Ex Parte McAfee

Ulysses Carl McAFEE aka Frank Collins.

No. 69666. Texas, Appeals Court of Criminal McAffee, pro se. En Banc. Hemstreet, Sugarland, appellant. Hal June 1988. Holmes, Jr., Atty. Dist. John B. Su- Spruce, san Bill Adkins Calvin Hartmann & Rehearing Denied Dec. 1988. Camp, Houston, Attys., Asst. Dist. Robert Huttash, Atty., Austin, State’s for State.

OPINION CLINTON, Judge. post This a application conviction for ha- corpus pursuant beas to Article V.A. Applicant C.C.P. contesting validity of a conviction for automobile, theft of an tending that it was obtained in violation of his ardy against being placed twice vouchsafed the Fifth Amendment to the Constitution of the United States and I, Article Bill Rights in the Constitution of Texas. Applicant initially indicted Cause 275,709 counts for offenses No. on two alleged to have been committed motor day, same viz: theft of a vehicle identical motor ve- unauthorized use There were also two enhancement hicle.

paragraphs. September by jury Trial commenced In its offense of unauthorized submitted use of an no prosecutor had automobile. abandoning independent recollection count, prac- her admitted that the theft tice in such cases was but present evidence jury charge counts and before the on all to abandon was drafted to elect whether charge in- one or more counts. Here had that the State aban- structed doned the theft count consider that for and it was not to purpose. After some any deliberation, two hours of altogether improbable that determined and, appli- agree on a verdict could discharged consenting, cant by the State. objection over September practically the played. Only the of- same scenario was fense of unauthorized use of a motor ve- submitted; hicle was deliberated reaching a for about two hours without verdict; consent of but over with (CA5 1981); Broussard, objection of the court dis- 645 F.2d 504 State trial Estelle, (CA5 1975). charged jury. F.2d Green reject Accordingly, we the contention again called for trial Feb- turn to the of and now merits 27,1979. motion of ruary the State application. habeas count trial court dismissed the second in opinions Since the Garza v. alleging unauthorized use of a motor ve- 658 S.W.2d paragraphs. hicle and both enhancement relies, applicant Supreme Applicant pleaded guilty to the offense Court the United States has reaffirmed alleged in The court theft the first count. law, proposition jeopardy core viz: him found and assessed years at court’s of mistrial three confinement. trial declaration “[A] hung following jury is not an event Applicant now that continual asserts original jeopardy that terminates prosecution on one indictment was petitioner subjected.” to which by principles barred of double States, Richardson v. United U.S. argues He that the State aban- because 3081, 3086, 82 L.Ed.2d the theft after the had doned (1984).1 empaneled and sworn the first to that failure of the court recognition trial submit “This rule accords socie- giving tantamount ty’s interest in one complete opportunity the offense of theft of the motor vehicle. to convict those who “general He rule” its laws.” squarely relies have violated Arizona v. Wash- 824, 832, ington, followed Garza v. 658 S.W.2d (1978). (Tex.Cr.App.1982). 54 L.Ed.2d 717 Rather than frus- purpose denying power trate that courts contends, part For its the State again, put him to trial “the defendant’s making convicting “By opined, right completed by valued to have his pro- contemporaneous objection plea [to particular in some tribunal must instanc- ceedings], Applicant any such has waived public’s es be subordinated to interest complaint.” We address thresh- that designed just judg- in fair to end trials old find question, and both federal Hunter, ments.” Wade U.S. clearly against state that law resolve issue 688-689, 834, 836-837, 93 L.Ed. the State. (1949). object at does not Failure to Therefore, Supreme as the Court insisted constitute waiver of the to raise Richardson, supra: by way of a attack jeopardy claim collateral Government, defendant, “The like the post corpus proceed conviction habeas entitled resolution of the case ver- ing. Pleasant, parte Ex S.W.2d jeopardy dict from the does Hilliard, parte (Tex.Cr.App.1979); Ex when the is dis- terminate parte Ex charged agree.” because is unable Jewel, (Tex.Cr.App.1976). S.Ct., Id., 326, 104 3086. at at guilty to That entered a I, preclude him from Both the Fifth Amendment and Article the first count will not Rights, cor Bill of the Government application that claim an habeas bar Morehead, pus. respectively, subjecting 895 and the parte Ex Hilliard, any person su “for the offense to parte Ex same Jewel, supra; put life or pra; parte twice limb.” suffer Scelles, (Tex.Cr.App.1974). Thus “an accused must York, jeopardy,” he suffer See U.S. before can Ser Menna v. New Black foss ledge Perry, U.S. do Jeopardy v. The Double Clauses not mean United States emphasis supplied throughout writer unless otherwise indicated. All indictment, every put single time a defendant is to trial has been termi- competent before a tribunal he is entitled nated. go free if the trial fails to end in a final terminated, however, Jeopardy is not

judgment,” Hunter, supra, v.Wade at 336 when there is not a verdict returned S.Ct., at 837. Absent a final judgment may which a be rendered. The judgment, he remains jeop under the initial theory it has been terminated is Therefore, ardy. a retrial for the same continuing trary concept jeopardy to “a offense is not jeopardy.2 application pro- that has criminal where ceedings against an accused have not run aside, authority, Garza there is not state course,” their full federal, Georgia, Price v. supporting applicant what 323, 326, 1757, 1759, 26 L.Ed. Indeed, today. claims deny the State its ¶. (1970), citing 2d 300 Green United complete opportunity to one States, 184, 189, 221, 225, by obtaining judgment vict a final is to 199, 205, (1957). ALR2d disregard public policy all considerations still extant after more than one hundred States, supra, Green v. the United sixty years and since first articulated alleging first trial was on an indictment Perez, supra. United States degree jury murder and the was charged on that offense as well as the majority and Garza now degree lesser included offense of second take the view that Jeopardy Double Claus- murder; guilty it found accused of the prevent es alleg- a second “trial” of a count latter. That conviction was overturned on ing an presented offense that is not to a prosecution and on retrial the ob- jury because the elected to degree tained a conviction for first murder. have the court submit another count. Its Supreme Court held the second convic- theory must be that once it attaches in a Jeopardy tion was the barred Double jeopardy any terminated as to having given Clause because a choice through “abandoned” an election. finding accused of either first or That essentially what in its jury’s finding second the latter constituted opinion rehearing called Garza “this implicit acquittal “an on the of first general rule,” id., at 159. But as all the murder,” degree and also because cases discussed and cited the Garza greater charge on the ended when the first reveal, general “this rule” is jury given opportunity “was a full to re- applied found and only in cases where the higher charge turn a verdict” on the but jury in the first trial did return a verdict on instead reached verdict on the lesser. submitted, the count that was and that verdict the trial judg- court entered a imperative terminating Thus an for Although ment of conviction. not neces- ardy is that the issue of of an offense sarily articulated the reason for that rule is jury. be determined verdict of the that when the State obtains a conviction for Supreme proposition Court restated one offense out of alleged supra, two or more Georgia, Price v. viz: jurors party When are unable to reach verdict and motion or on motion of a for a mistrial. opinion the trial court is that there is a supra, Richardson v. United S.Ct., at necessity” discharging jury “manifest for dissenting opinion empha- at 3085. As the mistrial, declaring public lest ends of Garza, supra, sized doctrine is “the test to defeated, justice would otherwise be such action examine exercise the trial court of its discre- proceedings, is not a bar to further and the tionary authority discharge jury giv- ‘to from exempt being again put accused is not verdict,' Perez, ing [supra, any States v. Perez, upon trial. United States v. “ [9 580, L.Ed., 22 U.S. at at 'over the 165]”—even 6 L.Ed. 165-166 Wheat] defendant,’ objection Washing- of the Arizona Contrary expressed original to the notion S.Ct., ton, Id., [supra, at at at 830].” Garza, 155-156, supra, submission in at deciding 158. It is not a standard "for whether again by dissenting opinion today page at justified withholding a trial court is one or necessity” the doctrine of "manifest mea- more counts of an indictment from considera- terminating sures actions of trial courts in trial before final jury[.]” tion Ibid. judgment, whether on its own consistently September Court has refused On sec-

“[T]his began. again, rule pro- offense contin- ond trial Once the trial an up gressed point of acquittal, jury ues ac- delibera- whether that As quittal tions. in the first express or implied by a convic- charged only as to the offense of unautho- tion on a lesser included offense when again rized use a motor vehicle. Once given opportunity full and, reach unable to a verdict greater charge.” return a verdict objection over a motion for Id., S.Ct., at at 1761. a ver- Until granted. mistrial was dict is returned continues—un- February case was less, course, discharges again called for trial. docket sheet necessity” without “manifest for do- reflects that on this date motion of ing so. the sec- dismissed opin- To the extent of conflict with this alleged count of indictment ond ion, State, supra Garza v. is overruled. unauthorized of a motor use vehicle sought by The applicant relief is denied. paragraphs indict- the enhancement of the Applicant plea ment. then entered a McCORMICK, Judge, dissenting. alleged guilty to offense of theft as the first count of the indictment. Punish- Believing failing that the errs in by the three grant ment was assessed court at applicant, relief to this I am com- years confinement. pelled file this dissent. Applicant alleges placed that he was applicant reflects record that argues jeopardy.. double He that the aban

initially in the indicted cause with two during donment of the theft count the first alleged count indictment. The first operated charge as an of that theft of an automobile. The second count since it occurred after the alleged unauthorized use of an automobile. entered empaneled and sworn and he had paragraphs Two enhancement followed the plea. reprosecution him for the Thus allegations primary of the offenses. him in placed theft count in third September 6, applicant’s S.W. Garza presented trial commenced. Evidence was 1982); (Tex.Cr.App. parte 2d 152 Pleas Ex arguments made. An affidavit were ant, Ex (Tex.Cr.App.1979); 577 S.W.2d 256 prosecutor prosecuted from the who (Tex.Cr.App. Scelles, parte 511 S.W.2d 300 case states that it was her recollection that 1974). jury. both counts were submitted to reply application, In its to the admitted that while did not have She she Henderson, relying on 411 U.S. Toilet independent any abandoning recollection of felony prac- paragraph, theft her plea guilty to the argues applicant’s that counts, present tice to evidence on all charge any third theft in the trial waived evaluate the case after the evidence had urges applicant error. State also presented and then to the draft- objected failed to that he to the has show ing charge, of the election as make an they were plea proceedings at the time any.

to which count to abandon if contemporane- was no held. Because there happened. record this is reflects that what error, objection, ous the State asserts charge In its to the any, if has been waived. charged on the offense of unautho- clearly speak fur- and state law rized use an automobile. The court Both federal failure to the State’s contention. The ther that the State had instructed a waiver object indict- at trial does constitute abandoned the theft count of the raise the issue of should considered. thus it not be ha- collateral post conviction beginning two hours after their delib- Some Pleasant, erations, granted corpus parte Ex beas attack. a motion for mistrial was Hilliard, supra; parte Ex objection. over State’s Jewel, parte Ex any the State failed to advance such reason (Tex.Cr.App.1976). Further and because the record reflected no mani more, the applicant fact that the entered a necessity, fest this Court concluded that no latter does not Therefore, necessity such ever existed. preclude raising him from jeop the double this Court held that abandon State’s ardy application contention in an for writ of ment of the second count of the indictment parte Morehead, Ex corpus. habeas any at the first trial barred retrial for that parte Ex offense. Hilliard, parte Jewel, supra; supra; reasoning Garza should Seelies, 511 S.W.2d 300 adopted in Clearly jeopar- the instant case. York, App.1974). See also Menna v. New dy had attached when the theft count was 46 L.Ed.2d 195 abandoned. The State has not demonstrat- Blackledge Perry, any necessity abandoning ed manifest 40 L.Ed.2d 628 Unit my the theft count and review of the Broussard, ed States v. (5th 645 F.2d 504 record finds that no manifest necessity is Estelle, Cir.1981); Green v. 524 F.2d 1243 above, applicant reflected. Given all of the (5th Cir.1975). placed in double when he was Turning to the merits of tried the third trial for the theft count. claim, this Court considered a similar situa Applicant prayed is entitled to the relief tion in Garza v. for. failing Because the errs denied, cert. grant relief, such I respectfully dissent. Garza, like our was tried on a two ONION, P.J., and TEAGUE and count indictment. At the conclusion of the MILLER, JJ., join this dissent. case, the State proceed elected to jury on the first count of the indictment ORDER OVERRULING APPLICANT’S and abandon the second count of the indict MOTION FOR LEAVE TO FILE jury ment. After the was unable reach MOTION FOR REHEARING verdict, the declared a mistrial. Thereafter a second trial on the indictment ONION, Presiding Judge, dissenting. occurred. This time the State abandoned majority The overrules without written the first count of the indictment and elect opinion motion for leave to proceed ed to jury only on the second rehearing. file a motion for I dissent (which count of the indictment express my concern. The errone- during trial). abandoned the first jury The ously long has overruled line of Texas convicted Garza the second count. This regarding law The Court during found that jeop the first Clinton, majority, speaking through Judge ardy had attached to both counts of the Garza overrules 658 S.W.2d 152 indictment jury because the had been em (Tex.Cr.App.1982), and seeks to elevate paneled and sworn. Crist v. Judge Clinton’s dissent in Garza to a ma- jority doing in status and so has added McElwee v. applicable confusion to the law to the factu- App.1979). Thus when the indictment’s presented. al situation second count was dismissed point I write to out where the attached, had equivalent dismissal was got post-conviction off the track in this to an in contained corpus proceeding brought habeas under Seelies, second count. supra. provisions of Article V.A.C.C.P. This Court then went to determine if any showing by applicant pres- there was The record reflects that any the State of imperative ently Department manifest in necessity confined the Texas would have warranted the trial court not Corrections as a result of a life sentence submitting the imposed second count of the indict in Cause No. 330638 in the 183rd jury applicant at the first trial. Because District Court where was convict-

ed of the offense of unauthorized use of a was unable to reach a verdict and the court vehicle, punishment motor where declared a mistrial with the consent of the by allegation proof of two enhanced objection. applicant and over the State’s felony prior convictions. One such con- 11, 1978, September appellant was On felony was for the theft of an victions use again only upon the unauthorized tried automobile over the value of but less $200 following plea a motor vehicle count $10,000 than in Cause No. 275709 guilty. Again of not was unable February 184th District Court 1979. to reach a verdict and the court declared punishment assessed said cause was applicant mistrial with the consent Applicant years’ imprisonment. three objections. and over the State’s claims this conviction was void as in violation of the obtained September the State waived jeopardy provisions of both the federal and the second count of abandoned state constitutions. use of alleging unauthorized indictment para- the enhancement motor vehicle and concerning

The scenario this conviction plea of graphs, and the entered a began of a count indict- with return two to,the guilty first count ment in 275709. The first count before Cause No. charged theft, charging the theft of an automobile over the had $10,000. value of but less than during $200 the first waived and abandoned charged use second count the unauthorized trial under the circumstances described. alleged of a motor vehicle. offenses appeal was taken. No grew out of the same transaction on the for theft in Cause It was this conviction date, owner, alleged alleged same the same 275709that was utilized enhance No. paragraphs in the etc. The enhancement (life) No. punishment assessed Cause alleged prior felony indictment two theft Applicant contends such 330688. convictions. of his con- viction was obtained violation said indict- Appellant’s first trial on jeopardy rights used stitutional double September ment commenced on improperly then enhance empaneled Appli- and sworn. despite he No. the fact that Cause plea guilty” cant entered a of “not and the No. entered a Cause guilt stage of trial commenced. Evi- dence heard. At some time opinions in this have As the earlier cause the submission of the out, object at Ex pointed the failure to of the in- State abandoned the (Tex.Cr. Pleasant, 256 parte dictment and the case was submitted to Hilliard, App.1979); parte Ex jury only on the count of the indict- second Jewel, parte 535 a Ex ment—the unauthorized use of motor ve- fact, charged hicle or the fact a offense. In S.W.2d jury: charge guilty is entered to the does raising double preclude him

“4 in a collateral attack jeopardy issue corpus application. Ex are that the of virtue of habeas “You instructed Morehead, alleged paragraph parte in the first ‘Theft’ Hilliard, indictment has been abandoned parte supra; App.1980); Ex you Scelles, will consider that Jewel, supra; parte any purpose.” for (Tex.Cr.App.1974). See also S.W.2d 61, York, S.Ct. 423 U.S. Menna v. New Thus, not did the State waive and (1975); 241, 46 L.Ed.2d United States count after the abandon the theft (5th Cir.1981); Broussard, v. 645 F.2d 504 sworn, empaneled and but in addition Estelle, (5th Cir. v. F.2d Green the count from consid- withdrew 1975). Thus, contention try the eration of the chosen to case. properly before this Court. deliberations the After 2-V2hours of The Fifth Amendment acquittal. example, United For the double provides part States Constitution in ardy prohibits that: clause retrial of a defend- ant whose first improp- trial ended any person nor shall subject be erly (Emphasis sup- declared mistrial.” for the same offense to put be twice 28, Crist plied.) See 437 U.S. jeopardy of life or limb ...” 2156, (1978). 98 S.Ct. 57 L.Ed.2d 21, Law, Vol. Crim. protects Thus the Fifth Amendment 1628, 438-439, pp. it is written: against defendant in a criminal case mul “The Fifth guarantee Amendment repeated prosecu tiple punishments against double consists of three tions for the Chvojka same offense. separate protections. constitutional It 828, (Tex.Cr.App. S.W.2d protects against a prosecution second for 1979). Dinitz, See also United States the same offense acquittal, pro- it 600, 1075, 424 U.S. 47 L.Ed.2d against tects second for Wilson, (1976); United States conviction, the same offense after 43 L.Ed.2d 232 protects against multiple punishments the same Although ... for offense jeopardy provision primary purpose of the Fifth Amendment applica- has been made protect clause was to integrity of a ble to the States under the Due Process the United States Su- judgment, final Clause of the Fourteenth Amendment. preme Court has developed also body Maryland, Benton v. 395 U.S. law guarding separate but relat- (1969); S.Ct. Brown ed interest avoiding of defendant Ohio, 432 U.S. multiple prosecutions even where no Washing- Arizona v. guilt determination or inno- final ton, 54 L.Ed. cence has been made. Such interest 2d Duckett v. may be involved two different situa- Taylor v. first, tions: the in which judge the trial (Tex.Cr.App.1972). mistrial; second, declares a in which I, Article 14 of the Texas Constitu- proceed- terminated the provides: tion also ings favorably to the defendant on a person, offense, “No basis not the same related to factual or inno- shall put be twice (Emphasis cence.” of life or supplied.) See also Scott, liberty, person again nor shall a States v. put offense, trial for the same S.Ct. after a re- 57 L.Ed.2d mand (6th compe- verdict of not Cir.), a court of cert. den. F.2d 1013 jurisdiction.” tent 59 L.Ed.2d [99 reh. den. 439 U.S. 883 486] [99 “Interpretive Commentary” to Ver- (setting survey forth 197] Ann.Tex.Const., I, 4, provides non’s Art. jeopardy jurisprudence). part: Am.Jur.2d, In 21 Law, 244, p. Criminal “There was no jeopardy of double 440, it is written: extent, princi- at common law. To an ple expressed prosecu- “Furthermore, criminal although English com- pleas acquit’ tions in the of ‘autrefois and mon law relatively simple follows the pleas ‘autrefois convict’. These a barred rule that a put defendant has been asserting criminal action that the defend- jeopardy only when there has been a ant formerly acquit- had been tried and acquittal conviction or an after a com- formerly ted or convicted. In both it was the United States constitu- plete necessary judgment that a had been ren- guarantee against tional jeopar- dered in the former action. dy may be invoked a who defendant subjected prosecution to a that was guaranty “The in this section of scope, discontinued without a verdict and did Texas Constitution broader in not culminate in a conviction or an only person put can a not be on for

778 is that a time an eral rule and now the state rule trial second offense of for been acquitted im- jeopardy

which has once or he attaches when convicted, put McElwee, may paneled but he not be See su- and sworn. State, pra; trial a time S.W.2d second McClendon v. 583 offense of for State, placed has once been (Tex.Cr.App.1979); he Torres v. 777 Hence, meaning ardy. danger jeopardy, Ex 436 S.W.2d hazard, prosecu- (Tex.Cr. or can be a based parte Myers, causes discharged 1091, tion valid with- App.1981), cert. den. for verdict, out a while former conviction 630;1 656, v. Sewell S.Ct. are and based verdicts State, (Tex.Cr.App.1983). State, 24 Cr.R. rendered. Anderson v. attaches, jeopardy Once the defendant 705, (1886); v. S.W. Steen possesses right guilt the valued have (1922).” (Em- 99, Cr.R. 242 S.W. 1047 or innocence determined before the phasis supplied.) facts, fact. particular trier of trier of that 1.10, V.A.C.C.P., contains the Article 82, Scott, v. United States U.S. as constitutional language same the state 2187, (1978); 57 L.Ed.2d 65 Arizona has said two provision and it that Washington, v. provisions are state to all intents Hunter, Wade v. purposes similar to "the federal clause.” 93 L.Ed. 974 U.S. 21, Crim.Law, Tex.Jur.3rd, Vol. Torres S.W.2d 438; State, 42 p. Tex.Cr.R. Woodward parte Myers, (App.1900). S.W. (Tex.Cr.App.1981). S.W.2d jeopardy It is clear thus that can be Vasquez See also S.W.2d discharged for upon prosecution based 1987); (Tex.App. Antonio — San It verdict. is not valid causes without a Loffland, (Tex.App. — Ft. jeopardy necessary all cases 1984), ref’d; PDR Smithwick Worth apply the issue of must be State, (Tex.App. — Ft. jury upon determined a verdict of 1987). Worth rendered, or judgment may be which a person right has the to have An accused judgment of the court without a completed by jury which has been would seem to have try him. This duly legally selected it. guarantee technicality, no but con- is mere background it is With this observed right. stitutes a substantial point during if the discharge empanel may arbitrarily when a defendant deemed have been render juries until one that will obtained put in has does been reached prosecution. desired verdict any subsequent prosecution the de- against bring guarantee dou- fendant of a While at times the valued play. into Vol. completed ble defendant to have his 440-441; 21, Crim.Law, 1629, pp. Crist summoned to sit particular tribunal Bretz, him judgment may be subordinated im- there is an public interest —when so, necessity do v. Hunt- perious Wade supra, federal Crist v. er, 93 L.Ed. governing when rule time by successive imposed of an accused on harassment trial was attaches so of a mistrial prosecutions declaration by virtue of the Fourteenth the States a more favor- as afford 589 Amendment. McElwee examples are of opportunity able to convict (Tex.Cr.App.1979). The fed- begins Unit- to receive evidence. nonjury jeopardy does attach 1. In sworn, Co., Supply v. United 430 until States, first witness ed States v. Martin Linen 564, Serfass 1055, 377, 1349, See, 43 general- L.Ed.2d 642. 51 State, supra; Crim.Law, Hill v. Am.Jur.2d, 259, Crist v. p. ly, 1987), (Tex.App.-Dallas when 730 S.W.2d 86 when the jeopardy provisions State, 467, are Deisher Tex.Cr.R. States, 978, (1921) (when violated. Gori v. only 367 U.S. S.W. 364, 1523, submitted the count to the first reprosecuted cannot on the defendant abandoned second In Downum v. United count)-, State, Lee v. 734, 1033, (1963), 458, 1093, 90 Tex.Cr.R. 235 S.W. was held that the trial of the defendant (1921) (charge jury’s limited consideration jury a second violated the constitutional [possession intoxicating to second count of guarantee against after liquor] and was tantamount to the first try selected to the defendant [selling first intoxicating liquor] count empaneled and sworn then but appeal submitted. On conviction on second discharged prosecution because a witness count was reversed statute had not been served with a summons and repealed.); based had been Johnson v. no other arrangements had been made to State, 658, 924, 97 Tex.Cr.R. 263 S.W. presence. assure his (1924) (State’s abandonment of first count Turning applicable to the law to the in- after jeopardy precludes attached the State stant case it has been stated: prosecution phase further of that a count an indictment is aban- “If the offense. Conviction based second trial, during doned this amounts to an reversed, permitted only count retrial acquittal and a defendant cannot on a count.); State, second Gilliam v. 131 Tex. subsequent prosecuted trial be 8, 86, (1936)(Defendant Cr.R. 21, abandoned count.” Yol. could not be retried second and third Crim.Law, 1638, 450, p. and numerous counts which were abandoned State at (Emphasis cases there cited. supplied.) only first trial when first count was sub long

This has State, been the law in jury.); Texas. mitted to the Black v. Stephens State, 386, 318, (1942) (sub 36 Tex.Cr.R. Tex.Cr.R. S.W. 425 (App.1896), State, cited only Parks mission and withdraw offirst 29 Tex.App. dismissal, al S.W. 532 second count was a “acquittal” count)-, held that the submission to second jury by Parish v. State, only court of one 145 Tex.Cr.R. count of the indict (1942)(failure to submit first count tantamount to an election count); rely State to tantamount to dismissal of that on that count and a dismissal Seelies, as to the second count. (where App.1974) only State elected

conviction to have based on the first count it was trial, count submitted to at first allegations decided the fatally thereof were subsequent prosecution on second count defective. The conviction was reversed was barred under the doctrine of double was ordered dis State, jeopardy); Crocker State, missed. See also Parks v. 46 Tex. (Double (Tex.Cr.App.1978) jeopar (1904) (trial Cr.R. 79 S.W. dy any subsequent reprosecution bars court’s submission of first count). (Emphasis an abandoned sup tantamount to election State and dismis plied.) indictment); sal of other counts in Tracy v. 49 Tex.Cr.R. 90 S.W. recently And more in Garza v. (1905) (State’s election to abandon certain S.W.2d 152 (Tex.Cr.App.1982), this Court counts in the indictment their bars further again held that an abandonment of a count prosecution); Betts v. 60 Tex.Cr.R. always has attached bar re- (1911) (when 133 S.W. trial of the abandoned count. facts submitted on first count alone this was an case, similar somewhat to the instant acquittal of the count which was aban State, proceed at the first elected to State); doned Hewitt v. Tex. only on the first count of the indictment (1914) (former Cr.R. assault) S.W. (aggravated and to abandon the jeopardy applies riot). (felony counts not sub second count trial); mitted to the in the former unable to reach a verdict on the first count 780 dy possesses

and a mistrial was declared. At the second a defendant a valued prosecuted have or innocence determined trial the on State defendant exceptions. first trier of facts. There are This the same indictment. time the State State, Torres v. 614 436 S.W.2d abandoned the first count and the second State, Scholtes v. App.1981); 691 S.W.2d abandoned) only (previously was sub- 1985). (Tex.App. 84 [1st Dist.] mitted. The convicted defendant — Houston felony riot. That conviction was reversed or re- Where the defendant moves for jeopardy. on the basis of double quests a is not mistrial then his retrial jeopardy in barred double absence State, 608, In Chapin v. 671 S.W.2d 610 prosecutor giving evidence that conduct of 1984), (Tex.App. [1st Dist.] — Houston rise to successful motion for mistrial through Justice Cohen stated: provoke into was intended to defendant voluntarily “Since State abandoned State, v. moving for a mistrial. Crawford possession at the Fields 703 S.W.2d 655 phase of the trial there is no ‘manifest State, v. (Tex.Cr.App.1982), 714 627 S.W.2d necessity’ possession for a retrial on the 841, 91, cert. den. 459 U.S. 103 74 S.Ct. A accusation. retrial on that offense State, v. 84; Chamberlain L.Ed.2d parte jeopardy. barred double 300, (1943); Tex. Tex.Cr.R. 174 S.W.2d 604 Scelles, (Tex.Cr.App. S.W.2d Jur.3rd, 21, Crim.Law, 458; 1642, p. Vol. § Washington, v. 1974). Arizona See also 286, Am.Jur.2d, Crim.Law, p. 504. § 497, 824, 829-30, U.S. exception Another is where the mistrial (1978).” L.Ed.2d 717 necessity” occurs because of “manifest Reynolds explained As Chief Justice jurisdictional indict such defect State, (Tex. Moore 245, v. 631 S.W.2d Somerville, ment, 458, v. Illinois U.S. App. 1982), —Amarillo 1066, (1973); Ward L.Ed.2d jeopardy, “It is settled that in the State, v. 520 S.W.2d State, guarantee (Tex. v. sense of constitutional McClendon 583 S.W.2d 777 against Cr.App.1979), prejudicial opening jeopardy, attaches when state counsel, Arizona v. Wash defense sworn. Crist impaneled 824, 497, ington, 434 U.S. 54 L.Ed. State, supra; (1978); McClendon 2d 717 McElwee v. 2162, 57 L.Ed.2d 24A and for other reasons. See State, (Tex.Cr.App. 589 S.W.2d Law, 1639, p. 452. In such Vol. Crim. 1979). indict Accordingly, when the is not the doctrine cases retrial barred ment’s second dismissed after count was of double im attached when sworn, insufficiency of evidence paneled and Where the dismissal at not at issue double does not charge acquittal tantamount to an if granted upon tach a new trial assault, Black v. aggravated Franklin request. motion or defendant’s Tex.Cr.R. and, thereafter, appellant cannot cert. den. 1031, 106 S.Ct. prosecuted that act. Castleberry 346; Seelies, (Tex.Cr.App. (Tex.App. [1st Dist.] — Houston 1974).” grounds, 1983), reversed other Law, C.J.S., p. In 22 Criminal 21; Tenery v. it is written: 1984), PDR (Tex.App. Corpus Christi — respect operation of the “With Law, ref’d., C.J.S., p. Criminal rule of double withdrawal of a count of an indictment from of a Also where the reversal amounts consideration on trial error as distin conviction is based in that contained evidentiary insufficien guished solely count.” States, v. United cy [Burks seen, generally, and Greene jeopar As once 2151, 57 Massey, jeopar dy purposes attaches for (1978) Garza, ], majority supra, L.Ed.2d 15 retrial is not barred overrules Mize, jeopardy. finding United States v. and denies relief no violation of the — (5th Cir.1987), 820 F.2d 118 cert. den. doctrine of double and that the -, 355; U.S. 98 L.Ed.2d State entitled to its second at the bite (5th Lynaugh, Millard v. 810 F.2d 1403 apple. majority unique posi- takes the — Cir.1987), U.S. -, cert. den. some- tion that the mistrial at the first trial 81; 98 L.Ed.2d Harris v. how revived the State abandoned theft cert. den. upon placed count had — -, U.S. jeopardy, appli- and that at a third trial Tex.Jur.3rd, 159. See also Yol. Crim. cant could convicted said theft be Law, 1644, p. 462. § the doctrine of without ardy being implicated. majority exception pertinent Another and one quotes carefully excerpts a few chosen hung jury. the instant case is that of a A only give judicial from federal cases judge may discharge jury who is glow preconceived to a notion. The out of genuinely “hung” deadlocked or and dou- excerpts misleading. are context jeopardy is not a ble bar to a retrial.2 The support cases cited do not hung jury situation meets the “manifest position. necessity” test. See Vol. Law, 1641, p. Crim. 456. See also 22 support position In of its C.J.S., Crim.Law, 679; p. United quotes twice from Richardson v. United Perez, (22 U.S.) States v. Wheat U.S. L.Ed. 165 (1984). First, we are told “[A] trial court’s declaration of mistrial follow- In the instant case a mistrial in Cause ing hung jury event that termi- No. 275709 was declared at the peti- original jeopardy nates the to which jury agree after the was unable to on a (468 subjected” tioner was at U.S. verdict as to “the unauthorized use of a 3086) S.Ct. at and next that “The Govern- count, motor only vehicle” count sub- ment, defendant, like the entitled reso- mitted after the abandonment of the theft jury, lution of the case verdict from the count. The mistrial was declared does not terminate when the court not within its discretion but with jury discharged because is unable to the consent appellant. of the A second 3086) agree.” (468 at trial ensued on the “unauthorized use” (emphasis supplied by majority). Of jury alone and the second was unable course, nothing very startling ap- or new to reach a verdict and a second mistrial pears quoted. in either statement again appellant’s was declared with sent. A third trial the “unauthorized petitioner In indict- Richardson use” count would not be barred ed on three counts of federal narcotics vio- However, doctrine of double at acquitted jury lations. At his trial the him the third trial the State waived such count on one of the counts unable originally turned to the theft count agree as to the other two. The United abandoned at the first trial. States District Court declared a mistrial hung jury remaining on the because jeopar- such circumstances the double dy counts “and set them down for trial.” The clauses of both the federal and state 1.10, defendant then filed a motion to bar his constitutions as well as Article V.A.C. C.P., claiming clearly prayed call for the relief retrial said two counts applicant. Jeopardy of the Double Clause of See Garza v. su- violation pra. the Fifth Amendment because the Govern- 36.31, altogether improbable agree. it can It is further observed that Article V.A.C. der it V.A.C.C.P., C.P., 3(c), provides provides that after a case is submitted to a Article that if agree jury may discharged fails when it cannot at a bifurcated trial consent, finding agree parties and both or the court the defendant “a declared, may discharge shall be dis- in its discretion where it mistrial shall be together kept charged, has been for such time as to ren- and no shall attach." judge. trier be a present failed to sufficient evidence Jom, at the first States v. convict these two counts petition- (1971).”

trial. The motion was denied and 547, 27 L.Ed.2d 543 Appeals appealed. er The Court of dis- cry from the instant a far Serfass jurisdiction for lack of missed the actually put to the was where Supreme 1291. The under U.S.C. § the on the theft trial before petitioner had a Court held that raised voluntarily abandoned which was later appealable colorable double claim during the the the trial itself. Thus State merits, 1291. the under 28 U.S.C. § clearly applica- quote from Serfass however, that, regardless of the Court held ble. sufficiency the the evidence at the first of lifted The also seeks to utilize jeopar- petitioner had no valid double Hunter, Wade quotes from 336 U.S. dy claim. Court reasoned that the The 688-689, 834, 836-837, L.Ed. hung S.Ct. following mistrial a was not (1949), the Double the effect that original jeopardy that terminated to event counts, every remaining Jeopardy and the does not mean “that the two Clause put resolution of a Government was entitled to a a to trial before time defendant upheld the The Court the Dis- go two counts. he is free competent entitled tribunal of trict denial of motion to bar retrial judg- Court if trial or ends final the fails remaining the counts. two a “defendant’s valued ment” that particular completed by to have trial Richardson nothing in that indi- There must be in some instances subordi- tribunal mistrial the cates that because the public’s the interest fair trial nated to entitled to a retrial of the Government was just designed judgments.” to end acquit- petition counts Only remaining ted. the were two Hunter, supra, involved trial Wade point. involved.3 Richardson is not in rape on a general court-martial Germany by Ameri- during the majority quotes invasion The from Serfass States, can forces World War II. armed “an continued to general L.Ed.2d 265 that first court-martial was witnesses, must before he permit hearing accused suffer the other but jeopardy.” can Serfass was suffer double military situation thereafter the tactical report for willful failure to for and indicted the impossible and prompt made trial into Armed submit to induction the Forces. head- charges were transmitted to another pretrial the He filed a motion to dismiss quarters with recommendations board had indictment because local Supreme court-martial. The Court new adequate state reasons for re- failed to circumstances, held, the Double given the reopen his file and to follow other fusing to Amendment Fifth Jeopardy Clause procedures. The United District States second court- did not bar trial before the pretrial motion dis- granted the Court martial. appealed under miss. Government Hunter, supra, from Wadev. quotes Appeals U.S.C., 3731. The Court of re- significance to the factual no real have juris- it lacked jected petitioner’s contention instant case. situation because the Double diction under quotes Price also cites and prosecu- Jeopardy further Clause barred Georgia, The Supreme It Court tion. reversed. Green United (1970), Jeopardy Clause did held the Double 2 L.Ed. under bar convic Those cases involved 2d 199 dismissing the indictment pretrial order offense followed tions for lesser included “put to had not been since the defendant facts, an effort appeal and whether reversal on the trier before jury at the being count submitted no one has contended that In the instant case try State unable trial. mistrial again, this use of a vehicle count” "unauthorized Ar- the federal and state constitutions and retrial convict defendants ticle V.A.C.C.P. greater offense. In Green Govern ment’s effort was successful on retrial and law, has This is not the never been in Price the retrial resulted in a second law, My and should never be law. conviction for the lesser included offense is still amazed.4 color although greater conviction for the offense Applicant presently under confinement sought. cases it held that both in said Cause No. 330638 for life. Since Jeopardy the Double Clause was violated. conviction said Cause No. validly These cannot cases cited for the improperly 275709 was used for enhance- proposition all cases for double grant ment of I re- would apply the issue of must be prayed pun- lief for. I would set aside the jury upon determined a verdict of the ishment assessed in said Cause No. 330638 judgment may rendered. See and order that accordance with Article Downum v. United 44.29, V.A.C.C.P., as amended new trial as to be conducted 2(b), V.A.C.C.P., under Article Relying solely upon federal decisions the without the use of the conviction in hold would that where said Cause No. 275709. attaches and the defendant is called gauntlet to run the For the refusal of the to do so I both counts of an vigorously overruling dissent to the being indictment which the trial is rehearing conducted, motion for without and the State waives and which opinion. written conducted, being the trial is and the State waives and abandons one count and the McCORMICK, TEAGUE jury’s withdraws that count from the MILLER, JJ., join opinion. this

consideration and submits the other count to the charge, its then a hung jury

mistrial because of a

submitted count revives all counts in the subjects

indictment and the defendant ato

retrial on the abandoned count without vio- jeopardy provisions

lation the double State, Aldrighetti State, (Tex. ing); See Chapa 507 S.W.2d 729 S.W.2d ("Color Onion, (Tex.Cr.App.1974) P.J., (Onion, me Cr.App.1987) dissenting). See also amazed.” — P.J., State, dissenting); Taylor v. 508 S.W.2d Johnson, (Tex.Cr. 697 S.W.2d P.J., (Onion, (Tex.Cr.App.1974) dissent- J., App.1985) (Teague, dissenting); Jenkins v. ing); (Tex. Lawson v. 604 S.W.2d 1984) (Tex.Cr.App. (Teag- (footnote 1); Cr.App.1979) # Antunez ue, J., dissenting); Explorers Corp. Motor Home (Onion, (Tex.Cr.App.1983) Aldridge, (Tex.Civ.App.- P.J., dissenting); McClain v. J., 1976) (Keith, dissenting). Beaumont (Onion, P.J., (Tex.Cr.App.1985) dissent-

Case Details

Case Name: Ex Parte McAfee

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 8, 1988

Citation: 761 S.W.2d 771

Docket Number: 69666

Court Abbreviation: Tex. Crim. App.