Opinion issued November 20, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-13-01081-CR
                           ———————————
                      EX PARTE JOSEPH MONTANO




                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Case No. 1408110



                                 OPINION

      The State charged appellant, Joseph Montano, with the second-degree felony

offense of theft from a nonprofit organization of property valued between $20,000
and $100,000.1      After a State witness incriminated himself during cross

examination, the trial court declared a mistrial. The State indicated its intent to

retry appellant, and appellant applied for a writ of habeas corpus, arguing that

double jeopardy barred any retrial of the offense. The trial court denied habeas

corpus relief. In his sole issue on appeal, appellant contends that the trial court

erred in denying habeas corpus relief on double jeopardy grounds.

      We affirm.

                                    Background

      The State charged appellant with aggregate theft from a nonprofit

organization. The State alleged that appellant, an employee of Memorial Hermann

Hospital, created fraudulent invoices and submitted them to Memorial Hermann

for payment. Appellant then allegedly cashed the checks issued by Memorial

Hermann at local convenience stores.

      One of the State’s witnesses at trial was Omar Faraz. On the third day of

trial, Faraz testified that he worked at the convenience store, owned by his father,

where Montano allegedly cashed some of the checks from Memorial Hermann.

Faraz testified on cross-examination that appellant would sometimes give him


1
      See TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2013) (providing elements
      of offense of theft); id. § 31.03(e)(5) (providing that theft of property valued
      between $20,000 and $100,000 is third-degree felony); id. § 31.03(f)(3) (providing
      that offense is increased to next higher category of offense if owner of
      appropriated property was nonprofit organization).

                                          2
checks to cash that had not been endorsed. Faraz testified that, when this occurred,

he would endorse the checks himself before cashing them. After Faraz testified to

these actions, the trial court stopped the cross-examination and, outside the

presence of the jury, called the public defender’s office to appoint counsel for

Faraz. Both appellant and the State agree that several discussions between the

parties and the trial court occurred off the record. After one of these discussions,

Faraz’s appointed counsel informed the trial court that Faraz would be invoking his

Fifth Amendment right. Following this, the trial court stated on the record:

      The Court:                I will declare a mistrial. This will go back
                                on the trial docket. We will give you
                                another date to try the case, and then we can
                                represent the evidence however you guys
                                need to present it to prove it up. Because
                                like I said, to me, it was pretty clean until we
                                got there. It really was.
                                I believe he’s got a right to cross-examine,
                                and I believe the way this happened is by
                                him getting out this direct testimony, and
                                now you can’t do a cross. He’s denied a
                                cross. You’ve got a direct out there, but
                                there’s no cross. That’s the problem.
                                So, we will start—we are going to start over.
                                Let me do this. You guys will come back
                                tomorrow morning and we will discuss how
                                we are going to proceed. And I’ll give you
                                as much time as you need to, again,
                                reevaluate your presentation and what you
                                want to do, knowing that he doesn’t want to
                                testify, have the Fifth. I guess anybody—I
                                don’t know if the—it’s his father, right, that
                                owns the business?

                                         3
       [Defense counsel]:         That’s what he stated, Judge.
       The Court:                 I’m sorry?
       [Defense counsel]:         That’s what he stated.
       The Court:                 I don’t know if his father did the same
                                  thing. . . .

       The trial court then signed a mistrial order which stated: “As a result of

conduct occurring during trial, the court grants the motion for mistrial.” The trial

court set the case on the docket for a later date.

       Appellant applied for a writ of habeas corpus, contending that retrial

violated double jeopardy because he did not consent to the mistrial and there was

no manifest necessity for the mistrial. At the hearing on appellant’s habeas corpus

application, appellant maintained that he did not consent to the mistrial because,

during an off-the-record conversation, he noted that he wanted to continue to cross-

examine Faraz. Appellant also stated that the trial court did not ask the parties on

the record for input before declaring a mistrial. Appellant argued that manifest

necessity for the mistrial did not exist because Faraz should not have been able to

invoke his Fifth Amendment right against self-incrimination as he waived this right

when he freely answered questions about his actions. Appellant also contended no

manifest necessity existed because the trial court did not consider less drastic

alternatives to a mistrial.




                                           4
      At the habeas hearing, the State provided further information about what had

occurred off the record at trial. According to the State, after the trial court called

the public defender’s office, the court, off the record, informed the parties that it

was considering granting a mistrial if Faraz later invoked his Fifth Amendment

right against self-incrimination. The State argued that there was ample opportunity

at this point to object or to argue against mistrial and that it was appellant’s choice

not to present any argument or make any objection at that time. The State noted,

“At no point in time did the Court cut [appellant] off or not allow him to make any

kind of argument against the mistrial.” The State also argued that appellant’s

objection to the mistrial was not timely because appellant did not object to the

mistrial until he applied for habeas corpus relief on November 11, 2013, two

months after the trial court declared a mistrial.

      The trial court subsequently denied habeas corpus relief. Appellant timely

filed a notice of appeal. See TEX. R. APP. P. 26.2(a)(1), 31.1.

                                  Double Jeopardy

      In his sole issue, appellant contends that the trial court erred in denying

habeas corpus relief on double jeopardy grounds because (1) he did not consent to

the mistrial and (2) manifest necessity for the mistrial did not exist.




                                           5
      A. Standard of Review

      Generally, an appellate court reviews a trial court’s decision to grant or deny

habeas corpus relief for an abuse of discretion. See Sandifer v. State, 233 S.W.3d

1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Ex parte Ayers, 921

S.W.2d 438, 440 (Tex. App.—Houston [1st Dist.] 1996, no pet.)). In reviewing

the trial court’s decision to grant or deny habeas corpus relief, we view the

evidence in the light most favorable to the trial court’s ruling. See Ex parte

Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007).

      We afford almost total deference to the trial court’s determination of

historical facts supported by the record, especially when the fact findings are based

on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997). Because issues of consent are necessarily fact

intensive, a trial court’s finding must be accepted on appeal unless it is clearly

erroneous. See Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011).

When there are no written findings explaining the factual basis for the trial court’s

ruling, we imply findings of fact that support the ruling so long as the evidence

supports those implied findings. See id.

      B. Consent to Mistrial

      The United States and Texas Constitutions both prohibit a defendant from

twice being put in jeopardy for the same offense. U.S. CONST. amend. V; TEX.



                                           6
CONST. art. I, § 14. Jeopardy attaches when a jury is impanelled and sworn.

Husain v. State, 161 S.W.3d 642, 645 (Tex. App.—San Antonio 2005, pet. ref’d)

(citing Ex parte Little, 887 S.W.2d 62, 64 (Tex. Crim. App. 1994)); Ex parte

Perusquia, 336 S.W.3d 270, 275 (Tex. App.—San Antonio 2010, pet ref’d). Once

jeopardy attaches, the defendant possesses the right to have his guilt or innocence

determined by the first trier of fact. Torres v. State, 614 S.W.2d 436, 441 (Tex.

Crim. App. 1981); Ellis v. State, 99 S.W.3d 783, 786 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d). Consequently, as a general rule, if, after jeopardy attaches,

the jury is discharged without having reached a verdict, double jeopardy will bar

retrial. Brown v. State, 907 S.W.3d 835, 839 (Tex. Crim. App. 1995); Ex parte

Rodriguez, 366 S.W.3d 291, 296 (Tex. App.—Amarillo 2012, pet. ref’d). An

exception to this rule exists if the defendant consents to a retrial, or if some form of

manifest necessity mandates a retrial.         Torres, 614 S.W.2d at 441; Ex parte

Rodriguez, 366 S.W.3d at 296; see Ex parte Perusquia, 336 S.W.3d at 275.

      Our first inquiry is whether appellant consented to a mistrial. Consent in

this context need not be express; consent “may be implied from the totality of

circumstances attendant to a declaration of mistrial.” Torres, 614 S.W.2d at 441

(citing United States v. Gori, 367 U.S. 364, 369, 81 S. Ct. 1523, 1526 (1961));

Garner v. State, 858 S.W.2d 656, 658 (Tex. App.—Fort Worth 1993, pet. ref’d).

Before a defendant’s failure to object constitutes implied consent to a mistrial,



                                           7
however, a defendant must be given an adequate opportunity to object to the

court’s action. Torres, 614 S.W.2d at 441–42; Garner, 858 S.W.2d at 659. A

defendant who does not object to a declaration of mistrial, despite an adequate

opportunity to do so, has impliedly consented to the mistrial. Torres, 614 S.W.2d

at 441; Ledesma v. State, 993 S.W.2d 361, 365 (Tex. App.—Fort Worth 1999, pet

ref’d).

          Appellant contends that he did not consent to the trial court’s declaration of

a mistrial.      He admits that he never expressly objected to the trial court’s

declaration of a mistrial, but he argues this was because he did not have an

opportunity to do so. Appellant argues that he never had an opportunity to object

because the trial court’s first statement on the record after dismissing the jury for

the day was “I will declare a mistrial.” Appellant relies on the Dallas Court of

Appeals’ opinion in Harrison v. State to support the proposition that he did not

consent to the mistrial. 772 S.W.2d 556, 558 (Tex. App.—Dallas 1989), rev’d on

other grounds, 788 S.W.2d 18 (Tex. Crim. App. 1990).

          In Harrison, the trial court disqualified the defendant’s counsel, in response

to a motion by the State, on the ground that counsel was a potential fact witness.

Id. at 557. The court then announced that it intended to declare a mistrial. Id. The

parties and the trial court held an off-the-record discussion, during which the

prosecutor stated that he was within his rights to call Harrison’s attorney as a



                                             8
witness. Id. at 557–58. The trial court then declared a mistrial on the record. Id.

at 558.

      The Dallas Court of Appeals held that, based on the brevity of the record, it

could not conclude that the appellant was given an adequate opportunity to object.

Id.   The court emphasized that the trial court declared a mistrial almost

immediately after first announcing its intention, noting that the trial court did not

discuss this intention to declare a mistrial with the parties or provide an

opportunity for the parties to object. Id. The Harrison court concluded that, based

on the totality of the circumstances, Harrison did not consent to the mistrial. Id.

      Harrison is distinguishable from the present case. The sequence of events

leading up to the declaration of the mistrial in Harrison was more condensed than

that in the case before us. Given the quick nature in which the declaration of

mistrial came about, Harrison had a short window of time in which to object. See

id. at 558. Here, the events leading up to the declaration of the mistrial were more

protracted.

      After Faraz made a possibly self-incriminating statement on the witness

stand, the trial court stopped appellant’s cross-examination of Faraz and contacted

the public defender’s office, outside the presence of the jury, to appoint counsel for

Faraz. The State argued at the habeas hearing that, during the time that Faraz was

waiting for and consulting with his appointed counsel, the trial court spoke with



                                          9
the parties off the record and informed them that it was considering granting a

mistrial if Faraz subsequently invoked his Fifth Amendment right against self-

incrimination. After Faraz informed the trial court that he would invoke his Fifth

Amendment right, the court went on the record and declared a mistrial.

      The court explained on the record its reason for granting the mistrial:

      The Court:                I will declare a mistrial. This will go back
                                on the trial docket. We will give you
                                another date to try the case, and then we can
                                represent the evidence however you guys
                                need to present it to prove it up. Because
                                like I said, to me, it was pretty clean until we
                                got there. It really was.
                                I believe he’s got a right to cross-examine,
                                and I believe the way this happened is by
                                him getting out this direct testimony, and
                                now you can’t do a cross. He’s denied a
                                cross. You’ve got a direct out there, but
                                there’s no cross. That’s the problem.
                                So, we will start—we are going to start over.
                                Let me do this. You guys will come back
                                tomorrow morning and we will discuss how
                                we are going to proceed. And I’ll give you
                                as much time as you need to, again,
                                reevaluate your presentation and what you
                                want to do, knowing that he doesn’t want to
                                testify, have the Fifth. I guess anybody—I
                                don’t know if the—it’s his father, right, that
                                owns the business?
      [Defense counsel]:        That’s what he stated, Judge.
      The Court:                I’m sorry?
      [Defense counsel]:        That’s what he stated.



                                         10
      The Court:                 I don’t know if his father did the same
                                 thing. . . .

The record of appellant’s trial, combined with statements from both appellant and

the State at the habeas hearing concerning discussions that occurred off the record,

demonstrates that appellant had ample opportunity to object to the mistrial both on

and off the record.

      The situation here is, instead, similar to that in Garner. In Garner, the trial

court declared a mistrial after the first witness had testified because the court

realized that a clerical error had caused the wrong juror to be placed on the jury.

858 S.W.2d at 658. Before declaring a mistrial, the trial court held an off-the-

record conference with the parties in chambers. Id. Following the conference, the

trial court declared a mistrial on the record and explained its reasoning; neither

party objected to the mistrial on the record. Id. The Fort Worth Court of Appeals

held: “The totality of the circumstances in this case reflects that appellant in effect

consented to the mistrial. Even though appellant did not object on the record, he

had ample opportunity to object at both the conference in the judge’s chambers and

in open court on the record.”        Id. at 659.     Similarly, here, appellant had

opportunities to express his objection to the mistrial declaration in discussions off

the record as well as in open court, where the trial court explained its reasoning for

granting a mistrial.    Under the totality of the circumstances, we may infer

appellant’s consent to the mistrial. See Torres, 614 S.W.2d at 441; Ledesma, 993

                                          11
S.W.2d at 365; Garner, 858 S.W.2d at 659. We therefore conclude that the trial

court did not abuse its discretion in denying appellant’s request for habeas corpus

relief.2

       We overrule appellant’s sole issue.

                                       Conclusion

       We affirm the judgment of the trial court.




                                                 Evelyn V. Keyes
                                                 Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




2
       We further note that, in a habeas corpus proceeding, the applicant bears the burden
       of alleging and proving specific facts which, if true, would entitle him to relief.
       See Druery v. State, 412 S.W.3d 523, 538 (Tex. Crim. App. 2013). In Garza v.
       State, the Corpus Christi Court of Appeals addressed a situation in which the
       defendant argued that double jeopardy barred a retrial after the trial court declared
       a mistrial, but the defendant did not introduce a record of what happened at his
       prior trial. 803 S.W.2d 873, 875 (Tex. App.—Corpus Christi 1991, pet. ref’d).
       The court observed that defense counsel’s testimony at the subsequent habeas
       hearing did not “indicate whether [Garza] consented or objected to the district
       court’s declaration of mistrial.” Id. The court further noted that Garza bore the
       burden of establishing his entitlement to relief in a habeas proceeding and held
       that he had “failed to prove that jeopardy barred his second trial.” Id.

                                            12
