Joseph M. Martel v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-07-00034-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOSEPH M. MARTEL, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Joseph M. Martel appeals from the trial court s denial of relief on his pretrial application for writ of habeas corpus. In two issues, he argues that the trial court erred when it declared a mistrial during his trial for assault and that double jeopardy principles bar another trial. We affirm.

Background

During Appellant s trial for assault, one of the jurors alerted the trial court that she had learned during an overnight break that her husband had a business relationship with Appellant. Specifically, she learned that Appellant leased office space to her husband and that Appellant had visited the property sometime after the trial began and had a conversation with the juror s husband. The juror maintained that her husband did not know which trial she was sitting on, but that her husband told her that Appellant was a nice guy.

The State moved for a mistrial, arguing that the juror could not be fair and impartial. Appellant opposed the State s motion. After considering the evidence, the trial court determined that the trial would not be fair if the juror continued to serve. Apparently there was not an alternate juror. The trial court determined that there was not another remedy short of ending the trial and declared a mistrial. The State filed a motion asking the trial court to find a manifest necessity for the mistrial. Appellant opposed that motion and filed a request for a hearing. However, the docket sheet indicates that Appellant s attorney called the court in advance of the hearing and said that counsel did not want a hearing on the manifest necessity matter and would not pursue this matter further. Thereafter the trial court entered a written order finding a manifest necessity for the mistrial.

Appellant filed a special plea of former jeopardy and an application for writ of habeas corpus. Appellant alleged that the problem with the juror did not represent a manifest necessity, that jeopardy had attached, and he could not be tried again on this charge. The trial court overruled the special plea and denied habeas corpus relief. This interlocutory appeal of the denial of habeas corpus relief followed.

Double Jeopardy

In two issues, Appellant argues that no manifest necessity required a mistrial and that he may not be tried again on this charge.

Standard of Review and Applicable Law

Generally, we review a trial court s decision to grant or deny relief on a writ of habeas corpus for abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). We review the facts in the light most favorable to the trial court s ruling. See Ex parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007). We review wholly legal conclusions de novo. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

The Fifth Amendment to the U.S. Constitution contains a Double Jeopardy Clause, which provides that [n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb. U.S. Const. amend V. Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). But a trial that ends in a mistrial is not a former jeopardy if it occurs with the defendant s consent or because of a manifest necessity. Id. (citing Oregon v. Kennedy, 456 U.S. 667, 672, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982)). A trial court has discretion to declare a mistrial based on manifest necessity but only in very extraordinary and striking circumstances that render it impossible to arrive at a fair verdict or impossible to continue with trial or when the verdict would be automatically reversed on appeal because of trial error. Id. Before granting a mistrial, a court must consider and rule out less drastic alternatives. Id. (citing Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995)).

Analysis

The trial court concluded that a manifest necessity existed because the juror was unable to be fair and impartial after Appellant s indirect contact with her and that there was not a less drastic alternative to declaring a mistrial. The juror told the court that Appellant had come to her husband s place of work and visited with him. Her husband told her that Appellant visited his tenants regularly and that he thought Appellant was a nice guy. She further testified that she would just not be happy about, you know, giving a negative verdict, I guess, against someone that my husband has a business connection with. 1 In announcing its ruling, the court said

[t]he thing that bothers me about this juror, obviously, she - - her words, but her actions almost as much as her words. She said in here - - she would not look at the defendant when she was talking. She wasn t shaking, but she just looked scared while she s [sic] talking. The bottom line is, in regards to this juror, that contact has adversely affected this juror to such [sic] that I think it s obvious . . . that it s obviously affected that juror to such an extent that this would not be what I call a fair trial if we continue from now on with that juror into the guilt-innocence stage or let alone the penalty stage of the trial.

Appellant argues that the record does not show that the juror could not follow instructions or her oath. But the trial court considered the juror s testimony as well as her demeanor while testifying and concluded that she could not continue to be a fair and impartial juror. We must afford deference to this kind of factual determination, especially where, as here, it is supported by facts in the record. Giving due deference to the trial court s factual findings, we hold that the trial court did not err when it concluded that it would be impossible to arrive at a fair verdict if the trial continued with the juror.

Appellant also argues that the court should have chosen a less drastic alternative other than declaring mistrial. Appellant did not suggest any alternatives at the time. On appeal he argues that the trial court should have asked more questions or given the juror further instruction. But further inquiry is not another solution to the problem that existed. Rather it is a tool to measure the scope of the problem. And further instructing the juror is an alternative that the trial court implicitly, if not explicitly, considered. The court was clearly convinced that the juror could not be fair given the statements she made and the court s observation of her demeanor.

One example of a less drastic alternative to a mistrial when a juror becomes unable to serve is to continue with less than twelve jurors. In fact, it is reversible error for a trial court not to continue with eleven jurors in such a situation. See Hill, 90 S.W.3d at 315. But that conclusion is based on a specific statute that requires such a result for felony cases and does not apply to misdemeanor cases such as this where there are six jurors. Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2007).

The trial court considered alternatives to declaring a mistrial and was not able to arrive at a solution that would allow the trial to continue. Under the circumstances, this was a reasonable conclusion, and Appellant has not shown another less drastic solution that should have been employed. Because the trial court concluded that the juror could not continue, and because there was not a reasonable alternative to a mistrial, a mistrial was a manifest necessity. Accordingly, the first trial was not a former jeopardy, and the trial court did not err when it denied relief on Appellant s application for habeas corpus. We overrule Appellant s first and second issues.

Disposition

Having overruled Appellant s two issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered January 31, 2008.

Panel consisted of Worthen, C.J. and Hoyle, J.

Griffith, J., not participating.

(DO NOT PUBLISH)

1 The State postulated that Appellant contacted the juror s husband knowing he was related to the juror. The trial court discounted this possibility because there had never been a juror card for the juror in question and so Appellant did not know anything about the juror other than her name and whatever she disclosed during voir dire.