                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION

                                        No. 04-17-00093-CR

                                        Bobby BORDELON,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 16-2517-CV
                              Honorable William Old, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice
                 Irene Rios, Justice

Delivered and Filed: July 31, 2018

AFFIRMED

           Appellant Bobby Bordelon was indicted in Guadalupe County, Texas, Cause No. 14-0467-

CR-C, styled The State of Texas v. Bobby Bordelon, alleging one count of continuous sexual

assault of a child. The case was called for trial on November 2, 2015. On November 5, 2015,

after the State concluded its presentation of its case-in-chief, but before the defense began the

presentation of its case, the trial court, sua sponte, declared a mistrial. Bordelon was subsequently

reindicted in Cause No. 15-2215-CR-C; the new indictment alleged one count of continuous sexual

assault of a child and also contained one count of aggravated sexual assault of a child and three
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counts of aggravated assault with a deadly weapon. Bordelon filed a pretrial writ of habeas corpus

contending double jeopardy barred retrial of the allegations contained in Cause No. 14-0467-CR-

C, namely the count alleging continuous sexual assault of a child. On February 6, 2017, the trial

court denied Bordelon’s application. We affirm the trial court’s order denying relief.

                           FACTUAL AND PROCEDURAL BACKGROUND

A.     November 2015 Trial

       Bordelon was indicted by a Bexar County jury, on May 6, 2014, on one count of continuous

sexual abuse of a child. His case was called for trial the week of November 5, 2015. Defense

counsel argued, during voir dire, opening argument, and during the cross-examination of

witnesses, the allegations of the child victim were fabricated and that they were the result of marital

issues. Defense counsel told the jury there was a second child involved, M., who had also been

interviewed by the Child Advocacy Center. Defense counsel told the jury that they would hear

from M., that M. made no outcry, and that they would hear nothing happened.

       After the State rested its case-in-chief, defense counsel met with M. and her mother, and

then defense counsel met with M. by herself. Based on her conversation with M., defense counsel

believed she was under a statutory obligation to report M. as the child-victim of sexual abuse. See

TEX. FAM. CODE ANN. § 261.101(a) (West Supp. 2018) (requiring specified professionals, having

cause to believe that a child’s “physical or mental health or welfare has been adversely affected by

abuse or neglect” to immediately report the abuse). Defense counsel further averred, that without

disclosing anything revealed to her, she met with her client and inquired from the prosecutor

whether the State was willing to extend any offers to keep M. from having to testify. Finally,

defense counsel notified the trial court that she

       believed that there was a situation that had come about that essentially made it
       impossible for me to continue representing Mr. Bordelon because I thought that


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       there was—that there was such a conflict that there was just no way that I could
       continue.

Defense counsel was adamant she never revealed the specifics of her conversation with M. to the

court or the prosecutor. In accordance with the requirements set forth in article 38.072, defense

counsel reiterated that her mandatory duty to report was to law enforcement or to the Department,

not to the trial court. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2018) (setting

forth outcry requirements). Defense counsel opined that, as an outcry witness under article 38.072,

she could inevitably be obligated to testify against her client. See id.

       The trial court held an ex parte hearing. Defense counsel testified the following individuals

were present: trial court, court reporter, bailiffs, defense counsel, and Bordelon. No one from the

district attorney’s office was present and the court room was closed. At the end of the hearing, the

trial court held, “I’m going to allow [defense counsel] to withdraw in this case and declare a

mistrial.” The parties agree Bordelon did not agree to the mistrial.

       Bordelon was indicted under a new indictment alleging the following: continuous sexual

abuse of a child charge (same allegations contained in the original indictment)—Count I;

aggravated sexual assault of a child—Count II; and three counts of aggravated assault—Counts

III–V. Bordelon filed a writ of habeas corpus on Count I, the continuous sexual abuse of a child

charge, in the new indictment.

B.     January 2017 Habeas Proceeding

       Over objection, Bordelon’s defense counsel was called to testify. She testified that she

neither asked the trial court to withdraw nor sought a mistrial. However, defense counsel

explained, “there was just absolutely no way that I could have ethically continued on as counsel

for Mr. Bordelon at that point. It would have done him great harm and there’s just no way I could




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proceed.” In her opinion, there was no question that it was in her client’s best interest for the trial

court to declare a mistrial, “I believed that then and I believe that now.”

        On redirect, trial counsel explained that “given what we had already told the jury that they

were going to hear from us in opening and throughout the trial, my biggest concern was that if

they didn’t hear what we had told them that they were going to hear or they heard something

different from her, that was going to just be catastrophic for [Bordelon].” She opined the

possibility existed that she could be called as an extraneous witness in the current trial. “There

was just no way that that was going be a good outcome no matter what and there was no way that

I could continue on in that trial.”

        Habeas counsel argued defense counsel made the trial court aware of information it should

have never been told.       Because the trial court was in possession of wrongfully-obtained

information, the trial court granted a mistrial and made defense counsel withdraw, which left

Bordelon without counsel. There were other options the trial court should have taken. Bordelon

did not consent to the mistrial and the trial court should not have granted it.

        The State argued the trial court acted rationally and responsibly and there was simply no

way to fix the conflict. Defense counsel was an outcry witness. The trial court granted the mistrial

for the right reasons and the right time.

                                       MANIFEST NECESSITY

A.      Standard of Review

        An appellate court reviews a trial court’s decision to grant or deny an application for writ

of habeas corpus under an abuse-of-discretion standard. Pierson v. State, 426 S.W.3d 763, 770

(Tex. Crim. App. 2014). When raising a double-jeopardy claim on a pretrial writ of habeas corpus,

the defendant must prove, by the preponderance of the evidence, that he is being tried for the same

offense after declaration of a mistrial to which he objected. Ex parte Peterson, 117 S.W.3d 804,
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818 (Tex. Crim. App. 2003), overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335,

371 (Tex. Crim. App. 2007). A heavy burden then shifts to the State to demonstrate the mistrial

was the result of “manifest necessity.” Pierson, 426 S.W.3d at 770; Ex parte Garza, 337 S.W.3d

903, 909 (Tex. Crim. App. 2011). Application of legal standards are reviewed de novo, while the

trial court’s determinations of findings of fact, implied findings of fact, or mixed questions of fact

and law are afforded almost total deference—especially when that decision turns on an evaluation

of credibility and demeanor. Peterson, 117 S.W.3d at 819. An appellate court further views all

evidence in the light most favorable to the trial court’s ruling. Id.

B.     Arguments of the Parties

       Bordelon contends the trial court failed to consider lesser alternatives to granting a mistrial,

such as granting a continuance of the trial to allow for another attorney to be brought in to represent

Bordelon for the remainder of the trial, decide whether to call M. in its case-in-chief, or to forgo

any testimony relating to M. and proceed with closing argument for Bordelon in place of his prior

attorney. Specifically, Bordelon asserts the trial court could have appointed the attorney who

assisted trial counsel during voir dire to represent Bordelon during the remainder of the trial.

       Bordelon also contends the trial court’s actions left him unrepresented at the hearing which

resulted in a mistrial, and therefore left him with no one to advocate for lesser alternatives, such

as a continuance.

C.     Double Jeopardy Concerns Resulting from Prosecution Ending Prematurely Due to
       Mistrials

       Texas and Federal Constitutional law is clear that, “[g]enerally, a criminal defendant may

not be put in jeopardy by the State twice for the same offense.” Pierson, 426 S.W.3d at 769. Due

Process Clause confers “a ‘valued right to have his trial completed by a particular tribunal[,]’ which

right ‘must in some circumstances be subordinated to the public’s interest in fair trials designed to


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end in just judgments.’” Ex parte Garza, 337 S.W.3d at 909 (quoting Wade v. Hunter, 336 U.S.

684, 689 (1949)). Thus, as a general rule, double jeopardy bars future prosecution when a case is

terminated prematurely, against the wishes of the defendant. Id. However, because there are a

“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,” Arizona v.

Washington, 434 U.S. 497, 505 (1978), two exceptions apply to the general double jeopardy bar

for a prosecution that ends prematurely due to a mistrial: “(1) if the criminal defendant consents

to retrial or (2) there was a manifest necessity to grant a mistrial.” Pierson, 426 S.W.3d 769–70

(citing Ex parte Garza, 337 S.W.3d at 909).

       Prior to declaring the mistrial, the trial court must “first [consider] the availability of less

drastic alternatives and reasonably [rule] them out[,]” and failure to do so is an abuse of discretion.

Id. (quoting Ex parte Garza, 337 S.W.3d at 909). The trial court need not expressly articulate any

reasons for the mistrial, so long as manifest necessity is apparent from the record. Id. In deciding

whether manifest necessity existed, appellate courts must balance competing interests: the

defendant’s right to have his trial completed “by a particular tribunal” and the prosecutor’s

entitlement to “one full and fair opportunity to present his evidence to an impartial jury.”

Washington, 434 U.S. at 505; accord Ledesma, 993 S.W.2d at 364. We remain mindful of our

mandate not to substitute our opinion for that of the trial court’s and to afford “great deference” to

the trial court’s decision. See Pierson, 426 S.W.3d at 770 (“While we may not have reached the

same decision, we cannot say that the trial court acted irresponsibly or irrationally.”); Ledesma,

993 S.W.3d at 365 (“[I]f the record shows that the trial judge exercised sound discretion in finding

a manifest necessity for a retrial, the judge’s sua sponte declaration of a mistrial is not incorrect

just because the reviewing court might have ruled differently.”).



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D.     Analysis

       Bordelon bore the initial burden to raise a double jeopardy violation by proving he was

facing trial for the same offense after a mistrial. See Hill, 90 S.W.3d at 313. Having met that

burden, the burden then shifted to the State to prove the mistrial was granted in the face of manifest

necessity. Id. (“Manifest necessity exists when the circumstances render it impossible to arrive at

a fair verdict, when it is impossible to continue with trial, or when the verdict would be

automatically reversed on appeal because of trial error.”)

       A trial judge’s ability to declare a mistrial based on manifest necessity is limited to “very

extraordinary and striking circumstances.” Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App.

2002) (citing United States v. Jorn, 400 U.S. 470, 480 (1971)). “Manifest necessity exists when

the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue

with trial, or when the verdict would be automatically reversed on appeal because of trial error.”

Id.; see also Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981) (“The power

ought to be used with the greatest caution, under urgent circumstances, and for very plain and

obvious causes.”).

       Bordelon also argues the trial court could have granted a continuance and appointed new

counsel. See Ex parte Jimenez, 364 S.W.3d 866, 887 n.70 (Tex. Crim. App. 2012) (citing Cooper

v. State, 509 S.W.2d 565, 567 (Tex. Crim. App. 1974) (“A trial judge may grant a continuance

when a fair trial becomes impossible due to an unexpected occurrence during trial.”)). The record

supports the trial court’s conclusion that a continuance would have prejudiced the jury, rather than

allowed time for new counsel to prepare for trial. The entire defensive strategy relied on M’s

testimony. Bordelon’s current defense counsel could not present the witness as promised, nor

could any other defense counsel. Additionally, the trial court would have had to explain an

extensive delay in allowing a new attorney time to prepare. As defense counsel explained, she
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was Bordelon’s third attorney. Any child sexual assault case is complicated. For a new attorney

to enter a case after the State has rested its case-in-chief, would not only cause hardship on the

attorney, but would be incredibly difficult and problematic to explain to the jury. Bordelon thus

failed to show how the requested continuance would serve to his benefit. See Jimenez, 364 S.W.3d

at 887 n.70.

       An appellate court is required to afford great deference to the trial court’s evaluation of

potential juror bias. Pierson, 426 S.W.3d at 772 (citing Ross v. Petro, 515 F.3d 653, 661 (6th Cir.

2008)). The trial court watched the jury, the trial court saw the jury during voir dire, during the

opening argument of the State and defense counsel, during the State’s direct and when defense

counsel cross-examined each witness. Our deference is based on the trial court’s unique position

to see the “reaction of the jurors;” it is “far more ‘conversant with the factors relevant to the

determination’ than any reviewing court can possibly be.” See Ross, 515 F.3d at 661.

       Here, the trial court was present throughout the entire proceedings and had the obvious

opportunity to observe the juror’s demeanor. Once defense counsel raised an issue, the trial court

heard from defense counsel in chambers.        Defense counsel testified that she did not feel

comfortable continuing on in her capacity representing Bordelon, she could potentially be called

as an outcry witness in the present case or another case involving her client, and, given these

constraints, no good outcome would come from her representation of Bordelon.

       The trial court’s actions clearly demonstrate deliberate consideration. The trial court not

only talked to defense counsel in chambers, but held an ex parte hearing to ensure a record was

made. Defense counsel clarified her reasons supporting a conflict representing Bordelon and why

the conflict prevented her from continuing her representation. The trial court was faced with the

choice of continuing a trial, without defense counsel and without the testimony which defense

counsel not only promised the jury they would hear, but on which defense counsel based
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Bordelon’s entire defense, or declaring a mistrial. The trial court alone was in the best position to

determine whether the jury would be biased by the removal of defense counsel, by any delays in

providing new counsel, or by the lack of the expected testimony. Nothing in the record suggests

the trial court acted irrationally, irresponsibly, precipitously, or absent sound discretion. See

Washington, 434 U.S. at 515; Pierson, 426 S.W.3d at 770.

          Affording the trial court due deference, we cannot conclude on this record that the trial

court acted unreasonably in declaring a mistrial or that it did not explore and meaningfully consider

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

mistrial. See Ledesma, 993 S.W.2d at 365 (reviewing the trial court’s finding of manifest necessity

for mistrial by applying an abuse of discretion standard). We, therefore, cannot conclude the trial

court abused its discretion in determining that manifest necessity barred application of double

jeopardy to the facts of this case. See id.

          Accordingly, we affirm the trial court’s order denying Bordelon’s pretrial writ of habeas

corpus.

                                                  Patricia O. Alvarez, Justice

PUBLISH




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