                                MEMORANDUM OPINION
                                        No. 04-09-00332-CR

                                  EX PARTE Mary Lou GARZA

                     From the 79th Judicial District Court, Brooks County, Texas
                                  Trial Court No. 07-07-09768-CR
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 31, 2009

AFFIRMED

           Mary Lou Garza, a Starr County elections office employee, was tried for the unlawful

delivery of “a [voter] registration certificate to a person other than the applicant or the

applicant’s agent.” See TEX. ELEC. CODE ANN. § 13.145 (Vernon 2003). After the jury failed to

reach a verdict, the trial court declared a mistrial and, just before Garza’s retrial, denied her

application for a writ of habeas corpus. Because the trial court did not abuse its discretion in

determining there was “manifest necessity” to declare a mistrial, Garza’s previous prosecution

does not bar her retrial. Thus, we affirm the order of the trial court.
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                                           BACKGROUND

       On May 6, 2008, Mary Lou Garza was tried by a jury for the offense of unlawful delivery

of a voter registration certificate. See TEX. ELEC. CODE ANN. § 13.145 (Vernon 2003). The

evidentiary part of Garza’s trial lasted about six hours. The State presented six witnesses for the

prosecution; the defense presented four witnesses. There was no expert testimony, and neither

side admitted any exhibits into evidence. The jury charge contained only the elements of a

single offense: Unlawful Delivery of Registration Certificate. The charge did not require the

jury to consider any affirmative defenses, lesser included offenses, or novel issues.           After

deliberating for about one and one-half hours, the jury sent a note to the court indicating the jury

was split evenly: six for guilty, six for not guilty, and asked “What’s next step?” The court

instructed the jury to continue deliberating, which the jury did for approximately thirty minutes.

The jury’s second note indicated one juror had changed position: five jurors for guilty and seven

for not guilty. The second note also gave the jurors’ reasons for their positions: “Guilty—party

say there is enough evidence to convict. Not guilty—party say there was a poor investigation on

the State’s part. Not [sic] physical evidence presented to we the jurors to make a solid guilty

conviction.” The court told counsel the case “might be at the mistrial stage,” and Garza’s

counsel remarked: “Realistically, we’re not going to have any movement.” Nevertheless, the

court again instructed the jury to continue deliberating. After approximately one more hour of

deliberation, the jury sent a third note stating: “Judge[:] Deliberation has not changed.” Upon

receiving the third note, the trial court advised the parties that the jury appeared to be “hopelessly

deadlocked” and, over Garza’s objection, declared a mistrial. Garza did not ask the trial court to

poll the jurors about the deadlock and did not object to the trial court’s failure to do so.




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           When the State sought to retry Garza, she filed an application for writ of habeas corpus

based on double jeopardy. Garza asserted there was no manifest necessity to declare a mistrial

because, inter alia, the trial court could have instructed the jurors to continue deliberating. The

trial court denied Garza’s application and prepared for her retrial. On June 5, 2009, this court

ordered Garza’s retrial stayed pending this appeal. In her sole issue on appeal, Garza asserts the

trial court abused its discretion by denying her application because her retrial is barred by the

constitutional protection against double jeopardy.

                                       STANDARD OF REVIEW

           When a trial court determines that a mistrial was necessary because the jury could not

reach a verdict, we review that determination for an abuse of discretion. See Brown v. State, 907

S.W.2d 835, 839 (Tex. Crim. App. 1995); Husain v. State, 161 S.W.3d 642, 645 (Tex. App.—

San Antonio 2005, pet. ref’d). “The rule is well settled that the exercise of discretion in

declaring a mistrial is determined by the amount of time the jury deliberates considered in light

of the nature of the case and the evidence.” Patterson v. State, 598 S.W.2d 265, 268 (Tex. Crim.

App. [Panel Op.] 1980) (citing Beeman v. State, 533 S.W.2d 799, 800 (Tex. Crim. App. 1976));

Husain, 161 S.W.3d at 645. The reviewing court considers “‘the type and complexity of the

evidence, whether expert testimony is involved, the number of witnesses, the number of exhibits

. . . , the complexity of the charge, whether the jury [. . .] moved towards agreement during the

period of deliberation, and the nature and extent of communication from the jury.’” Torres v.

State, 961 S.W.2d 391, 393 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (first alteration in

original) (quoting Galvan v. State, 869 S.W.2d 526, 528 (Tex. App.—Corpus Christi 1993, pet.

ref’d)).




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                                             ANALYSIS

       In a jury trial, “[j]eopardy attaches when [the] jury is impaneled and sworn.” Brown, 907

S.W.2d at 839; Husain, 161 S.W.3d at 645. Generally, once a “defendant is placed in jeopardy,

[if] the jury is discharged without reaching a verdict, double jeopardy will bar retrial.” Brown,

907 S.W.3d at 839. However, “where manifest necessity exists to declare a mistrial,” the

defendant may be retried. Id. (citing Oregon v. Kennedy, 456 U.S. 667, 672 (1982)). Manifest

necessity may exist “where a jury is unable to arrive at a verdict after considerable deliberation.”

See id. (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 579–80 (1824)); cf. TEX. CODE

CRIM. PROC. ANN. art. 36.31 (Vernon 2006) (“[T]he court may . . . discharge [the jury] where it

has been kept together for such time as to render it altogether improbable that it can agree.”).

       On the other hand, there is no manifest necessity to order a mistrial if the court fails to

exercise a less drastic alternative. Brown, 907 S.W.2d at 839; Husain, 161 S.W.3d at 645.

When a jury advises the court that it is at an impasse, the court’s instruction to continue

deliberating is an available, less drastic alternative to declaring a mistrial. Husain, 161 S.W.3d at

647 (“[T]he only available less drastic alternative . . . was to allow the jury more time to

deliberate.”); Torres v. State, 961 S.W.2d 391, 394 (Tex. App.—Houston [1st Dist.] 1997, pet.

ref’d) (“[T]he trial court did take a less drastic alternative before declaring a mistrial when the

jurors were instructed to continue deliberating after they initially announced they were hung.”).

       The trial court has discretion to determine the length of time the jury deliberates. Guidry

v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999); Husain, 161 S.W.3d at 645. When

reviewing a trial court’s exercise of its discretion, an appellate court considers numerous factors

including the amount of testimony, the trial court’s communications with the jurors, and the

length of jury deliberation. Husain, 161 S.W.3d at 646–47; Galvan, 869 S.W.2d at 528. If the




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trial court keeps a split jury deliberating until it is “altogether improbable that [the jurors] can

agree,” the trial court may discharge the jury even over a party’s objection. See TEX. CODE

CRIM. PROC. ANN. art. 36.31 (Vernon 2006); accord Galvan, 869 S.W.2d at 528.                  Before

declaring a mistrial because it is altogether improbable that the jury can reach a decision, the trial

court should poll the jurors as to whether they could reach a decision if they continued

deliberating. Boone v. State, 506 S.W.2d 227, 229 (Tex. Crim. App. 1974); see Willis v. State,

518 S.W.2d 247, 248–49 (Tex. Crim. App. 1975). However, if the defendant does not ask for

the jury poll or object to the trial court’s failure to poll, the court’s error does not warrant

reversal. Boone, 506 S.W.2d at 229; see Willis, 518 S.W.2d at 248–49.

       Jeopardy attached to Mary Lou Garza when the jury was sworn, but she may be retried if

there was manifest necessity to declare a mistrial. See Brown, 907 S.W.2d at 839; Husain, 161

S.W.3d at 645. The jury deliberated for approximately three and one-half hours on a single, non-

complex charge with no novel issues, yet only one juror changed position in the first two

deliberation periods, and none changed position in the last hour of deliberations.            Having

reviewed the circumstances of the case including “the amount of time the jury deliberate[d]

considered in light of the nature of the case and the evidence,” and noting the trial court’s

exercise of less drastic alternatives to mistrial, we cannot say the trial court abused its discretion

in deciding that there was a manifest necessity to declare a mistrial because the jury was unable

to reach a verdict. See Patterson, 598 S.W.2d at 268; Husain, 161 S.W.3d at 647.

                                           CONCLUSION

       In Mary Lou Garza’s trial for unlawful delivery of a voter registration certificate, the

court acted within its discretion in declaring a mistrial. Therefore, Garza’s retrial is not barred

by double jeopardy protections, and the trial court did not err when it denied Garza the relief she




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requested in her application for writ of habeas corpus. Accordingly, we affirm the order of the

trial court.


                                               Rebecca Simmons, Justice

DO NOT PUBLISH




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