                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00178-CR

                                      Francisco S. MORALES,
                                              Appellant

                                                 v.
                                            The STATE
                                        The STATE of Texas,
                                              Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR6358
                            Honorable Mary D. Román, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: March 11, 2015

AFFIRMED

           Francisco S. Morales was convicted by a jury of one count of aggravated sexual assault of

a child and five counts of indecency with a child by contact. The only issue presented on appeal

is whether the trial court erred by declaring a mistrial sua sponte because manifest necessity did

not exist; therefore, Morales’s continued prosecution violated the constitutional prohibition on

double jeopardy. Because we hold Morales did not preserve this issue for our review, we overrule

his issue and affirm the trial court’s judgment.
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                                            BACKGROUND

        On March 4, 2014, immediately after a jury was empaneled and sworn in Morales’s first

trial, one of the jurors informed the trial court that he had airline tickets for a business trip planned

to Mexico the following day. The trial court noted that neither the trial court nor the attorneys

inquired whether any venireperson had scheduling conflicts that would prevent him or her from

attending a four-day trial. In view of the juror’s conflict, the trial court explored several possible

alternative options.

        First, the trial court asked whether the attorneys were willing to proceed with eleven jurors;

however, defense counsel objected to proceeding with eleven. The trial court then made efforts to

locate the next venireperson who was not struck, but the deputy reported that the venireperson

could not be located in the courthouse. Finally, the trial court considered rescheduling the trial to

the following week; however, when the jury was presented with this plan, another juror informed

the trial court that she would have a scheduling conflict if the trial was moved to the following

week. The trial court dismissed the jury after informing them that the deputy would call to instruct

them on whether to appear for the trial the following day or whether trial had been rescheduled to

the following week.

        The trial court and the attorneys then discussed the efforts that would be made to contact

the next two veniremembers who were not struck. The attorneys agreed to substitute one of those

veniremembers if either could be located.

        The following morning, the trial court made the following announcement in open court:

                THE COURT: …. After careful consideration of everything that has
        happened and the remedies that are available to the Court, what I’m going to do is
        to declare a mistrial due to manifest necessity, and we are going to start this trial all
        over again.




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              We are going to select another jury and hopefully it will go a lot better, as
       it normally does. And so we are going to dismiss you and so you are basically
       through with jury service.

The reporter’s record then reflects that a recess was taken.

       After the recess, the trial court asked the attorneys if they had any problem with selecting

another jury that day, but then starting the trial the following Tuesday. At that time, Morales was

being represented by two attorneys, a lead defense counsel and a second chair attorney. After the

trial court posed the scheduling question, the second chair attorney informed the trial court that

lead defense counsel was not present. The trial court then questioned whether the second jury

could be selected and hear one day of testimony before trial was recessed until the following

Tuesday. The prosecutor informed the trial court that he had told the complainant’s family that

the trial would not convene until the following week.             The prosecutor explained that the

complainant’s family was experiencing a lot of emotions, and he would prefer to select the jury

but to delay the commencement of testimony until the following Tuesday. At that time, having

returned to the courtroom during the discussions, lead defense counsel stated on the record she

agreed with the prosecutor. The venire panel then entered the courtroom, and both of Morales’s

attorneys participated in the voir dire and the selection of a second jury. The second jury was

selected and the trial court instructed the jury that after checking schedules, trial would commence

the following Monday afternoon, March 10, 2014.

       On the morning of March 10, 2014, Morales’s attorney filed a document entitled “Motion

to Dismiss Special Plea of Double Jeopardy.” That afternoon, Morales’s attorney informed the

trial court of the filing, and the following exchange occurred:

               THE COURT: Did you not waive error?
               [DEFENSE COUNSEL]: Your Honor, no, I did not, okay?
               THE COURT: What did you —
               [DEFENSE COUSEL]: The only — when we started, when we had the
       first one, I agreed — I objected to 11, okay, and then I agreed to get the other one
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       that was not stricken. I agreed to that. And I waived error on that particular part
       of getting that other juror that was not — that was not stricken, to get him to
       complete the 12 people.
                So when, Your Honor, when you declared a mistrial, you had 12 people
       sitting there. It was a complete jury. I didn’t — I waived on that particular issue,
       not anything else, Your Honor. I agreed to bring in the other ones, which they went
       and got, and I — I— I agreed to waive the error in case — because of that — how
       they were brought back to court, not on anything else.
                Now, according to Hill v. State, that, you know, the manifest — when you
       declare manifest necessity, it is limited to a very ordinary and striking circumstance.
       And at that time, we had 12 people. I had agreed to allow that to happen and I even
       agreed to follow the recommendation of the state to say why don’t we just wait
       until next week and wait for the 12th one who said he had tickets to come back
       from his vacation. I even agreed to that, which ultimately we still had to do anyway,
       come back this week. But I did not agree — I did not agree or waive error to
       anything else, Your Honor.
                THE COURT: Anything else?
                [PROSECUTOR]: No, Judge. I guess I’ll just point out that obviously I
       don’t know what the Court’s personal rationale was in finding manifest necessity.
       I’m not even calling that into question, Judge. But what I do recall is when the
       Court announced its intent to make such ruling, Your Honor asked both parties if
       they objected to that ruling and both parties answered in the negative.
                [DEFENSE COUNSEL]: I do not remember that, Your Honor.
                THE COURT: Well, I’ll tell you what, the record is the record. And that
       certainly can be scrutinized by someone else. Your request is denied. It’s
       overruled.

       After the jury was sworn, Morales’s attorney reurged the motion to dismiss, and the trial

court again denied the motion.

                                    PRESERVATION OF ERROR

       Although Morales challenges the trial court’s sua sponte declaration of a mistrial, arguing

no manifest necessity existed, the State asserts Morales failed to preserve his complaint for our

review. As the State contends, “preservation of error is a systemic requirement that must be

reviewed by the courts of appeals regardless of whether the issue is raised by the parties.” Haley

v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).

       In order for a complaint to successfully be presented for appellate review, the appellate

record must establish two things. First, the record must show a complaint was made to the trial


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court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a). This request, objection,

or motion must state “the grounds for the ruling that the complaining party [seeks] from the trial

court with sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds [are] apparent from the context.” Id. Second, the record must indicate that the trial court

ruled or refused to rule on the request, objection, or motion. Id.

       In undertaking a double jeopardy analysis, the foregoing general principles governing

preservation of error must be considered in the context of “rules [that] have emerged that focus

upon whether the defendant has consented to the declaration of a mistrial.” Harrison v. State, 767

S.W.2d 803, 805 (Tex. Crim. App. 1989). “Where [a] mistrial [is] declared without the consent

of the defendant, he or she cannot be retried unless there existed a ‘manifest necessity’ for the

mistrial.” Id. at 806. When a defendant consents to a mistrial, however, “[r]etrial is generally

permitted because the defendant himself has elected to terminate the proceedings and begin anew.”

Id. Stated differently, “[w]hether there existed a manifest necessity to declare a mistrial at

[Morales’s] first trial is immaterial if [Morales] consented to the trial court’s actions.” Id.

Morales’s consent “need not be expressed, but may be implied from the totality of circumstances

attendant to a declaration of mistrial.” Id.

       In Ledesma v. State, 993 S.W.2d 361 (Tex. App.—Fort Worth 1999, pet. ref’d), the Fort

Worth court explored the issue of implied consent under circumstances similar to the instant case.

In Ledesma, the morning after the appellant’s case was called to trial and a jury was selected and

sworn, one of the jurors informed the trial court he would not be able to serve on the jury. Id. at

364. The trial court then asked both sides for suitable less drastic alternatives to a mistrial, but

when none were recommended, the trial court declared a mistrial on the ground of manifest

necessity. Id. When the mistrial was declared, the appellant did not object. Id. Although the

appellant filed a special plea of double jeopardy when the case was called for trial three months
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later, the Fort Worth court held the plea was untimely because the appellant already had impliedly

consented to the mistrial. Id. at 365 (“When the judge declared a mistrial, Appellant impliedly

consented by not objecting.”).

        In the present case, the trial court went to great lengths to try and remedy the problem when

the juror announced his conflict, but ultimately declared a mistrial sua sponte on the grounds of

manifest necessity. When the mistrial was declared, neither side objected.

        Although Morales contends lead defense counsel was not present at the time the mistrial

was declared and the first jury was excused, the record does not support this contention. Instead,

when the trial judge declared the mistrial on the record, the record first contains the notation “Open

court, defendant and jury present,” and the only person who spoke during this portion of the record

was the trial judge. After the trial judge declared the mistrial and excused the first jury, a recess

was immediately taken. It is only after the recess was taken and the trial court began discussing

the schedule that the second chair attorney stated on the record that lead defense counsel was not

present. Accordingly, the record does not support Morales’s contention that lead defense counsel

was not present when the mistrial was declared before the recess was taken. In any event, the

record is clear that after the mistrial was declared without objection, Morales’s attorney actively

engaged in the second voir dire, and the special plea asserting the double jeopardy allegation was

not filed until five days later.

                                           CONCLUSION

        Because we conclude that by not objecting, Morales impliedly consented to the trial court’s

sua sponte declaration of a mistrial, he has not preserved his double jeopardy complaint for our

review. Accordingly, the trial court’s judgment is affirmed.

                                                   Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH
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