                              NUMBER 13-14-00611-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                              Appellant,

                                              v.

SERGIO BOCANEGRA,                                                                 Appellee.


                On appeal from the County Court at Law No. 1
                        of Cameron County, Texas.


                         MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Longoria
                Memorandum Opinion by Justice Benavides

       By one issue, the State appeals the trial court’s granting of appellee Sergio

Bocanegra’s motion to dismiss based on double jeopardy grounds.                The State also

raises three sub-issues, which we will address:            (1) did manifest necessity exist

warranting the trial court’s granting of the mistrial; (2) did the trial court err by dismissing
for double jeopardy; and (3) does Texas law require an agreement between the State and

defendant to proceed with fewer than six jurors. We affirm.

                                         I.      BACKGROUND

       Bocanegra was charged with the offense of driving while intoxicated.                See TEX.

PENAL CODE. ANN. § 49.04 (West, Westlaw through 2015 R.S.).

       During a trial on the merits, both the State and Bocanegra proceeded with the voir

dire portion of the trial, questioning the prospective jury panel.       During the course of that

voir dire examination, at least four prospective jurors disclosed they had previous

convictions for driving while intoxicated, including the complained-of juror in this case,

Juror Mendoza.1 See id.

       The following exchange took place between the State and Juror Mendoza when

the State asked the venire panel whether any of them had any prior criminal convictions:

       Juror Mendoza:          I got two DWIs.

       State:                  Two DWIs? What’s your juror number?

       Court:                  It will be 15.

       State:                  Okay. 15?        How long ago were those, Mr.
                               Mendoza?

       Juror Mendoza:          It was about five years ago.

       State:                  Okay.    And what was the outcome of that case?

       Juror Mendoza:          I pled guilty.

       State:                  Okay. Do you feel it was handled fairly?

       Juror Mendoza:          Yeah.

       1 We were not provided with the complained-of juror’s first name and will refer to him as Juror
Mendoza throughout this opinion.

                                                  2
       State:               Do you hold a grudge against the DA’s office, or the
                            criminal justice system in general?

       Juror Mendoza:       No.

       State:               How about police officers; do you think you would
                            come in here with a preconceived notion about them?

       Juror Mendoza:       Probably.

       State:               Okay. Great. Thank you for that.

Following the conclusion of the parties’ voir dire examinations, neither side challenged

Juror Mendoza for cause.     See TEX. CODE CRIM. PROC. ANN. art. 35.16 (West, Westlaw

through 2015 R.S.). Additionally, neither side asked the trial court permission to follow

up on any of Juror Mendoza’s responses or used a peremptory strike on Juror Mendoza.

As a result, Juror Mendoza was empaneled.

       The following morning, the State raised the following issue before the trial court,

outside of the jury’s presence:

       State:        Judge, if I may, the State wants to bring to the Court’s
                     attention there was a juror that wasn’t exactly truthful on the
                     questionnaires when the jury was being selected. There was
                     some arrests and convictions that the juror wasn’t truthful
                     about on voir dire. The juror has been impaneled to sit on
                     this jury. It may cause a problem for the State’s case,
                     because the State was not able to –

       Court:        I can grant the mistrial. I don’t have a problem.

                     ....

       State:        Well, Judge before the jury comes in, the State is now not
                     agreeing to proceed with five jurors, should this Court find that
                     the juror that was untruthful during jury selection has a bias
                     and should not be on the jury. If the Court makes that
                     determination, and the Court finds manifest necessity to
                     declare a mistrial, when the Court considers less drastic

                                             3
             alternatives by seeking an agreement by the parties to
             proceed with five, the State is now of the position that they’re
             not willing to proceed with five.

Court:       Let me explain. Everything that I’ve read in the past 20
             minutes coming in and out, it puts the State second to the
             defendant in all of these cases. It’s very simple. If you want
             to take the chance of having me find that, you have a chance
             of double jeopardy remaining attached and losing your case
             without going with five. It looks like the defendants [sic] in
             the case have made a decision to go ahead and go with five.
             Do we understand that?

             ....

Court:       If you don’t want to go with five, that’s your decision. That’s
             an all or nothing decision; but always remember, everything
             I’ve read – everything I’ve read – and I’ve got some pretty
             good stuff – the defendant comes first. Everybody else
             comes second, very simple. You guys let me know what
             you’re going to do.

Defense #1: My understanding, just so we’re on the same page, is that
            we’re willing to proceed with five. We talked to the client, and
            he’s willing to take his chances.

Court:       Yeah, and the State is saying they don’t want to go with five,
             which is fine. They want me to find manifest necessity, and
             everything would be unfair because we can put on the record
             what these jurors said, and we’ll sit. . .

             ....

Court:        Okay. So the State doesn’t want to go; The defense is
              willing to go with five?

Defense #1: Yes, Your Honor.

Court:       I take it, State, you’ve got something for the record to show
             me where one of these jurors has messed up?

State:       That’s correct, Your Honor.

Court:       I take it there’s not objections. Same thing you have.   Same
             information, I’ve got him here –

                                     4
Defense #2: No objection on the issue of [Juror Mendoza]. Neither the
            State nor the defense knew about his past, or anything like
            that. There’s no objections to him. If the State is moving for
            that juror to be stricken, no objection.

State:           So the defense is not having an objection to the discovery of
                 bias by that juror?

Court:           Well, there’s none. Right here I have [Juror] Mendosa [sic],
                 who we have an exhibit that’s being admitted that says, “have
                 you ever been an accused” and he says no, in a criminal case.
                 Meaning he told me, number one, he got two DWIs. Little did
                 we know – I take it, you have some other evidence that shows
                 me he has three.

State:           He just has there on State’s Exhibit number 1, his juror
                 questionnaire, Exhibit number 2[2] is –

Defense #1: The criminal history?

State:           the NCIC/TCIC.

Court:           He’s been arrested three times –

Defense #2: He’s had three convictions.

State:           He has three convictions; two for DWI, one for DWI, a second
                 for DWI second, and a third for failure to stop.

Court:           In this case, I’ll find there was a bias on the part of –– because
                 of the record, who disclosed, it looks like, answers that weren’t
                 truthful when it comes to DWI, and this is a DWI case.

                 The trial court now is going to determine whether an
                 alternative action available for this mistrial can be reached,
                 and that’s a trial of five. The defendants have decided that a
                 trial with five people would be fine; but the State is telling me
                 that they would rather go with six.

                 ....

Court:           [State], do you have any special words you need to say before

2   The referenced exhibits were not included as part of the appellate record.

                                             5
                         we –

        State:           The State would just be asking this Court to find that manifest
                         necessity exists, after considering less drastic alternatives
                         and grant the State’s motion for mistrial.

        Court:           I’ll make that finding.     Done.

        Defense #2: In response to that, we would also ask the Court to find that
                    there was an opportunity for the State and the defense to
                    agree for less –

        Defense #1: A jury of five.

        Defense #2: – to pick a jury of five.

        Defense #1: It would have been the less drastic alternative.

                         ....

        Court:           One at a time. I will make a finding of that.

        Defense #1: And it was the State who objected to proceeding with five.

        The trial court granted the State’s motion for mistrial, citing manifest necessity.

        Shortly thereafter, Bocanegra filed a motion to dismiss based on double jeopardy.

The trial court conducted a hearing related to the motion, as illustrated by the following

exchange:

        Court:           So manifest necessity does not come in, unless you agree to
                         not go with the case along with the State. And I read the
                         record, and the record said that you didn’t agree to it. You
                         did not agree – you agreed to having five jurors.3

        Defense:         Yes, Your Honor. And the State agreed to have five jurors
                         at first, then changed their mind. This is when they brought
                         this law with manifest necessity of something less, or another
                         alternative. However, the Court advised the State at that
        3   Based on the arguments of the parties in the reporter’s record, initially the State had indicated
they would be willing to dismiss Juror Mendoza and proceed with five jurors. Bocanegra also agreed to
proceed with less than six jurors. However, when the motion for mistrial was presented to the trial court,
the State refused to proceed with less than six, thereby warranting the mistrial according to their argument.

                                                     6
                     time that if they were not going to accept this, that the Court
                     would have no alternative but to grant a double jeopardy
                     against the client and dismiss the case, Your Honor.

                     ....

       State:        Okay, Your Honor. The State’s response, just for the record,
                     we do believe that we have a legislative right to a jury trial,
                     Your Honor. That’s the State’s position for that. We believe
                     that it would be an injustice for this case to be dismissed
                     simply because on that transcript, Your Honor, this Honorable
                     Court does rule that there was, in fact, manifest necessity for
                     a mistrial. Had there not been a manifest necessity, the
                     State would have continued on with five jurors, Your Honor.

                     ....

       Court:        I don’t remember saying that.

                     ....

       Court:        I keep telling [the State] this is not about you, the State. This
                     is about his [Bocanegra’s] rights.

       State:        Understood, Your Honor.

       Court:        If I’m correct.    So it’s going to be granted.

(Emphasis added).

       The State appealed the trial court’s granting of Bocanegra’s motion to dismiss.

See TEX. CODE CRIM. PROC. ANN. art. 44.01 (West, Westlaw through 2015 R.S.).

                                  II.     STANDARD OF REVIEW

       Generally, a criminal defendant may not be put in jeopardy by the State twice for

the same offense.     U.S. CONST. amend. V.; see Pierson v. State, 426 S.W.3d 763, 769

(Tex. Crim. App. 2014). “The constitutional double jeopardy protection embraces the

defendant’s right to have his trial completed by a particular tribunal.”   Garza v. State, 276

S.W.3d 646, 650 (Tex. App.—Houston [1st Dist.] 2008), aff’d, Ex parte Garza, 337 S.W.3d

                                                7
903 (Tex. Crim. App. 2011). “Jeopardy attaches in a jury trial when the jury is empaneled

and sworn.”    Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002) (en banc).

       “But double jeopardy does not mean that every time a defendant is put to trial he

is entitled to go free if the trial ends in a mistrial.” Id.   “There are two exceptions when

a criminal defendant may be tried a second time without violating double-jeopardy

principles if the prosecution ends prematurely as the result of the mistrial:           (1) if the

criminal defendant consents to the retrial or (2) there was a manifest necessity to grant a

mistrial.” Pierson, 426 S.W.3d at 770.

       “To prevail in a double-jeopardy claim, a criminal defendant must first show that

he or she is being tried for the same offense for which the mistrial was declared over the

defendant’s objection.”     Id.   “The burden then shifts to the State to demonstrate a

‘manifest necessity’ (also referred to as a ‘high degree’ of necessity) for the mistrial.”     Id.

Manifest necessity exists when particular circumstances would cause it to “be impossible

to arrive at a fair verdict before the initial tribunal, when it is simply impossible to continue

with trial, or when any verdict that the original tribunal might return would automatically

be subject to reversal on appeal because of trial error.”       Ex parte Garza, 337 S.W.3d at

909.

       “An appellate court reviews a trial court’s ruling on a motion for mistrial . . . using

an abuse-of-discretion standard of review.          We view the evidence in the light most

favorable to the trial court’s ruling and uphold the trial court’s ruling if it was within the

zone of reasonable disagreement.”         Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim.

App. 2007). “We do not substitute our judgment for that of the trial court, but rather we

decide whether the trial court’s decision was arbitrary or unreasonable.”         Id.   “Thus, a

                                                8
trial court abuses its discretion in denying a [motion for mistrial] only when no reasonable

view of the record could support the trial court’s ruling.”          Id.   However, “although a

reviewing court may be required to accord great deference to the ruling of a trial court

granting a mistrial, that trial court’s ruling is not insulated from appellate review.”

Pierson, 426 S.W.3d at 774.

           “A trial court’s discretion to declare a mistrial based on manifest necessity is limited

to, and must be justified by, extraordinary circumstances.”         Ex parte Garza, 337 S.W.3d

at 909.       A trial court abuses its discretion when it declares a mistrial “without first

considering the availability of less drastic alternatives and reasonably ruling them out.”

Id.    “The trial court need not expressly articulate the basis for the mistrial on the record

in order to justify it to a reviewing court, so long as manifest necessity is apparent from

the record.”      Id. at 909–10.    However, “when a trial judge grants a mistrial despite the

availability of a less drastic alternative, there is no manifest necessity and he abuses his

discretion.”      Hill, 90 S.W.3d at 313.

                            III.   APPLICABLE CASE LAW AND DISCUSSION

      A.      Double Jeopardy

           Bocanegra filed a motion to dismiss based on double jeopardy following the

granting of the mistrial. The trial court agreed that jeopardy had attached and dismissed

his case.      In order to “prevail in a double-jeopardy claim, a criminal defendant must first

show that he or she is being tried for the same offense for which the mistrial was declared

over the defendant’s objection.”            Pierson, 426 S.W.3d at 770.          We agree that

Bocanegra meets the first requirement of proving double jeopardy. The State indicated

it was inclined to set the trial for an upcoming date and proceed forward.

                                                  9
       Since Bocanegra established that the State was trying him on the same case the

mistrial was declared on, the burden then “shift[ed] to the State to demonstrate a ‘manifest

necessity’ (also referred to as a ‘high degree’ of necessity) for the mistrial.”              Id.

Manifest necessity exists when particular circumstances would cause it to “be impossible

to arrive at a fair verdict before the initial tribunal, when it is simply impossible to continue

with trial, or when any verdict that the original tribunal might return would automatically

be subject to reversal on appeal because of trial error.”     Ex Parte Garza, 337 S.W.3d at

909.

       Here, we hold that the State did not meet its burden to establish manifest necessity.

The State requested a mistrial on the grounds of bias without presenting any evidence

supporting its claim. The State did not challenge Juror Mendoza for cause during voir

dire, and subsequently presented no evidence Juror Mendoza would be biased other than

his prior criminal convictions, which he revealed during voir dire. The State also did not

show any evidence that it was forced to use a peremptory strike.             Because there is

nothing in the record establishing bias, Juror Mendoza should not have been found to be

a biased juror after he had been seated on the jury, and it was error for the trial court to

excuse him. Therefore, the State would have had the required six jurors and could have

continued on with the case.

       Because the trial court erred in dismissing Juror Mendoza as a biased juror without

any further investigation, we hold that the trial court correctly determined that double

jeopardy had attached and dismissed Bocanegra’s driving while intoxicated case.             See

Pierson, 426 S.W.3d at 770.



                                               10
    B.        Mistrial

         Although we hold that the trial court properly granted Bocanegra’s motion to

dismiss, the State also raises as a sub-issue the question of whether manifest necessity

existed, thereby warranting the granting of a mistrial by the trial court.

         1.      Was there a Valid Reason for the Trial Court to Grant a Mistrial?

         The State alleged Juror Mendoza was biased due to his failure to disclose his prior

convictions for DWI on his juror questionnaire and asked the trial court to dismiss him.

The trial court erroneously dismissed Juror Mendoza, even though the defendant finally

agreed to the dismissal, thinking the State was willing to go to trial with less than six jurors.

Although the State alleged Juror Mendoza lied on his juror questionnaire, Juror Mendoza

orally disclosed his prior two driving while intoxicated convictions during the State’s voir

dire examination. Additionally, when asked by the State if his prior experience with the

District Attorney’s Office would be a factor held against the State, Juror Mendoza

responded “no”.4         The trial court at no time during the hearing the following morning

brought Juror Mendoza into the courtroom to question him regarding any bias he might

have stemming from his prior convictions or interactions with the police.

         The State argues code of criminal procedure article 36.29 controls the trial court’s

determination of the dismissal of a juror.          See TEX. CODE CRIM. PROC. ANN. art. 36.29

(West, Westlaw through 2015 R.S.).               However, the State is mistaken in this case.

Article 36.29 is titled “If a Juror Dies or Becomes Disabled.”                See id.     Under article




         4 Juror Mendoza did state he would possibly have a preconceived notion regarding police officers;
however, neither party challenged him for cause based on that response, nor was that statement brought
before the trial court the following day.

                                                   11
36.29, a juror disability constitutes a “physical, mental, or emotional” issue.          See id.;

Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000) (en banc). The State never

alleged before the trial court that Juror Mendoza was disabled under any of the required

conditions. The State only alleged that Juror Mendoza was biased because he did not

answer his juror questionnaire truthfully, disregarding his truthful answers during the oral

examination. The court of criminal appeals has held that a “juror’s bias or prejudice for

or against a defendant does not render the juror ‘disabled’.”       Reyes, 30 S.W.3d at 412.

       In order to establish bias, the trial court should have looked to article 35.16, which

relates to challenging jurors for cause.      See TEX. CODE CRIM. PROC. ANN. art. 35.16,

36.29 (West, Westlaw through 2015 R.S). Article 35.16 lists some of the reasons a party

may challenge a prospective juror for cause.          See id. at art. 35.16.    For example, a

“challenge for cause may be made by either the state or the defense for any one of the

following reasons: . . . 2.     The juror has been convicted of misdemeanor theft or a

felony.”5 Id.    Additionally, the State can challenge a juror for cause if “he has a bias or

prejudice against any phase of the law upon which the State is entitled to rely on for

conviction or punishment.”        Id. art. 35.16(b)(3).     The defense is also entitled to

challenge a juror based on bias if “he has a bias or prejudice against any of the law

applicable to the case upon which the defense is entitled to rely, either as a defense to

some phase of the offense for which the defendant is being prosecuted or as a mitigation

thereof or of the punishment thereof.”      Id. art. 35.16(c)(2).

       The court of criminal appeals has found that “all grounds for challenge for cause


       5 Bocanegra had two prior misdemeanor driving while intoxicated convictions. See TEX. PENAL
CODE ANN. § 49.04.

                                               12
may be forfeited.” Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). A

“challenge for cause is forfeited if not made.”     Id.     “It is counsel’s responsibility to ask

questions specific enough to elicit the answers they require.”        Id. at 113.    Following the

end of the voir dire examination, neither counsel for the State or Bocanegra challenged

Juror Mendoza for cause and thereby both forfeited any right to do so at a later time.

See id.

       In order to establish bias after jury selection, the State needed to show actual bias.

See Hailey v. State, 413 S.W.3d 457, 488 (Tex. App.—Fort Worth 2012, pet. ref’d). The

“test is whether the prospective juror’s bias or prejudice would substantially impair his

ability to carry out his duties in accordance with his instruction and his oath.”       Buntion v.

State, 482 S.W.3d 58, 84 (Tex. Crim. App. 2016); see Wainwright v. Witt, 469 U.S. 412,

424 (1985). “Where a party wishes to exclude a juror because of bias, it is the party

seeking exclusion who must demonstrate, through questioning, that the potential juror

lacks impartiality.”   Buntion, 482 S.W.3d at 84 (emphasis added). “To establish that a

challenge for cause is proper, the proponent of the challenge must show that the

prospective juror understood the requirements of the law and could not overcome his

prejudice well enough to follow the law.”         Id.     “Before a prospective juror may be

excused for cause on this basis, the law must be explained to him, and he must be asked

whether he can follow that law, regardless of his personal views.”          Id.     “In making this

decision, we examine the voir dire of the prospective juror as a whole and determine

whether the record shows that the prospective juror’s convictions would interfere with his

ability to serve as a juror and abide by the oath.”       Id.



                                             13
       Here, neither side challenged Juror Mendoza for cause during voir dire based on

his answers to the prospective juror questions. Any potential “bias” was only brought up

the following day, after the jury was empaneled, when the State looked through the juror

questionnaires and discovered Juror Mendoza’s prior criminal history.      However, based

on our review of the record, Juror Mendoza did disclose he had two prior convictions for

driving while intoxicated during the State’s voir dire.   See TEX. PENAL CODE ANN. § 46.04.

Because Juror Mendoza was not brought in and questioned regarding these convictions,

it was inappropriate for the trial court to dismiss him based on bias.

       2.     Was there Manifest Necessity for a Mistrial?

       Because we hold that it was inappropriate for the trial court to dismiss Juror

Mendoza for bias based on this record, we further conclude that there was no manifest

necessity warranting a mistrial. A mistrial must be based on manifest necessity and be

justified by “extraordinary circumstances” that must be “apparent from the record.”    See

Ex Parte Garza, 337 S.W.3d at 909–10.        Such circumstances do not exist here.    Juror

Mendoza disclosed his prior convictions during the State’s voir dire examination, and he

said he would not hold his prior experience against the State.           With no follow up

questions asked by either side, there is nothing in the record supporting the trial court’s

determination that Juror Mendoza was a “biased” juror that needed to be excused.         It

was an abuse of discretion to excuse Juror Mendoza as biased based on the information

contained in the record.   Additionally, neither party challenged Juror Mendoza for cause,

therefore, a lack of challenge waives the right to later do so.   See Webb, 232 S.W.3d at

112. We hold that there was no manifest necessity shown in the record and the trial



                                              14
court abused its discretion by granting a mistrial. 6             See Hill, 90 S.W.3d at 313. We

overrule the State’s sole issue.

                                            IV.      CONCLUSION

        We affirm the trial court’s dismissal of Bocanegra’s case based on double

jeopardy.




                                                                           GINA M. BENAVIDES,
                                                                           Justice



Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
29th day of September, 2016.




        6   Although the State also submits a sub-issue to this Court stating Texas code provisions require
the agreement of both the State and defendant to continue to trial with less than six jurors, a determination
of this issue is unnecessary to the disposition of this appeal. See TEX. R. APP. P. 47.1.

                                                    15
