

 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0344-12



DAVID COOK, Appellant


v.


THE STATE OF TEXAS




ON STATE'S AND APPELLANT'S
PETITIONS FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
DENTON COUNTY


 Keller, P.J., filed a concurring opinion.

	The Court says that when defense counsel requested a mistrial, "[e]veryone understood that
defense counsel was saying 'Stop this proceeding--whatever it is.'" I do not agree, and I think the
Court is asking for trouble in equating the two.  I would grant appellant the relief he seeks, but I
would do so on a different basis.
	First, the Court makes an unwarranted assumption when it says that everyone understood
what defense counsel was saying.  Appellant asked for a particular remedy--a mistrial.  The Court
assumes that the request for a mistrial clearly conveyed an implied objection: that calling the jury
back and continuing the proceedings was improper.  But appellant's request for a mistrial could have
had a different legal basis: that discharging the jury the first time caused the jurors to be exposed to
outside influences before their final deliberations.  This seems to be the more natural objection, given
the remedy requested.  At any rate, from this record, we cannot conclude that the trial court
understood appellant's complaint to be that calling the jury back was improper. (1) 
	Second, the Court ascribes an incorrect meaning to the term "mistrial."  The Court seems to
believe that a mistrial merely stops the proceedings, rather than putting aside the proceedings that
have been conducted. (2)  But a mistrial renders nugatory what has gone before and nullifies all
proceedings to that point. (3)  The Court says that the trial court erred in overruling appellant's
objection, but if the trial court had granted appellant's request, this Court would not be in a position
to reinstate the original verdict because it would no longer exist.
	There was plenty of opportunity for either side to avoid what happened in this case.  The
State could have polled the jury.  Defense counsel could have asked for judgment on the jury's
original verdict.
	Ultimately, however, I think that the trial judge's obligation to render judgment on a facially
complete and correct jury verdict, after the jury has been discharged and separated, (4) though perhaps
subject to waiver, is not subject to forfeiture by inaction. (5)  Therefore, appellant's failure to lodge a
proper objection does not preclude him from obtaining relief on appeal.
	I respectfully concur in the Court's judgment.
Filed: January 30, 2013
Publish
1.   See Keeter v. State,175 S.W.3d 756, (Tex. Crim. App. 2005) (attorney's comments
regarding witness recantation, urged in connection with an actual innocence claim on motion for new
trial, did not preserve claim regarding suppression of exculpatory evidence that was never expressly
articulated to the trial judge).  
2.   Court's opinion at 9 - 10, n. 12 ("The objection of 'I request a mistrial' seeks to stop the
invalid proceedings, while the request for a 'new trial' seeks to put aside a completed trial and
start over.")
3.   Rodriguez v. State, 852 S.W.2d 516, 520 (Tex. Crim. App. 1993).
4.   See Webber v. State, 652 S.W.2d 781, 782 (Tex. Crim. App. 1983) (jury can be recalled
if it has not separated or has only momentarily separated); West v. State, 170 Tex. Crim. 317, 319,
340 S.W.2d 813, 815 (jury cannot be recalled after it has been discharged and separated to correct
its verdict unless it has only momentarily separated in the presence of the court).
5.   See Marin v. State, 851 S.W.2d 275, 277-80 (Tex. Crim. App. 1993).
