                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00421-CR

                     EX PARTE DARRNELL LEE SHIELDS,



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2008-1918-C1


                          MEMORANDUM OPINION


       Appellant Darrnell Lee Shields’s first trial on three felony charges ended in a

mistrial, and he sought habeas corpus relief in the trial court against retrial based on

double jeopardy. The trial court held a hearing but denied relief, and Shields appeals.

We will affirm.

       Shields is charged with the following third-degree felonies: injury to a child,

assault—family violence (enhanced), and attempted sexual assault. Late on the first full

day of testimony in the first trial, an extensive hearing was held outside the jury’s

presence about the defense’s desire to impeach the alleged victim on a number of

matters. The trial court sustained the State’s objections to evidence of the victim’s prior

relationships and fights with other women but permitted the defense to inquire into her
prior inconsistent statement to police. The next day, the defense attempted to recall the

victim’s mother to impeach the victim. The trial court sustained the State’s objection,

noting that the matters had previously been covered the day before on cross-

examination.

        Defense counsel then moved for a mistrial, noting that Shields’s rights to a fair

trial, cross-examination, and confrontation were violated and also re-urging a complaint

about testimony of an extraneous threat made by Shields that was elicited the previous

afternoon. The trial court denied the mistrial motion.

        The State and the defense then argued to the trial court their disagreement over a

limiting instruction for evidence of bad acts committed by the victim, and the State

withdrew its request for a limiting instruction based on an agreement with the defense

that the instruction be addressed in the jury charge. But later, in the charge conference,

the defense did not agree to the limiting instruction proposed by the trial court, and the

State agreed to have the instruction taken out. At this point, the trial court reflected on

the trial as a whole and suggested that a mistrial might be appropriate:

        THE COURT: I’m concerned that there is so much potential err[or] in this
        matter already, not through anybody’s intention. I’m not too sure a
        mistrial is not in order.

        [STATE]: Well, I mean, I would urge a mistrial at this point. I mean, I
        think that out of real misunderstanding for what was agreed to - - I don’t
        think it’s fair for them to be able to consider that fight for any reason
        whatsoever and for anything to be deduced from it. We had this whole
        hearing to try and figure out what it was being introduced for, and now,
        apparently, it was for everything. I mean, I didn’t understand that.

        [DEFENSE]: It was as to Ashley Ross’ testimony


Ex parte Shields                                                                     Page 2
        THE COURT: Well, the defense had also previously moved for a mistrial
        on the record. I think in the interest of justice and fairness to both sides,
        that’s what I’m going to do. I’m going to declare a mistrial. Let’s bring
        the jury in.

        In denying Shields habeas corpus relief on his double-jeopardy claim against

retrial, the trial court issued findings of fact and conclusions of law and concluded that

Shields impliedly consented to the mistrial. In this appeal, Shields’s sole issue is that

the trial court erred in refusing to grant Shields relief on his double-jeopardy claim.

        In reviewing a trial court’s ruling on a habeas claim, we review the record

evidence in the light most favorable to the trial court’s ruling and must uphold that

ruling absent an abuse of discretion. Ex parte Graves, 271 S.W.3d 801, 803 (Tex. App.—

Waco 2008, pet. ref’d), cert. denied, 130 S.Ct. 261 (2009).

        In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Moreno

v. State, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009). Once jeopardy attaches, as a

general rule, a defendant has 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. [Panel Op.] 1981).

        “The constitutional prohibition against ‘double jeopardy’ was designed to
        protect an individual from being subjected to the hazards of trial and
        possible conviction more than once for an alleged offense.” United States
        v. DiFrancesco, 449 U.S. 117, 127 (1980) (quoting Green v. United States, 355
        U.S. 184, 187 (1957)); see Stephens, 806 S.W.2d at 816.

           [T]he State with all its resources and power should not be allowed to
           make repeated attempts to convict an individual for an alleged
           offense, thereby subjecting him to embarrassment, expense and
           ordeal and compelling him to live in a continuing state of anxiety
           and insecurity, as well as enhancing the possibility that even though
           innocent he may be found guilty.

        DiFrancesco at 127-28 (quoting Green at 187-88) (alteration added). “[T]he

Ex parte Shields                                                                        Page 3
        constitutional protection also embraces the defendant’s ‘valued right to
        have his trial completed by a particular tribunal.’” Id. at 128 (quoting
        Arizona v. Washington, 434 U.S. 497, 503 (1978)); accord Wade v. Hunter, 336
        U.S. 684, 689 (1949); see Kennedy, 456 U.S. at 682 n.6; Peterson, 117 S.W.3d at
        810.

Graves, 271 S.W.3d at 804.

        “If that right to go to a particular tribunal is valued, it is because … the

defendant has a significant interest in the decision whether or not to take the case from

the jury when circumstances occur which might be thought to warrant a declaration of

mistrial.” United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267

(1976). “The important consideration, for purposes of the Double Jeopardy Clause, is

that the defendant retain primary control over the course to be followed in the event of

such error.” Id. at 609, 96 S.Ct. at 1080.

        But if the defendant consents to a mistrial or the mistrial is mandated by manifest

necessity, the second prosecution (retrial) is not barred by double jeopardy. Ex parte

Fife, 49 S.W.3d 35, 39 (Tex. App.—Fort Worth 2001, pet. ref’d) (citing Torres, 614 S.W.2d

at 441); see Garner v. State, 848 S.W.2d 656, 658 (Tex. App.—Fort Worth 1993, pet. ref’d).

                The initial inquiry on appeal is whether the defendant consented to
        mistrial. Harrison v. State, 767 S.W.2d 803, 806 (Tex. Crim. App. 1989). If
        there is evidence of consent, the issue of manifest necessity is immaterial.
        Id. Consent need not be express, but may be implied from the totality of
        the circumstances attendant to the declaration of mistrial. Gori v. United
        States, 367 U.S. 364, 366, 81 S.Ct. 1523, 1524-25, 6 L.Ed.2d 901, 903 (1961);
        Little v. State, 853 S.W.2d 767, 767 (Tex. App.—Houston [14th Dist.] 1993,
        no pet. h.); Torres, 614 S.W.2d at 441.

               Before failure to object constitutes an implied consent to a mistrial,
        a defendant must be given an adequate opportunity to object to the court’s
        motion. Gori, 367 U.S. at 366, 81 S.Ct. at 1524-25, 6 L.Ed.2d at 903; Little,
        853 S.W.2d at 767-68; Torres, 614 S.W.2d at 441-42. Moreover, consent will

Ex parte Shields                                                                          Page 4
        not be inferred from a silent record. Allen v. State, 656 S.W.2d 592, 595
        (Tex. App.—Austin 1983, no pet.).

Garner, 858 S.W.2d at 658-59.

        We find that the trial court did not abuse its discretion in concluding that Shields

impliedly consented to the mistrial. As the above-quoted colloquy reveals, Shields’s

two attorneys were present and had an adequate opportunity to respond and object to

the trial court’s suggestion of a mistrial, the State’s mistrial motion, and their reasons

therefor. See id. at 659. By not responding or objecting, Shields impliedly consented to

the mistrial, and thus to retrial. See id. A second prosecution is not barred by double

jeopardy. We overrule Shields’s sole issue and affirm the trial court’s order.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
       trial court’s order. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed April 14, 2010
Do not publish
[CR25]




Ex parte Shields                                                                      Page 5
