                                                                    ACCEPTED
                                                                12-15-00038-CR
                                                   TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                           4/29/2015 1:59:00 PM
                                                                  CATHY LUSK
                                                                         CLERK




            No. 12-15-00038-CR
                                               RECEIVED IN
                                         12th COURT OF APPEALS
                 IN THE                       TYLER, TEXAS
        TWELFTH JUDICIAL DISTRICT        4/29/2015 1:59:00 PM
                                              CATHY S. LUSK
           COURT OF APPEALS                       Clerk
              TYLER, TEXAS
___________________________________________
                                                  4/29/2015
          THE STATE OF TEXAS

              APPELLANT

___________________VS________________________


            DANNY RAY SOWELL

               APPELLEE


                          DEAN WHITE
                          Attorney at Law
                          690 W. Dallas Street
                          P. O. Box 155
                          Canton, Texas 75103
                          (903) 567-4155 Telephone
                          (903) 567-4964 Facsimile
                          SBN 21299500
                          E-Mail: dwatty@etcable.net

                          ATTORNEY FOR APPELLEE

____________________________________________


         ORAL ARGUMENT REQUESTED
         IDENTITY OF PARTIES AND COUNSEL




DEAN WHITE
Attorney at Law
690 W. Dallas Street
P. O. Box 155
Canton, Texas 75103
Bar Number 21299500
(903) 567-4155
(903) 567-4964 Facsimile
E-Mail: dwatty@etcable.net

DANNY RAY SOWELL (Real Party of Interest)
806 Alabama, Apt. 6
Sulphur Springs, Texas 75482

CHRIS MARTIN
Criminal District Attorney of Van Zandt County
400 South Buffalo Street
Canton, Texas 75103
Bar Number 24050016
(903) 567-4104
(903) 567-6258 Facsimile
Web Page: www.vzda.org

RICHARD SCHMIDT
First Assistant Criminal District Attorney of Van Zandt County
400 South Buffalo Street
Canton, Texas 75103
Bar Number 24043907
(903) 567-4104
(903) 567-6258 Facsimile
Web Page: www.vzda.org

ALLISON FLANAGAN
Assistant Criminal District Attorney of Van Zandt County
400 South Buffalo Street
Canton, Texas 75103
Bar Number 24080057
(903) 567-4104
(903) 567-6258 Facsimile
Web Page: www.vzda.org
                                                TABLE OF CONTENTS

Identity of the Parties................................................................................................ ........I

Table of Contents.............................................................................................................ii

Index of Authorities..........................................................................................................iii

Statement of the Case ........................................................................................................1

Statement of Facts .........................................................................................................1-2

Argument and Authorities .............................................................................................2-6

          a. Appellee’s Response to Appellant's Issue Number 1.......................................2-4

          b. Appellee’s Response to Appellant's Issue Number 2 and Issue Number 3 ...4-6

Prayer...............................................................................................................................6

Certificate of Service.........................................................................................................7

Certificate of compliance..................................................................................................7




                                                                   i
                                          INDEX OF AUTHORITIES

Cases

Arizona v. Washington, 434 U.S. 487 (1978).................................................................... 4

Cruck v. State, No.13-07-00712-CR, 2009, Tex. App. LEXIS 7329,
2009 WL 2973474 (Tex. App. – Corpus Christi 2009).........................................................4

Ex Parte Brown, 907 S.W.3d 835 (Tex. Crim. App. 1995).................................................2

Ex Parte Falk, No. 10-13-00223-CR ,2014 Tex. App. LEXIS 8083, 2014 WL 268598
(Tex. App.–Waco, July 24, 2014, pet. ref’d) .................................................................. 3

Ex Parte Fierro, 79 S.W.3d 54 (Tex. Crim. App. 2002) ............................................... ....3,4

Ex Parte Garza, 337 S.W.3d 903 (Tex. Crim. App. 2011).................................................2

Ex Parte Hunter 256 S.W. 3d 900 (Tex. App-Texarkana 2008) ......................................3

Ex Parte Little, 887 S.W. 2d 62 (Tex .Crim. App. 1994)........................................................4

Ex Parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006).............................................6

Hill v. State, 90 S.W. 3d 308 (Tex. Crim. App.2002)......................................................... 2

Illinois v. Somerville, 410 U.S. 458 (1973).............................................................................5

Oregon v. Kennedy, 456 U. S. 667 (1982)............................................................................5

Simmons v. U.S., 142 U.S. 148 (1891)............................................................................. 5

Thompson v. U.S., 155 U. S. 271 (1894).......................................................................... 5

Torres v. State, 614 S.W.2d 436 (Tex. Crim. App. 1981) .....................................................2

U.S. v. Dinitz, 424 U. S. 600 (1975).................................................................................... .5

U. S. v. Jorn, 400 U. S. 470 (1971)..................................................................................... 5

U. S. v. Perez, 22 U. S. 579 (1824)....................................................................... ...............5

Wade v. Hunter, 336 U. S. 684 (1949).................................................................................5


                                                            ii.
Constitutional Provisions

TEX. CONST. art. I, §14..................................................................................... ..........4,6

TEX. CONST. art. I, §19................................................................................................4,6

U.S. CONST. amend. V .......................................................................... ........................4,6

U.S. CONST. amend. XIV................................................................................................4,6




                                                            iii
                                  STATEMENT OF THE CASE

       Appellee agrees with the State’s Statement of the Case.

                                    STATEMENT OF FACTS

       On the 17th of March, 2014, the case of the State of Texas vs. Danny Ray Sowell

proceeded to trial by jury in the County Court at Law of Van Zandt County, Texas,

Judge Randal McDonald presiding. On the 18 th of March, 2014, testimony continued as

Mr. Sowell’s attorney cross examined the State’s witness. (CR 58-86)1 There were

difficulties in the cross examination that had to do with the manner in which the State’s

witness was responding to questions asked by Mr. Sowell’s attorney. This resulted in

the trial court accusing Mr. Sowell’s attorney of being hostile to the witness. (CR 74 line

1-25) This accusation was made in the presence of the jury. Mr. Sowell’s attorney

asked for a hearing outside the presence of the jury. (CR-75) The trial court denied the

request. (CR 75) Mr. Sowell’s attorney was forced to state his objection to the trial

court’s actions in the jury’s presence. Mr. Sowell’s attorney objected that the trial court

did not like the attorney and as a result Mr. Sowell was not being treated fairly. Mr.

Sowell’s attorney was ordered by the trial court to “Proceed”. (CR 75 line 17) Counsel

for Sowell did as the Court instructed. Trial continued for approximately 37 questions

which were asked by Mr. Sowell’s attorney. (CR 75-86) At that time, the State

requested a hearing outside the presence of the jury and the request was granted by

the Court.(CR 82) This was a request that the Mr. Sowell's attorney was not afforded.

The State moved for a mistrial (CR 19, CR 82) Mr. Sowell’s attorney stated he would not

agree to a mistrial. (CR 83) The trial court initially overruled the State’s Motion for


       1
          References to the Clerk’s Record are designated “CR” with an arabic numeral following “CR”
specifying the correct page in the record.

                                                  1
Mistrial. (CR 84) The trial court again addressed the issue of the alleged hostility of Mr.

Sowell’s attorney.(CR 84, 85) Mr. Sowell’s attorney stated to the trial court was being

hostile towards him. (CR 85) The trial court immediately granted a mistrial. (CR 19, 85

line 17-18). The State did not renew its motion for mistrial. The trial court did not

address nor explore any issues regarding the granting of the mistrial before or after the

State’s motion for mistrial was granted.

                            ARGUMENT AND AUTHORITIES

a. Appellee Response to Appellent’s Issue Number 1

       The State made a Motion for Mistrial which was not initially granted by the trial

court. (CR 84) At the time the State made is Motion for Mistrial, Mr. Sowell’s attorney

informed the trial court that he would not agree to that proposal. (CR 83, 84) Mr.

Sowell’s attorney and the trial court then had an exchange outside the presence of the

jury and when the jury was brought back into the courtroom the trial court told the jury

he had granted mistrial for the State and the jury was released. (CR 85) This ruling of

the trial court was against the wishes of Mr. Sowell. The State did not renew their

motion for mistrial. In addition, the trial court did not address nor explore any issues

regarding the granting of the mistrial before or after the State’s motion for mistrial was

granted.



       A trial should not be ended prematurely if it is against the defendant’s wishes. Ex

Parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011), Hill v. State, 90 S.W.3d 308

( Tex. Crim. App. 2002) , Ex Parte Brown, 907 S.W. 2d 835 ( Tex. Crim. App. 1995)

The extraordinary measure of granting a mistrial is only justified by “manifest necessity.”

Id. The State would bear the burden to demonstrate a “manifest necessity” to justify the

                                             2
granting of a mistrial and the trial court’s granting of a mistrial is limited to and justified

only by extraordinary circumstances. Id. The granting of a mistrial is in the trial court’s

discretion, but the Court abuses this discretion when it grants a mistrial without

considering other alternatives and ruling those alternatives out. Id. see also Ex Parte

Falk, No. 10-13-00223-CR ,2014 Tex. App. LEXIS 8083, 2014 WL 2685985 (Tex.

App.–Waco, July 24, 2014, pet. ref’d). In Mr. Sowell’s case the trial court did not state

the basis of its ruling and the record is silent as to the trial court ever considering the

availability of a less drastic ruling and reasonably ruling those alternatives out.

Therefore, the trial court abused its discretion by declaring a mistrial.

       The Court of Criminal Appeals held in Torres v. State, that the granting of a

mistrial was not proper in a case involving alleged witness intimidation because the

conclusion was not supported by the evidence. 614 S.W.2d 436, 443 (1981). The

record must adequately contain a reason for the trial court’s ruling absent express

findings by the trial court of “manifest necessity.” Id. at 442. The trial court accused Mr.

Sowell’s attorney of being hostile toward the witness in the presence of the jury. (CR 74

line 17) The State later objected to remarks made by Mr. Sowell’s attorney and

requested a mistrial. (CR 84-85) The trial court initially overruled the State’s Motion for

Mistrial (CR 85) and then subsequently granted the State’s Motion for Mistrial. (CR 85)

       Mr. Sowell’s attorney was trying to protect Mr. Sowel’s rights and there is no

evidence in the record or stated reasons by the trial court that would warrant the

granting of a mistrial. Ex Parte Hunter, 256 S.W.3d 900 (Tex. App. -Texarkana 2008).

The trial court must carefully and deliberately consider the alternatives to the granting of

a mistrial while taking into account the defendant’s interest in having his trial completed

in a single proceeding and society’s interest of fair trials rendering just judgements. Ex

                                                3
Parte Fierro, 79 S.W.3d 54, 56 (Tex. Crim. App. 2002) The failure to rule out less

drastic alternatives is an abuse of discretion. Fierro at 57.

       The 294th District Court after hearing arguments of the parties granted the Writ of

Habeas Corpus filed by Mr. Sowell. Appellee agrees with the 294th District Court which

found that where the judge fails to explicitly or implicitly rule out less drastic alternatives

in favor of granting a motion for mistrial, the court has abused its discretion. See Cruck

v. State, 2009 Tex. App. Lexis 7329 ( Corpus Christi 2009), Ex Parte Little, 887 S.W.2d

62 (Tex. Crim. App. 1994). In granting the State’s motion for mistrial, the trial court

violated Mr. Sowell’s rights under the double jeopardy clause of the Fifth Amendment

and Fourteenth Amendment of the United States Constitution, Article 1 sections 14 and

19 the Texas Constitution and Article 1.10 of the Texas Code of Criminal Procedure.

b. Appellee’s Response to Appellent’s Issues Number 2 and Number 3

       Mr. Sowell contends that the Appellant’s issues 2 and 3 are the sam e issue and

will address these two points together as one issue.

       The Appellant attempts to make argument that a mistrial was proper because of

manifest necessity. After the alleged improper objection by Mr. Sowell’s attorney, the

trial court told Mr. Sowell’s attorney to proceed (CR 75) The trial resumed and thirty

seven questions were asked up to the point the Appellant asked f or a hearing outside

the presence of the jury. The Appellant in its point 2 and point 3 conceded that the trial

court never did articulate its thoughts in regard to less drastic alternative to the mistrial

requested by the Appellant.

       The Appellant seems to place much of their reasoning that there was a manifest

necessity for a mistrial based on Arizona v. Washington, 434 U.S. 497 (1978) which

stands for the proposition that the prosecutor must demonstrate manifest necessity

                                               4
over the defendant’s objection to a mistrial. The Appellant does not point to any

portions of the record that would support a manifest necessity for the granting of the

extraordinary remedy of a mistrial in Mr. Sowell’s case.

         In support of its position the Appellant also cites several cases which do not have

roots in Texas Jurisprudence. Appellee will attempt to succinctly summarize these

cases.

         U.S. v. Perez, 22 U.S. 579 (1824), stands for the idea that a mistrial should be

granted with the greatest of caution under urgent circumstances. In Wade v. Hunter,

336 U.S. 684 (1949), a mistrial was granted during a Cold War tactical situation

occurring in Germany. The trial court granted a mistrial because of non purposeful

prosecutorial negligence in Illinois v. Somerville. 410 U.S.458 (1973) In Simmons v.

U.S., 142 U.S. 148 (1891) a mistrial was granted when a lawyer had apparently

tampered with the jury and a juror lied about a relationship with the parties. In the case

of U. S. v. Jorn, 400 U.S. 470 (1971) a mistrial was granted so quickly that any

suggestions of alternatives were precluded. The situation surrounding the granting of a

mistrial in Jorn is very similar to Mr. Sowell’s case. In Oregon v. Kennedy 456 U.S. 667

(1978) and U.S. v. Dinitz, 424 U.S. 600 (1975) the accused moved for a mistrial.

Finally, in Thompson v. U. S., 155 U.S. 271 (1894), a mistrial was granted because a

17 year old Native American boy had a jury that had three jurors that had been on the

grand jury that indicted him.

         The cases cited by the Appellant do not support the position that the trial court

was correct in granting a mistrial in Mr. Sowell’s case. These cases merely illustrate the

extreme circumstances that are required to meet the burden of manifest necessity. The

case before the Court does not rise to the type of situation that would justify a finding

                                               5
that manifest necessity existed at the time the trial court granted the mistrial. The order

of the 294th Judicial District Court should be upheld. See Ex Parte Wheeler, 203 S.W.

3d 317 (Tex.Crim. App. 2006). The trial court violated Mr. Sowell’s rights under the

double jeopardy clause of the Fifth Amendment and Fourteenth Amendment of the

United States Constitution, Article 1 sections 14 and 19 the T exas Constitution and

Article 1.10 of the Texas Code of Criminal Procedure.



                                          PRAYER

       WHEREFORE, DANNY RAY SOWELL prays that this Court uphold the ruling of

the 294th Judicial District Court and for such other relief, both at law or equity, to which

DANNY RAY SOWELL is entitled.



                                           DEAN WHITE
                                           Attorney at Law
                                           690 W. Dallas Street
                                           P. O. Box 155
                                           Canton, Texas 75103
                                           (903) 567 4155
                                           (903) 567-4964 Facsimile
                                           E-Mail: dwatty@etcable.net



                                           BY:    /s/ Dean White

                                                  DEAN WHITE
                                                  SBN 21299500
                                                  Attorney for DANNY RAY SOWELL




                                              6
                              CERTIFICATE OF SERVICE



      I hereby certify that a copy of the above and foregoing was delivered to Chris Martin,

Criminal District Attorney, Van Zandt County, 400 South Buffalo, Canton, Texas 75103 via

email chrismartin@vanzandtcounty.org and aflanagan@vanzandtcounty.org .



                                         By:     /s/ Dean White
                                                 DEAN WHITE
                                                 Attorney for DANNY RAY SOWELL




                           CERTIFICATE OF COMPLIANCE



      I hereby certify that this document is 1,874 words in total and is in within the

word count restrictions set forth by the Texas Rules of Appellate Procedure.




                                         By:     /s/ Dean White
                                                 Dean White
                                                 Attorney for DANNY RAY SOWELL


                                            7
