      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00563-CR



                               Ex parte Fred Michael Underwood



           FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
    NO. 670854, HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Fred Michael Underwood’s trial for operating a watercraft while intoxicated ended

in a mistrial after the jury reported that it was unable to reach a verdict. Underwood subsequently

applied for a writ of habeas corpus seeking to prevent a retrial on the ground that further prosecution

would constitute double jeopardy. See U.S. Const. amend. V; Tex. Const. art. I, § 14. The county

court at law denied relief and this appeal followed. We conclude that there was manifest necessity

for the mistrial, and therefore we affirm the order.

               At 7:00 p.m. on May 29, 2004, Austin Park Police officers stopped a boat being

operated on the wrong side of Lake Austin. The boat was occupied by eight persons including

Underwood, who was identified by both officers as the operator. There were many empty beer cans

in the boat and one of the passengers appeared close to passing out. Underwood’s eyes were glassy

and bloodshot, his speech was slurred, and he had about him the odor of alcoholic beverage. After

Underwood failed several field sobriety tests, he was arrested. Underwood later submitted to an

intoxilyzer test; the two samples showed alcohol concentrations of 0.218 and 0.205.
                Underwood testified and acknowledged being the owner of the boat. He also

admitted being intoxicated. He denied, however, that he was operating the boat when it was stopped

by the officers. Underwood testified that his friend Todd Whiteford was operating the boat, a fact

that Whiteford confirmed in his own testimony. According to Underwood and Whiteford, Whiteford

stopped the boat and turned off the engine in response to the officers’ signal to stop. Underwood

then told Whiteford to move to the passenger seat so that Underwood could gather the documents

that he knew the officers would want to inspect. According to both witnesses, the officers never

asked who was operating the boat.

                The jury began deliberating at about 1:30 p.m. At a time that is not reflected in the

record, the jury was returned to the courtroom, and the court read what it referred to as an Allen

charge.1 See Allen v. United States, 164 U.S. 492 (1896). At 5:05 p.m., the court received a note

from the presiding juror saying, “We are unable to reach a unanimous decision, and foresee no

resolution.” The jury was again returned to the courtroom, and after the presiding juror indicated

that the jury was split five-to-one, the court told the jurors that dinner would be provided and asked

them to resume deliberating. Finally, at 7:50 p.m., the court received an unsigned note: “The vote

is still five to one. I am the one and I see no hope of obtaining a unanimous verdict.” The court

told counsel, “I don’t think this person’s changing their mind. I think that the—they’re not wanting

to do violence to their conscience as the Allen charge says. I don’t think it’s going to change.” Both

the prosecutor and defense counsel objected to a mistrial and urged the court to give a second Allen

charge. The court was unpersuaded: “Well, I’m going to go ahead and declare a mistrial sua sponte


       1
           The text of the charge is not in the record.

                                                   2
because I don’t think that they’re going to change their minds.” The jury was returned to the

courtroom for a third time, and the presiding juror confirmed that the jurors were unlikely to agree.

The court declared the mistrial six and one-half hours after deliberations had begun.

               The constitutional double jeopardy protection embraces the defendant’s right to have

his trial completed by a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503 (1978). When

a mistrial is declared over the defendant’s objection after the jury is sworn, a retrial is barred by

double jeopardy unless there was manifest necessity for the mistrial. Id. at 505. One necessity for

a mistrial that has long been recognized is the trial judge’s belief that the jury is genuinely

deadlocked and unable to reach a verdict. Id. at 509. This principle is embodied in article 36.31,

which grants trial courts the discretion to discharge a jury when “it has been kept together for such

time as to render it altogether improbable that it can agree.” Tex. Code Crim. Proc. Ann. art. 36.31

(West 2006).

               The trial judge is afforded broad discretion in deciding whether the discharge of a

deadlocked jury is manifestly necessary. Washington, 434 U.S. at 509. If a retrial of the defendant

were barred whenever an appellate court viewed the necessity for a mistrial differently from the trial

judge, there would be a danger that the latter, considering the serious consequences of an erroneous

ruling, would employ coercive means to break the jury’s apparent deadlock and thereby frustrate the

public interest in just judgment. Id. at 509-10. Therefore, the trial judge’s decision to declare a

mistrial when she considers the jury deadlocked is accorded great deference by a reviewing court.

Id. at 510.




                                                  3
               The exercise of discretion in declaring a mistrial when the jury cannot agree is

determined by the amount of time the jury deliberates considered in light of the nature of the case

and the evidence. Beeman v. State, 533 S.W.2d 799, 800 (Tex. Crim. App. 1976); Montemayor

v. State, 55 S.W.3d 78, 87 (Tex. App.—Austin 2001, pet. ref’d). The “nature of the case and the

evidence” means the type and complexity of the evidence, whether expert testimony is involved, the

number of witnesses and exhibits, the complexity of the charge, whether the jury moved toward

agreement during deliberations, and the nature and extent of the jury’s communication with the

court. Torres v. State, 961 S.W.2d 391, 393 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

               Underwood argues that the testimony in this case was “relatively complex” and that

the “jury was presented with numerous issues, including evidence of intoxication; the reliability of

expert testimony concerning field sobriety tests; the reliability of expert testimony concerning

intoxilyzer evidence; and credibility disputes between witnesses for the State and the defense.”

Notably, most of the complex testimony cited by Underwood concerns his intoxication, an issue

that became moot when he admitted being intoxicated.2 In fact, as presented to the jury, the case

was straightforward: was Underwood operating the boat as the arresting officers testified, or was

Whiteford operating the boat as Underwood and Whiteford testified. Resolving this issue did not

require the jury to analyze the expert testimony regarding the intoxication tests, but merely to do the

one thing that all juries do: decide the relative credibility of the witnesses.




       2
          Defense counsel told the jury in his closing argument that Underwood’s intoxication was
“not the issue here today.”

                                                   4
               Underwood urges that the court should have required the jury to deliberate at least

as long as it took present the evidence. The State called a total of five witnesses: the two patrol

officers, a third officer who transported Underwood to the jail, the intoxilyzer operator, and the

technical supervisor charged with maintaining the intoxilyzer machine. Underwood and Whiteford

were the only defense witnesses. The parties agree that the presentation of evidence took about

twelve hours, spread over two days. But roughly half of this time was spent questioning and cross-

examining the State’s witnesses regarding Underwood’s intoxication, the administration of

the intoxication tests, and the reliability of the intoxilyzer machine, all matters that became moot

when Underwood admitted being intoxicated. Thus, the time spent adducing evidence regarding

the identity of the boat’s operator and other matters approximately equaled the time the jury

spent deliberating.

               Keeping in mind the great deference that must be afforded the trial court’s

determination that a jury is deadlocked, the time spent deliberating the one issue of witness

credibility that the jury was asked to decide, and the notes indicating that the jury remained

deadlocked even after receiving an Allen charge, we hold that the trial court did not abuse its

discretion by discharging the jury and declaring a mistrial at Underwood’s first trial. Because there

was a manifest necessity for the mistrial, a retrial will not constitute double jeopardy.




                                                  5
              The order denying habeas corpus relief is affirmed.




                                           __________________________________________

                                           W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Puryear and Henson

Affirmed

Filed: May 8, 2008

Do Not Publish




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