                           NUMBER 13-13-00371-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG


PETER ANTHONY TRAYLOR,                                                   Appellant,

                                       v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 366th District Court
                         of Collin County, Texas.


                                 OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
                  Opinion by Chief Justice Valdez
      We issued our original opinion in this cause on May 25, 2017. The State filed a

motion for rehearing. After due consideration, and within our plenary power, we sua

sponte withdraw our previous opinion and judgment and substitute the following opinion
and accompanying judgment in their place. See TEX. R. APP. P. 19.1(b). The State's

motion for rehearing is denied.

       A jury found appellant Peter Anthony Traylor guilty of first-degree burglary of a

habitation, and the trial court sentenced him to twenty years in prison. See TEX. PENAL

CODE ANN. § 30.02 (West, Westlaw through Ch. 49, 2017 R.S.). By two issues, Traylor

contends that his conviction violates two amendments to the United States Constitution:

(1) the Sixth Amendment’s speedy-trial clause, see U.S. CONST. AMEND. VI; and (2) the

Fifth Amendment’s double jeopardy clause, see U.S. CONST. AMEND. V. We reverse and

render and remand.

                                         I.      BACKGROUND1

       We separate the chronological facts pertinent to Traylor’s appellate issues into the

following three categories: (1) procedural history leading up to Traylor’s first trial; (2)

Traylor’s first trial; and (3) Traylor’s second trial and conviction.

A.     Procedural History Leading Up to Traylor’s First Trial

       On September 14, 2010, Traylor was arrested for burglary of a habitation. Three

months later, the State charged him with first-degree burglary of a habitation, alleging

that, on or about July 9, 2010, Traylor “intentionally and knowingly enter[ed] a habitation,

without the effective consent of [his ex-mother-in-law], the owner thereof, and attempted

to commit and committed aggravated assault against [her].”

       For fourteen months, Traylor awaited trial in custody. During this fourteen-month

period, Traylor: (1) filed several pro se motions requesting that his case be “dismissed”



       1  This case is before the Court on transfer from the Fifth Court of Appeals pursuant to a docket
equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West,
Westlaw through Ch. 49, 2017 R.S.).

                                                   2
on speedy trial grounds; (2) filed a civil lawsuit in federal court against his attorney for

violating his right to a speedy trial, among other things; and (3) filed a motion requesting

that his case be set for a “hearing” at the beginning of his thirteenth month in custody.

       While Traylor remained in custody making these filings, his appointed counsel

filed: (1) a motion for the appointment of a private investigator, stating that “there are a

number of witnesses who must be sought out and interviewed, [which] can only be done

properly and effectively through the use of a private investigator;” (2) a motion requesting

notice of the State’s intent to offer evidence of an extraneous offense under Texas Rule

of Evidence 404(b); and (3) a motion requesting discovery of the State’s evidence.

       On the thirteenth month of Traylor’s pretrial incarceration, Traylor’s appointed

attorney filed a motion to withdraw from the case after Traylor accused him of professional

misconduct. The trial court granted counsel’s motion to withdraw. Later that month, the

trial court appointed new counsel for Traylor who filed a motion entitled, “Reservation of

Speedy Trial Rights” on his behalf. This motion, in relevant part, stated that:

       [Traylor] has frequently, consistently,       and   cogently    filed   written
       requests/demands for a speedy trial.

       ...

       While reserving his rights to a speedy trial and without waiving them in any
       fashion, [Traylor] recognizes the equally important right to effective
       assistance of counsel secured by the Sixth Amendment of the United States
       Constitution and agrees to the continuance of his trial presently set [in the
       coming month] until sometime agreed upon by the parties and approved by
       the Court. In addition to the legitimate need of new counsel to conduct his
       own investigation into the facts surrounding this case, [Traylor] further
       understands that his new counsel has trials set in other felony courts [in the
       coming month,] including a “set to go” Murder case[.]

       WHEREFORE, PREMISES CONSIDERED, [Traylor] prays the Court
       acknowledge this Reservation of Speedy Trial, remain responsive to [his]



                                             3
       desire for a speedy trial, [and] continue this cause to a time when
       undersigned counsel can be ready for an effective trial.

       In response to this motion, the trial court granted Traylor a seven-month

continuance. In addition to continuing the case, the trial court released Traylor from

custody on a personal recognizance bond pending trial.

       Six months after being released on bond, and one month before the scheduled

trial date, Traylor requested another continuance in order “to properly prepare his case

for trial.” The trial court granted Traylor’s request and continued the case for an additional

five months. Traylor requested no more continuances, and he was tried for the first time

at the expiration of the five-month continuance.

B.     Traylor’s First Trial

       At the close of the evidence on Traylor’s first trial, the trial court submitted its

charge to the jury. The jury charge instructed the jury to first consider whether the State

proved Traylor’s guilt beyond a reasonable doubt with respect to first-degree burglary of

a habitation as alleged in the indictment. The trial court further instructed the jury that, “if

you have a reasonable doubt [regarding Traylor’s guilt for that offense] . . ., you will next

consider whether he is guilty of the lesser-included-offense of” second-degree burglary

of a habitation. The only difference between the two offenses was that the jury did not

have to find that Traylor used a deadly weapon in order to convict him of second-degree

burglary. After receiving the jury charge, the jury retired to deliberate.

       During the first three hours of deliberation, the trial court responded to several

routine notes sent by the jury foreperson concerning certain evidence admitted at trial.

However, by the fourth hour of deliberation, the jury reported that it was deadlocked. In

a follow-up note to the trial court, the foreperson indicated that, although the jury

                                               4
unanimously agreed that Traylor was “not guilty” of the first-degree burglary, they were

split seven/five favoring “not guilty” on the lesser-included offense of second-degree

burglary. In response to the jury note, the trial court sent the jury back to continue

deliberating.

       After approximately three hours of additional deliberation, the foreperson delivered

another note to the trial court, in which the foreperson indicated that the jury was now split

eight/four favoring “not guilty.” The foreperson’s note further indicated that the jurors were

at an “impasse with [two jurors] for ‘not guilty’ and [two jurors] for ‘guilty’ who have stated

they will not (underlined in original) change their position.” Upon receiving this note, the

trial court called the jury into courtroom and made the following observations:

       I received your note . . . indicating that the jury did not believe that [Traylor]
       was guilty of [first-degree burglary], but that there was disagreement
       amongst jurors [regarding the] lesser-included offense [of second-degree
       burglary] and that you were hung up on that issue and that the vote
       apparently changed by only one juror [after three additional hours of
       deliberation].

       After making these observations, the trial court asked the foreperson to state

whether the jury is “hopelessly deadlocked.” In response to the trial court’s question, the

foreperson replied: “I used the word impasse, but I suppose deadlock is probably the

legal term. But we are at a point where we have [four jurors who] stated emphatically that

they won’t change their position.”

       At this point, the State requested that the trial court declare a mistrial based on jury

deadlock. Traylor did not join the State’s request for a mistrial. Instead, Traylor asked

the trial court to send the jury back to deliberate “a little bit longer” with the aid of an Allen

instruction, which had not yet been submitted to the jury.            An Allen instruction, or

“dynamite charge,” is a supplemental charge sometimes given to a jury that declares itself

                                                5
deadlocked. See Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006)

(citing Allen v. United States, 164 U.S. 492 (1896)). The Allen instruction reminds the

jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pending,

and there is no guarantee that a second jury would find the issue any easier to resolve.

Id. Instead of sending the jury back to deliberate with an Allen instruction, the trial court

declared a mistrial. The trial court stated:

       The testimony [of] this case consisted of one day essentially, and the jury’s
       been deliberating for about eight hours, almost as much time deliberating
       as time they spent hearing the evidence in this case. Based on the jury’s
       statement that they don’t believe that further deliberations would result in a
       verdict in this case, the Court declares a mistrial.

       After declaring a mistrial, the trial court discharged the jury, released Traylor on

bond pending a retrial, and scheduled a retrial to take place five months later.

       One week before the scheduled retrial date, Traylor requested a continuance of

the trial. The trial court denied Traylor’s request. Later that week, Traylor filed a motion

to dismiss the indictment on speedy trial grounds, stating that he had been “substantially

prejudiced by [the] lengthy delay in prosecution [, which] likely allowed witness memory

to fade and makes marshalling evidence for the defense more difficult.” The trial court

denied Traylor’s motion to dismiss without a hearing, and the case proceeded to trial at

the scheduled time.

C.     Traylor’s Second Trial and Conviction

       Traylor stood trial a second time for first-degree burglary. As in the first trial, the

jury charge instructed the jury to consider the lesser-included offense of second-degree

burglary if there was a reasonable doubt about his guilt on first-degree burglary. This




                                                 6
time, the jury found Traylor guilty of first-degree burglary, and the trial court sentenced

him to twenty years in prison. This appeal followed.

                                       II.     SPEEDY TRIAL

         By his first issue, Traylor argues that he was denied the right to a speedy trial under

the Sixth Amendment to the United States Constitution.

A.       Standard of Review and Applicable Law

         The Sixth Amendment guarantees the defendant a speedy trial. U.S. CONST.

AMEND.   VI. In addressing a speedy-trial claim, the United States Supreme Court has laid

out four factors that a court should consider: “(1) the length of delay, (2) the State’s

reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4)

prejudice to the defendant because of the length of delay.” See Barker v. Wingo, 407

U.S. 514, 530 (1972). Courts commonly refer to these factors as the Barker factors.

         Before a court engages in an analysis of each Barker factor, the defendant must

“first make a threshold showing that ‘the interval between accusation and trial has crossed

the threshold dividing ordinary from ‘presumptively prejudicial’ delay.” Gonzales v. State,

435 S.W.3d 801, 808–09 (Tex. Crim. App. 2014) (quoting Doggett v. U.S., 505 U.S. 647,

651–52 (1992)).       Generally, an interval of twelve months between the time of the

accusation and the time of trial is presumptively prejudicial, which would trigger an

analysis of each Barker factor. See Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App.

2003).

         When reviewing a trial court’s application of the Barker factors, a reviewing court

uses the same standard of review as in the context of a motion to suppress. See

Gonzales, 435 S.W.3d at 808–09. That is, a reviewing court gives almost total deference



                                                7
to historical findings of fact of the trial court that the record supports but reviews de novo

“whether there was sufficient presumptive prejudice to proceed to a Barker analysis and

the weighing of the Barker factors, which are legal questions.” Id.

B.     Analysis

       1. Length of Delay

       As previously mentioned, the length of the delay is measured from the time the

defendant is formally accused to the time of trial. See id. at 809. Here, there was a delay

of twenty-eight months between the time of the indictment and the time of Traylor’s

second trial. That is over twice the amount of time required to trigger an analysis of the

remaining Barker factors. See Shaw, 117 S.W.3d at 889. When the length of delay

stretches well beyond the bare minimum needed to trigger a full Barker analysis, “the

length of a delay weighs against the State, and the longer the delay, the more the

defendant's prejudice is compounded.” Gonzales, 435 S.W.3d at 809 (citations omitted).

We conclude that this factor—the length of delay—weighs against the State.

       2. Reason for the Delay

       This factor looks into the State’s reason for the delay. See id. at 809–10. “When

assessing the reasons for delay, we assign different weights to different reasons.” Id.

For example, a deliberate attempt by the State to delay the trial in order to hamper the

defense should be weighed “heavily against the State.” Id. On the other hand, a more

neutral reason “such as negligence or overcrowded courts should be weighted less

heavily but nevertheless should be considered since the ultimate responsibility for such

circumstances must rest with the [State] rather than with the defendant.” Id. However,

when the record is silent regarding the reason for the delay, “a court may presume neither



                                              8
a deliberate attempt on the part of the State to prejudice the defense nor a valid reason

for the delay.” Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

        Here, there were different reasons for the twenty-eight-month delay. The trial was

initially delayed because of a communication breakdown between Traylor and his former

counsel.     Traylor wrote letters to the trial court and filed a federal lawsuit complaining

that his former counsel rarely visited him in jail and never returned his phone calls. 2 As

the fact-finder on Traylor’s speedy-trial motion, the trial court was not required to accept,

as true, everything Traylor said about his former counsel. In any event, while there was

an apparent communication breakdown between Traylor and his former counsel, the

record shows that Traylor’s former counsel asked for funding to hire a private investigator

because a number of witnesses had not been sought out or interviewed. The trial court

could have reasonably found that the trial was initially delayed, in part, because Traylor,

through counsel, was seeking out witnesses favorable to his defense.

        Next, Traylor’s trial was delayed because his former counsel withdrew from the

case, and his new counsel needed time to prepare for trial. The trial court granted two

continuances, which Traylor requested and which delayed his trial an additional twelve

months. Finally, Traylor’s trial was delayed because his first trial ended in a mistrial and

needed to be retried. None of these reasons indicate a deliberate attempt by the State

to delay the trial in order to hamper Traylor’s defense. This Barker factor does not weigh

heavily against the State.




        2 Traylor named the State as a defendant in the federal lawsuit as well. However, Traylor’s

complaint makes clear that the State was alleged to be a responsible party only to the extent that it
appointed former counsel to represent him. Other than his former counsel, Traylor did not identify any other
State actor alleged to be responsible for violating his constitutional rights.

                                                     9
        3. Assertion of Right

        The third Barker factor evaluates whether a defendant actually wanted a speedy

trial. See Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008). To determine

whether a defendant is being deprived of the right to a speedy trial, strong evidentiary

weight is assigned to the defendant’s assertion of his right to a speedy trial.                            See

Gonzales, 453 S.W.3d at 810–11. Although the defendant has no duty to bring himself

to trial, he does have the responsibility to assert his right to a speedy trial. See Cantu,

253 S.W.3d at 283. Generally, filing for a dismissal instead of a speedy trial will weaken

a speedy-trial claim because it shows the defendant’s desire to have no trial at all rather

than a speedy one. Id.

        Here, during the time that Traylor remained in custody pending trial, he wrote the

trial court several times.          In all but one letter, Traylor requested that his case be

“dismissed” on speedy trial grounds.3                 After being released from custody, Traylor

requested that his trial be continued. Finally, on the eve of his second trial, Traylor urged

that his case be “dismissed” on speedy trial grounds after his request for continuance was

denied. The record supports a finding that Traylor desired to have no trial at all rather

than a speedy one. See id. This weakens Traylor’s speedy-trial claim and does not weigh

heavily in his favor.

        4. Prejudice Caused by the Delay

        The last Barker factor looks at prejudice to the defendant as a result of the delay.

See State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999). Prejudice is assessed



        3  In one letter, Traylor requested that the trial court set his case for a “hearing” at the beginning of
his thirteenth month in custody. However, the letter does not specify the purpose of the hearing or otherwise
request a trial.

                                                      10
“in the light of the interests which the speedy trial right is designed to protect.” Id. These

interests are: “(1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and

concern of the accused, and (3) limiting the possibility that the defense will be impaired.”

Id.   Of these subfactors, “the most serious is the [third], because the inability of a

defendant adequately to prepare his case skews the fairness of the entire system.” Id.

       The record shows that Traylor awaited trial in custody for approximately fourteen

months, which is about half the time that his case awaited trial. During this time, Traylor

expressed increasing frustration at his former counsel’s alleged lack of communication

and alleged lack of diligence in pursuing a prompt and favorable resolution of his case.

Notably, Traylor alleged that he missed the opportunity to witness the birth of his child

because former counsel did not request a reduction in bond until after his child was born.

The period of Traylor’s pretrial incarceration, during which he expressed concern about

former counsel, certainly does not go unnoticed by this Court. However, we would

observe that the trial court responded to Traylor’s complaints by appointing new counsel,

and by freeing Traylor of further pretrial incarceration through the issuance of a personal

recognizance bond for the latter half of the time that his case awaited trial. Traylor never

made any complaint about the competence or diligence of his new counsel, and there is

no indication that his anxiety or concern continued after he was released on bond. These

measures taken by the trial court mitigated the prejudicial effect of the first two interests

that the right to a speedy trial was designed to protect—i.e., preventing oppressive pretrial

incarceration and minimizing anxiety and concern of the accused. See id.

       We now turn to the third (and most important) interest which the speedy trial right

is designed to protect—limiting the possibility that the defense will be impaired. See id.



                                             11
Traylor alleged in his motion to dismiss that the delay impaired his defense because it

“allowed witness memory to fade and ma[de] marshalling evidence for the defense more

difficult.” However, as the State points out, Traylor offered no evidence to support this

allegation. Nevertheless, the United States Supreme Court has held that affirmative proof

of prejudice is not essential to every speedy trial claim, because excessive delay

presumptively compromises the reliability of a trial in ways that neither party can prove or

even identify. See Doggett, 505 U.S. at 655 (observing that “impairment of one’s defense

is the most difficult form of speedy trial prejudice to prove because time’s erosion of

exculpatory evidence and testimony can rarely be shown”); Gonzales, 435 S.W.3d at 812.

However, the presumption of prejudice to a defendant’s ability to defend himself is

extenuated by the defendant’s acquiescence in some or all of the delay. Doggett, 505

U.S. at 658; Shaw, 117 S.W.3d at 890.

       Here, Traylor acquiesced in over half of the delay by requesting multiple

continuances of his trial after being released on bond. Thus, even assuming without

deciding that a delay of twenty-eight months is sufficiently excessive to entitle Traylor to

a presumption of prejudice, we conclude that the record supports the trial court’s implied

finding that Traylor’s acquiescence in the delay vitiated any presumption of prejudice that

might have existed as a result of what might be called an excessive delay. See Gonzales,

435 S.W.3d at 815 (finding speedy trial violation where defendant did not acquiesce to

six-year delay); see also Berlanga v. State, No. 13-14-00717-CR, 2016 WL 3225292, at

*10 (Tex. App.—Corpus Christi June 9, 2016) (mem. op., not designated for publication)

(finding no speedy trial violation where defendant acquiesced to some of six-year delay);

Aranda v. State, No. 04–14–00787–CR, 2016 WL 1043102, at * 5 (Tex. App.—San



                                            12
Antonio March 16, 2016, pet. filed) (mem. op., not designated for publication) (finding no

speedy trial violation where defendant acquiesced to five-year delay). For the foregoing

reasons, we conclude that the fourth Barker factor does not weigh against the State.

       5. Balancing Test

       Having addressed the four Barker factors, it is necessary to balance them.

Favoring a speedy-trial violation is the twenty-eight month delay between the time Traylor

was charged and the time of his second trial. This delay is sufficient to trigger a full Barker

analysis, which we discussed above.          Although Traylor’s trial was initially delayed

because of a communication breakdown between Traylor and his former counsel, a large

portion of the delay was attributable to Traylor’s multiple requests to continue the trial.

We found that the second Barker factor did not weigh heavily against the State. We

further found that the third Barker factor did not weigh in Traylor’s favor because the

record supported a finding that he desired to have no trial at all rather than a speedy one.

Finally, we found that the fourth Barker factor did not weigh against the State because

Traylor acquiesced in the delay, which vitiated any presumption of prejudice that might

have existed as a result of the delay. We hold that the weight of the four factors, when

balanced together, militates against finding a violation of Traylor’s right to a speedy trial.

Accordingly, we conclude that Traylor’s right to a speedy trial was not violated, and the

trial court did not err in denying his motion to dismiss. We overrule Traylor’s first issue.

                                   III.    DOUBLE JEOPARDY

       By his second issue, Traylor contends that his conviction for first-degree burglary

violates the Fifth Amendment’s double jeopardy clause. See U.S. CONST. AMEND. V.




                                              13
A.     Applicable Law and Standard of Review

       The double jeopardy clause commands that “No person shall be subject for the

same offence to be twice put in jeopardy of life or limb.” Id. The clause prohibits the

State from repeatedly attempting to convict a defendant of an offense, thereby “subjecting

him to embarrassment, expense and ordeal and compelling him to live in a continuing

state of anxiety and insecurity, as well as enhancing the possibility that even though

innocent he may be found guilty.” Blueford v. Arkansas, 566 U.S. ___, 132 S. Ct. 2044,

2050 (2012).

       Consistent with the double jeopardy clause’s general prohibition on successive

trials, a defendant once acquitted may not be again subjected to a second trial for the

same offense. See U.S. v. Scott, 437 U.S. 82, 96 (1978). To permit a second trial

following acquittal would grant to the State what the clause forbids: the proverbial “second

bite at the apple.” Burks v. United States, 437 U.S. 1, 11 (1978) (recognizing that the

double jeopardy clause forbids a second trial for the purpose of affording the prosecution

another opportunity to supply evidence which it failed to muster in the first trial).

       The United States Supreme Court has defined an “acquittal” for double jeopardy

purposes as “a resolution, correct or not, of some or all of the factual elements of the

offense charged” in the defendant’s favor. Sanabria v. United States, 437 U.S. 54, 71

(1978); see United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). In

ascertaining whether an acquittal has occurred, the form of the fact-finder’s resolution “is

not to be exalted over [its] substance”; at the same time, however, the form of the fact-

finder’s resolution but cannot be “entirely ignored.” Sanabria, 437 U.S. at 71.




                                              14
      When a jury is discharged before reaching a verdict, the prosecution necessarily

does not culminate in a conviction or an acquittal. When this occurs, a question arises

whether the double jeopardy clause permits a retrial of the defendant for the same

offense. The answer is “yes” if a manifest necessity existed to discharge the jury based

on a “genuine deadlock” among the jurors. See Renico v. Lett, 559 U.S. 766, 773 (2010);

see also Downum v. United States, 372 U.S. 734, 736 (1963) (observing that a genuinely

deadlocked jury is a “classic example” of when a manifest necessity exists to try the

defendant twice).

      Trial judges are accorded “great deference” in determining whether there is a

genuine deadlock among jurors in a given case. Id. Trial judges are accorded this level

of deference because they are in the “best position to assess all the factors which must

be considered in making a necessarily discretionary determination whether the jury will

be able to reach a just verdict if it continues to deliberate.” Renico, 559 U.S. at 774. It

has been said that, in the absence of such deference, trial judges might otherwise “employ

coercive means to break the apparent deadlock, thereby creating a significant risk that a

verdict may result from pressures inherent in the situation rather than the considered

judgment of all the jurors.” Id. (internal quotations omitted). Thus, the United States

Supreme Court has expressly declined to require the “mechanical application of any rigid

formula when trial judges decide whether jury deadlock warrants a mistrial.” Id. at 775.

As such, before declaring a mistrial based on jury deadlock, a trial judge is not required

to “force the jury to deliberate for a minimum period of time, to question the jurors

individually, to consult with (or obtain the consent of) either the prosecutor or defense




                                            15
counsel, to issue a supplemental jury instruction, or to consider any other means of

breaking the impasse.” Id.

       However, this is not to say that a reviewing court should grant absolute deference

to a trial judge in determining whether to declare a mistrial based on jury deadlock. Id. If

the record reveals that the trial judge has failed to exercise the “sound discretion entrusted

to him, the reason for such deference by a[] [reviewing court] court disappears.” Id.

       In determining whether a trial judge has exercise sound discretion to discharge a

jury based on a deadlock, reviewing courts have generally considered the length of time

the jury deliberated in light of the nature of the case and the evidence. See Ex parte

Perusquia, 336 S.W.3d 270, 275–76 (Tex. App.—San Antonio 2010, pet. ref'd).

Specifically, reviewing courts have considered “the type and complexity of the evidence,

whether expert testimony is involved, the number of witnesses, the number of exhibits. . .,

the complexity of the charge, whether the jury moved towards agreement during the

period of deliberation, and the nature and extent of communication from the jury.” Id.

B.     Analysis

       Traylor’s first trial ended in a mistrial after the trial court determined that the jury

was deadlocked on the lesser-included offense of second-degree burglary and that

further deliberation would be futile. Traylor was tried a second time, and the jury found

him guilty of first-degree burglary as charged in the indictment. The question is whether

Traylor’s conviction for first-degree burglary violates the double jeopardy clause’s

prohibition on successive trials.     The answer is “yes” if Traylor was, in substance,

acquitted of that offense at his first trial. See Scott, 437 U.S. at 96.




                                              16
       In Blueford, after a few hours of deliberation, the jury foreperson reported that all

twelve jurors were unanimous against guilt on the charged offense but that they were

deadlocked on the lesser-included offense. Blueford, 566 U.S. at ___, 132 S. Ct. at 2049.

The trial court told the jury to continue to deliberate. Id. When the jury returned a half

hour later, the foreperson stated that they had not reached a verdict. Id. The foreperson

did not state as to which offense they had not reached a verdict. Id. The court declared

a mistrial and discharged the jury. Id. Although the jury never reached a formal verdict

prior to being discharged, the defendant argued that the foreperson’s report that all twelve

jurors were unanimous against guilt on the charged offense amounted to an acquittal on

that offense, which barred a second prosecution. Id. at 2050.

       The United States Supreme Court disagreed, because the foreperson’s report

“lacked the finality necessary” to amount to an acquittal for double jeopardy purposes. Id.

The Court relied on the following: (1) deliberations resumed after the report, thereby

making it at least possible that some jurors reconsidered the defendant’s guilt on the

charged offense; (2) nothing in the jury charge prohibited the jurors from reconsidering

their votes on the charged offense; and (3) at the conclusion of deliberation, the

foreperson stated only that the jury was “unable to reach a verdict” but gave no indication

whether it was still the case that all twelve jurors were unanimous against guilt on the

charged offense. Id. at 2050–51. However, by addressing and rejecting the defendant’s

argument, the Court recognized in Blueford that, even short of a formal verdict of acquittal,

a jury’s post-deliberation communication may, in an appropriate case, contain the finality

necessary to amount to an acquittal for double jeopardy purposes. Id.




                                             17
       Here, like in Blueford, the foreperson reported that all twelve jurors were

unanimous against guilt on the charged offense but that they were deadlocked seven/five

against guilt on the lesser-included offense. Also like in Blueford, the jury resumed

deliberations after the foreperson’s report, and nothing in the jury charge prohibited the

jurors from reconsidering their votes on the charged offense during that time. If the record

in this case contained only the foreperson’s initial report, we could confidently say, as did

the Blueford Court, that it was at least possible that some jurors might have reconsidered

Traylor’s guilt as to the charged offense after continued deliberations. However, we

cannot confidently entertain that possibility based on what transpired after jury

deliberation concluded. Unlike in Blueford, the record in this case shows that, at the end

of jury deliberation, the foreperson reported that the jurors were now deadlocked

eight/four against guilt, which prompted the following colloquy between the trial court and

the foreperson:

       Trial court:   I received your note . . . indicating that the jury did not believe
                      that [Traylor] was guilty of [the charged offense], but that there
                      was disagreement amongst jurors [regarding the] lesser-
                      included offense and that you were hung up on that issue and
                      that the vote apparently changed by only one juror [after
                      several more hours of deliberation]. So the note that I received
                      [is] that the jury is hopelessly deadlocked; is that correct?

       Foreperson: I used the word impasse, but I suppose deadlock is probably
                   the legal term.

       As the trial court’s comments demonstrate, prior to the end of deliberation, the jury

was unanimous against guilt on the charged offense but deadlocked seven/five against

guilt on the lesser-included offense; however, by the end of deliberation, only one juror’s

vote had changed from guilty to not guilty on the lesser-included offense, making the final

vote eight/four against guilt on the lesser-included offense.           The foreperson then

                                              18
confirmed that there was an impasse or deadlock in response to the trial court’s question,

as framed. The foreperson’s post-deliberation report of an eight/four deadlock against

guilt, combined with her post-deliberation answer to the trial court concerning that

deadlock, establishes that all twelve jurors remained unanimous against guilt on the

charged offense and foreclosed any reasonable speculation that the deadlock related to

the charged offense rather than the lesser-included offense. Cf. id. (noting that the post-

deliberation record was silent regarding whether the jurors still believed that the defendant

was not guilty of the charged offense). Thus, the post-deliberation record in this case

shows what the record in Blueford did not: a final resolution indicating that Traylor was

not guilty of the charged offense of first-degree burglary. We conclude that, unlike

Blueford, the jury’s communication contained the finality necessary to amount to an

acquittal on first-degree burglary for double jeopardy purposes; the trial court clearly

understood that to be the jury’s verdict, and neither the State nor Traylor, at trial or on

appeal, disputes this fact.

       In reaching this conclusion, we acknowledge that Texas law recognizes the

existence of an informal verdict of acquittal.     See TEX. CODE CRIM. PROC. ANN. art.

37.10(a) (West, Westlaw through Ch. 49, 2017 R.S.).           Specifically, article 37.10(a)

provides that a trial court “shall” render judgment in accord with the jury's verdict if the

verdict is informal and it “manifestly appear[s]” that the jury intended to acquit the

defendant. Id. Texas cases surveyed by this Court have considered whether jury

communication originating from a jury note manifested a jury’s intent to acquit the

defendant under article 37.10(a), but none found such intent based on the records

reviewed by the courts in those cases. See State ex rel. Hawthorn v. Giblin, 589 S.W.2d



                                             19
431, 433 (Tex. Crim. App. 1979) (holding that a jury note—which indicated that the jury

was unanimous against guilt as to the charged offense but deadlocked as to the lesser-

included offense—was intended as a report on the jury's progress toward a verdict and

was not plainly intended as an informal acquittal under article 37.10(a)); Antwine v. State,

572 S.W.2d 541, 543 (Tex. Crim. App. 1978) (holding that a note sent by a deadlocked

jury—requesting that the evidence be “reopened, because the evidence presented is

insufficient and inconclusive, making a true verdict impossible”—was not plainly intended

as an informal acquittal); Ex parte Zavala, 900 S.W.2d 867, 870 (Tex. App.—Corpus

Christi 1995, no writ) (holding that the jury did not plainly intend to acquit the defendant

of the charged offense where the trial court heard conflicting testimony from jurors at the

habeas hearing regarding whether the jury had acquitted the defendant of the charged

offense); Cardona v. State, 957 S.W.2d 674, 677 (Tex. App.—Waco 1997, no pet.)

(holding that a jury’s note was not plainly intended as an acquittal as to the charged

offense when it indicated only that the jury was deadlocked as to the lesser-included

offense but said nothing about a decision with respect to the charged offense); Thomas

v. State, 812 S.W.2d 346 (Tex. App.—Dallas 1991, pet. ref'd) (holding that jury notes sent

by a deadlocked jury were not plainly intended as an acquittal where they showed an

eleven/one split favoring guilt as to the charged offense).4

        Mindful of this precedent, we would note that these cases were decided before the

United States Supreme Court issued its opinion in Blueford. Thus, to the extent that




        4 Under this strand of case law, one Texas intermediate court concurring opinion expresses concern

over “any system of laws that allows an accused to be subject to re-prosecution for [a] greater offense when
a jury has (1) decided not guilty on the [greater offense], (2) become hung on a [lesser-included offense],
(3) avoided announcing a complete verdict, (4) and been discharged on a motion for mistrial.” Ex parte
Cantu, 120 S.W.3d 519, 522 (Tex. App.—Corpus Christi 2003, no pet.). (Yanez, J., concurring).

                                                    20
incongruity, if any, exists between these cases and Blueford, we resolve the conflict in

favor of the legal proposition we derive from Blueford, which is that a jury’s post-

deliberation communication may, in an appropriate case, contain the finality necessary to

amount to an acquittal for double jeopardy purposes. See Blueford, 566 U.S. at ___, 132

S. Ct. at 2050–51; see also State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App.

1998) (observing that Texas courts are bound by Supreme Court precedent when

deciding cases involving the United States constitution and that, if Texas case law is in

conflict, Texas courts are obligated to follow the Supreme Court’s federal constitutional

precedent).

       In sum, Traylor could not be retried for the offense of first-degree burglary without

running afoul of the double jeopardy clause’s prohibition on successive trials; yet that is

exactly what happened at his second jury trial, which resulted in a conviction for first-

degree burglary. We therefore sustain Traylor’s second issue to the extent that he argues

that his conviction for first-degree burglary violates the double jeopardy clause.

Accordingly, we reverse the trial court’s judgment convicting Traylor of first-degree

burglary and render a judgment of acquittal on that charge.

C.     Retrial on Second-Degree Burglary Permitted

       Having concluded that Traylor’s conviction for first-degree burglary violates the

double jeopardy clause, we now consider whether Traylor could have been retried for the

lesser-included offense of second-degree burglary. See Pullin v. State, 827 S.W.2d 1, 3

(Tex. App.—Houston [1st Dist.] 1992, no pet.) (holding that the defendant's acquittal at

first trial on the charged offense did not bar retrial for the lesser-included offense on which

the jury had declared itself deadlocked and was discharged). The answer is “yes” if



                                              21
Traylor’s first jury was genuinely deadlocked as to that offense, making it manifestly

necessary to declare a mistrial. See Renico, 559 U.S. at 773.

      At the outset, we would observe that the case was not particularly complicated;

this was a one-day trial in which the State presented non-scientific evidence and

testimony from five lay witnesses. See Ex parte Perusquia, 336 S.W.3d at 275–76

(considering the relative complexity of the case and the nature of the evidence in

determining whether the trial judge exercised sound discretion to discharge a jury based

on a deadlock). The trial centered on two issues: (1) whether Traylor was the person

who assaulted or attempted to assault his ex-mother-in-law inside her home; and (2) if

so, whether Traylor used a deadly weapon during the commission of the burglary.

Although these issues are not particularly complicated, the jury spent about eight hours

deliberating before being discharged. Cf. Green v. State, 840 S.W.2d 394, 407–08 (Tex.

Crim. App. 1992) (holding that the trial court did not err in ordering jury to continue

deliberations when jury reported that it was deadlocked after only six and one-half hours

of deliberation even though jury had approximately five days of evidence to review

involving testimony from twenty-six witnesses), abrogated on other grounds by Trevino v.

State, 991 S.W.2d 849 (Tex. Crim. App. 1999).

      As previously mentioned, approximately four hours into deliberation, the jury was

unanimous against guilt on the charged offense but deadlocked seven/five against guilt

on the lesser-included offense. Given the charges submitted to the jury, this meant that

five jurors believed that Traylor assaulted or attempted to assault his ex-mother-in-law

inside her home, but none of them believed that a deadly weapon was used. As the trial

court specifically found, and as the record confirms, the jury deliberated for several more



                                            22
hours to resolve this issue, but the deadlock only solidified—as two jurors on either side

of the issue emphatically stated that their respective positions would not change. See Ex

parte Perusquia, 336 S.W.3d at 275–76 (observing that courts reviewing the genuineness

of a jury deadlock situation generally consider the complexity of the charge, whether the

jury moved towards agreement during the period of deliberation, and the nature and

extent of communication from the jury). Finally, as the trial court aptly observed, by the

time the mistrial was declared, the jury had already spent approximately the same amount

of time in the deliberation room as it did in the courtroom hearing evidence. See TEX.

CRIM. PROC. CODE ANN. art. 36.31 (West, Westlaw through Ch. 49, 2017 R.S.) (providing

that a trial court may in its discretion discharge the jury where it has been kept together

for such time as to render it altogether improbable that it can agree on a verdict); see also

Ex parte Perusquia, 336 S.W.3d at 275–76 (considering the length of time the jury

deliberated in light of the nature of the case and the evidence).

       Traylor argues that the trial court misjudged the disagreement among the jurors as

a “deadlock” when the foreperson merely described the disagreement as an “impasse.”

However, the record shows that the foreperson stated that the word “deadlock” could also

describe the nature of the disagreement among the jurors.

       Citing Ex parte Perusquia, Traylor next argues that a manifest necessity did not

exist to declare a mistrial because the trial court did not issue a supplemental Allen

instruction as a last-ditch attempt to break the deadlock. Id. at 276–77 (upholding the trial

court’s decision to discharge the jury when, among other things, the jury remained

deadlocked even after the trial court issued a supplemental Allen instruction).          We

disagree. Although a trial court is by no means prohibited from issuing an Allen instruction



                                             23
in the face of a deadlock, the law does not require it before declaring a mistrial if the jury

is genuinely deadlocked. See Renico, 559 U.S. at 775 (observing that a trial court is not

required to “issue a supplemental jury instruction” to break an impasse before declaring

a mistrial if the jury is otherwise genuinely deadlocked).

       According great deference to the trial court as we must, we hold that the trial court

exercised sound discretion in declaring a mistrial after determining that the jury was

genuinely deadlocked regarding whether Traylor committed the lesser-included offense

of second-degree burglary. We therefore overrule Traylor’s second issue to the extent

that he argues no manifest necessity existed to declare a mistrial. Our holding means

that a retrial for second-degree burglary was not barred by double jeopardy. See Pullin,

827 S.W.2d at 3.

D.     Summary

       In Part III(B) of this opinion, we concluded that Traylor’s conviction for first-degree

burglary violated the double jeopardy clause because Traylor’s first jury communicated

what amounted to an acquittal as to that offense. See Blueford, 566 U.S. at ___, 132 S.

Ct. at 2050–51. In Part III(C) of this opinion, we concluded that the double jeopardy

clause did not bar a retrial for second-degree burglary because Traylor’s first jury was

genuinely deadlocked as to that offense. See Renico, 559 U.S. at 773.

                                    IV.    PROPER REMEDY

       Traylor was found guilty of an offense barred by double jeopardy—i.e., first-degree

burglary. However, there was no jeopardy bar on a retrial for second-degree burglary. In

finding Traylor guilty of first-degree burglary, the jury must have necessarily found that he

also committed second-degree burglary, and we conclude there is legally sufficient



                                             24
evidence to support a conviction for second-degree burglary. As a result, the proper

remedy here is to render a judgment convicting Traylor of second-degree burglary and

remand the case to the trial court for sentencing on second-degree burglary.             See

Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014) (concluding that when an

appellate court finds the evidence legally insufficient to support a conviction on a greater

offense, a defendant should not receive the unjust windfall of an outright acquittal when

there is legally sufficient evidence to prove that he is guilty of a lesser-included offense);

see also Arteaga v. State, PD-1648-15, 2017 WL 2457432, at *8 (Tex. Crim. App. June

7, 2017) (extending Thornton’s reformation remedy to jury-charge error that only impacts

the greater offense so as not to afford the defendant the unjust windfall of a new trial on

a lesser-included offense that the jury necessarily must have found in order to convict on

the greater offense).

                                      V.     CONCLUSION

       We reverse the trial court’s judgment convicting Traylor of first-degree burglary and

render a judgment of acquittal on that charge and render a judgment convicting Traylor

of second-degree burglary, and we remand for proceedings consistent with this opinion.

See TEX. R. APP. P. 43.2(c).


                                                         /s/ Rogelio Valdez________
                                                         ROGELIO VALDEZ
                                                         Chief Justice
Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd_day of August, 2017.




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