional or “other” error s. See Tex. R. App. P . 44.2(a) , (b). 4The court did not abus e its discretion by declaring a m istrial wi th o u t a n exp ress fi ndi ng of

m anif est nec essity, and the new trial set ting does not viol ate double-jeopardy prote ctions. Appellant complains that the trial cour t e r r e d b y d e c la

r ing the mistrial without finding it manifestly nece ssary . He also contends that requiring him to underg o a trial on the same char g es afte r an imprope r mistrial violates constitutional provisions aga inst double jeopardy

.

Although appellant was place d in jeopar dy when the jury was empane led and sworn,

a criminal defe ndant may be tried afte r a mistrial without violating double-jeopa rdy prohibitions if the prosec ution ends prematurely under two circ umstances: (1) if the criminal defe ndant consents to retria l or (2 ) i f t h e mistrial was require d by manifest nece ssity or it serve d the ends of public justice. Pierson , 426 S.W .3d at 769-70; see also Illinois v. Somerv ille , 410 U.S. 458, 462-63 (1973); Schaffer v. State , 649 S.W .2d 637, 638-39 (Te x . Crim. App. 1983). The S tate undis putedly seeks to try appellant for the same offe nse as befor e. Although the rec ord could be rea d t o s u p p o rt a finding that appellant consente d to the mistrial, it contains no express consent from appellant or his attorney . We will assess whether there was a

manifest nec essity

for the mistrial. Trial cour ts have the discretion to decla re a mistrial based on manife st nece ssity in extraordinary circ umstances. Ex parte Garza , 337 S.W .3d at 909. As the court of criminal appea ls wrote in Garza :
That discretion is a

bused, we have said, whene ver the trial court decla res a mistrial without first considering t h e av ail ability of l ess drastic alternatives and reasonably ruling them out. But the trial c ourt appropr iately exercises its discretion to declare a mistrial—that is to say , m an i fe s t nece ssity for the mistrial exis ts—when the particula r circ umstances g iving rise to the decla ration rende r it impossible to a rrive at a f air ve rdict bef

ore the initial tribunal, when it is simply impossibl e to continue wi th trial, or when any verdic t that the orig inal tribunal might return wou l d automatically be subject to reve rsal on appea l beca use of trial err or. The trial court

5need not expressly articulate the basis for the mistrial on the rec ord in order to justify

it to a review ing c ourt, so long a s manifest nec essity is appare nt from the re cord.

Id. (footnotes and citations contained there in omitted). T h e Un i t ed States Supreme Court has held that states cannot require defe ndants to acc ept a j u ry o f five persons. See id

. at 910 (citing Ballew v. Georgia , 435 U.S. 223, 245 (1978))

. A defe ndant’s rig ht to have his trial completed by a particula r tribunal or jury is sometimes subordinate to the public interest in aff ording the prosec ution one full and f

air opportunity to present e vidence to an impartial jury

. Pierson , 426 S.W .3d at 770 (citing Arizona v. W

ashington , 434 U.S

. 4 9 7 , 5 0 5 (1978))

. There are many valid rea sons to discharg e a jury befor e the conclusion of a trial and not all of them cre ate unfairne ss to the acc used. Id. (citingW

ashington , 434 U.S. at 505). The rec ord reve als no abuse of discretion in the trial court’s decla ration of a mistrial based on an implicit fi n d i n g of manifest nece ssity

. There is no hint in the rec ord that the State reque sted a mistrial or was responsible for the circ umstances prompting the mistrial. The trial court fo u n d wi thout dispute that afte r the six -member jury was sworn and rele ased for the day , a juror stated that she would not return due to a death in her family and “g ave no idea when [she] would be available .” Although jury selec tion ha d conclude d, the jurors ha d hear d no argument or evide nce. The trial court considere d proce eding with f ive jurors, but a

ppellant’s counsel later ag ree d in open court that he had told the prosec utor he would not proce ed with few er than six jurors. Appellant did not at the trial cour

t a nd has not on appea l of

fer ed any “less drastic alternative” to mistrial. Under these circumstance s, the t rial court did not act irrationally or i rre sp o n s i b ly when it conclude d that continuing with the t rial was impossibl e and that a mistrial was manife stly nece ssary . See Garza , 337 S.W .3d at 909. We find no abuse of discretion in the dec laration of the mistrial. 6Be cause there is no abuse of discretion in the implicit finding of manifest nece ssity

for a mistrial, the pending trial on the same char g es does not violate the Constit ution’s pr otections ag ainst double jeopar dy

. See P ierson , 426 S.W .3d at 769-70.

CONCLUSION We affir m the denial of r elief on the application for writ of habe as cor

pus.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pury ear and Goodwin Affir med Filed: August 14, 2015 Do Not Publish

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