                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-14-00369-CR

                          EX PARTE BILLY JOE BOOKER



                            From the 413th District Court
                               Johnson County, Texas
                               Trial Court No. F48257


                           MEMORANDUM OPINION


        After his conviction for the offense of driving while intoxicated, Billy Joe Booker

filed an application for writ of habeas corpus. The trial court held an evidentiary

hearing and denied the application for writ of habeas corpus. Booker appeals from the

trial court’s order denying his application for writ of habeas corpus. We affirm.

                                    Background Facts

        Booker was charged with the offense of driving while intoxicated third offense or

more.    The indictment also alleged two prior felony convictions for enhancement

purposes. The jury convicted Booker of the offense of driving while intoxicated third

offense or more. During the punishment phase of the trial, Booker pleaded not true to
the two enhancement allegations. The State called a fingerprint expert to prove the

prior convictions alleged in the indictment. Michael Owens, with the Burleson Police

Department, testified that the fingerprints he took from Booker matched those

contained in the “pen packets” for Booker’s prior convictions. The “pen packets” were

admitted as evidence and contained judgments of conviction in two prior felony

offenses.

       During closing arguments, defense counsel stated to the jury that the prior

convictions were not final and could not be considered for enhancement because there

was no showing that the convictions were not appealed. The State objected to the

argument, and the trial court instructed that the State would be able to respond during

its final argument.

       During deliberations on punishment, the jury sent out a total of six notes. The

notes indicated that there was confusion and disagreement over whether the prior

convictions were final convictions for enhancement purposes. The second note from

the jury asked:

       What is considered a final conviction? I.E., is serving time in prison
       enough or is (sic)other steps needed? What does final mean?

The trial court responded that it was unable to answer the question presented and

instructed the jurors to continue deliberations.

       The jury later sent a third note that stated:

       We are unable to compromise or reach a unanimous decision on number
       of years. Majority agrees previous felonies are final. Any suggestions?




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The trial court responded to continue deliberations. The jury then sent a fourth note

that said, “If you have waived a right to a jury trial, have you also waived your right to

appeal?” The trial court instructed the jury that it was not permitted to answer the

questions presented and instructed the jury to continue deliberations. The jury sent a

fifth note at 3:46 p.m. that said, “We are hopelessly deadlocked.”              The trial court

instructed the jury to continue deliberations until 4:30 p.m. and if there was not a

verdict at that time, the trial court would recess and reconvene at 9:00 a.m. Monday

morning for further deliberations.

          Finally, the jury sent a sixth note that asked:

          Can you speak to a juror individually or to us again? One juror doesn’t or
          isn’t able to make a decision based on the evidence.

The trial court discussed the issue with Booker’s trial counsel and the State. The trial

court noted that the jury appeared to be deadlocked and that they are “hung up” on the

finality of the enhancements.               Booker indicated that he did not want to declare a

mistrial and he requested that the trial court give an “Allen” charge1 to the jury and

reconvene on Monday. The trial court noted that there were no signs of progress in the

deliberations and that while in the hallway he heard jurors yelling and slamming doors.

The trial court declared a mistrial and dismissed the jury over Booker’s objection.

                                               Double Jeopardy

          In his sole issue on appeal, Booker argues that the trial court erred in denying his

application for writ of habeas corpus based on a claim of double jeopardy. An appellate



1   Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

Ex parte Booker                                                                          Page 3
court reviewing a trial court's ruling on a habeas claim must review the record evidence

in the light most favorable to the trial court's ruling and must uphold that ruling absent

an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.), cert. denied,

549 U.S. 1052, 127 S.Ct. 667, 166 L.Ed.2d 514 (2006); Ex parte Graves, 271 S.W.3d 801, 803

(Tex.App.-Waco 2008), cert. den’d, 558 U.S. 902, 130 S. Ct. 261, 175 L. Ed. 2d 176, 2009.

        Double jeopardy protects against: (1) a second prosecution for the same offense

after acquittal; (2) a second prosecution for the same offense after conviction; and (3)

multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 695-96,

113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556 (1993); Ellis v. State, 99 S.W.3d 783, 786

(Tex.App.-Houston [1st Dist.] 2003, pet. ref’d). The Texas Code of Criminal Procedure

provides:

               (c) If the jury finds the defendant guilty and the matter of
        punishment is referred to the jury, the verdict shall not be complete until a
        jury verdict has been rendered on both the guilt or innocence of the
        defendant and the amount of punishment. In the event the jury shall fail
        to agree on the issue of punishment, a mistrial shall be declared only in
        the punishment phase of the trial, the jury shall be discharged, and no
        jeopardy shall attach. The court shall impanel another jury as soon as
        practicable to determine the issue of punishment.

TEX. CODE CRIM PRO. ANN. ART. 37.07 Sec. (3) (c) (West Supp. 2014). A mistrial declared

after a trial judge has determined that the jury cannot agree upon a verdict does not

terminate the original jeopardy to which the defendant was subjected and, therefore,

does not result in double jeopardy.2 Ellis v. State, 99 S.W.3d at 787.



2Booker contends that manifest necessity was required to discharge the jury without his consent. A
defendant may be tried for an offense a second time without violating double-jeopardy principles if the
prosecution ends prematurely as the result of a mistrial: 1) if the defendant consents to the mistrial; or 2)

Ex parte Booker                                                                                       Page 4
        The length of time the jury may be held for deliberation rests in the discretion of

the trial judge. Ellis v. State, 99 S.W.3d at 787. Whether the court abused its discretion

is determined by the amount of time the jury deliberates in light of the nature of the

case and the evidence. Id. Whether it is improbable the jury would render a verdict

may also be evidenced by how long the jury was deadlocked and whether the margin of

disagreement had changed during the course of deliberations. Id.

        The record shows that the jury deliberated for five hours and twelve minutes.

During that time, the jury sent out several notes indicating their confusion on whether

the prior convictions were final for enhancement purposes. The series of notes from the

jury suggests that no progress had been made or was likely to be made. The trial court

noted that the jurors were arguing with each other and that it was not “productive”.

The trial court did not abuse its discretion in determining that the jury could not agree

upon a verdict. See Ellis v. State, 99 S.W.3d at 787. We find that there was no violation

of Booker’s right against double jeopardy. We further find that the trial court did not

abuse its discretion in denying Booker’s application for writ of habeas corpus. We

overrule the sole issue on appeal.

                                             Conclusion

        We affirm the trial court’s judgment denying Booker’s application for writ of

habeas corpus.



there was manifest necessity to grant the mistrial. Ex Parte Garza, 337 S.W.3d 903 (Tex. Crim. App. 2011).
However, TEX. CODE CRIM PRO. ANN. ART. 37.07 Sec. (3) (c) (West Supp. 2014) provides that a mistrial
shall be declared when the jury fails to agree on punishment and that jeopardy does not attach.
Therefore, manifest necessity is not applicable.

Ex parte Booker                                                                                    Page 5
                                       AL SCOGGINS
                                       Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 12, 2015
[CR 25]




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