Opinion issued March 24, 2020




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-19-00334-CR
                            ———————————
                   EX PARTE JAMES ALFRED TRIMBLE



           On Appeal from the County Criminal Court at Law No. 3
                            Harris County, Texas
                      Trial Court Case No. 2173997A-2


                          MEMORANDUM OPINION

      Appellant, James Trimble, appeals the trial court’s denial of his pre-trial

application for a writ of habeas corpus asserting that retrying his Driving While

Intoxicated case after a mistrial violates double jeopardy. We reverse.
                                   Background

      On October 27, 2017, Trimble was charged with the offense of Driving While

Intoxicated. The State sought to prosecute Trimble based upon the results of blood

tests performed by the Texas Department of Public Safety’s Crime Laboratory. The

trial court issued a Standing Discovery Order on Copying and Production of Blood

Testing Records. Pursuant to the order, Trimble’s counsel was provided with a disc

containing files from the crime lab. The disc, however, did not contain any pictures

of the blood tubes and packaging containing Trimble’s blood sample.

      The case was called for jury trial on February 20, 2019, when a jury was duly

empaneled. During the State’s direct examination of one of its witnesses, the

prosecuting attorney attempted to introduce into evidence three photographs of

blood tubes and packaging containing Trimble’s blood sample. Trimble objected to

the admissibility of the photographs on grounds that they had not been produced to

the defense prior to the attempt to introduce them into evidence.

      The trial court continued the proceedings until the next morning so that the

defense could receive copies of the evidence from the State, analyze the evidence,

and be prepared to cross-examine witnesses with regards to the evidence. The court

admonished the State to meet with defense counsel once the court adjourned to

discuss any other evidence in the State’s possession that had not been previously

produced to the defense. Later that day, the State notified defense counsel that its


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investigator obtained an additional disc containing files from the crime lab. Counsel

for the State then uploaded 351 additional files to the district attorney’s defense

portal. The next morning, a copy of a second disc was provided to the defense

containing various files.

      Once the court was apprised of the recent production of additional evidence,

it asked Trimble’s counsel how he would like to proceed. Counsel expressed that,

despite not wanting to do so, he was obligated to request a continuance to evaluate

the contents of the second disc.1 Defense counsel orally moved for a continuance

and the court indicated it would grant the continuance. The court requested that the

motion for continuance be filed in writing and defense counsel prepared a motion

during the hearing. However, subsequent to the court’s indication that it was going

to grant a continuance, the court informed the parties that it also was considering the

option of declaring a mistrial:

      So, two options here. I’m either going to declare a mistrial and we can
      get a new jury and start over or a motion for a continuance. Just wanted
      to talk to you guys before I make that decision and see what you have
      to say.

The trial court heard arguments from the State and asked defense counsel whether it

had anything to add, to which defense counsel responded that it did not. The court

then denied the motion for continuance and declared a mistrial sua sponte.


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      At the time of the habeas application, Trimble’s counsel indicated that they
      had not finished comparing the contents of the first and second disks.
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      The State subsequently sought to retry Trimble for the same offense. Trimble

filed a pre-trial application for a writ of habeas corpus, claiming that the State is

barred from prosecuting the case “based upon the Double Jeopardy Clause of the

United States Constitution and the Texas Constitution.” The State responded that

prosecution is not barred by Double Jeopardy because Trimble, by failing to object,

impliedly consented to the mistrial. The trial court subsequently denied Trimble’s

habeas application and this appeal followed.

                                    Standard of Review

      Generally, an appellate court reviews a trial court’s decision to grant or to

deny habeas corpus relief for an abuse of discretion. See Ex parte Montano, 451

S.W.3d 874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (citing Sandifer

v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). In

reviewing the trial court’s decision to grant or to deny habeas corpus relief, we view

the evidence in the light most favorable to the trial court’s ruling. See id. (citing Ex

parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007)).

                                   Applicable Law

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

putting a defendant in jeopardy twice for the same offense. See Hill v. State, 90

S.W.3d 308, 313 (Tex. Crim. App. 2002) (citing Arizona v. Washington, 434 U.S.

497, 503 (1978)). “As a general rule, after a jury has been impaneled and sworn, thus


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placing the defendant in jeopardy, double jeopardy bars a re-trial if the jury is

discharged without reaching a verdict.” Ex parte Fierro, 79 S.W.3d 54, 56 (Tex.

Crim. App. 2002) (citing Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App.

1995)). “An exception to this rule exists when the defendant consents to a re-trial or

a mistrial is mandated by ‘manifest necessity.’” Id. (citing Washington, 434 U.S.

497).

        If the mistrial was done with the defendant’s consent, re-trial will not be

barred by double jeopardy. See Ex parte Garrels, 559 S.W.3d 517, 522 (Tex. Crim.

App. 2018). “[C]onsent must . . . appear in the record as a deliberate ‘relinquishment’

on the defendant’s part—an exercise of [his] ‘primary control’—if it is to be relied

upon as a reason to allow the State to re-prosecute [him].” Id. at 523. “Consent need

not be expressed, but may be implied from the totality of circumstances attendant to

a declaration of mistrial.” Id. (quoting Torres v. State, 614 S.W.2d 436, 441 (Tex.

Crim. App. 1981)).

        A necessary precondition for finding implied consent to a court’s sua sponte

declaration of a mistrial is that the defendant had an adequate opportunity to object.

See id. (“Before a court may determine that the defendant impliedly consented to the

mistrial, the record must show that [he] was ‘given an adequate opportunity to

object.’”) (quoting Torres, 614 S.W.2d at 441–42). But, because courts are to

consider the totality of the circumstances, the failure to object to a mistrial despite


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being provided an adequate opportunity to object does not, by itself, demonstrate

implied consent. “To find consent based solely on the lack of an objection would be

to improperly emphasize one ‘circumstance’ above all others.” Id. at 523.

      The Texas Court of Criminal Appeals has discussed the respective burdens in

litigating consent-based double-jeopardy issues. Id. at 524. The initial burden is on

the defendant to establish that he “was tried for the same offense after a mistrial.”

Id. “Once the defendant makes this initial showing, the burden shifts to the State ‘to

prove that appellant consented to’ the order terminating [his] first trial.” Id. (quoting

McClendon v. State, 583 S.W.2d 777, 780–81 (Tex. Crim. App. 1979)). Although

consent may be implied from the totality of the circumstances, it must nevertheless

be supported by record-based evidence. Id. at 519, 524. It is not the defendant’s

burden to show that, although he did not request the mistrial, neither did he consent

to it. Id. Furthermore, “a silent record is, almost by definition, a lack of evidence to

support either position; and a lack of evidence is held against the party bearing the

burden on a particular issue.” Id. at 526.

                                       Analysis

      It is undisputed that Trimble met his initial burden of establishing that he is

being tried for the same offense after the mistrial. The burden thus shifted to the

State to demonstrate that Trimble consented to the mistrial. There also is no dispute

that express consent to mistrial was not given by Trimble. Rather, in opposing the


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habeas application, the State asserted that Trimble gave implied consent to the

mistrial because “[a]t no point did defense counsel ever object or make any

complaint with respect to the court’s suggestion of granting a mistrial or after the

court granted a mistrial.” Although stated with varying degrees of nuance, each of

the State’s arguments is based upon the lack of any objection or opposition by

defense counsel. But the failure to object or otherwise voice opposition to the trial

court’s sua sponte declaration of a mistrial, by itself, is insufficient to meet the

State’s burden of demonstrating implied consent. See id. at 522. As discussed below,

the Court of Criminal Appeals’ decision in Garrels is controlling and instructive in

our concluding that the State failed to meet its burden of demonstrating implied

consent in this case.

      In Garrels, a DWI defendant objected to the State’s offering testimony from

an officer who the State failed to timely designate as a potential expert witness. 559

S.W.3d at 520. The State requested a continuance and the defense requested that the

court strike the officer’s testimony. Id. Instead, the trial court sua sponte granted a

mistrial. Id. at 520–21. The State objected to the court’s granting of mistrial and the

defense did not. Id. at 521. When the State sought to re-try the defendant for DWI,

she filed a pre-trial application for writ of habeas corpus claiming that Double

Jeopardy barred the prosecution. Id. The State asserted that prosecution was not




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barred because the defendant gave implied consent to the mistrial by not objecting.

Id.

       The trial court denied the application in Garrels primarily on the basis of

finding manifest necessity but also noted that the defense did not object to the

mistrial, which might be construed as finding that the defendant impliedly consented

to the mistrial. Id. The court of appeals subsequently affirmed on the basis that the

defendant impliedly consented to retrial by failing to object when the trial court

declared a mistrial. Id. The appellate court declined to decide whether the mistrial

was supported by manifest necessity. Id. The Court of Criminal Appeals granted

discretionary review to address the sole ground defendant raised before the court:

whether “a defendant who did not object to a trial court’s declaration of mistrial,

despite an adequate opportunity to do so, impliedly consented to the mistrial.” Id. at

522.

       The State argued in Garrels, as it does here with respect to Trimble, that the

defendant impliedly consented to mistrial by failing to object. Indeed, the State’s

arguments that Trimble implied consented are nearly identical to the arguments

described by the Court of Criminal Appeals in Garrels:

       [A]t the hearing on Garrels’s pretrial application, it was the State's
       burden either to identify some record-based indication that Garrels had
       impliedly consented to the trial court’s mistrial order, or else to
       introduce evidence to that effect. But the only fact that the State
       marshaled in support of the conclusion that Garrels had impliedly
       consented to the mistrial was the lack of an objection on the record: “I
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      think based on the case law we cited in our answer, in the absence of
      [an] objection on the record [when] given an adequate opportunity to
      do so ... [i]t’s deemed that the defense [ha]s impliedly consented to the
      mistrial.” In its brief on direct appeal, the State made this same point
      again, this time adding the nuance that “the appellant stood by silently
      during a lengthy discussion with the State regarding whether a mistrial
      should be declared.” Finally, in its brief before this Court, the State
      argues that “the record supports the conclusion that the appellant did
      not oppose the mistrial,” largely because of Garrels’s “inaction.”

Id. at 525–26. In rejecting these arguments based solely on a lack of opposition by

the defendant to mistrial, the Court of Criminal Appeals explained:

      But, as was noted in oral argument, the question is not whether Garrels
      did enough to “oppose” the mistrial—it is whether the State carried its
      burden to show that she in fact “consented” to it. And in each of these
      instances, the State has pointed to a silent record in support of a point
      upon which it carried the burden. A silent record is, almost by
      definition, a lack of evidence to support either position; and a lack of
      evidence is held against the party bearing the burden on a particular
      issue. So, even viewing the record with the appropriate deference
      towards the trial court’s ruling, there is simply no record-based
      evidence upon which the trial court might reasonably conclude that
      Garrels consented to the mistrial.
Id. at 526. The court reversed the court of appeals’ judgment, concluding that “the

lack of record-based evidence affirmatively showing how [defendant] ‘impliedly’

consented to the mistrial defeats the State’s position.” Id. Following the Court of

Criminal Appeals’ decision in Garrels, we similarly conclude that the State failed to

meet its burden of demonstrating that Trimble impliedly consented to mistrial solely

based upon his failure to object or voice opposition.




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      The State’s opposition to Trimble’s habeas application attempts to distinguish

this case from Garrels by asserting that (1) “in the instant case, the trial court put the

parties on notice that it was considering two possibilities: a continuance or a

mistrial;” and (2) “the court’s mistrial discussion referred to getting a ‘new jury’ and

requested for the parties input before it made its decision – a significant courtesy

that the trial judge in Garrels did not provide.” These arguments, however, fail to

distinguish this case from Garrels because, regardless of any additional notice and

opportunity to voice opposition provided to Trimble’s defense counsel, the State’s

assertion of implied consent is still based solely upon defense counsel’s not objecting

to a mistrial. As in Garrels, it is undisputed—for the reasons mentioned by the

State—that Trimble’s defense counsel had an adequate opportunity to object. But,

also as in Garrels, the issue in this case is not the adequacy of the defense’s

opportunity to object—the issue is whether, despite having an adequate opportunity

to object, the failure to object is sufficient to meet the State’s burden of

demonstrating implied consent. See id. at 525–26. The Court of Criminal Appeals

has held that it is not. Accordingly, Garrels controls our decision in this case.

      For the reasons explained in Garrels, the State failed to meet its burden of

demonstrating that, under the totality of the circumstances, Trimble impliedly

consented to a mistrial solely by failing to object or voice opposition. The record

contains no affirmative evidence upon which the trial court might reasonably


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conclude that Trimble impliedly consented to the mistrial. See id. at 526. Instead,

the record demonstrates that Trimble only requested a continuance. See id. (noting

that failure to object to mistrial was “not particularly probative” where defendant

“only ever requested one form of relief on her discovery objection: to exclude the

officer’s testimony and, crucially, proceed with trial.”).

                                     Conclusion

      For the foregoing reasons, we conclude that Trimble has met his burden of

demonstrating that the trial court abused its discretion in denying habeas relief.

Accordingly, we reverse the order of the trial court denying Trimble’s application

for a writ of habeas corpus and order the indictment dismissed. We remand the case

to the trial court for further proceedings consistent with this opinion.



                                                Gordon Goodman
                                                Justice


Panel consists of Chief Justice Radack and Justices Kelly and Goodman.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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