
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-97-00767-CR



The State of Texas, Appellant


v.



Steven Schaefer, Appellee






FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 472,678, HONORABLE WILFRED R. AGUILAR, JUDGE PRESIDING



	The State of Texas appeals from a trial-court order granting appellee Steven
Schaefer's motion to suppress evidence in his jury trial for the offense of driving while intoxicated
(DWI).  See Tex. Penal Code Ann. § 49.04 (West Supp. 1999).  The State also appeals the court's
subsequent order discharging an empaneled and sworn jury.  In two points of error, the State
claims that the trial court abused its discretion (1) in granting appellee's motion to suppress, and
(2) by discharging the jury after granting the motion to suppress.  The State also argues that its
appeal is not barred by double jeopardy.  We will dismiss the appeal for want of jurisdiction
because jeopardy had attached before the trial court granted the motion to suppress and dismissed
the jury.

FACTUAL AND PROCEDURAL BACKGROUND

	Appellee was arrested on December 29, 1996, by Austin police officer William
Thrash for DWI, enhanced as a second offense to a Class A misdemeanor.  See Tex. Penal Code
Ann. § 49.09(b) (West Supp. 1999).  The initial hearing scheduled to address pretrial issues had
to be postponed due to the court's scheduling conflict.  A second date was set for October 21,
1997; however, the State was unable to have the primary witness, Officer Thrash, present to
testify on the motion to suppress.  The court proceeded with other pretrial matters and intended
only to  voir dire the jury and then have a brief hearing on the motion to suppress before the actual
commencement of trial.  However, for some reason the jury was empaneled, sworn, and released
to return for trial the following day.
	On October 22, outside the presence of the jury, a hearing on the motion to
suppress was held to determine if there had been sufficient probable cause to stop and subsequently
arrest Steven Schaefer.  Officer Thrash testified that he was first alerted by an unidentified female
motorist that appellee's vehicle was being driven "erratically."  It took Officer Thrash several
minutes to maneuver his patrol vehicle near appellee's car due to the "stop and go" traffic that
afternoon on northbound Research Boulevard.  Officer Thrash testified that he stopped appellee's
vehicle because its inspection and registration stickers were expired; however, he was initially
unable to recall whether he was positioned beside or behind appellee's vehicle when he observed
the expired stickers.  He did recall that he was unable to get to the left of appellee's vehicle to see
the stickers because appellee was traveling in the far left lane.  Officer Thrash only remembered
that he observed that the stickers were expired.  After reviewing his offense report to refresh his
recollection, Officer Thrash related that when he was directly behind appellee's vehicle, he
believed he was able to see that the stickers were expired by looking through the rear window of
appellee's vehicle, a 1987 Suzuki Samurai with a convertible top and plastic rear window.  Officer
Thrash testified that he stopped appellee due to observing the expired stickers and not because of
the statements made by the unidentified witness about erratic driving.  Officer Thrash subsequently
arrested appellee for DWI based on his observations and appellee's performance of field sobriety
tests.
	During questioning by defense counsel, Officer Thrash was unable to relate
objective, articulable facts as to how he was able to clearly observe the expired stickers from the
rear of appellee's car.  He offered only the conclusory statement that he had seen them.  The trial
judge stated that in order to make an independent determination whether Officer Thrash had
adequate probable cause to stop appellee's vehicle, he needed to hear testimony containing
objective facts, not just the officer's conclusory statements.  After a brief recess, the trial court
heard further arguments from the attorneys.  The trial court determined there was inadequate
probable cause for the stop.  Both attorneys agreed with the court that if the judge ruled on the
motion to suppress at that time, the court's decision could not be appealed.  The court called a
brief recess to give the State's attorney time to research the case law.  Upon re-convening, the
court heard further arguments from the attorneys and then granted the motion to suppress.  The
court then asked the attorneys if they agreed that the jury needed to be discharged, especially since
the court had determined there was inadequate probable cause for the stop and Schaefer had not
yet entered a plea before the impaneled jury.  The court and the parties all acknowledged that
jeopardy had attached when the jury had been empaneled and sworn.  The State requested time
to look at the appellate rules before the jury was dismissed, and another brief recess was called. 
In an attempt to avoid the jeopardy consequences, the State moved for a mistrial based on the
doctrine of "manifest necessity."  The trial court stated that jeopardy had attached because the jury
had been empaneled and sworn, overruled the State's motion and discharged the jury, in effect
acquitting the accused of the offense.  The State filed this appeal.  Because we hold that jeopardy
had attached, we are without jurisdiction to decide whether the trial court judge correctly
determined there was insufficient probable cause and whether it correctly discharged the jury
without granting the State's motion for a mistrial.

DISCUSSION

	Article 44.01 of the Code of Criminal Procedure provides that the State may appeal
an order granting a motion to suppress evidence if jeopardy has not attached in the case.  Tex.
Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1999).  A defendant is placed in jeopardy
in a criminal proceeding once he is put to trial before the trier of fact, whether the trier of fact is
a judge or a jury.  See State v. Johnson, 794 S.W.2d 557, 559 (Tex. App.--Dallas 1990, pet.
ref'd) (citing United States v. Jorn, 400 U.S. 470, 479 (1971)).  In jury trials, it is well settled that
jeopardy attaches when the jury is empaneled and sworn.  See Crist v. Bretz, 437 U.S. 28, 38
(1978); Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995); Garza v. State, 658
S.W.2d 152, 155 (Tex. Crim. App. 1982), cert. denied, 464 U.S. 863 (1983).
	In its argument, the State inappropriately relies on the doctrine of "manifest
necessity" as a reason for which a mistrial should have been granted.  A trial judge's discretion
to declare a mistrial based on "manifest necessity" is limited to "very extraordinary and striking
circumstances."  Downum v. United States, 372 U.S. 734, 736 (1963).  Although the United
States Supreme Court has declined to formulate precise rules based on categories of circumstances
in which manifest necessity exists, the general rule is that it exists "where the circumstances
render it impossible to arrive at a fair verdict, where it is impossible to continue with trial, or
where the verdict would be automatically reversed on appeal because of trial error."  Brown, 907
S.W.2d at 839.  Conducting a hearing on probable cause determination after impaneling and
swearing a jury does not appear to fall into these listed circumstances.  The practice of considering
pretrial motions for the first time after the trial has begun is strongly disfavored, for the reason
demonstrated by the instant case:  the State is deprived of the opportunity to appeal the
unfavorable ruling.  See Lindley v. State, 736 S.W.2d 267, 274 (Tex. App.--Fort Worth 1987,
pet. ref'd untimely filed).  However, it should be noted that the State failed to object to the trial
court's empaneling the jury prior to hearing the motion to suppress.  Article 44.01 prevents us
from reaching the State's argument of manifest necessity because we lack jurisdiction to hear an
appeal from an order granting a defendant's motion to suppress once jeopardy has attached.  Tex.
Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1999).  Likewise, we are unable to address
whether the trial court was correct in its probable cause determination.  
CONCLUSION

	The appeal is dismissed for want of jurisdiction.


  
					Bea Ann Smith, Justice
Before Justices Jones, B. A. Smith and Dally*
Dismissed for Want of Jurisdiction
Filed:   December 3, 1998
Publish














*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

eopardy
had attached, we are without jurisdiction to decide whether the trial court judge correctly
determined there was insufficient probable cause and whether it correctly discharged the jury
without granting the State's motion for a mistrial.

DISCUSSION

	Article 44.01 of the Code of Criminal Procedure provides that the State may appeal
an order granting a motion to suppress evidence if jeopardy has not attached in the case.  Tex.
Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1999).  A defendant is placed in jeopardy
in a criminal proceeding once he is put to trial before the trier of fact, whether the trier of fact is
a judge or a jury.  See State v. Johnson, 794 S.W.2d 557, 559 (Tex. App.--Dallas 1990, pet.
ref'd) (citing United States v. Jorn, 400 U.S. 470, 479 (1971)).  In jury trials, it is well settled that
jeopardy attaches when the jury is empaneled and sworn.  See Crist v. Bretz, 437 U.S. 28, 38
(1978); Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995); Garza v. State, 658
S.W.2d 152, 155 (Tex. Crim. App. 1982), cert. denied, 464 U.S. 863 (1983).
	In its argument, the State inappropriately relies on the doctrine of "manifest
necessity" as a reason for which a mistrial should have been granted.  A trial judge's discretion
to declare a mistrial based on "manifest necessity" is limited to "very extraordinary and striking
circumstances."  Downum v. United States, 372 U.S. 734, 736 (1963).  Although the United
States Supreme Court has declined to formulate precise rules based on categories of circumstances
in which manifest necessity exists, the general rule is that it exists "where the circumstances
render it impossible to arrive at a fair verdict, where it is impossible to continue with trial, or
where the verdict would be automatically reversed on appeal because of trial error."  Brown, 907
S.W.2d at 839.  Conducting a hearing on probable cause determination after impaneling and
swearing a jury does not appear to fall into these listed circumstances.  The practice of considering
pretrial motions for the first time after the trial has begun is strongly disfavored, for the reason
demonstrated by the instant case:  the State is deprived of the opportunity to appeal the
unfavorable ruling.  See Lindley v. State, 736 S.W.2d 267, 274 (Tex. App.--Fort Worth 1987,
pet. ref'd untimely filed).  However, it should be noted that the State failed to object to the trial
court's empaneling the jury prior to hearing the motion to suppress.  Article 44.01 prevents us
from reaching the State's argument of manifest necessity because we lack jurisdiction to hear an
appeal from an order granting a defendant's motion to suppress once je