Ex Parte: Hector MacIas, 08-15-00013-CR

Defendant Hector Macias was charged with domestic assault; trial court granted motion to suppress his on-scene statement, prompting a State interlocutory appeal.
The Court of Appeals reversed the suppression in an opinion dated October 16, 2013, but the appellate mandate did not issue until January 30, 2014.
Trial was set and proceeded on January 16, 2014: subpoenas issued, jury empaneled and sworn, State presented witnesses, and parties rested; as closing argument began the court learned the mandate had not issued and discharged the jury.
Trial court concluded it lacked jurisdiction to continue because the appellate record had been filed and stayed further proceedings under Tex. R. App. P. 25.2(g); it denied Macias’s habeas application claiming double jeopardy barred retrial.
The Court of Appeals (El Paso) reviewed de novo whether the trial court had jurisdiction during the interlocutory appeal and whether the jury discharge barred retrial under the Double Jeopardy Clause; it concluded the trial court retained jurisdiction and that terminating the trial was improper, so double jeopardy bars retrial.

Issue	Plaintiff's Argument (Macias)	Defendant's Argument (State)	Held
Whether the trial court had jurisdiction to try the case while an interlocutory appeal was pending under Tex. R. App. P. 25.2(g)	In interlocutory appeals trial court retains jurisdiction and could properly try the case; thus the January 16 proceeding was a valid trial	Rule 25.2(g) suspended all trial-court proceedings while the appellate record was filed, so the trial was a nullity	Court held trial court retained jurisdiction for interlocutory appeals (followed In re State and Peters); trial was valid for double jeopardy analysis
Whether jeopardy attached	Jeopardy attached when the jury was empaneled and sworn; retrial now would violate Double Jeopardy	Argues proceeding was void for lack of jurisdiction, so jeopardy never attached	Court agreed jeopardy attached upon empaneling and sworn jury; trial counted as a trial
Whether termination of the trial was justified by "manifest necessity"	Termination based on mistaken jurisdictional belief is not manifest necessity; Macias did not consent	Trial court reasonably concluded it lacked jurisdiction and dismissal was necessary	Court held termination was improper; understandable legal error does not meet manifest necessity; thus retrial barred
Remedy	Habeas relief: dismiss indictment and bar retrial	Deny habeas; allow retrial	Court granted habeas, reversed denial, remanded with instruction to dismiss the indictment

In re State, 50 S.W.3d 100 (Tex. App.—El Paso 2001) (trial court retains jurisdiction during interlocutory appeal where no final judgment has been entered)
Peters v. State, 651 S.W.2d 31 (Tex. App.—Dallas 1983) (appeal from preliminary order does not suspend trial court’s power to proceed on the merits)
Ex parte Fierro, 79 S.W.3d 54 (Tex. Crim. App. 2002) (trial-court legal error in excusing juror did not constitute manifest necessity; retrial barred)
Hoang v. State, 872 S.W.2d 694 (Tex. Crim. App. 1993) (void judgments do not bar successive prosecution under double jeopardy)
Kepner v. United States, 195 U.S. 100 (U.S. 1904) (proceedings and acquittals by a court without jurisdiction are void and do not bar subsequent prosecution)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (retrial barred after acquittal/conviction; mistrial exceptions include manifest necessity)
Green v. United States, 355 U.S. 184 (U.S. 1957) (rationale for double jeopardy protection against multiple prosecutions)
Fong Foo v. United States, 369 U.S. 141 (U.S. 1962) (egregious judicial action that functions as an acquittal bars retrial)