## In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

_____________

______________

No. 02

- 24

- 00051

- CR

_______ ______ _ ____ _________

On Appeal from the 297th District Court

Tarrant County, Texas

Trial Court No. 1749378

Before Sudd erth, C.J.; Kerr and Wal ker , JJ.

M emorandum Opinion by Chie f Justice Sudderth 

### E X PARTE 

### A NTHONY 

### J ORDAN 

### P ATTERSON2 MEMORANDUM OPINION

Appellant Anthony Jordan Patter son was tried fo r par ticipating in a gang

related attack at a bar

, but after a jury deliberated on his six alleged offense s for almost

20 hour s, the tri al court d eclared a mistrial sua sponte

. Patterson now claims that h is

re trial is jeopardy

- barred becaus e the mistr ial w as n ot mani festly necessar y.

But a trial court must be given plentiful discretion to evalu ate the ne cessity of a

mistrial , a nd here, the duration of the jury ’ s u nsuccessful deliberations had already

exceed ed the duration of the testimony

, leading the tr i al court to reasonably conclude

that

— in light of the nature of the case

— “ it [was] altogether improbable that [ the jury]

c [ould] agree

. ” Tex. Code Crim. Pro c . Ann. art. 36.31

. B ecause this decision was

wit hin the bounds of the trial court ’ s disc ret ion, we will affirm its denial of Patterson ’s

petit ion for pretrial habeas relief

.

I

. Background

During Patter son ’ s jury trial, t he State presented evidence of a gang

- related

atta ck on three men at a bar. The catalyst for the a ttack wa s a hat

.

T he hat

- wear er

— Christopher John son

— wen t to a bar with his friends while

wearing a red

- and

- black hat embroidered with the numb er 81. A group of bar

pat ron s ( one o f wh om was later identified as Nat han i el McCurdy ) 1 p erceived

Johnson ’ s hat as a sign of support for t he Hell ’ s Angels motor cycle gang , which was a

1 See McCurdy v. State

, No. 02

- 22

- 00264

- CR, 2023 WL 5766052, at *1

– 12 (Tex.

App.

— Fort Worth Sept. 7, 2023, no pet.) (mem. op., not desi gnated for publicat ion).3

rival to M cCurdy ’ s motorcycle gang, the Pagans

. A fter several of t h e me n in

McCurdy ’s g r oup confro nted Johnson about the hat

, Patterson sna tched the hat off

Johnson ’ s head. Patterson later told the jury that he was not p art of McCurdy ’ s group

and had been t rying to defuse the situation. Ei ther way, Johnson and his frien d Ry an

Lovett were pressured to leave the bar

, and after they exi ted, an ot her of John son ’ s

friends

— Christ opher Tomlin , who had driven Joh nson to t h e bar

— went out to the

parking lot as well

.

The n came the attack. As J o hnson and L ovett were waiting by the p asse nger

door s to Tomlin ’ s vehicle

, and as Tomlin was w alking to the driver ’s side wi th his

keys, McCurdy a nd several other me n approached them

. Tomlin was punched in the

head and ribs before he was able to climb into the driver ’ s seat of his vehicle

. Lo ve tt

was thrown into the vehicle , and w hen he attempted to open the door to get out and

he l p Johnson, the attacke rs cut his leg

. Johnson, meanwhile, was stabbed in the back

with a knife by McCurdy and later died

.

T he complainants were n ot familiar with thei r attacker s a nd had trou ble

identifying them

. A lthough the State presen ted sur veillance video s from the bar

, the

video footage was low quality and the landscape dark

, so the parties disputed what the

videos show ed

. 2 P a tterson claim ed that he was not part of McCurdy ’s group, that he

had not b een on e of the att ac kers

, and that he had done nothing other than snatching

2 The surveillan ce video s and other trial e xhibits have not been included in the

app ellate record

.4

J ohnson ’ s ha t inside the bar

. The State , meanwh ile, c laimed that Patterson was a

motorcycle

- gang member, that the su rveillance vid eo s sho we d Patterso n sitti ng with

McCurdy ’s group inside the bar a nd assaulting Tomlin in the par king lot, and that

Patterson was criminally responsible as a party to the attacks on J ohnson and Lovett

.

P a tter so n was indic ted for six offenses , two for each of the comp lainants :

( 1 ) murdering Joh nson

, (2) engaging in or ganized criminal activity by committing th at

m urder as a member of a criminal street gang, ( 3 ) c ommitting aggravat ed assault wit h

a deadly weapon against Tomlin , (4) e ngaging in organized criminal act ivit y by

committing that aggravat ed assault as a m e mber of a cr iminal street g ang,

( 5 ) committing aggravat ed assault with a deadly weapon against Love tt

, and

( 6 ) e ngaging in organized criminal activity by committing that aggravat ed assault as a

m e mber of a cr i minal street g ang

. 3 The parties presented evidence on these alleged

crimes f or just under 1 6 hours, with t he State calling mor e than 20 witness es during

that time and presenting hundre ds of exhibits

. 4 The jury the n began deliberating

.

Three day s, s i x jury notes, and almost 20 hours of deli beration l ater

, the jury

still had not reached a verdict

. T he trial court noted on the record that the length of

the jury ’s deliberations had “e xceed [ed] the

. . . hours of testimony that the jury [had]

3 Cf. id. at * 2

– 3 (

noting M cCur d y ’s indictment and trial for si x similar counts )

.

4 Patterson d id not call any witnesses

.5

heard

, ” 5 a nd it concluded that “ the jury ha [d] been kept together for such a time as to

render it altogether improbable that it c [ould] agree

. ” The trial court de cl ared a

mistrial sua sponte and later documented i ts decision in the minutes of the court

. 6

The S ta t e promptly reindicted Patterson

. Facing the prospect of a retrial, he

petitioned for habe as relief

. He argued that his retrial violated the constitutional

pr ohibitions on double jeopardy because the trial court ’ s sua sponte mistrial had not

been mani fest ly necessary. See U.S. Const. amend. V; Tex. Const. art. I, § 14

. The

trial court 7 denied re lief.

II. Law : Double Jeopardy and Mistrials

One component of a defendant ’ s constitu tional freed om from double jeopar dy

is his “ right to have h [is] fate det ermi ned before the first t rier of fact.” Ex parte

Garrels , 559 S.W.3d 517, 519 (Tex. Crim. App. 2018) (internal quotation marks

omitted) (quoting Torres v. State , 614 S.W.2d 436, 441 (Tex. Crim. App. [Panel Op.]

1981 ) ) ; see Pierson v. State , 426 S.W.3d 76 3 , 7 69 (Tex. Crim. App. 2014) ( noting that

5 T he trial court esti mat ed that, by its calculations, “the jury [had] deliberate d

two ho urs on Monday, 8.5 ho u rs on Tuesday, 8.5 hours on Wednesday, and

. . . two

additional hours [on the final day]

, bringing their deliberations

. . . to 21 hours, which

exc eed[ed] the approxim ate [ly] 19 to 20 hours of testimony that the jury [had] hea rd.”

T he benef i t of a reporter ’ s record reveal s that the difference was even greater than the

trial court realized

. The presentation of evidence took less than 16 hours, and w hen

the tri al court dec lared a mistrial, t he ju ry ’ s deliberations were ne aring their 20 th hour

.

6 A week after the mistrial, Patterson filed a written obje ction

.

7 T he original trial court recused itself

, and the case was transferred t o a new

trial court

, wh ich ruled on P a tt e rs on ’ s ha beas petition.6

constitutional protection includes th e defendant ’ s “ right to have his trial completed by

a particular tribunal ” ( quoting Arizona v. Washingto n , 434 U.S. 497, 503, 98 S. Ct. 8 24,

829 (1978) ) ) ; see also U.S. Const. amen d. V ( statin g that “ [n] o person shall

. . . be

subject for the same offence to be twice put in jeopardy of life or limb ” ); Tex. Const.

art. I, § 14 ( similar

) ; Tex. Code Crim. Proc. Ann

. art. 1 .10 (similar)

. T hi s right has

limitations , though

.

Althou gh t he prohib ition on double jeopardy generally bars a defendant ’ s

re prosec ut

ion following a mistr ial

, it presents no such bar if there was a “manifest

necessity ” for the mistria l

. 8 G arrels , 559 S.W.3 d at 522

. A m anifest necessity exists

only in “very ex trao rdinary a nd st riking circumstances. ” Ex parte Fierro , 79 S.W.3d 54,

56 (Tex. Crim. App. 200 2) ( descr ibing manifest necessity as a “high degree ” of

necessity ).

O ne such extraordi nary circumstance “ that has long bee n recognized is the trial

judge ’ s be lief that the jury is genuinely deadlocked and unable to reach a verdict

. ” Ex

part e Baezotero , N o. 03

- 07

- 00241

- CR, 2008 WL 158761, at *2 (Tex. App.

— Austin Jan.

17, 2008, no p et.) (mem . op., not designated for publicati on) ; see Washingto n , 434 U.S.

at 509, 98 S. Ct. at 832 (referring to deadlocked jury as “ the classic basis for a proper

mi s trial ” ) ; Brown v. State , 907 S.W.2d 835, 839 (Tex. Crim. App. 1995) ( noting that

8 A l ternatively, a mistrial w ill not bar re prosecution if the defendant consents to

the mistrial. See Garrels

, 559 S.W.3d at 522

. Here, t he parties and trial court appear t o

agree that Patterso n di d not consent to the mistri a l

.7

“ [c] ircumstances in which the [Supreme] Cour t has found manifest necessity

existed

. . . hav e included

. . . where a jury is unable to arrive at a verdict after

considerable deliberation ”)

. Thus, a trial court may

, “ in its discretion

, ” discharge a

jury and decl are a mistrial if the jury “ has been kept together for such time as to

render it altog e ther improbab le tha t it can agree

. ” T ex. Code Crim. Pro c . Ann. art.

36.31

. A lthough a trial co urt must consider and rule out less drastic alternatives

before it declares a mistrial on this basis

, it need not expressly articul a te its reason ing

as long as the necess ity for the mistrial is apparent from the record

. S ee Ex parte

Garza , 33 7 S.W.3d 903, 909

– 10 (Tex. Crim. App. 2011) ; Brown , 907 S.W.2d at 8 39

– 40

.

A tri al court ’s decision to de clare a mistrial based on the jury ’s inability to reach

a verdict i s ent

itled to “great defe rence ” and left to the trial court ’ s “ sound

discretio n

. ” Pierson , 426 S.W.3d at 770

, 774

– 75

. We revi ew that decision only to

e nsure that it was within the bounds of the trial court ’ s discretion. Id. I n determinin g

whether a man ifest ne cessity exist ed, we consider the amount of time the j ury

deliberated in light of the nature of the case , including the number of witnesses and

ex hi bits, whether expert testimony was in volved, the comp lexity of the charge, the

compl exi ty of the e vid ence, an d the substance and number of jury notes

. 9 Beeman v.

State , 533 S.W.2d 799, 800 (Tex. Crim. App. 1976) ; Ex parte Donison

, No s

. 02

- 17

-

9 When

, a s here, a de fendant files a habeas petition based on a mistrial th at he

did not consent to

, after he shows that he is being tried for the same offense

, t he

burden shifts to the State to demonstrate ma nifest necess ity

. Pierson

, 426 S .W.3d at

770 ; Garza

, 33 7 S.W.3d at 909

.8

00100

- CR, 02

- 17

- 00101

- CR, 20 17 WL 6947902, at *3 (Tex. App.

— Fort Wo rth Oct.

19, 2017, no pet.) (mem. op. , not desi gnated for publication) ; Ex p arte McMillian , No.

05

- 11

- 00642

- CR, 2011 WL 3795727, at *2 (Tex. App.

— Dallas Aug. 29, 2011, pet.

ref ’d) ( not d esignated for publication)

.

I I I

. Applicatio n : Manifest Necess ity for Mistrial

In Patterson ’ s ha bea s petition , he argue d that the t rial court abused it s

discretion by dec lar i ng a mistrial becaus e (1) despite the jury ’ s lengthy deliberations

,

the mistrial was not manifestly necessary ; and (2) “ less drastic alternatives were never

considered

. ” But t he record reveals ot h erwise

.

G ra nted, th e jury could not have been exp ected to re turn a quick verdict in

light of all it had to consider

. It hea rd tes timony from more than 20 different

witnesses

, three of whom w ere expe rts, 10 a nd it was shown approximately 2 00

exhibits

.

The jury charge w as also some w hat lengthy

. E i gh t pages of jury instructions

outlined P a tter son ’s si x alleged offense s plus two les ser

- included offenses for the

10 The S t ate offered expert testimony from an intelligence operatio ns specialist

with the Bureau of Alcohol, Tobacco, Fir e arms, and Explos ives

, who testified

rega r ding outlaw motorcycle gangs

, the m eaning of Johnson ’s ha t

, the rivalry bet wee n

the Pagans and the Hells Angels

, and the P agan s ’ s association with another

m otorcycle ga ng

, t he K

infolk

. The State a l so offered expert testimony from a g ang intelligence officer

, who described Texas gangs

, the gang database

, Patte rson ’ s membership in th e Kin folk at the time of the attack, and his su bsequent affiliation

with other mo torcycle gangs

, including the Pagans

. An d it offered expert testimony

from a forensi c video analy st

, who walked the jury through th e surve illance vid e o s

, pointing out P a tt e r s on ’ s location at key point s

.9

count s related to Johnson ’ s m urder

. A nd because Patterson was accused of

participat ing in th e attack as a party , the charge also instruc t ed the j ury o n the law of

parties

. 11

However, al l of Patter s on ’ s alleged crimes traced to a single inci dent , and

P atterson ’s primary defens ive theory was the same for all six : h e claimed that he had

bee n merel y sitt

ing near McCurdy and his group at t he bar

, that he was not affiliated

with that g roup , that he had not participated in the atta ck

, and that the surveillance

video was “ a bunch of gra i ny pixels ” that did not connect him to the cr imes

. 12 And

while ther e were complexities regardin g the specific gang that P a tters on was allegedly

a member of at the time of th e incident

, 13 t he core dispu te was still relatively

11 The charge included instructions on the accomplice

- w itness rule

, the role of

voluntary intoxication

, and the evid ence of e xtraneous bad acts as well

.

12 P a tterson also poin t ed out aspe cts of the State ’s t heory of the case th at, in his

vi ew, did not hol d t ogether

. F or example, the re was testimony that the Kin folk had

splintered bef

ore the inc ident, so eve n if P a tterson had once been a member, he

argued that he could not have been a memb er at the ti me of th e crimes

. And e ven if

the ju ry believed that Patterson had joined in attacking Tomlin

, P a tt erson highlighted

Tomlin ’ s testi mony that h is injuries had been minor

. Plus

, he argued, it was undisputed t hat Mc Curdy

— not Patterson

— stabbed Jo hnson

.

13 There was t estimony that Patter son was a documented me mber of the

Kinfolk at the time of the attack, but the re w a s also testimony tha t the Kinfolk had a n

internal rift in the months preceding the attack and that

, although Kinfolk members

had joine d other groups, Patt erson had not done s o y et

. Then, n ot long after the

attack

, Patterson was observed on social media wearing items tha t suggested he was associating with the Mon gols motorcycle gang. M ore tha n two year s later

, he was

documente d as a m em ber of the Pagans

— Mc Curdy ’ s motor cycle g ang

.10

straight forward: was Patterson affiliated with McCurdy ’ s group o r not , and did he

join in th e atta c k or not ?

Moreover

, while the re were over 20 witnesses

, genera lly

, the scope of each

witness ’ s testimon y was narrow , so the a verage length of testimony was relative ly

brief

. S i milarly, more than half o f the approximately 200 exhibits offered b y the Stat e

were photographs th at were entered into evidence in large batches and did not require

lingering contemp lation

. 14 From the tim e the S tate called its first w itness to t he time

the parties closed t heir cases

, the jury heard l e ss than 1 6 hours of e viden ce.

Y et, it deliberated for almost 20 hou rs over fo ur days with no resolution.

During tha t time, it sen t out six notes, the last tw o of which expressly stated that there

were internal disagreements regarding specific aspects of the evidence. Cf. M cM illia n

,

20 11 WL 3795727, at * 3

– 4 (holding manifest necessi ty existed when jur y sent out

multiple jury notes indicati ng deadlock) ; Ex part e Perusquia , 336 S.W.3d 270, 276

– 77

(Tex. App.

— San Antonio 2010, pet. ref’d) (similar)

.

And while Patterson contends that the t ria l court failed to consider any less

drastic alternatives before declarin g a mistrial

, the record s hows that the trial court not

only considered but repeatedly employed one alternative in part icular : allowing the

jury to break fo r the day and retur n to deliberations the next morning

. See Donison

,

2017 WL 6947902, at * 4 ( holding manifest necessity supp orted m istrial and listing

14 The photographs have not been included in the appe ll ate record.11

al t ernatives employed by trial court

, including t hat it “ allowed the jury to recess and

resume deliberations the follo wing day ”) ; Sho ok v. State , No. 2

- 0 6

- 187

- CR, 2007 WL

1 776069, at * 6

– 7 (Tex. App.

— Fort Worth June 21, 2007, pet. ref’d) (mem. op. , not

designated for publication) ( holding mistrial was not abuse o f discretion when tr ial

court cons idered alternative of dis mi ss ing the jurors for th e night bu t appellant

objected )

. By the time the trial court declared a mistrial, the jury had been given three

overnight break s and still had not come to an agreement

.

T rue, the tri al court did not e xpressly enunciate its consider at ion of e very other

l e ss drastic alternative that Patter son pro posed after the fact in his habeas petition

.

But it was n ot required t o expressly enu nciate its reasons for ruling out such

alternatives

—

particularly when, as here, the record s hows that it c ou ld ha ve

reasonabl y done so

. See Brown , 907 S.W.2d at 840 (rec ognizing that trial court may

“ implicitly rule out a less drastic al ter native ” )

.

For example

, P a tterson q uestions the trial court ’s failure to issue an Allen

charge as an alternative to a mi st ria l

, 15 b ut such a supplemental charge is not

appropriate in every case. An Allen charge is issued “ to a jury that declares i tself

deadlocked ” and is designed to “ emphasize [] the importance of reac hing a verdict

. ”

Traylor v. State , 567 S.W.3d 741, 744 ( Te x. Crim. App. 2018) ; Barnett v. State , 189

S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) ; see Hill v. State

, No. 02

- 11

- 00017

- CR

,

15 The Allen charge takes its name from the United States Supreme C o urt case

Allen v. United States

, 164 U.S. 492, 17 S. Ct. 154 (1896)

.12

2011 WL 5247889, at *2 (Tex. App

. — Fort Worth Nov. 3, 2011, pet. ref’d) (mem. op.,

not designated for publication)

. I n this cas e

, th e jur y had been deliberating for almost

20 hours , and despite it s app arent impasse , it had n ot surrendered to the deadlock and

was continuing to try to reac h an agreement

. Nothing in the record indicates that the

jury had prematurely declared itself de adl ock ed or that it needed to be reminded of

“the importance of reaching a verdi ct

. ” Traylor , 567 S.W.3d at 74 4 & n.14

. So whi le

the trial court may not have discussed this le ss drastic alternative on the record , it was

within its discretion to implici tly c oncl u de that a n Allen charge was not appropriate

.

See Ex p arte Booker

, No. 10

- 1 4

- 00369

- CR, 2015 WL 1211282, at * 1

– 2 (Tex. App.

—

Waco Mar. 12, 2015, pet. ref’d) (mem. op., not designated for publication) ( holding

trial court did not abuse discretion by decl aring mistrial based on jury deadlock

despite trial court ’s rejection of defendant ’s request for Allen charge ) ; c f. Washingto n

,

434 U.S. at 509

– 10, 98 S. Ct. at 832 (n oting that, when jury is deadlocked “ after

protracted and exhausting deliberations, there exis ts a significant risk that a verdict

may result from pressures inherent in the situa tion ” and that if trial court lack s t he

discretion to declare a mistrial

, it might be motivated to “employ coerci ve means to

break the apparent deadlock ” ) ; Thetfo rd v. Stat e , N o. 02

- 18

- 00488

- CR, 2021 WL

278913, at *14 (Tex. App.

— Fort Worth Jan. 28, 2021) (mem. op., not designated for

publicat ion) (l isting f

actors rel evant to deter mining if Allen charge is coercive

,

including the length of deliberations prior to the Alle n cha rge and whe ther the jury is

requ ire d to endure mara thon deliberations)

, rev ’d in part on other grounds , No. PD

- 0258

-13

21, 2 021 WL 2674484 (Tex. Crim . App. June 30 , 2021) (not designated for

publication)

.

G iven the single incident underlying all s ix cr imes alle ged

, the relatively

straight forward nature of the co re disputed issues

, the two jury n otes indicat ing

disputes, the l ess

- than

- 1 6 hour s taken t o presen t evidence

, and the numerous

overnight jury breaks

, the trial cour t was within the g enerous bound s of it d iscretion

to conclude that

— as the jury ’s deliberations neared the ir 20th hour

— the jury “ ha [d]

been k ept together for such time as to render it altogether improbab le tha t it c [ould]

agree

. ” Tex. Code Crim. Pro c . Ann. art. 36.31

. This is a “ c lassi c bas is f or a proper

mistri al

, ” Washingto n , 434 U.S. at 509, 98 S. Ct. at 832 ; Traylor , 567 S.W.3d at 744

, and

in the ci rcumstanc es of this case, it constitut ed a manifest necessity. Cf. Munguia v.

State , 603 S.W.2d 876, 878 (Tex. Crim. App. [Pan el O p.] 1 980) (hol din g mistrial was

not abuse of discretion when “ the presentation of the evidence consumed a total of

five and a half hou rs with the jury deliberating for three hours ” and the jury indicated

deadlock ) ; Patterson v. State , 598 S.W .2d 265, 268 ( Tex. Crim. Ap p. [Panel Op.] 1 980)

(holding mistrial was not abuse of discretion when “the presentation of the evidence

took less than one day ” and th e jury “deliberated for over four hours ” and indicated

deadlock ) ; Satterwhite v. State , 505 S.W.2d 870, 872 (Te x . Cri m. App. 197 4) ( holdin g

mistrial was not ab use of discretion because “ the jury deliberated three times as long

a s was required to pre sent the evidence ” ) ; Shook

, 2007 WL 1776069, at * 6

– 7 (holding

mistrial was not abuse of discretion when jury heard four hour s of tes ti m ony and14

deliberated for almost seven hours) ; Husain v. State , 161 S.W.3d 642, 64 6

– 4 7 (Tex.

App.

— San Antonio 2005, pet. re f’d) (holding mistrial was not abuse of discr etion

w hen trial lasted tw o

- and

- a

- half days and jury deliberated appr oxima tely 16 ho urs)

.

IV. Concl usion

B ecause a mistrial does not bar a defendant ’s retrial when, as here, the record

shows that the mistrial w as manifestl y necessar y

, we affirm the trial court ’s denial of

P atter son ’s petit

ion for ha beas relief

. S ee Tex. R . App . P. 43

. 2 (a)

.

/s/ Bonnie Sudderth

Bo nnie Sudder th

Chief Ju stice

Do Not Publish

T ex. R. App. P. 47.2(b)

Deliver ed : March 21, 2024