                                   NO. 07-11-0384-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   APRIL 3, 2012
                          ______________________________


                                       EX PARTE

                               ERIC DEAN RODRIGUEZ

                        _________________________________

              FROM THE 121ST DISTRICT COURT OF TERRY COUNTY
                 NO. 5923; HONORABLE KELLY MOORE, JUDGE
                      _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                        OPINION


      Appellant, Eric Dean Rodriguez, appeals the trial court's order denying his

pretrial application for writ of habeas corpus contending he is being subjected to double

jeopardy after his first trial ended in a sua sponte order of mistrial. The State contends

the trial court did not err because Appellant failed to preserve error by failing to timely

object and is, therefore, deemed to have consented to the mistrial. The State also

contends that the interests of justice made a mistrial manifestly necessary. Because we

find the trial court's original decision to declare a mistrial was dictated by manifest

necessity, we affirm the trial court's order denying Appellant's application for writ of

habeas corpus.
                                    BACKGROUND FACTS


      Appellant was charged by indictment with the first degree felony offense of

aggravated sexual assault of a child.1 The indictment alleged that on or about May 17,

2009, Appellant did intentionally or knowingly cause the penetration of the female

sexual organ of [victim], a child who was then and there younger than 14 years of age

and not the spouse of Appellant. Trial commenced on July 13, 2010. After voir dire, the

empanelment of the petit jury, the reading of the indictment, Appellant's entry of a plea

of "not guilty," the swearing in of witnesses for both the State and the defense, opening

statements by the prosecution and the defense (both making reference to photographic

evidence obtained by the sexual assault nurse examiner (the SANE nurse)) and

preliminary testimony from the State's first witness, Ann Atterback, the SANE nurse, an

issue arose as to the admission of seven photographs. Prior to that issue coming to the

attention of the court, Ms. Atterback had already testified that as a part of any sexual

assault examination she makes a "detailed examination" of the victim's genitalia,

including "colposcopic photographs with magnification" of that area, "whether we find

signs of trauma or we don't . . . ." She went on to testify that in this case she had

examined the eleven-year-old complainant and found swelling and deformity in the area

of her labium minus, which she believed to be indicative of trauma, and which she was

able to "capture" in a series of photographs.          When the State asked that those

photographs be admitted, defense counsel requested and received permission to voir

dire the witness. During the course of questioning of Ms. Atterback, it became apparent

that the prosecution had been aware of the photographs for at least four months but,

1
See Tex. Penal Code Ann. § 22.021 (West Supp. 2011).


                                               2
notwithstanding a discovery order requiring the State to disclose those photographs, the

prosecution had failed to disclose their existence until a week before trial. During this

colloquy, it was also established that defense counsel had not seen the photographs

until the morning of trial.


       The trial court briefly recessed the proceedings in order to allow defense counsel

an opportunity to look at the photographs and "make whatever argument or whatever

request for relief" she might request. After the recess, defense counsel asked that the

photographs be refused admission, or that she be granted a continuance sufficient in

time to allow her to retain an expert to assist her in the evaluation of those photographs.

When questioned by the trial court as to how long a continuance was necessary,

defense counsel equivocated, indicating that although she had been retained, her fee

had not been paid in full, and she would have to request the court for funds to retain

such an expert. The trial court then asked the prosecution why the photographs had not

been turned over sooner, to which the prosecutor replied, "I don't know, your Honor. I

can't answer that question." The court then sua sponte declared a mistrial stating:


       [w]ell, it just absolutely baffles the Court that in a First Degree Felony
       where a defendant is - State is seeking to send him to prison for up to life
       in prison that the State would not furnish this evidence after having had it
       for four months until one week before the trial. And there's nothing I can
       do about it at this point.

       The Court is going to grant a mistrial in this case. I can't grant a
       continuance, because the Defense is going to have a right to hire an
       expert to examine the evidence, and I don't know how - I couldn't keep a
       jury on the hook that long. So based upon the inability - or the State's
       failure to timely deliver the evidence or even notify Counsel of its
       existence for at least a period of four months after the State knew it had it,
       the Court grants a mistrial.



                                             3
At that time, neither the prosecution nor the defense objected to the trial court's sua

sponte order of mistrial.


       On March 9, 2011, new defense counsel filed a Special Plea of Double Jeopardy

contending that because the mistrial was not required by manifest necessity, double

jeopardy barred Appellant's retrial. At a pretrial hearing on that special plea, the trial

court stated:


       the reason the Court did not simply exclude the photographs was that the
       Court had figured out by that point that the photographs were really the
       only physical evidence of the alleged crime that could be actually shown to
       the jury and could have been -- and my thought process was that they
       certainly could have been beneficial to the Defense. The Defense
       Attorney said that had she known of the existence of the photographs that
       she would have quite possibly hired an expert. And if her client didn't
       have the money to do that might have applied for a court-appointed
       expert. And my thought was that if we went through the trial without the
       Defense having the benefit of taking a critical look at the photographs,
       certainly more than a few hours worth of looking on the morning of trial,
       that in the event of a conviction the Court was facing a real possibility of a
       claim of ineffective assistance. So right or wrong, that was the reasoning
       that the Court didn't just simply exclude the photographs.


The trial court then denied Appellant's special plea of double jeopardy.

       Thereafter, on March 24, 2011, counsel filed a Pre-Trial Application for Writ of

Habeas Corpus Seeking Relief from Double Jeopardy on the same basis. The trial

court denied the application for writ of habeas corpus on April 4, 2011.          Following

issuance of Ex parte Garza2 by the Texas Court of Criminal Appeals on May 4, 2011,

defense counsel filed Appellant's Motion to Reconsider the Court's Order Denying the




2
Ex parte Garza, 337 S.W.3d 903 (Tex.Crim.App. 2011).


                                                4
Defendant's Pre-Trial Application for Writ of Habeas Corpus3 on August 24, 2011. The

trial court denied that motion on August 27, 2011, from which Appellant gave timely

notice of appeal.


       By a single issue, Appellant contends the trial court's sua sponte decision to

declare a mistrial invokes double jeopardy implications because the trial court failed to

consider other available less drastic options, such as exclusion of the photographs. The

State contends Appellant's issue should be overruled because: (1) he failed to preserve

the issue for appeal by failing to object; (2) he consented to the mistrial by failing to

object; or (3) the declaration of mistrial was manifestly necessary.


                              SUBJECT MATTER JURISDICTION


       In the case of Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App. 1982), the

Texas Court of Criminal Appeals established that a pretrial writ of habeas corpus was

an appropriate procedure to review an individual's claim of double jeopardy. The denial

of a pretrial writ of habeas corpus based upon a claim of double jeopardy is an

appealable order. See id. at 555. See also Tex. R. App. P. 31.1.


                                  STANDARD OF REVIEW


       In reviewing a trial court's decision to grant or deny habeas corpus relief, we will

uphold the trial court's ruling absent an abuse of discretion. Ex parte Peterson, 117

S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam), overruled on other grounds by Ex

parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007). Therefore, in determining whether
3
 Given the substance of Appellant's motion to reconsider, we have construed that motion as a
subsequent application for writ of habeas corpus.


                                             5
a trial court has abused its discretion, we view the evidence in the light most favorable

to the trial court's ruling. Id. An abuse of discretion occurs when the decision of the trial

court falls outside the zone of reasonable disagreement. Montgomery v. State, 810

S.W.2d 372, 391 (Tex.Crim.App. 1990). In other words, the trial court's decision must

have been arbitrary, unreasonable, and made without reference to any guiding rules or

principles. Id. In conducting our review, we afford almost total deference to the trial

judge's determination of historical facts that are supported by the record, particularly

when those fact findings are based on the judge's evaluation of credibility and

demeanor. Ex parte Peterson, 117 S.W.3d at 819. If the resolution of the ultimate

questions turn on an application of legal standards, we review that determination de

novo. Id.


       However, in 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 (broad discretion appropriate where mistrial necessitated by a need

to prevent jury-bias); Ex parte McMillian, No. 05-11-00642-CR, 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,


                                             6
strict scrutiny is appropriate when the basis of the mistrial is the unavailability of critical

prosecution evidence. Washington, 434 U.S. at 508. 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).


                                     DOUBLE JEOPARDY


       A defendant may not be twice put in jeopardy for the same offense.                 U.S.

CONSTITUTION amend. V; TEXAS CONSTITUTION art. 1, § 14; Washington, 434 U.S. at 503.

When a jury is empaneled and sworn, jeopardy attaches. Hill v. State, 90 S.W.3d 308,

313 (Tex.Crim.App. 2002).       When jeopardy attaches, a mistrial declared over the

defendant's objection, ordinarily bars further prosecution for the same offense. Ex parte

Garza, 337 S.W.3d 903, 909 (Tex.Crim.App. 2011). However, double jeopardy does

not bar the subsequent prosecution of the same offense when the mistrial is declared

either with the defendant's consent or when it arises from a manifest necessity. Hill, 90

S.W.3d at 313.


       Furthermore, in cases involving a mistrial due to prosecutorial misconduct, a

retrial is not barred by double jeopardy unless the conduct in question was committed

with the intent to provoke the defense into requesting a mistrial or with the intent to

avoid an acquittal. Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007) (holding that

the proper standard of review is the rule articulated by the United States Supreme Court

in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)).




                                              7
                                   MANIFEST NECESSITY


       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 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; 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.



                                             8
       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. 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.


                                         ANALYSIS


       Appellant contends that because a manifest necessity for mistrial was lacking,

his subsequent prosecution for the same offense violated the double jeopardy

provisions of both State and Federal Constitutions.             In deciding whether the

circumstances of this case rise to the level of manifest necessity for a mistrial, we must

consider the cause precipitating the trial judge's decision and the purposes served by

declaring the mistrial. See United States v. Stevens, 177 F.3d 579, 587 (6th Cir. 1999).

Here, the underlying basis of the mistrial was the prolonged delay in trial necessitated

by the potential appointment of a forensic expert to assist the defense in the analysis of

physical evidence and the preparation for trial. At the time the mistrial was declared,

the possibility existed that a defensive expert witness could have looked at the

photographs and been of assistance to the defense in cross-examination of the State's

                                             9
expert witness.       It is also possible that a defense expert could have found the

photographs to be exculpatory. Furthermore, there existed the very real possibility that

the process of obtaining appropriate financial assistance from the trial court, retaining a

defense expert, providing the photographs for review, receiving an expert report, and

subsequently reconvening the trial could take months.4                    Because this delay was

necessitated by the State's failure to timely disclose this evidence, we will review the

trial court's decision to declare a mistrial under a strict scrutiny standard.


        Applying that standard, the trial judge was faced with a situation where the

defense had been denied access to potentially critical evidence. Faced with those

facts, the only practical options available to the trial court were: (1) continue the

proceedings for an indefinite period of time in order to allow the defense to examine the

evidence, (2) exclude the evidence, or (3) declare a mistrial. Therefore, to determine

whether the trial court abused its discretion in declaring a mistrial, we must determine

whether it could have reasonably ruled out the availability of the less drastic alternatives

of continuance and exclusion of the evidence.


        CONTINUANCE OF PROCEEDINGS


        Faced with the difficulty involved in determining Appellant's indigence and

entitlement to a court-appointed expert, coupled with the uncertain delay in finding,

retaining, and consulting with that expert, it is a virtual certainty that any delay involved

in this case would be protracted. In certain circumstances, a protracted continuance is
4
 While there was no direct evidence concerning the length of the expected delay, a trial judge is entitled
to assess the situation through the lens of his own experience and expertise and draw reasonable
inferences from facts in evidence. See Ornelas v. United States, 517 U.S. 690, 699 134 L.Ed.2d 911,
116 S.Ct. 1657 (1996) (discussing the trial judge’s view of the facts of a particular case as providing a
context for drawing "inferences that deserve deference").

                                                   10
not a viable alternative to a mistrial. Ex parte Garza, 337 S.W.3d at 916. See also

United States v. Williams, 717 F.2d 473, 475 (9th Cir. 1983) (holding that manifest

necessity existed for a mistrial because counsel needed a lengthy delay to prepare and

a "protracted continuance was impractical given the high probability that many of the

jurors would be unavailable on the new trial date.") Merely rescheduling this case for

trial from a previous setting took over four months.      Given these circumstances, a

decision by the trial judge that a continuance was not a reasonable alternative to mistrial

was not a decision outside the zone of reasonable disagreement, and would not have

been an abuse of discretion.


       EXCLUSION OF EVIDENCE


       While exclusion of the photographs is the option Appellant seems to prefer now,

at the time, the trial court did not know whether the photographs could have potentially

benefitted Appellant. Defense counsel had already raised the possibility that an expert

could assist him in explaining the trauma allegedly observed by Ms. Atterback,

regardless of whether the photographs themselves were admitted. Furthermore, the

trial court was faced with a situation where the jury had already been told not only of the

existence of these photographs, but of the possibility that they would be able to see for

themselves the trauma, or lack thereof, depicted in those photographs. It is difficult, if

not impossible, for a trial judge in those circumstances to have been able to accurately

anticipate what significance the jury would have attached to their unexplained

unavailability. Under those circumstances, not only did the trial judge have the authority

to sua sponte declare a mistrial to prevent an injustice, he had an obligation to

meaningfully consider the manifest necessity of doing so.

                                            11
       When, as here, a trial judge is faced with the equally undesirable alternatives of

excluding the photographs and thereby creating a potential ineffective assistance of

counsel claim or continuing the proceedings for an indeterminate but clearly lengthy

period of time, we cannot say the trial judge's decision (that exclusion of the

photographs was not a reasonable alternative to mistrial) was a decision outside the

zone of reasonable disagreement.       See Armstrong v. State, No. C14-91-00822-CR,

1992 Tex. App. LEXIS 2878, at *6 (Tex.App.--Houston [14th Dist.] Nov. 12, 1992, pet.

refused) (finding retrial not barred by double jeopardy and upholding mistrial for

manifest necessity when faced with a continuance of an indeterminate but clearly

lengthy period of time).


       DECLARATION OF MISTRIAL


       Although the trial judge's decision to declare a mistrial in this case might have

been improvidently quick, we cannot conclude on this record that the trial judge acted

unreasonably in declaring a mistrial or that he did not explore and meaningfully consider

the possibility of less drastic alternatives and reasonably rule them out before declaring

the mistrial.   Accordingly, we find the trial judge did not abuse his discretion in

determining that manifest necessity barred application of double jeopardy to the facts of

this case. Appellant's issue is overruled.


       The trial court's order denying Appellant's application for a writ of habeas corpus

is affirmed.


                                                  Patrick A. Pirtle
                                                       Justice
Publish.

                                             12
