                                                                                               ACCEPTED
                                                                                           03-13-00585-CR
                                                                                                   7156326
                                                                                THIRD COURT OF APPEALS
October 2, 2015                                                                            AUSTIN, TEXAS
                                                                                      9/29/2015 6:53:56 PM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK

                                 NO. 03-13-00585-CR
                                                              RECEIVED IN
                                                         3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                             IN THE COURT OF APPEALS
                                                         9/29/2015 6:53:56 PM
                                                           JEFFREY D. KYLE
                  FOR THE    THIRD SUPREME JUDICIAL DISTRICT Clerk

                                    AUSTIN, TEXAS


       TRENT KENDALL STANLEY                 §                  APPELLANT
                                                   §
       vs.                                   §
                                             §
       THE STATE OF TEXAS                    §                  APPELLEE


                      APPELLANT'S MOTION FOR REHEARING


       TO THE HONORABLE COURT OF APPEALS:


             This MOTION is filed on behalf of TRENT KENDALL STANLEY

      by his attorney pursuant to the Texas Rules of Appellate Procedure:


             Appellant addresses this Court's opinion in the order of decision. The

      Court's opinion begins with a decision concerning point of error number

      two. The first question on the motion for rehearing, then, is whether this

      Court of Appeals has decided an important question of state or federal law in

      a way that conflicts with the applicable decisions of the Court of Criminal

      Appeals or the Supreme Court of the United States. The rehearing should


                                            1
also involve the question of whether this Court of Appeals has declared a

statute, rule, regulation, or ordinance unconstitutional, or appears to have

misconstrued a statute, rule, regulation, or ordinance.

      First, counsel would like to have the opinion correctly to reflect under

"BACKGROUND" that there is no evidence that "[a]fter a series of phone

calls involving trial participants, the trial court signed an order." In fact, the

trial judge stated on the record that "I don't know-I don't know how we got

to that point." RR vol 5 of 6, page 4.         Additionally, there is evidence

presented only by defense counsel that he had a single telephone

conversation with a prosecutor. There is no evidence that the conversation

was communicated to the trial court, and that fact is supported by the trial

court's own statement. Therefore, this Court's statement of fact on page one

of the opinion is not supported by the record.

WAIVER

      Stanley's point of error number two was "WHETHER THE TRIAL

COURT ERRED IN DECLARING A MISTRIAL WITHOUT THE

DEFENDANT OR HIS COUNSEL PRESENT."                        Stanley cited Article

33.03 of the Code of Criminal Procedure as authority for his right to be

present at any motion for mistrial.




                                        2
         In a footnote of the Court's opinion the Court holds that Stanley's

Point of error number one is waived:


         On appeal, appellant ties the statutory right to the
         constitutionally-based rights to confront witnesses against him
         and to have his trial completed by a particular tribunal.
         Appellant did not raise this argument at the trial-court level and
         has waived it. See Seghelmeble v. State, 390 S.W.3d 576, 581
         (Tex. App.-Dallas 2012, no pet.). Further, there were no
         witnesses against him involved in the mistrial process. Finally,
         his interest in the particular tribunal is not absolute. See Pierson
         v. State, 426 S.W.3d 763, 769-70 (Tex. Crim. App. 2014). [Slip
         op. page 3]

The Court goes on to hold that a defendant's right to determine whether or

not to proceed to trial with 5 or 6 jurors in his trial does not "bear a

substantial relationship to the defendant's opportunity to defend himself," 1

citing Adanandus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993).

In support of these holdings, the Court cites the following summation of

facts:


         The jury was selected and sworn, and appellant did not return to
         court. Appellant's attorney stated at the hearing on the double-
         jeopardy motion that he was told that a juror was absent and
         that, unless he agreed to proceed with five jurors, the trial court
         would declare a mistrial. The record indicates that, rather than
         contact the court, request a hearing on the issue, file an
         objection, or appear at the time set for trial, appellant's attorney

1See, Illinois v. Allen, 397 U.S. 337, 338 (1970) ("One of the most basic of the rights
guaranteed by the Confrontation Clause is the accused's right to be present in the
courtroom at every stage of his trial.")[emphasis supplied]


                                             3
      told his staff to tell appellant that the trial was not going to
      occur and that he could go home to Houston. That sequence of
      events describes a voluntary absence by the defendant ... [Slip
      op. page 4]


The findings of fact of the trial court differ from this Court's summation.
For example:

      3. After the jury was empanelled and sworn, the jury was

      released and instructed to return to the court the next day,

      March 20th, 2012 at 9 a.m. to begin with the guilt/innocence

      phase of the jury trial.

      4.         The parties and their counsel were also released and

      instructed to return to court the next day, March 20th, 2012.

      [emphases supplied]

Thus, both counsel for defendant and the defendant were instructed by

the court to be released and to return the next day. There was no

voluntary absence from the court by either the defendant or his

counsel who then returned to his office in San Antonio, a city more

than 50 miles distant from the court.

        Voluntary absence under Art. 33.03, Tex. Code Crim. Proc. has

been construed recently to mean:

      It is true that the Code provides that, if a defendant's absence
      from the trial was voluntary, Article 33.03 permits the trial to
      continue until its conclusion in the defendant's absence.

                                        4
      Ordinarily, this provision applies when a defendant jumps bail
      and absconds ...


Brown v. State, PD-1723-12, slip opinion at page 13 (Tex.Cr.App. 3-19-

2014) In contrast, this Court cites Seghelmeble v. State, 390 S.W.3d 576,

581 (Tex. App.-Dallas 2012, no pet.):

      The only overlap between appellant's motion for continuance
      and his argument on appeal is his reliance on his alleged
      incompetency to stand trial. But a jury refused to find him
      incompetent only a few days before trial, and appellant offered
      no evidence of a change of circumstances to justify a delay for
      a second inquiry into his competency. To justify a
      postponement of the trial for another competency hearing,
      appellant needed to offer new evidence of a change in his
      mental condition after the prior competency hearing.
      (emphases supplied)

Unlike the defendant in Seghelmeble v. State, Stanley was told by the court

to leave and return the next day. That was the last and most recent order of

the trial court to Stanley. By contrast to the holding in Seghelmeble v. State,

the Court of Criminal Appeals in Brown v. State held that

      ... some evidence about appellant's competence immediately
      after his gunshot wound was introduced at a hearing on that
      issue. During that hearing, the trial court decided this case on
      the basis of the voluntariness of appellant's absence. "Some
      evidence" is a low bar; it requires a showing of only a quantity
      more than none or a scintilla.

Brown v. State, PD-1723-12, slip opinion at page 14 (Tex. Cr. App. 3-19-

2014). Thereafter, the Court of Criminal Appeals remanded the case for a


                                       5 .
retroactive determination of competency. Therefore, by comparison of the

trial court's findings of fact in Stanley's case with the facts found in Brown

v. State, supra, there was certainly more than a scintilla of evidence that

Stanley did not make himself voluntarily absent from the trial. In addition,

the events occurring at the time of the mistrial order herein occurred outside

the presence of both the defendant and his counsel.

      Furthermore, any defendant in a criminal case has a right to be present

" ... in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S.

337, 338, supra (emphasis supplied).        Article 33.03 and the Court of

Criminal Appeals' determination in Brown v. State, PD-1723-12, supra, slip

opinion at page 13, make the point clearly that since Stanley did not jump

bond or abscond and since he was instructed by the trial court to be released,

he did not voluntarily absent himself from the trial.        While this Court

appears to confine the effect of Art. 33.03 within only "the statutory right to

the constitutionally-based rights to confront witnesses against him." [slip

opinion, note 1] the Supreme Court in Illinois v. Allen, supra, and the Court

of Criminal Appeals in Brown v. State, supra, both appear to take a broader

view of the defendant's right to presence in his trial. Thus, a question arises

herein whether Art. 33.03 as this Court interprets it is limited in its scope, a

novel proposition in this State's jurisprudence.



                                       6
      On the issue of procedural waiver of the point for failure to adhere to

this novel proposition in the trial court and on appeal, Stanley points to the

record in the case:

 20                    Now under Article 33.03 of the Code of Criminal

 21    Procedure the Defendant must be personally present at trial in

 22    a misdemeanor for all cases.       And the jury in this case was

 23    selected, it was impaneled and sworn, and under the case law,

 24    jeopardy attaches at that point.       Now in terms of a Mistrial

25     Motion, that is part of the trial, and the Defendant in this




                                      7
  1   case -- there wasn't one apparently.       And the Defendant in

  2   this case did not consult with anybody, didn't know anything

  3   about five versus six jurors, and he didn't authorize a

  4   mistrial.    He wasn't present to .talk about a mistrial.       And I

  5   think the record is clear that there wasn't a motion in court

  6   for a mistrial.       However, regardless of whether there was such

 7    a motion, there is no record of my client being informed about

 8    it, nor was he in the courtroom.      And the absence of the

  9   record is -- is demonstrated by this court reporter's

10    affidavit.

11                     The State decided not to go forward with any

12    evidence, so they can't show that there was a hearing and

13    cannot show that there was a hearing.       And I believe the

14    record stands that by a preponderance of the evidence, or

15    more, that there was no hearing.      And regardless of whether or

16    not there was a hearing, my client did not participate in a

17    decision of whether or not to move for a mistrial.

18                     Now Article 33.03 applies to DWI cases.      And the

19    case here is Warren vs. State, 532, 2d, 588, Texas Court of

20    Criminal Appeals 1976.      So in a misdemeanor DWI case, Article

21    33.03 applies.


RR. vol. 6 of 6, pp. 9-10

Clearly, in the trial court counsel argued that Stanley had a right to be

present at the mistrial under Art. 33.03, aside from the issue of confrontation

and cross examination of witnesses. The point of error recites:




                                       8
WHETHER THE TRIAL COURT ERRED IN DECLARING A MISTRIAL
WITHOUT THE DEFENDANT OR HIS COUNSEL PRESENT.

This point is a simple statement of what was argued in the court and

on appeal, and Stanley argues that he did not procedurally default by

failing to tie his objection in court and on appeal to the right to

confront and cross examine witnesses.

HARM

      On the Issue of harm, the Court finds that a motion for a

mistrial which excludes the defendant and his counsel does not

"bear[] a substantial relationship to the defendant's opportunity to

defend himself," citing Adanandus v. State, 866 S.W.2d 210, 219-20

(Tex. Crim. App. 1993) However, in Adanandus v. State defense

counsel was present at the "in-chambers meeting" [id, page 219]

which was later found to be a pre-trial hearing within the meaning of

Art. 28.01, Tex. Code Crim. Proc. The Court of Criminal Appeals

held that Mr. Adanandus' presence at the in-chambers hearing did not

bear a reasonably substantial relationship to the opportunity to defend

because he was "zealously represented by counsel at the in-chambers

meeting," and a record was made of the proceeding. Adanandus v.

State, supra, pp. 219-220. Nevertheless, the Court held:

      The meeting was a "pre-trial proceeding" within the

                                      9
      meaning of article 28.01 and therefore the trial court
      erred in conducting the meeting in appellant's absence.

Adanandus v. State, supra, p. 219.

      Thus, the finding of harmless error was based upon the premise that

Mr. Adanandus was represented by counsel at the hearing and a record of

that proceeding was made. In this case defense counsel was not present and

was in another city 50 miles distant from the courtroom. In fact, this Court's

opinion does not cite any authority that holds that neither the defendant nor

his counsel need be present for a mistrial order being rendered, sua sponte,

by the court in circumstances where jeopardy has attached to the case.

      Entry of an order involving a defendant's fundamental right to be free

from jeopardy in a criminal case without counsel or the defendant present is

error. Adanandus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993)

Mr. Stanley had a right to determine whether to go forward with five jurors

or wait for the return of the sixth juror. Ex Parte Garza. 337 S.W.3d 903,

(Tex. Crim. App. 2011), He had the right to the advice of counsel on the

question as well. The defense lawyer cannot make the decision about these

matters alone, over the telephone from 50 miles away. Additionally

Adanandus v State, the authority cited in this Court's opinion as holding the

error harmless involves: 1) the presence of counsel at the hearing from

which the defendant was excluded and 2) the making of a record of the

                                     10
hearing.   Neither of those factors are present in this case.    Therefore,

Appellant argues that this Court's harm analysis is faulty or incomplete. In

fact, it was error under Art. 33.03 for the court to enter a mistrial order

without counsel or the defendant being present, and it was not harmless.

This matter should be reheard by the Court.

      OTHER POINTS OF ERROR

      This Court next addresses Appellant Stanley's points of error

numbers one and three by holding: "The court did not abuse its

discretion by declaring a mistrial without an express finding of manifest

necessity, and the new trial setting does not violate the double-jeopardy

protections." The question is whether this Court of Appeals has decided an

important question of state or federal law in a way that conflicts with the

applicable decisions of the Court of Criminal Appeals or the Supreme Court

of the United States.

      This Court cites Arizona v. Washington, 434 U.S. 497, 505 (1978)

for the proposition that Stanley's right to be free from double jeopardy

may be "subordinate to the pubic interest in affording the prosecution

one full and fair opportunity to present evidence to an impartial jury."

The court also refers to the same quoted language in Pierson v. State,

426 S.W.3d 763, 770 (Tex. Crim. App. 2014). However, both of those


                                     11
cases apply this standard in trials which had been halted during the

presentation of evidence where a mistrial was moved for and granted

over the defendant's objection. It is clear in this case that Stanley's

counsel had no opportunity to object.

      The entirety of this Court's quoted language in context is:

      Because of the variety of circumstances that may make it
      necessary to discharge a jury before a trial is concluded, and
      because those circumstances do not invariably create unfairness
      to the accused, his valued right to have the trial concluded 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. Yet in view of the
      importance of the right, and the fact that it is frustrated by any
      mistrial, the prosecutor must shoulder the burden of justifying
      the mistrial if he is to avoid the double jeopardy bar. His burden
      is a heavy one. The prosecutor must demonstrate "manifest
      necessity" for any mistrial declared over the objection of the
      defendant.

Arizona v. Washington, 434 U.S. at 505, supra. This fact situation does not

exist in Stanley's case. There is no presence of counsel either for the State

or for the defense herein. There was no record made contemporaneously of

any proceeding. There was no motion for a mistrial. The defendant was not

present, and he did not consent to a mistrial because he was not consulted.

Stanley's is a completely different fact situation than those which occur in

Pierson v. State, and Arizona v. Washington.      This Court's holding is in

conflict with the law set out in these cases which do not apply to Stanley's


                                     12
set of facts. Therefore, this Court has rendered a decision in conflict with

the Court of Criminal Appeals and the Supreme Court.

         This Court also cites Ex parte Garza, 337 S.W.3d 903, 909

(Tex.Crim.App. 2011) for the proposition that "[t]rial courts have the

discretion to declare a mistrial based on manifest necessity in extraordinary

circumstances." [slip op. p. 5] In that case the Court of Criminal Appeals

was presented with a fact situation very similar to this case. The Court there

found:

         [The trial court's] discretion is abused, we have said, whenever
         the trial court declares a mistrial without first considering the
         availability of less drastic alternatives and reasonably ruling
         them out .. . a mistrial-that is to say, manifest necessity for the
         mistrial exists-when the particular circumstances giving rise to
         the declaration render it impossible to arrive at a fair verdict
         before the initial tribunal, when it is simply impossible to
         continue with trial ... (emphases supplied)

Jd., page 909. In this case the trial court failed to make these emphasized

findings. There is no record either in the court's order or otherwise that

these findings were made. On its face the court's order demonstrates an

abuse of discretion under this standard unless it is supported by some other

record. Everything else concerning the matter is post hoc, and therefore, not

considered by the trial court. In fact, during the habeas hearing the trial

court did not make findings considering his ruling.

         This Court then goes on to discuss what the trial court could have

                                         13
considered under Ex Parte Garza, supra, and Ballew v. Georgia, 435 U.S.

223, 245 (1978) should it have chosen to do so.            However, there is no

evidence in the record that the trial court did.




 1    mistrial.    Because I didn't even know about it until he

 2    called.     So I would like the record to reflect that I did not
 3    move for a mistrial.

 4                      THE COURT:    I don't remember it either.

 5                      And I saw where I signed it on the 20th, which
 6    would be that Tuesday morninq.
 7                      MR. SCHARMEN:        Riqht.

 8                      THE COURT:   And so I don't know -- I don't know
 9    how we got to that point.         I    just know that we can't go
10    forward with five.


RR, val. 5 of 6, p. 4

      As this Court finds, the trial court erroneously thought that he could

not proceed with fewer than six jurors. This statement from the trial court is

the only information which informs the record. Otherwise, he did not "know

how we got to that point."        The opinion of this Court seems to give

significance to the fact that at a later hearing there was an off record


                                            14
telephone conversation between a prosecutor and defense counsel that

counsel would not proceed with six jurors. However, that information was

not communicated to the trial court, and the record does not disclose it. At

this point it is clear that Appellant Stanley should have had some

involvement in the decision as to whether to go forward either with five

jurors or with a new panel.

        Certainly there was no manifest necessity in this case for the
        trial court to declare a mistrial without at least exploring the
        option to wait a week, possibly then to conduct the trial with
        only five jurors. So long as the appellant may waive his
        constitutional right to a six-member jury, it cannot be said that
        it was impossible to arrive at a fair verdict, impossible as a
        practical matter to continue with the trial, or that reversal on
        appeal would automatically ensue.


Ex parte Garza, 337 S.W.3d 903, 911 (Tex. Crim. App. 2011) There is no

evidence that Appellant Stanley waived his rights in this situation or asserted

his rights in any way because there was no hearing, and nothing was

communicated about it to the trial court. The testimony from the habeas

hearing is:

   25         Q.   All right.   After that did you ever attend a Motion




                                       15
   1    for Mistrial?
   2         A.   No, sir.
   3         Q.    Did you ever discuss with the Court or with counsel
   4    whether or not you wished to move for mistrial?
   5         A.   No, sir.
   6         Q.    Did you ever receive advice concerning -- from the
   7    Court or from counsel whether or not you can proceed in a jury
   B    trial with fewer than six jurors?
   9         A.   No, sir.
  10         Q.    Did you move for mistrial?
  11         A.   No, sir.
  12         Q.   Did you authorize me to move for a mistrial?
  13         A.   No, sir.


RR vol. 6 of 6, pp. 5-6. Thus, there is no evidence in the record that counsel

was in contact with Stanley prior to the trial court's action or that Stanley's

interest in the matter was communicated to the trial court.

       Thus, this court's finding that "the trial court did not act irrationally or

irresponsibly when it concluded that continuing with the trial was

impossible" is not supported by the record and contravenes the record, the

trial court's statement of knowledge and the content of the order for mistrial.

As the Court of Criminal Appeals held in Ex parte Garza:

       We think the Supreme Judicial Court of Massachusetts properly
       assigned the burden to the State rather than (as the State seems
       to advocate) the accused when it recently observed:

           [T]he question is not whether [the accused] executed


                                        16
          a valid waiver, but whether there was a "manifest
          necessity" for declaring a mistrial. Such a necessity
          would have presented itself if [the accused] had
          declined to execute a waiver, but the record is clear
          that neither the judge nor counsel was aware of or
          even considered the option. Rather, the judge quickly
          concluded, without taking time to check the law, or
          offering counsel the opportunity to research the issue
          and report back, that there were no alternatives to a
          mistrial.

See also Torres v. State, 614 S.W.2d 436,442 (Tex.Crim.App. 1981)

(in exercising discretion whether to declare mistrial, trial court "must give

adequate consideration to the defendant's double jeopardy right") (emphasis

supplied).   Appellant Stanley suggests that this Court has rendered an

opinion in conflict with the applicable decisions of the Court of Criminal

Appeals and with those of the United States Supreme Court.

      WHEREFORE Appellant Stanley prays that the Court will rehear this

matter.


                                                   itted,



                                    R E SCHARMEN
                                315 Dwyer
                                San Antonio, Texas 78204
                                Telephone: 210-226-8021
                                Facsimile: 210-224-5722
                                State Bar No. 17727500
                                ATTORNEYFORAPPELLANT


                                     17
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing

motion has been      mailed~ Office    of the District Attorney of Hays

County, Texas this   th~ oay of September, 2015.




                                  18
                   CERTIFICATE OF COMPLIANCE

     Undersigned counsel hereby certifies that using Microsoft Word a

computer-generated brief in this cause was produced containing 3311

words including a footnote and this certificate. The font is Times New

Roman at 14-point type. The footnote is 12-




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