*1 cion when he detained appellant. There no specific
were articulable facts shown justified
which would have initial deten- appellant.
tion of As this detention was
improper, the club recovered as a result of ensuing search was inadmissible.2 S.,
Wong
Sun U.
U.S.
83 S.Ct.
(1963);
supra.
The judgment is reversed and the cause
remanded. BOWLES, Appellant,
Brandon Texas, Appellee.
The STATE of
No. 59178. Texas,
Court of Appeals Criminal
Panel No. 3.
Sept.
Rehearing Denied Nov. Jr., Dugas, Orange,
Louis appellant. Bearden, Jim County Atty., Sharon Shuff, Michael W. County Atty., Asst. Or- Huttash, Austin, ange, Robert Atty., State’s for the State. safety
2. Had our conclusion been that
the detention
or that the search was for the officer’s
legal,
protection.
no facts were learned in the investi-
The record reflects that
gation
give
probable
companion
positioned
which followed to
rise to
and his
were
at the rear
Further,
place.
cause to search the vehicle.
there is
of the vehicle when the search took
See
460;
an absence of
or circumstances
Branch v.
Beck v.
which would show that the officer was in fear
Davis appellant’s case counsel this OPINION actually requested jury be dis situation, regard charged. analogous In an ODOM, Judge. a jeopardy ing whether a mistrial created appeal This from a conviction the court subsequent prosecution, bar felony delivery of marihuana. Punishment State, Tex.Cr.App., Bios years appellant at was assessed five not was violat jeopardy protection held the placed probation. was on had defense counsel by ed retrial where appellant In con- only ground his of error mistrial, Hippie erroneously tends overruled dispositive. Similarly, supra, was found argument plea jeopardy. of former His case, discharge the in this the decision to which the is based on an earlier trial in court, was jury was not initiated but discharged was when it was unable to reach request of counsel. Since at defense Specifically, appellant a verdict. asserts action dis not initiate the the court did discharged too in that trial re simply acted on counsel’s charge, but 36.31, soon, in violation of Art. V.A.C.C.P. necessary for the hold it was not quest, we provides: That statute personal consent. appellant’s secure “After the cause is submitted to the first trial We therefore hold it discharged it when cannot jury, may be to a second jeopardy bar not constitute to its dis- agree and both consent ground of trial, error. overrule charge; may in its or the court affirmed. judgment The kept it to- discharge it where has render alto- gether for such time it CLINTON, dissenting. Judge, agree.” can
gether improbable it procedural issues adjudicating In strictly relies on the Appellant second Ju- duty, and function responsibility statute, part jury, arguing statutory ex- Department are dicial discharged, it had at judgment as it finds legislative pressions of time as to together for such “been starting point. Authori- them as at least it can for the most basic ty need not be cited judges are to proposition constitutional hearing on the motion for new At pertinent stat- interpret, apply construe and counsel following trial second The make the law. utes-they are not the first trial testified Department provided Legislative re- during in chambers he conference that cannot in which a situations two jury. In quested the court to court; a trial discharged by agree may be request we affirmative view counsel’s the statute engrafts the Court today 36.31, Art. part hold that the second lawmaking I judicial third. To this kind this supra, disposition does not control must dissent. case. in the ini- reflects that The below record 36.31, this cause to the part tial trial of first of Art. Under the called two witnesses and the defense agree may proper called that cannot three, cross vigorously whom were parties agree. Al all of discharged be both ly presentation of evidence examined. The requires held though has been part the better defendant, and both sides constituted consent of the personal Wednesday, Hip Tuesday, February sufficient, 1977 and is not that counsel’s consent contending plea jeopardy, of double special received the February 1977. The “improperly had been charge February court’s at 11:10 a. m. on the first 10,1977 pertinent fifty setting for some min- and deliberated terminated” recessing They for lunch. delib- it above. utes before have outlined as I timetable much erated an minutes twenty-five additional came from trial counsel *3 brought before were into the court- as an by the State appellant, called following colloquy room at which time the now sees the adverse witness. As ensued: matter, following testimony is material inquiry: to our
THE note indi- your COURT: believe Mr. Foreman? cates that Melton is the were first “Q: when we you Do recall Yes, Jury from the with a note presented MR. MELTON: sir. deadlocked seven being as to them You are THE COURT: Mr. Melton? five? Yes. MR. MELTON: Yes. A: THE You have COURT: indicated
you agree, have not been able to to this Q: it was seven you Do recall point, that correct? is ‘guilty’? five for MR. MELTON: That is correct. Yes, A: that’s correct.
THE Do like further you COURT: feel Q: recall you shortly And deliberation would be fruitful? Is there Chambers-right at being any possibility deliberating further ask you time Chambers-did any purpose? would serve inquire Jury of the the Court so, MR. MELTON: It doesn’t seem Sir. where, probability, they in all would THE you COURT: Have each of ex- verdict, be able to reach or the listened, pressed your opinions own question jury? standard to the everyone say? had their My memory A: I believe I did... is Yes, MR. MELTON: sir. hazy on that. tween the court and announced its decision: THE you feel bench, please. THE MR. MELTON: deliberate After an off the record discussion be- al...”1 will “I will declare that attention COURT: Would COURT: Is the like it would-are during further; you. No, sir, the course of the tri- counsel, let me ask I thank you you step up impasse I don’t think so. the trial court you you hung, you so able to great that? your A: Yes. A: I have no recollection of that. Q: Q: verdict? Jury, further of other members fact, able, And do Do you you, question brought into the Courtroom as to whether you recall that the all ask the Court have probability, any to the recollection, Jury Jury? to reach a would was, inquire be or time, Q: ... appellant present- you,
Before his second trial Did ask Jury ed and the trial court heard his verified taken back Court to have the occurred, emphasis supplied throughout by actually 1. All is so a statement as to opinion not tell whether the event did writer of this cated. unless otherwise indi- recollection does place. The omitted and answer are illustrative: drawing meaning burden in didn’t, Our factual you you just “Q: saying You’re not colloquy by phrasing ques- this is made heavier you recall whether did? don’t tions in terms of “recall” and “recollection.” may may or an event that One remember is “After the cause submitted to Jury room for further delibera- discharged may when it cannot be tion on the case? and both consent to dis- A: I did not. may in its charge; or the court recall, Chambers, Q: you And do it has discharge it where to- up, when the came ask- matter first for such time as alto- gether ahead and be ing Jury go it can gether improbable in, brought discharged? be and to Thus, case when a mistrial whatever the A: Yes. accused at the instance granted Q: lodging any type Do recall error,4 discharge of some asserted trial Jury
objection be dis-
contemplated
deadlocked
charged?
or the other described
statute
but one
A:
No,
I did
not.
situations:
court determines
bility”
of
agreement.
*4
parties
the
“altogether
The
consent
first
or the
instance is
improba-
respective
of the
protection
for the desired
Q:
objected
in no
way
But
according
rights,
their
parties,
of
to
rights
Jury?
the
discharging
Court
here,
where,
party
as
one
believes
advan-
A: No.”
more deliberation. The
tageous to insist on
requested
The
also
the trial court to
State
however,
situation,
regarding the
second
judicial
filed
papers
notice of the
para-
completed trials as
public interest in
records
first
that would reflect
of the
mount,
dispu-
discharge
reportedly
takes
of
and,
fairly
“a
trial”
as
understand
short
par-
jurors
of the hands of the
tatious
statement,
agree
the
that the State
not
judicial
ties,5
a
determina-
requiring instead
discharge
jury.3
plea
with the
of the
The
futility
by
in continued deliberations
tion of
by
written order.
denied
contemplate
not
The statute does
them.
cases
Though
parties cite us
constru-
the
now cre-
the
situation that
Court
third
provisions, I
ing
jeopardy
request
the constitutional
naked
of counsel
the
ates-a
the
no considerations of
plainly
am satisfied
this case turns on
accused-and
doing.
treats the mat-
the
In-
meaning
public policy
of our statute that
are served
V.A.C.C.P.,
ter,
36.31,
deed,
are defeat-
quite
public
in these
interests
Article
valid
creation.
by
ed
the Court’s
terms:
jeopardy after a
assert
Right.”
that a defendant cannot
A:
request
usually
grants
specific
to declare
is
with the recall of the
his
concern
not
Below,
jury
discharge
hung
witness
with the
of the
them.”
facts
matter.
a
however,
and to
differently
problem
the
the State saw
understanding
by
That
is confirmed
a remark
“important”
urged
to
on the trial
as
subsequent
by
prosecutor during the
made
hearing
the
position
holding
the
in Willis v.
Court
trial that “it was the
on motion
new
1975)
State,
(Tex.Cr.App.
247
518 S.W.2d
attorney,
through
who
defendant
discharge
judicial
to
determination
affirmed
objections.” The
a mistrial over the State’s
rejoinder
request
jury-a
the accused
from
a deadlocked
event,
“In
was:
being in
case.
obligation
no
...
to listen to
Court is under
* * * So,
attorney
case.
me
an
is
of the accused
it is that the attitude
5.So
and not
is a matter of the Court’s discretion
moment,
by the State
contention
and the
little
mine.”
point-
acquiescence
is
silence
beside
State,
v.
just
in O’Brien
455
as has been held
DeYoung v.
4. The
cites to this
Court
1970), relying
283,
(Tex.Cr.App.
S.W.2d
284
State,
1954)
406,
(Tex.Cr.App.
274
407
S.W.2d
State,
164 S.W.2d
Davis v.
State,
(Tex.Cr.App.
and Rios v.
879
State,
cases;
in Brown v.
respective
court,
their
It is
that a trial
in its
well settled
(Tex.Cr.App.1974)
“...
let
ask the
asked
a declared mistrial.
way.
but
previously,
many
(Tex.Cr.App.1953);
another
How
bility them to reach instructed
open court:
“You should endeavor to reach a ver- possible, pro- all law
dict
vides that the shall be
for such a time as to render it that it can pretermitted trial court below such EVANS, Appellant, Larry foreper in its colloquy instruction with the son. may dynamite While it case-indeed, every in Satterwhite Texas, Appellee. The STATE of yet shaken deadlock— attempt instruction is a worthwhile to save No. 61447. Moreover, trial from aborted. Texas, Appeals Criminal jury sent back for further deliberation No. 3. Panel which still demonstrates an cannot altogether improbability that it ever could. Sept. (1885), See Powell (Tex.Cr. Rehearing Denied Nov. Brown v. App.1974), O’Brien v. Satter
white supra. suggested
It that an order has also been findings
making may explain of fact