Opinion issued August 13, 2024

In The

Court of Appeals 

For The

First District of Texas 

———————————

NO. 01-22-00279-CR

———————————

THE STATE OF TEXAS, Appellant

V. 

ANTHONY ANDREW VALLE, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Case No. 1702650

OPINION ON REMAND

After a jury found appellee, Anthony Andrew Valle, guilty of the felony 

offense of aggravated sexual assault of a child,

1 but before the issue of appellee’s 

1 See TEX. PENAL CODE ANN. § 22.021(a), (e).
2

punishment was submitted to the jury, the original trial court granted appellee’s 

motion to recuse, and a new trial court was assigned to the case. Appellee then 

moved for mistrial as to both the guilt phase of trial and the punishment phase of the 

trial based on Texas Code of Criminal Procedure article 37.07.

2 The new trial court 

granted appellee’s motion for mistrial and set aside the jury’s finding of guilt. 

On original submission, we addressed the sole issue raised by appellant, the 

State of Texas, i.e., whether the new trial court erred in granting appellee’s motion 

for mistrial3and setting aside the jury’s finding of guilt based on an error that 

affected only the punishment phase of trial. See State v. Valle, No. 01-22-00279-CR, 

2023 WL 5436435, at *1, *5 (Tex. App.—Houston [1st Dist.] Aug. 24, 2023) (mem. 

op., not designated for publication) (Valle I), judgment vacated by State v. Valle, No. 

PD-0653-23, 2024 WL 178074 (Tex. Crim. App. Jan. 17, 2024) (Valle II). In 

addressing that issue, we noted that the clerk’s record reflected that appellee did not 

make the required written election under the Texas Code of Criminal Procedure’s

election provision before the commencement of voir dire, making his election

untimely. See Valle I, 2023 WL 5436435, at *6. Because the record showed that 

2 See TEX. CODE OF CRIM. PROC. ANN. art. 37.07, § 2(b) (providing if jury returns 

finding of guilt in guilt phase of trial, “where the defendant so elects in writing 

before the commencement of the voir dire examination of the voir dire examination 

of the jury panel, the punishment shall be assessed by the same jury” (the “election 

provision”)).

3 See id. art. 44.01(a)(3); State v. Gallien, 631 S.W.3d 885, 887 (Tex. App.—Houston 

[1st Dist.] 2021, pet. ref’d).
3

appellee had waived his statutory right to make the election, we sustained the State’s 

sole issue and held that the trial court erred in granting appellee a mistrial as to the 

guilt phase of trial.4 See id.

Appellee then filed a petition for discretionary review to the Texas Court of 

Criminal Appeals, alleging that he had timely filed his written election and the 

time-stamped date of November 9, 2021 on his written election contained in the 

clerk’s record was a clerical error. See Valle II, 2024 WL 178074, at *1. The Court 

of Criminal Appeals granted appellee’s petition for discretionary review, vacated 

this Court’s prior judgment, and remanded the case to this Court, with directions to 

abate the case so that the trial court could determine whether there had been a clerical 

error related to appellee’s written election. See id. On remand, we abated the case

and remanded it to the trial court so that the trial court could determine whether the 

November 9, 2021 time-stamped date was a clerical error and, if so, the date that 

appellee’s written election was filed.

While the case was abated, the trial court held a hearing, after which it entered 

findings of fact and conclusions of law and a supplemental clerk’s record containing

4 We did not reach the question of statutory interpretation raised by the State in our 

prior opinion because under the circumstances, it would have been improper to do 

so. Appellate court review may not stray beyond the confines of the record. Jones 

v. State, 564 S.W.2d 718, 721 (Tex. Crim. App. 1978); Salazar v. State, 5 S.W.3d 

814, 816 (Tex. App.—San Antonio 1999, no pet.); Burns v. State, 761 S.W.2d 486, 

487 (Tex. App.—Corpus Christi–Edinburg 1988, pet. ref’d).
4

those findings of fact and conclusions of law was filed in this Court. The trial court 

found that “[a]n accurately time-stamped copy of the request for the jury to assess 

[appellee’s] punishment d[id] not exist” but that appellee “timely filed a request for 

the jury to assess his punishment before voir dire began in accordance with Texas 

Code of Criminal Procedure article 37.07[] [section] 2(b).”5 Accordingly, we now 

consider whether, as the State contends, the trial court erred in setting aside the jury’s 

finding of guilt based on an error that affected only the punishment phase of trial.

We affirm.

Background

A Harris County Grand Jury issued a true bill of indictment, alleging that 

appellee, on or about June 1, 1997, “unlawfully, intentionally and knowingly 

cause[d] the penetration of the mouth of [the complainant], a person younger than 

fourteen years of age, with the sexual organ of [appellant].”6

Following the guilt phase of trial, the jury found appellee guilty of the felony 

offense of aggravated sexual assault of a child. The punishment phase of trial then 

began.

During the punishment phase of trial, the State called a Harris County 

Sheriff’s Office deputy as a witness and questioned him about his participation in an

5 See TEX. CODE OF CRIM. PROC. ANN. art. 37.07, § 2(b) (election provision).

6 See TEX. PENAL CODE ANN. § 22.021(a).
5

investigation involving an extraneous offense that allegedly occurred at appellee’s 

home on September 20, 2018. Evidence found at the home included a purse and its 

contents.

Appellee’s trial counsel, Sam Cammack, stipulated to the admissibility of the 

purse into evidence. The State asked Cammack whether appellee was stipulating 

“to the items inside [the purse],” and Cammack answered that he was. The State 

then began questioning the deputy about certain photographs depicting the purse and 

its contents, which had previously been admitted into evidence.

Subsequently, Cammack asked, “for clarification[] of [the] stipulation,” as to 

whether the items were still inside the purse or whether they had been “individually

removed from the [purse] and marked” as separate exhibits. The State responded 

that the contents had been “individually moved . . . out of the purse.”

Cammack clarified that if the exhibits were “in the courtroom,” he did not 

“have objections to them being offered.” The original trial court asked whether the 

State was “offering those exhibits,” and the State responded that it was. Cammack 

then objected that “th[o]se exhibits would be the best evidence as opposed to the 

photographs of them.” The trial court reminded Cammack that the photographs had 

already been admitted into evidence. The State proceeded with its examination of 

the deputy about the various items that he found in the purse until Cammack asked 

for a bench conference.
6

At the bench conference, Cammack explained to the original trial court that 

he had asked the State “if [it] had” the purse’s contents so that Cammack “could 

present [them]” to the jury if the State was not going to do so, but the State had not 

brought them “to . . . court.” Cammack then “asked [the State] if [it] could retrieve” 

the purse’s contents, but the State told Cammack that it “couldn’t get” them until 

later that afternoon.

The original trial court responded that Cammack “could ask about it on 

cross[-examination],” but Cammack stated that he “need[ed] the evidence,” and 

because it was in the State’s “possession,” Cammack could not “retrieve [the purse’s 

contents] unless” the State brought them to him. The trial court replied, “Well, what 

do you want me to do about it?” and ended the bench conference.

The State continued questioning the deputy about photographs depicting other 

various pieces of evidence. After Cammack began his cross-examination of the 

deputy, the original trial court dismissed the jury for “a brief break,” called the court 

into recess, and went off the record. When the trial court went back on the record, 

it stated:

Since we were last on the record, [Cammack] engaged in 

arguments with the court reporter over the admission of evidence. He’s 

engaged in arguments with the [c]ourt repeatedly.

He’s been ejected from the courtroom.
7

[Carson Joachim], who’s been here for the entirety of the trial 

with the defense in both guilt/innocence and during punishment, will 

continue in his place.

We’ll be bringing the jury back in to continue.

The trial court then ordered Joachim to “pick up the cross-examination” of the 

deputy “where [Cammack had] left off.”

Joachim, an attorney who had assisted Cammack at certain points during 

appellee’s trial, protested that he had “not been present” in the courtroom for the 

State’s examination of the deputy, except for “the five minutes prior to the 

exchange” between Cammack and the original trial court. And he was “not really 

sure of the entire genesis” of the argument between Cammack and the original trial 

court. In any event, Joachim noted that appellee “ha[d] represented to [Joachim] 

that he [did] not want [Joachim] to handle th[e] case as the primary attorney or the

secondary attorney at th[at] point” and “would prefer to have [Cammack]” represent 

him. As such, Joachim requested that the trial court give Cammack an opportunity 

“to visit with [appellee] before continuing” with the punishment phase of trial.

In response, the original trial court stated that it was “not going to proceed 

with [Cammack]” in the courtroom and “have his disruptions for the remainder of 

[appellee’s] trial.” And it stated that if appellee “would like to have another attorney 

other than [Joachim] represent him, he [could] have them come in now.” The 

original trial court then ordered that the jury be brought back into the courtroom. 
8

Before the jury returned, the State interjected that it was “requesting a 20, 30-minute

stave off in time to consult regarding what . . . the State’s position should be in 

regard[] to proceeding with [appellee’s] case as it is.” The State explained that it 

wanted the “time just to research and confer with [its] appellate [counsel].” The trial 

court responded that the State “[c]ould do that” or “have someone else do that,” but 

the punishment phase of trial “[was] going to proceed.”

After the jury returned to the courtroom, Joachim attempted to cross-examine 

the deputy until eventually, the State requested a bench conference, and the trial 

court granted the request. The following exchange then occurred:

[The State]: . . . [T]he State just wants to re-urge for time for 

counsel to continue to have time to evaluate this 

witness [be]cause he didn’t hear most of the direct. 

And we’d like to just take up again outside the 

presence of the jury to discuss the best path going 

forward as far as --

THE COURT: Please proceed.

The State then questioned the deputy on redirect. When the State’s redirect 

was completed, the original trial court informed the jury that the proceeding would 

“break for lunch.” After the jury left the courtroom, the trial court had the bailiff 

bring Cammack back into the courtroom, and the original trial court made the 

following statement:

Mr. Cammack, you will not speak until I give you permission to 

speak.
9

Your behavior since this case has been pending in front of me 

has been reprehensible. The rudeness that you’ve displayed to the 

district attorney’s office and to everyone in [the] court including myself 

has been reprehensible.

Your disruptions throughout this trial from when it began in 

November until today have been reprehensible. I’m going to ask: Are 

you going to conduct yourself in this courtroom in a professional

manner, yes or no?

Cammack responded that he was “going to [his] office and filing a motion to 

recuse.” And the trial court replied, “You may do so,” and then went off the record. 

Back on the record, Joachim made the following statement:

. . . My participation [in appellee’s trial] has been consistent, but 

still in and out of the courtroom at various times. I do not feel prepared 

to the point that it could marginally be ineffective at some point along 

the way if I continue to participate in this trial.

. . . [O]ut of full fairness to [appellee], he does not want me to 

move forward as his primary attorney. He has indicated to me -- and I 

can have him put that on the record -- that he would prefer [Cammack]

to be his lawyer moving forward.

We would at least like a continuance briefly -- I know that [the 

State] has asked for that as well -- so that we can kind of collect our 

thoughts.

I have a lot of respect for this [c]ourt and I hope you know that. 

I do. And I appreciate, you know, the liberty that you’ve given me here. 

But at the same time, I need to do what’s not only best for 

[appellee], but also best for me professionally moving forward. No 

disrespect to the [c]ourt. I enjoy being in your courtroom. It’s not that

at all.

So, I respectfully ask for a continuance, at a minimum. If we 

can’t do that, then I would obviously ask for a mistrial, if -- you know, 
10

I would have to urge that at this particular point in time. But I think it’s 

fair if we put [appellee] on the record indicating to the [c]ourt that he 

does not want me to be his attorney moving forward, if you would allow 

me to do that.

Appellee then testified that he had hired Cammack as his primary attorney and 

Cammack had helped appellee prepare for both the guilt and punishment phases of 

trial. Appellee stated that he did not meet Joachim until the beginning of his trial 

and Joachim’s participation had been limited, for the most part, to the times that 

Joachim had appeared in the courtroom for the purposes of the trial. Appellee

explained that he had never conferenced or prepared for trial with Joachim and he

had not reviewed any evidence with Joachim. And appellee confirmed that he 

wanted Cammack to be his “primary attorney” in the case and did not want Joachim 

to represent him “going forward.”

Following appellee’s testimony, the original trial court recessed. When the 

trial court returned, Cammack appeared in the courtroom and the following colloquy 

took place:

THE COURT: [Appellee] would like to proceed with 

[Cammack]. I do not want the 

behavior and the disruption to be

prejudiced against [appellee]. I’m 

going to allow [Cammack] to proceed, 

but [he] cannot be disruptive and

disrespectful to this [c]ourt any longer.

[Cammack]: May I speak, Judge?

THE COURT: No.
11

[Cammack]: Okay.

THE COURT: We’re going to bring in the jury to --

[Cammack]: Well, I just want to let the [c]ourt know 

one thing.

I have notified the administrative law

judge that I . . . file[d] a motion to 

recuse. . . .

And I believe the proper remedy . . . is 

to halt the trial until we’ve had a 

motion to recuse hearing.

The trial court then brought the jury into the courtroom and stated that the court 

would be in recess.

After a hearing on appellee’s motion to recuse, the motion was granted, and 

appellee’s case was assigned to the 338th District Court of Harris County, Texas. 

Appellee then filed a motion for mistrial.

In his motion, appellee asserted that he “was deprived of his Sixth 

Amendment right to counsel[7] when the [original] trial court . . . ordered another 

lawyer . . . take over [appellee’s] trial . . . , over the objection of both [appellee] and 

[his] new counsel.” Appellee also maintained that he “ha[d] not waived or limited 

the scope of [Texas Code of Criminal Procedure section 37.07].” Thus, according 

7 See U.S. CONST. amend. VI.
12

to appellee, “the only remedy available to afford [him] his right to [d]ue [p]rocess, 

[wa]s to grant a mistrial and place [appellee] in his original, pretrial status pending 

a new trial on the merits.”

In his brief in support of the motion for mistrial, appellee noted that he had 

filed a motion for mistrial “at the conclusion of the State’s case-in-chief,” which was 

denied, and he had subsequently filed his motion to recuse the original trial court. 

Appellee observed that “[t]he Sixth Amendment violation that formed the basis of 

[his motion for mistrial] was addressed in [his] [m]otion for [r]ecusal.” Appellee 

then recited the circumstances that precipitated the original trial court’s removal of 

Cammack from the courtroom during the punishment phase of appellee’s trial.

Appellee also referred to the thirteen instances of “conduct exhibited by the 

[trial court]” that he had set forth in his motion to recuse, which was attached as an 

exhibit to his motion for mistrial. According to appellee, such conduct, which 

“occurred during both the guilt[] and punishment phase[s] of . . . trial,” “showed a 

complete lack of impartiality” and the original trial court’s “bias against [appellee].”

In asserting that the original trial court had violated his Sixth Amendment 

right to counsel, appellee cited specifically to the original trial court’s removal of 

Cammack from the courtroom, his order that Joachim represent appellee and 

cross-examine the deputy, and his later order that Cammack return to the courtroom.
13

Appellee argued that he was entitled to a “mistrial as to both phases of the 

bifurcated trial” because he had invoked the election provision8and thus was 

“statutorily entitled to have punishment heard by the same jury that [had] adjudicated 

him [guilty].”

In its response to appellee’s motion for mistrial, the State asserted that the trial 

court could “not grant a new trial on guilt for error that occurred during the 

punishment phase” of appellee’s trial.

After a hearing on appellee’s motion, the trial court granted appellee’s motion, 

declared a mistrial, discharged the jury “from all further consideration of th[e]

matter,” placed appellee “in his original pretrial status with the pretrial bonds 

reinstated,” and adjourned the case “for a new trial at a later date.”

Standard of Review

When, as here, the trial court’s order granting a mistrial is rendered after the 

guilty verdict, but before the punishment verdict, the order, for purposes of its 

appealability, is functionally indistinguishable from an order granting a new trial 

because it returns the case to the posture it was in before trial. State v. Gallien, 631 

S.W.3d 885, 890, 891 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d). “[W]hen 

an order is functionally indistinguishable from or the functional equivalent of an 

8 See TEX. CODE OF CRIM. PROC. ANN. art. 37.07, § 2(b).
14

order granting a new trial, a reviewing court can look past the label assigned to the 

order by the trial court.” State v. Boyd, 202 S.W.3d 393, 400 (Tex. App.—Dallas 

2006, pet. denied); see also State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 

1996); State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992).

We review a trial court’s ruling on a motion for mistrial under an

abuse-of-discretion standard. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 

2009); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). The test for 

abuse of discretion is not whether, in the opinion of the appellate court, the facts 

present an appropriate case for the trial court’s action, but rather, “whether the trial 

court acted without reference to any guiding rules or principles.” State v. Herndon, 

215 S.W.3d 901, 907 (Tex. Crim. App. 2007); Gallien, 631 S.W.3d at 891. A trial 

court abuses its discretion when it applies “an erroneous legal standard, or when no 

reasonable view of the record could support the trial court’s conclusion under the 

correct law and facts viewed in the light most favorable to its legal conclusion.” 

DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996), overruled on 

other grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997).

Motion for Mistrial

In its sole issue, the State arguesthat the trial court erred in granting appellee’s 

motion for mistrial as to the guilt phase of trial because the trial court’s error affected 

only the punishment phase of appellee’s trial.
15

In his motion for mistrial, appellee, as his sole basis for claiming that he was 

entitled to a mistrial as to the guilt phase of trial, relied on the election provision, 

which, he asserted, gave him the right to have the same jury that decided his guilt 

also decide his punishment. The election provision states:

Except as provided by [Texas Code of Criminal Procedure] [a]rticle 

37.071 or 37.072, if a finding of guilty is returned, it shall then be the 

responsibility of the judge to assess the punishment applicable to the 

offense; provided, however, that . . . where the defendant so elects in 

writing before the commencement of the voir dire examination of the 

jury panel, the punishment shall be assessed by the same jury, except 

as provided in [s]ection 3(c) of this article and in [a]rticle 44.29.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2(b).

Courts must interpret a statute according to the plain meaning of its text 

“unless the text is ambiguous or the plain meaning leads to absurd results that the

legislature could not possibly have intended.” Cont’l Heritage Ins. Co. v. State, 683 

S.W.3d 407, 411 (Tex. Crim. App. 2024). “In determining plain meaning, we may 

resort to standard dictionaries, and we apply the canons of construction.” Id.; see 

Dunham v. State, 666 S.W.3d 477, 484 (Tex. Crim. App. 2023) (explaining canons 

of construction include “a list of presumptions regarding legislative intent”); see 

generally TEX. GOV’T CODE ANN. § 311.021. “[W]e read words and phrases in 

context and construe them according to rules of grammar and common usage.” 

Watkins v. State, 619 S.W.3d 265, 272 (Tex. Crim. App. 2021).
16

We understand the common meaning of “same jury” in the election provision

in the same way that the Texas Court of Criminal Appeals explained it in Ex parte 

Pete: “A defendant who has followed the procedural steps necessary to trigger his 

statutory right to jury assessment of punishment has the statutory right to have that

punishment assessed by the same jury as the one that found him guilty.” 517 S.W.3d 

825, 831 (Tex. Crim. App. 2017) (internal quotations omitted). 

The election provision expressly includes two exceptions. The first, which 

appears at the beginning of the provision, involves repeat-sex-offender and other 

non-death-penalty capital felony cases, and thus does not apply here. See TEX.CODE 

CRIM. PROC. ANN. art. 37.07, § 2(b); see also id. arts. 37.071, 37.072. The other 

express exception involves Texas Code of Criminal Procedure article 37.07, section 

3(c) and article 44.29. Article 44.29 applies only to appellate court proceedings. See

id. art. 44.29 (“Appeal and Writ of Error”).

Article 37.07, section 3(c) applies to trial courts, but only when the trial court 

declares a mistrial because of a hung jury,9 which is not the case here. See TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 3(c) (“In the event the jury shall fail to agree 

on the issue of punishment, a mistrial shall be declared only in the punishment phase 

9 See, e.g., Ex parte Zavala, 900 S.W.2d 867, 870 n.4 (Tex. App.—Corpus Christi–

Edinburg 1995, no pet.) (explaining trial court may discharge hung jury if parties 

consent or if jury cannot agree and “has been kept together for such time as to render 

it altogether improbable that it can agree”). 
17

of the trial, the jury shall be discharged, and no jeopardy shall attach.” (emphasis 

added)); Ex parte Pete, 517 S.W.3d at 831 & n.10 (observing mistrial based on 

irremediable error or misconduct occurring during punishment phase is not

exception to election provision’s right to same jury).

The State also asserts that Texas Rule of Appellate Procedure 21.9 “prohibits 

a trial court from setting aside a finding of guilt based on error that affected only the 

punishment phase” of trial. Rule 21.9 provides:

A court must grant a new trial when it has found a meritorious ground 

for new trial, but a court must grant only a new trial on punishment 

when it has found a ground that affected only the assessment of 

punishment.

TEX. R. APP. P. 21.9. But this rule “refers only to a trial court’s authority to grant a 

new trial on punishment, not its authority to grant a mistrial on punishment.” State 

v. Bounhiza, 294 S.W.3d 780, 786 (Tex. App.—Austin 2009, no pet), disapproved 

of on other grounds by Ex parte Pete, 517 S.W.3d at 831; see also TEX. R. APP. P. 

21.9(a); Ex parte Pete, 517 S.W.3d at 830 (noting “mistrial practice in criminal cases 

in Texas is flexible” and “largely a creature of the common law,” given that Texas 

Code of Criminal Procedure “gives little concrete guidance” in handling mistrials 

granted because of “procedural error or serious misconduct occurring during the

proceedings”). Texas Rule of Appellate Procedure 21.9 thus does not apply here.

Finally, the State suggests that “when a trial court grants a motion that is the 

functional equivalent of a motion for new trial—regardless of what the defendant 
18

chooses to call it—appellate courts should look past the label,” as we do in 

determining appealability, “and treat the motion as a motion for new trial.” See, e.g., 

Gallien, 631 S.W.3d at 891. In making this suggestion, though, the State fails to 

recognize that when, as here, the defendant has preserved his statutory right to have 

“the same jury” that found him guilty also assess his punishment, granting a mistrial 

only as to the punishment phase “could very well violate” his preserved right. Ex 

parte Pete, 517 S.W.3d at 832. We decline to fashion a new common-law rule that 

would potentially conflict with existing law.

The State has not identified any legal authority that would have barred the 

trial court from granting Valle’s motion for mistrial as to both the guilt phase of trial

and the punishment phase of trial, and we find none. Thus, we hold that the trial 

court did not err in granting Valle’s motion for mistrial as to both phases of trial.

We overrule the State’s sole issue.

Conclusion

We affirm the order of the trial court.

Julie Countiss

Justice

Panel consists of Justices Kelly, Hightower, and Countiss.

Publish. TEX. R. APP. P. 47.2(b).