                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                                ________________

                               NO. 09-14-00138-CR
                               NO. 09-14-00139-CR
                               NO. 09-14-00140-CR
                                ________________

               EX PARTE ROY WAYNE JACKSON JR.
__________________________________________________________________

                 On Appeal from the 221st District Court
                      Montgomery County, Texas
          Trial Cause No. 12-12-13308-CR, Counts I, II, and III
__________________________________________________________________

                          MEMORANDUM OPINION

      Appellant Roy Wayne Jackson Jr. appeals the trial court’s denial of his

application for a pretrial writ of habeas corpus, in which he contended that double

jeopardy barred further prosecution after the trial judge granted a mistrial. We

affirm the trial court’s order denying Jackson’s application for a writ of habeas

corpus.

      Jackson, the complainant’s stepfather, was indicted for continuous sexual

abuse of a child, aggravated sexual assault of a child, and sexual assault of a child.

Jackson’s trial began on December 9, 2013. The complainant was pregnant when

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the authorities began their investigation, and she gave birth on June 4, 2012. DNA

samples taken via buccal swabs from the complainant, her baby, some of Jackson’s

known children, and Jackson himself revealed that Jackson could not be excluded

as the biological father of the complainant’s baby. According to the DNA results,

“for the U.S. Caucasian population, the evidence is 705 million times more likely

that Roy Wayne Jackson is the biological father of [the complainant’s baby] . . . as

compared to unrelated individuals of U.S. Caucasian descent. So that equates to a

probability of paternity of 99.9999998 percent.”

      The complainant testified that Jackson is her child’s father, and she

explained that Jackson began molesting her when she was eight years old. The

complainant later requested a break, during which she disclosed to the prosecutor

that she was also having sexual relations with her half-brother, who is Jackson’s

son. After some further testimony from the complainant, the trial judge recessed

for the day. When trial resumed the following day, the prosecutor stated that the

State had requested overnight DNA testing on the complainant’s brothers and

would have the results that evening. Defense counsel then requested a continuance

to retest the evidence because “it could be dispositive of the case and potentially

exculpatory through our own testing.” The prosecutor stated, “I don’t know if [the



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complainant’s half-brother] was ever excluded because he’s familial with the

defendant” and “[the complainant’s] mom is his mom.”

      After permitting the State to call a witness from Safe Harbor out of order

due to a scheduling conflict, the trial judge and counsel began having a discussion

outside the presence of the jury. The prosecutor stated that the complainant told

him Jackson never touched her, but the complainant then said, “I know what it’s

like to grow up without a father. I don’t want my brothers to be mad at me.” The

trial judge stated, “I think this impacts your ability to defend your client. . . . I want

the record to reflect that this also goes to exculpatory evidence.” The trial judge

took a break and defense counsel requested a continuance. The trial judge stated,

“I’m going to grant [a continuance] at your request . . . .”

      After taking another break, the following colloquy transpired between the

trial judge and counsel:

      THE COURT: We’re going back on the record. . . . What happened so
      that the record is clear is that we had some new evidence in the
      middle. The [S]tate has sent off to get DNA on the baby of the
      complainant. . . . It may be the son of the defendant or it could
      possibly be the son of the defendant’s son?

      [Defense counsel]: That’s correct.

      THE COURT: Okay. And to make matters worse, the complainant is
      the half[-]sister of . . . the defendant’s son. The defendant’s son is her
      half[-]brother. . . .

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        So the defense moved for [a] continuance. I, on my own sua
sponte, am going to declare a mistrial. I think it’s manifest necessity. I
think it could be exculpatory to the defendant. I’m concerned that the
defense has enough time to hire [its] own expert if they choose to do
so. . . . If . . . the son of this defendant is excluded, there still may be
an issue about the DNA due to the fact that it’s so closely interwoven.
        So because of that I decided in the interest of justice to grant a
mistrial. . . .
        I want you to know I admonished the jurors. I admonished them
not to discuss this case. I admonished them that I was declaring a
mistrial, it was me doing this, it wasn’t on either one of you, that I felt
it was in the interest of justice because there was some additional
evidence. And I told them it’s important they understand that another
jury is going to be hearing this and not to go around telling people
anything about the case because it’s still going and still pending.
        This is rare. . . . But because you asked for a continuance and
then we talked about doing it on Monday and you said I have a
murder trial Monday then you explained that you also had something
January and February and we could come back March 31st. I’m not
going to make this jury come back March 31st. It’s just too many
issues. . . . Is there anything else that anybody wants to put on the
record?

[Prosecutor]: No, Judge. The state understands your ruling. We did
expedite the DNA. We would have results back today. State was
prepared to go forward with our witnesses in trial.

THE COURT: Okay.

[Defense counsel]: Nothing further, Judge.

THE COURT: . . . So is March 31 okay? I never got you on the
record. Is that an okay date for you to go forward on the trial?

[Defense counsel]: I mean, that’s the only date available, right? Is that
it, Judge?

THE COURT: Well, we had some other dates.
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      [Defense counsel]: But they are all before that, right?

      THE COURT: Right.

      [Defense counsel]: I can’t do anything before that, Judge, because . . .
      that [murder] trial . . . could last maybe a month.

      ...

      THE COURT: . . . I know jeopardy did attach because, obviously, the
      witnesses were sworn and the jury was sworn. But . . . sua sponte I am
      saying there is manifest necessity and I’m granting a mistrial. And I’m
      granting the continuance and we’ll start back up in March.

      [Defense counsel]: Okay. Thank you, Judge.

Jackson subsequently filed an application for a pretrial writ of habeas corpus, in

which he asserted that double jeopardy bars further prosecution because the trial

court had granted a continuance, and no manifest necessity existed for granting a

mistrial. The trial court signed an order denying Jackson’s application. In his sole

appellate issue, Jackson argues that the trial court abused its discretion by declaring

a mistrial sua sponte without considering less drastic measures.

      “The Fifth Amendment to the United States Constitution prohibits a State

from twice putting a defendant in jeopardy for the same offense.” Ex parte Brown,

907 S.W.2d 835, 838 (Tex. Crim. App. 1995) (citations omitted). Jeopardy

attaches once a jury has been impaneled and sworn. Id. at 839. “Consequently, as a

general rule, if, after the defendant is placed in jeopardy, the jury is discharged
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without reaching a verdict, double jeopardy will bar retrial.” Id. Exceptions to the

rule exist if the defendant consents to a retrial or if retrial is mandated by manifest

necessity. Id. A defendant who does not object to the trial judge’s sua sponte

declaration of a mistrial, despite an adequate opportunity to do so, has impliedly

consented to the mistrial. See Torres v. State, 614 S.W.2d 436, 441-42 (Tex. Crim.

App. [Panel Op.] 1981); Ledesma v. State, 993 S.W.2d 361, 365 (Tex. App.—Fort

Worth 1999, pet. ref’d).

      As indicated by the above-quoted colloquy between the trial judge, the

prosecutor, and defense counsel, Jackson’s counsel had an adequate opportunity to

object, but did not do so, and defense counsel discussed future trial dates with the

trial judge after she indicated that she had sua sponte declared a mistrial and

released the jury. We conclude that Jackson consented to the mistrial. 1 See Torres,

614 S.W.2d at 441-42; Ledesma, 993 S.W.2d at 365. Therefore, double jeopardy

does not bar further prosecution. Ex parte Brown, 907 S.W.2d at 838. Accordingly,

we overrule issue one and affirm the trial court’s order denying Jackson’s pretrial

application for writ of habeas corpus.



      1
       Because we conclude that Jackson consented to the trial court’s sua sponte
declaration of a mistrial, we need not address his argument alleging that manifest
necessity did not exist. See Tex. R. App. P. 47.1; Ex parte Brown, 907 S.W.2d 835,
838 (Tex. Crim. App. 1995).
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      AFFIRMED.


                                    ________________________________
                                           STEVE McKEITHEN
                                               Chief Justice

Submitted on July 29, 2014
Opinion Delivered August 6, 2014
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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