                                   IN THE
                           TENTH COURT OF APPEALS

                                 No. 10-13-00233-CR

                          EX PARTE JOHN RAY FALK, JR.



                           From the 272nd District Court
                                Brazos County, Texas
                          Trial Court No. 13-001409-CV-272


                                      OPINION

      John Ray Falk, Jr., asserting five issues, appeals the trial court’s denial of relief on

his pretrial application for writ of habeas corpus and plea in bar brought to avoid retrial

for capital murder. We will affirm.

                                       Background

      Falk is under indictment and awaiting retrial for the prison-escape-related capital

murder of Susan Canfield, a correctional officer. The factual background of the alleged

offense is set forth in our and the Court of Criminal Appeals’ mandamus opinions. In re

State ex rel. Weeks, 392 S.W.3d 280, 283 (Tex. App.—Waco 2012, orig. proceeding) (Weeks

I); In re State ex rel. Weeks, 391 S.W.3d 117, 119-20 (Tex. Crim. App. 2013) (orig.

proceeding) (Weeks II).
        On December 3, 2012, the State sought a stay of Falk’s first trial at the jury-charge

portion of the trial’s guilt-innocence phase, and on December 4, we ordered a stay of the

trial. Weeks I, 392 S.W.3d at 283. On December 12, in an opinion ultimately denying

mandamus relief for the State, we addressed the State’s complaints about the trial

judge’s proposed charge. Id. at 287, 289. The State then sought mandamus relief on the

charge issues in the Court of Criminal Appeals, which conditionally granted relief and

ordered us to grant mandamus relief for the State in an opinion dated January 16, 2013.

Weeks II, 391 S.W.3d at 126. We complied by issuing a January 18 order. In re State ex

rel. Weeks, 392 S.W.3d 339 (Tex. App.—Waco 2012, orig. proceeding) (order) (Weeks III).

        On January 28, fifty-five days after our stay, the trial judge reconvened the jury

and sua sponte ordered a mistrial on the ground of manifest necessity. The trial judge

read his prepared and signed order to the jury and then expressed to the jury his

personal views about some aspects of the case. After he finished his comments and

reiterated the mistrial, the State objected to the mistrial and suggested that the trial

judge recuse himself. Falk did not object to the mistrial1 or make any response to the

trial judge’s actions.

        The trial judge subsequently recused himself, and the Honorable John Delaney

was assigned to preside over the case. Falk then filed his habeas application to bar

retrial. He alleged two Double Jeopardy grounds: (1) the sua sponte mistrial was

ordered without manifest necessity; and (2) the original trial judge’s decision that


1
 Just before the trial judge brought the jury in, Falk had argued for a directed verdict and had also stated:
“Furthermore, we believe that the State’s attorney has done things in this case to goad us into a mistrial
that we do not want.”

Ex parte Falk                                                                                         Page 2
insufficient evidence existed to warrant the submission of a law-of-parties instruction

was an acquittal. Falk also alleged that the two mandamus proceedings initiated by the

State violated Falk’s due-process rights and that the exercise of mandamus jurisdiction

by the Court of Criminal Appeals violated the separation of powers of the Texas

Constitution and also violated state and federal guarantees of due process, equal

protection, and open courts. The habeas trial court denied Falk’s request for habeas

relief, and this appeal followed.

                                    Standard of Review

               We review the trial court’s denial of a habeas corpus application for
        an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
        App. 2006). … We review “the record evidence in the light most favorable
        to the trial court’s ruling and [we] must uphold that ruling absent an
        abuse of discretion.” Id.

Ex parte Rodriguez, 378 S.W.3d 486, 489 (Tex. App.—San Antonio 2012, pet. ref’d); see also

Ex parte Graves, 271 S.W.3d 801, 803 (Tex. App.—Waco 2008, pet. ref’d), cert. denied, 130

S.Ct. 261 (2009).

        [I]n reviewing the trial judge’s decision to grant or deny double jeopardy
        relief by way of habeas corpus, the standard of review is not static and it
        must vary depending on the cause of the mistrial. See Arizona v.
        Washington, 434 U.S. 497, 507-508, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978);
        Cherry v. Dir., State Bd. of Corr., 635 F.2d 414, 418-19 n.6 (5th Cir. 1981)
        (recognizing that the standard of review can vary from the “highest
        degree of respect” to the “strictest scrutiny” depending on the reason for
        the mistrial). At one end of the spectrum, broad deference is appropriate
        because the trial judge is in the best position to assess the relevant
        considerations. Washington, 434 U.S. at 513-14, 98 S.Ct. 824 (broad
        discretion appropriate where mistrial necessitated by a need to prevent
        jury-bias); Ex parte McMillian, No. 05-11-00642-CR, 2011 WL 3795727, at *2-
        3, 2011 Tex. App. LEXIS 6912, at *6 (Tex. App.—Dallas Aug. 29, 2011, pet.
        ref’d) (broad discretion appropriate where mistrial involved potentially
        deadlocked jury). At the other end of the spectrum, strict scrutiny is

Ex parte Falk                                                                          Page 3
        appropriate when the basis of the mistrial is the unavailability of critical
        prosecution evidence. Washington, 434 U.S. at 508, 98 S.Ct. 824. Therefore,
        part of our task is to determine the correct standard of review by
        identifying the cause of the mistrial. United States v. Fisher, 624 F.3d 713,
        719 (5th Cir. 2010).

Ex parte Rodriguez, 366 S.W.3d 291, 296 (Tex. App.—Amarillo 2012, pet. ref’d).

                                Findings and Conclusions

        We begin with Falk’s fifth issue, which argues that the habeas trial court

committed reversible error by refusing to make requested findings of fact and

conclusions of law on the denial of Falk’s habeas application. Before submission, Falk

made the same argument by motion, which we denied.

        While a trial court’s findings and conclusions are helpful in a habeas proceeding,

they are “not legally required.” Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App.

2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App.

2007). Because no error was committed, we overrule issue five.

                                    Manifest Necessity

        In his first issue, Falk contends that manifest necessity did not exist to allow the

sua sponte mistrial and that he did not give implied consent to the mistrial.

        In cases tried before a jury, a defendant is placed in jeopardy when the
        jury is empaneled and sworn, and “because jeopardy attaches before the
        judgment becomes final, the constitutional protection also embraces the
        defendant’s ‘valued right to have his trial completed by a particular
        tribunal.’” Arizona v. Washington, 434 U.S. 497, 504 (1978) (quoting Wade v.
        Hunter, 336 U.S. 684, 689 (1949)); see Hill, 90 S.W.3d at 314. Despite the
        general prohibition against jeopardy-barred trials, there are two
        exceptions when a criminal defendant may be tried a second time without
        violating double-jeopardy principles if the prosecution ends prematurely
        as the result of a mistrial: (1) if the criminal defendant consents to retrial
        or (2) there was a manifest necessity to grant a mistrial. Ex parte Garza, 337

Ex parte Falk                                                                            Page 4
        S.W.3d 903, 909 (Tex. Crim. App. 2011); see Washington, 434 U.S. at 505–06.
        These exceptions are recognized because valid reasons exist for a jury to
        be discharged before the conclusion of a trial and not all of those reasons
        “invariably create unfairness to the accused[.]” Thus, a defendant’s right
        to have his trial conducted by a particular tribunal “is sometimes
        subordinate to the public interest in affording the prosecutor one full and
        fair opportunity to present his evidence to an impartial jury.” Washington,
        434 U.S. at 505.

               To prevail in a double-jeopardy claim, a criminal defendant must
        first show that he or she is being tried for the same offense for which the
        mistrial was declared over the defendant’s objection. The burden then
        shifts to the State to demonstrate a “manifest necessity” (also referred to as
        a “high degree” of necessity) for the mistrial. A trial court’s decision to
        declare a mistrial is limited to the inquiry of if there was a “manifest
        necessity” to grant a mistrial. See Garza, 337 S.W.3d at 909. We have
        stated that a trial court abuses its discretion if it declares a mistrial
        “without first considering the availability of less drastic alternatives and
        reasonably ruling them out[,]” although the basis for the mistrial need not
        be expressly articulated in the record. Id. And the Supreme Court has
        stated that “the overriding interest in the evenhanded administration of
        justice requires that we accord the highest degree of respect to the trial
        judge’s evaluation of the likelihood that the impartiality of one or more
        jurors may have been affected by the improper comment.” Washington,
        434 U.S. at 511. As an appellate court, it is our function to review the
        record and determine if the trial judge exercised “sound discretion” when
        granting a mistrial. Id. at 514.

Pierson v. State, 426 S.W.3d 763, 769-70 (Tex. Crim. App. 2014).

               In evaluating manifest necessity, a reviewing court must consider
        the nature of the case, its procedural posture, the cause of the mistrial, the
        interests of the parties, the availability of less drastic alternatives, and the
        ends of public justice. The classic formulation of the test for manifest
        necessity was penned by United States Supreme Court Justice Joseph
        Story in United States v. Perez, 22 U.S. 579, 580, 6 L.Ed. 165, 9 Wheat. 579
        (1824) as follows:

           [w]e think, that in all cases of this nature, the law has invested
           Courts of justice with authority to discharge a jury for giving any
           verdict, whenever, in their opinion, taking all circumstances into
           consideration, there is a manifest necessity for the act, or the ends of
           public justice would otherwise be defeated. They are to exercise a

Ex parte Falk                                                                              Page 5
           sound discretion on the subject; and it is impossible to define all the
           circumstances, which would render it proper to interfere. To be
           sure, the power ought to be used with the greatest of caution, under
           urgent circumstances, and for very plain and obvious causes... . But,
           after all, they have the right to order the discharge; and the security
           which the public have for the faithful, sound, and conscientious
           exercise of discretion, rests, in this, as in other cases, upon the
           responsibility of the Judges, under their oaths of office.

                Manifest necessity exists only in very extraordinary and striking
        circumstances demonstrating a high degree of necessity that the trial come
        to a premature end. Washington, 434 U.S. at 505-06, 98 S.Ct. 824; Ex parte
        Fierro, 79 S.W.3d 54, 56 (Tex. Crim. App. 2002); Brown v. State, 907 S.W.2d
        835, 839 (Tex. Crim. App. 1995). The circumstances must (1) render it
        impossible to arrive at a fair verdict before the initial tribunal, (2) render it
        impossible to continue the trial, or (3) involve trial error that would
        trigger an automatic reversal on appeal if a verdict was returned. Ex parte
        Garza, 337 S.W.3d at 909.

                Manifest necessity is not a standard that can be applied
        mechanically or without attention to the particular problem confronting
        the trial court. In reviewing a trial court’s determination of manifest
        necessity, we apply a dynamic abuse of discretion standard depending on
        the cause of the mistrial. Fisher, 624 F.3d at 719. A trial court’s decision to
        declare a mistrial is a matter committed to the trial court’s broad
        discretion and such a decision should be accorded great deference on
        appeal. See Washington, 434 U.S. at 509-10, 98 S.Ct. 824. A trial court
        abuses its discretion, however, whenever it declares a mistrial without
        first considering the availability of less drastic alternatives and reasonably
        ruling them out. Ex parte Garza, 337 S.W.3d at 909. The record need not
        contain the trial court’s reasoning for declaring the mistrial so long as the
        manifest necessity is apparent from the record. Id. at 909-10.

Rodriguez, 366 S.W.3d at 296-97.

        The trial judge’s January 28, 2013 mistrial order reads:

                A 55 day interruption of this Capital Murder trial by the 10 th Court
        of Appeals and the Court of Criminal Appeals, constitutes a manifest
        necessity for the declaration of a mistrial. The ends of public justice and
        justice for the parties cannot be furthered by a continuation of a trial so
        interrupted. Asking jurors to return a fair and impartial verdict after such
        a delay in a complicated case such as this, places an unconscionable and

Ex parte Falk                                                                               Page 6
        impossible burden on them. The court finds there is no adequate
        alternative to remedy the delay in the progression of this trial other than
        the declaration of a mistrial.

        Before the granting of the mistrial, the trial court proceedings resumed on

Friday, January 25. In addition to both sides’ continuing arguments and objections to

the charge, the trial judge and the parties addressed Falk’s motion for directed verdict,

motion in limine, and request to interview jurors.

        The trial judge expressed concern over what to tell the jury after the fifty-five-

day delay, and with there being twenty-four witnesses, he was also concerned with

how well the jury would be able to remember the trial testimony after the lengthy

delay. The trial judge was skeptical of the State’s proposal of extra time for closing

argument so they could spend more time reviewing the trial testimony for the jury to

refresh the jurors’ memories; at several times during argument on Falk’s motion for

directed verdict, there was substantial argument and disagreement over the testimony

of certain witnesses. Falk noted that extra time “will just turn into a contest of who

remembers the facts better.” The following colloquy then occurred:

        THE COURT: You don’t agree on what the witnesses said.

        [PROSECUTOR]: My theory, Your Honor, was that if we put a little time
        in up front it might save a little on the back.

        THE COURT: I think argument will be a nightmare. There has been some
        misquotes from the record already here today. And if you get up there
        and try to review this in front of the jury and she objects or he objects that
        is outside the record - -

        [PROSECUTOR]: Your Honor, that happens in every closing argument.
        We disagree on what a witness says.


Ex parte Falk                                                                            Page 7
        THE COURT: Yes. But usually it is less than fifty-six days ago.

        In the motion in limine, Falk asserted:                “If the State of Texas through its

prosecutors is allowed to mention this interlocutory appellate process or any alleged

action they took against the trial court, Defendant will be harmed and prejudiced

thereby.”2 The State did not oppose the motion, and the trial judge stated, “They

probably all read about it in the Bryan Eagle by now.”

        In his motion to interview jurors, Falk asserted that because he was entitled to a

fair and impartial jury, the trial judge should interview on the record each juror in

camera and individually to determine whether the jury had complied with the court’s

instructions and has not been tainted during the delay. Falk requested that each juror

be asked: (1) During the stay of these proceedings have you read, viewed or heard any

information about this case? (2) If so, what information have you read, viewed, or

heard? (3) Has that information influenced you in any way? and, or (4) Can you follow

the court’s instructions and only make your decision in this case based solely on

evidence entered in the courtroom and hold the state to their burden of proof? The

State did not disagree with Falk’s request.

        In the hearing, Falk argued that these questions could help “determine whether

or not this panel can still sit.” The trial judge expressed concern about asking the jurors

2
  When we stayed proceedings in the trial court on December 4, the trial judge told the jury that the State
had occasioned the stay and thus the delay in the trial: “I hate to tell you this but the State has filed an
application for a stay of these proceedings. And the Court of Appeals has set an argument on their
motion for tomorrow afternoon at 2:00 o’clock. So I have no alternative but to stay these proceedings
until the outcome of that. … I do apologize for this … and I do regret that this has happened.” In his
habeas application, Falk asserted that the jury would thus hold the delay against the State: “Defendant
had every reason to believe the delay would be held against the State by the jury as the Trial Judge had
informed them at the time of recess that the stay was a result of a State filing.”

Ex parte Falk                                                                                        Page 8
if they “confess or admit to doing things” that he had ordered them not to do and said

that he was reluctant to “have any conversation with a juror;” “I really don’t like to do

that.” He also explained that it puts a judge “in a funny situation when you send him

in there to interview jurors by himself.”      And finally, he suggested that if he did

interview the jurors, he should also ask them if “they have enough memory of what

was said during this case” to “reach a true verdict.”

        Plainly, both sides and the trial judge were concerned with potential juror bias

occasioned by the delay, and the trial judge was even more concerned about the delay’s

effect on the jury’s ability to recall the trial testimony to be able to return a fair and

impartial verdict in a case in which the State was seeking the death penalty. Also, the

trial judge considered but ruled out less drastic alternatives such as allowing for longer

closing argument and interviewing the jury.

        In this extraordinary situation, we give “great deference” to the trial judge. See

Pierson, 426 S.W.3d at 773 (noting “great deference should be accorded to the ruling of a

court granting a mistrial [when it] turned on the trial judge’s unique ability to evaluate

whether the complained of action biased the jury”) (citing Washington, 434 U.S. at 512-

13).

        There are compelling institutional considerations militating in favor of
        appellate deference to the trial judge’s evaluation of the significance of
        possible juror bias. He has seen and heard the jurors during their voir
        dire examination. He is the judge most familiar with the evidence and the
        background of the case on trial. He has listened to the tone of the
        argument as it was delivered and has observed the apparent reaction of
        the jurors. In short, he is far more “conversant with the factors relevant to
        the determination” than any reviewing court can possibly be.


Ex parte Falk                                                                           Page 9
Id. at 773-74 (quoting Washington) (emphasis added in Pierson).

        According great deference to the trial judge’s determination that the

extraordinary and unprecedented fifty-five day delay and the potential for juror bias

warranted a mistrial on the basis of manifest necessity, we conclude that the habeas trial

court did not abuse its discretion in denying Falk relief on the ground that manifest

necessity did not exist. Having so concluded, we need not address Falk’s no-implied-

consent argument, and we overrule issue one.

                               Acquittal or Final Resolution

        In issue two, Falk contends that the trial judge acquitted him on the State’s

section 7.02(a)(2) theory of party liability and that Double Jeopardy thus bars retrial on

that theory. See Weeks I, 392 S.W.3d at 286-87. After the State rested in Falk’s trial, Falk

orally moved for a directed verdict on several grounds, during which Falk argued as

follows:

        The State is not entitled to a jury charge under the parties theory. They
        are not entitled to 7.02(a) because there is no evidence that John Falk aided
        and abetted and solicited and encouraged Jerry Martin to drive the truck
        into the horse that Susan Canfield was riding. There is no credible
        evidence that a reasonable juror could believe beyond a reasonable doubt
        that John Falk did anything to encourage Jerry Martin to make that action
        that ultimately caused her death.

Before the State responded, the trial judge commented:

        … under 7.02 parties, 7.02(a)(2), I do not see any evidence where he - - this
        is talking about John Falk, Jr. This is the aiding, abetting part of the
        driving the vehicle into Canfield or her horse. I don’t see any evidence
        where he solicited, encouraged it, directs it, aids it, or attempts to aid the
        other person to commit the offense of driving the vehicle into the horse or
        her. So I don’t think you can go under 7.02(a)(2) of the parties statute.


Ex parte Falk                                                                            Page 10
               The evidence, as I recall it, particularly from Mr. Isaacs - - and there
        was another witness who was under the shed, I can’t remember his name,
        but they testified, as I recall, that Mr. Falk had already gotten the rifle and
        that he was on down the road at the time of the collision of this vehicle
        and Mrs. Canfield, okay?

        Thereafter, the parties argued charge issues on escape and conspiracy, and in the

midst of those arguments and despite the trial judge’s initial statements, the State

interjected further argument on the law of parties:

        [PROSECUTOR]: Your Honor, the killing came out of the two of them
        working together. I mean, we have them going to Jeffcoat together, we
        have Falk coming behind Jeffcoat pushing him off, Martin getting the gun,
        Martin - -

        THE COURT: They didn’t kill Jeffcoat.

        [PROSECUTOR]: Martin getting the gun and throwing it to Falk. Then
        they go through the fence, one after the other. There is some testimony
        that Falk started in the direction of that building and then turned to meet
        Officer Canfield. His engagement of Officer Canfield enabled Martin to
        get to that vehicle. Without him there then Canfield would have had free
        reign to go to that vehicle. So I think 7.02(a) and (b) both apply because he
        is working to assist him to get to the vehicle. Without Falk’s actions
        Martin - -

        THE COURT: You’re ignoring the evidence where he was already away
        from her. He was walking on down the road.

        [PROSECUTOR]: Nobody says he was walking down the road.

        THE COURT: Oh, yes, Mr. Isaac did. He was running - -

        [PROSECUTOR]: When the truck [sic] got hit everybody said it was a
        bang-bang thing. He gets the gun, comes out with it and moves away
        from the horse as the horse gets hit. That he was in the immediate area of
        the horse.

        THE COURT: I guess you didn’t hear Mr. Isaac and the guy that was in
        the shed.


Ex parte Falk                                                                             Page 11
        [PROSECUTOR]: Mr. Isaac did not see when the horse got hit, if the
        Court recalls. Mr. Wilson said that he was right there.

        [DEFENSE COUNSEL]: No, he didn’t. There is one guy that said that and
        that is it. That was it.

        THE COURT: If Mr. Falk was still there at the horse I would like to know
        why the vehicle didn’t hit him. Why did the vehicle not hit Falk.

        [PROSECUTOR]: Because he moved out of the way enough, he moved to
        the side enough that he didn’t get hit. Both Grissom and Jeffcoat said he
        was right there when - -

        [DEFENSE COUNSEL]: No, they didn’t. Jeffcoat says he is twenty feet
        away and Mr. Grissom said he couldn’t see them, that he wasn’t near the
        horse. He was somewhere behind it, couldn’t see it.

        [PROSECUTOR]: And he was - - they were struggling together which
        kept her again from going after Martin and gave him free reign. Any
        reasonable jury - -

        At that point, the trial judge switched topics and again began discussing escape

and conspiracy. Without explicitly ruling on Falk’s motion for directed verdict on

section 7.02(a)(2) party liability, the trial judge then recessed for lunch.        Upon

reconvening, the trial judge still made no explicit ruling.

        After putting on one witness, the defense rested.      Falk orally moved for a

directed verdict on additional grounds, and the trial judge explicitly denied the motion.

After another recess, the trial judged asked for any objections to the proposed charge.

The State objected to the lack of inclusion of an instruction under section 7.02(a)(2) and

to the proposed application paragraph on conspiracy. The trial judge overruled the

State’s objections, and the State then informed the trial judge that it was going to seek

mandamus relief and an emergency stay.


Ex parte Falk                                                                       Page 12
        On the next day, we stayed the trial. After the mandamus proceeding in the

Court of Criminal Appeals was concluded, in Weeks III we issued an order conditionally

granting mandamus relief for the State. Weeks III, 392 S.W.3d 339. Thereafter, Falk filed

a written motion for directed verdict that, among other things, sought a partial directed

verdict on the State’s section 7.02(a)(2) party theory of capital murder. In arguing the

motion for directed verdict before the trial judge declared the mistrial, Falk argued in

part: “And we also request a directed verdict based on the 7.02(a) parties Charge which

the Court has already found was insufficient in response to our first request on directed

verdict.” The following colloquy then occurred:

        [DEFENSE COUNSEL]: Your Honor, can I get a ruling?

        THE COURT: Beg your pardon?

        [DEFENSE COUNSEL]: Can I get a ruling? I have to have a ruling, Your
        Honor, on the record.

        THE COURT: Okay, denied.

        [DEFENSE COUNSEL]: As to all my requests? Did you say to all of them,
        Your Honor?

        THE COURT: Yes. …

        Falk contends that the trial judge’s initial comments on the evidence pertaining

to Falk’s criminal responsibility under section 7.02(a)(2) were an acquittal on that theory

of party liability. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). Falk relies on

Evans v. Michigan:

        [O]ur cases have defined an acquittal to encompass any ruling that the
        prosecution’s proof is insufficient to establish criminal liability for an
        offense. Thus an “acquittal” includes “a ruling by the court that the

Ex parte Falk                                                                        Page 13
        evidence is insufficient to convict,” a “factual finding [that] necessarily
        establish[es] the criminal defendant’s lack of criminal culpability,” and
        any other “rulin[g] which relate[s] to the ultimate question of guilt or
        innocence.”

Evans v. Michigan, 133 S.Ct. 1069, 1074-75 (2013) (citations omitted).

        For several reasons, we disagree that the trial judge’s initial comments were an

acquittal on the State’s section 7.02(a)(2) theory of party liability. First, in the context of

Falk’s argument on his original motion for directed verdict, the trial court never ruled,

explicitly or otherwise, that the motion was granted on the State’s section 7.02(a)(2)

theory of party liability. Cf. Ex parte Crenshaw, 25 S.W.3d 761, 763 (Tex. App.—Houston

[1st Dist.] 2000, pet. ref’d) (trial court granted defense motion for directed verdict on

State’s .10 theory of DWI). Rather, the record reflects continuing debate and argument

on that theory after the trial judge’s initial comments without a ruling. That the trial

judge never granted a directed verdict for Falk on the State’s section 7.02(a)(2) theory of

party liability is reflected by Falk’s filing a post-mandamus written motion for directed

verdict that sought a partial directed verdict on the State’s section 7.02(a)(2) theory of

party liability.3 The trial judge indisputably denied that motion in its entirety.

        Finally, we agree with the State that the trial judge’s actions—his initial

comments that he did not “see any evidence” to support a section 7.02(a)(2) jury

instruction and his overruling the State’s objection to the proposed charge’s exclusion of

an instruction under section 7.02(a)(2)—lacked the finality necessary to constitute an

3
  That the trial judge did not rule is also reflected by Falk’s statement to the trial judge when proceedings
reconvened on January 25: “[W]e had numerous issues before the Court on a directed verdict that were
not ruled on. And the Judge said he would rule on them the next day and they were never ruled on and
it’s our duty to make sure they get ruled on.” The trial judge agreed, stating: “I did tell you I would let
you know at 8:30 in the morning and 8:35 I received notice of the stay.”

Ex parte Falk                                                                                        Page 14
acquittal on the State’s section 7.02(a)(2) theory of party liability because there was no

final decision by the trial judge on the charge. See Blueford v. Arkansas, 132 S.Ct. 2044,

2050-51 (2012) (after jury foreperson reported jury had unanimously voted against

capital and first-degree murder but was told to continue deliberating on other charges,

defendant could be retried after mistrial because jury’s continued deliberations

deprived report of necessary finality); cf. Crenshaw, 25 S.W.3d at 766-67 (holding that,

while trial court’s directed verdict on “theory” of criminal liability was not cognizable,

State could not retry defendant on that theory because trial court took theory from jury

and it was “conceptually similar to an acquittal”). The trial judge could “revisit” his

preliminary decision. See Blueford, 132 S.Ct. at 2051 (noting that it was possible for jury

to revisit its prior vote because deliberations continued).

        The proposed charge was necessarily tentative; it “was not a final resolution of

anything.” Id. at 2050. We agree with the State that the parties had no expectation of

finality with the proposed charge until the trial judge actually read the charge “as

finally written” (TEX. CODE CRIM. PROC. ANN. art. 36.16 (West 2006)); the proposed

charge was subject to further objections by the parties and reconsideration by the trial

judge. See id. (“After the judge shall have received the objections to his main charge,

together with any special charges offered, he may make such changes in his main charge as

he may deem proper, and the defendant or his counsel shall have the opportunity to

present their objections thereto and in the same manner as is provided in Article 36.15,

and thereupon the judge shall read his charge to the jury as finally written”) (emphases

added). It is notable that, after we had ruled on the State’s mandamus petition but

Ex parte Falk                                                                       Page 15
before the Court of Criminal Appeals had ruled, Falk and the trial judge (who was

represented by his own counsel in the two mandamus proceedings) contended in the

Court of Criminal Appeals “that the State now has an adequate remedy at law because

Judge Keeling has agreed to reconsider his rulings [on the charge].”4 Weeks II, 391

S.W.3d at 123.

        In conclusion, because the trial judge’s initial comments and proposed charge

were not an acquittal or a final resolution of the charge issue on the State’s section

7.02(a)(2) theory of party liability, we overrule issue two.

                            Due Process and Separation of Powers

        In issue three, Falk alleges that the mistrial caused by the two mandamus

proceedings initiated by the State deprived Falk of due process and due course of law

and access under the open courts provision. In issue four, Falk contends that the

exercise of mandamus jurisdiction by the Court of Criminal Appeals violated the

separation of powers of the Texas Constitution and also violated state and federal

guarantees of due process, equal protection, and open courts.

        The State, citing Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. Crim. App. 2001),

responds that these claims are not cognizable in a pretrial habeas application and that

they are better addressed in a postconviction appeal. We agree, and Falk cites no

authority that supports the propriety of these claims in a pretrial habeas setting.


4
  In his “Response to State’s Motion for Leave to File Petition for Writ of Mandamus and Prohibition,”
Falk noted that, after we had issued our opinion in Weeks I but before the State sought mandamus in the
Court of Criminal Appeals, the State had filed a “Motion to Reconsider Court’s Charge.” That motion
requested the trial judge to reconsider the proposed charge in light of our opinion and specifically
requested the trial judge to instruct the jury on section 7.02(a)(2).

Ex parte Falk                                                                                  Page 16
Furthermore, we decline to create a new basis for pretrial habeas relief premised on the

State’s successful mandamus proceeding in the Court of Criminal Appeals. Issues three

and four are overruled.

                                             Conclusion

        Having overruled all of Falk’s issues, we affirm the trial court’s order denying

Falk’s application for writ of habeas corpus and special plea in bar.




                                                        REX D. DAVIS
                                                        Justice

Before Justice Davis,
       Justice Lang,5 and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 24, 2014
Publish
[CRPM]




5The Honorable Douglas S. Lang, Justice of the Fifth Court of Appeals, sitting by assignment of the Chief
Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(a) (West 2005).

Ex parte Falk                                                                                    Page 17
