                                                                                   ACCEPTED
                                                                               13-14-00611-CR
                                                               THIRTEENTH COURT OF APPEALS
                                                                      CORPUS CHRISTI, TEXAS
                                                                           6/4/2015 4:38:22 PM
                                                                        CECILE FOY GSANGER
                                                                                        CLERK

                   CAUSE NO. 13-14-00611-CR

                                              FILED IN
                                      13th COURT OF APPEALS
               IN THE COURT OF APPEALS
                                   CORPUS CHRISTI/EDINBURG, TEXAS
                                       6/4/2015 4:38:22 PM
         THIRTEENTH JUDICIAL DISTRICT OF   TEXAS
                                        CECILE  FOY GSANGER
                                               Clerk

             CORPUS CHRISTI - EDINBURG, TEXAS


                     THE STATE OF TEXAS,
                           Appellant

                               v.

                     SERGIO BOCANEGRA,
                          Appellee.


    On appeal from the Cameron County Court at Law Number One
              Trial Court Cause Number 12-CCR-3028-A


                  STATE’S APPELLATE BRIEF


ORAL ARGUMENT REQUESTED             Luis V. Saenz
                                    Cameron County District Attorney
                                    Omar A. Saenz
                                    Assistant District Attorney
                                    964 East Harrison Street, Fourth Floor
                                    Brownsville, Texas 78520
                                    Phone: (956) 544-0849
                                    Fax:(956) 544-0869

                                    Attorneys for the State of Texas
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument pursuant to Tex. R. App. P. 39.1, stating

that the facts and legal arguments as to the issues presented herein would be

significantly emphasized and clarified by oral argument.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State of Texas- Appellant:

Cameron County District Attorney

Luis V. Saenz
964 E. Harrison St.
Brownsville, Texas 78520

Assistant District Attorney

Omar A. Saenz

Counsel for Sergio Bocanegra- Appellee:

Trial Court Attorneys:

Fred Kowalski
902 E. Madison St.
Brownsville, Texas 78520

Carlos Cisneros
1002 Taylor St.
Brownsville, Texas 78520

Trial Court Judge, County Court at Law Number One, Cameron County,
Texas

Hon. Arturo McDonald
                                            TABLE OF CONTENTS

Table of Contents ........................................................................................................i

Index of Authorities .................................................................................................. ii

Salutation.................................................................................................................... 1

Statement of the Case................................................................................................. 1

Issue Presented ........................................................................................................... 2

Statement of Facts ...................................................................................................... 2

Summary of the Argument......................................................................................... 3

Argument and Authorities.......................................................................................... 3

         State’s First Sub-issue on Appeal .................................................................... 3

         State’s Second Sub-issue on Appeal……………...........................................6

         State’s Third Sub-issue on Appeal………………………..............................8

Conclusion ……………………………………………………………………...….9

Prayer ......................................................................................................................... 9

Certificate of Compliance ........................................................................................ 10

Certificate of Service ............................................................................................... 11




                                                                i
                                     INDEX OF AUTHORITIES

Case law                                                                                                       Page

Arizona v. Washington
      434 U.S. 497 (1978)......................................................................................... 8

Brown v. State
     907 S.W.2d 835 (Tex. Crim. App. 1995) ........................................................ 6

Ex Parte Garza
     337 S.W.3d 903 (2011)................................................................................. 4,5

Ex Parte Rodriguez
     366 S.W.3d 291 (Tex. App. – Amarillo 2012) .......................................... 6,7,8

Hatch v. State
     958 S.W.2d 813 (Tex. Crim. App. 1997) ........................................................ 4

Hill v. State
       90 S.W.3d 308 (Tex. Crim. App. 2002) .......................................................... 6

United States v. Fisher
      624 F.3d 713 (5th. Cir. 2010) .......................................................................... 6


Constitution and Statutes

U.S. Const. amends. V ............................................................................................... 8

Tex. Gov. Code Ann. §62.201 (1985) ................................................................. 3,4,7

Tex. Gov. Code Ann. §62.301 (1985) .................................................................... 4,5

Tex. R. Crim. P. 36.29 ............................................................................................ 3,4




                                                          ii
                        CAUSE NO. 13-14-00611-CR
                   ____________________________________

                         IN THE COURT OF APPEALS

                THIRTEENTH JUDICIAL DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG, TEXAS
                   ____________________________________

                      THE STATE OF TEXAS, Appellant

                                         v.

                      SERGIO BOCANEGRA, Appellee
                   ____________________________________

                       STATE’S APPELLATE BRIEF
                   ____________________________________

TO THE HONORABLE COURT OR APPEALS:

       COMES NOW, Appellant, the STATE OF TEXAS, by and through the

Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to

Rule 38.1 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief

in the above-styled and -numbered cause of action, and in support thereof, would

show this Honorable Court as follows:

                         STATEMENT OF THE CASE

       This is a criminal prosecution by the State of Texas against defendant Sergio

Bocanegra for the misdemeanor offense of Driving While Intoxicated. The trial

court dismissed this prosecution herein when it granted Defendant’s Motion to
State’s Brief                                                                 Page 1
Dismiss Based on Double Jeopardy.

                              ISSUE PRESENTED

       The trial court erred in granting the Defendant’s Motion to Dismiss Based

on Double Jeopardy, and in dismissing the criminal prosecution of Defendant

Bocanegra herein. In determination of the trial court’s error, appellant argues

three sub-issues.

                             STATEMENT OF FACTS

       Defendant Sergio Bocanegra was charged, by way of misdemeanor

complaint and information, with the offense of Driving While Intoxicated (a class

“B” misdemeanor), on May 18, 2012. On August 5, 2013, the state and the

defense selected a six panel jury and proceeded to trial. (R.R. 2-1). After the

jury was sworn, a background check revealed that one of the jurors was dishonest

on the jury questionnaire.   (R.R. 3-3). The juror in question did not disclose a

prior Driving While Intoxicated conviction when questioned by the state during

voir dire. (R.R. 3-3). On August 6, 2013, the state raised the issue of juror

misconduct to the court and the defense did not object to dismissal of the juror in

question. (R.R. 3-8). Prior to declaring a mistrial, the trial court considered the

less drastic alternative of proceeding with the five remaining jurors.   (R.R. 3-7).

The State did not wish to proceed with a five panel jury and asked the trial court

for a mistrial based on a finding of manifest necessity. (R.R. 3-10,11). The
State’s Brief                                                                 Page 2
Defense was willing to proceed with five jurors and objected to the mistrial.

(R.R. 3-6). The trial court made a finding of manifest necessity, mistrial was

declared, and the case was reset for trial.   (R.R. 3-11). On August 20, 2014, the

defense filed its Motion to Dismiss Based on Double Jeopardy.        On October 3,

2015, oral argument on the motion was heard in the trial court and, over the state’s

objection, the defendant’s Motion to Dismiss Based on Double Jeopardy was

granted. (R.R. 4-5). The Order granting defendant’s Motion to Dismiss Based

on Double Jeopardy was signed by the trial court on October 15, 2014. (C.R. 4).

This appeal ensues.


                          SUMMARY OF ARGUMENT

       The State raises three sub-issues on appeal. First, Tex. Gov. Code Ann.

§62.201 (1985), Tex. Gov. Code Ann. §62.301, and Tex. R. Crim. P. 36.29

together require an agreement of both the prosecution and the defense before

proceeding with less than six jurors in a misdemeanor trial. Second, manifest

necessity existed for a mistrial in this case.     Finally, the trial court erred in

granting appellee’s motion for dismissal based on a finding of double jeopardy.



                        ARGUMENT & AUTHORITIES

First Issue: Is agreement by both the Defense and prosecution required to
consent to a five member jury panel in a misdemeanor jury trial?
State’s Brief                                                                 Page 3
       Yes. The Defendant has a constitutional and statutory right to a jury of six

persons in a county court case.   Texas Gov. Code Ann. §62.201 (1985) provides

that the parties may agree to try a particular case with fewer than 12 jurors in a

district court case. Emphasis added. Tex. Gov. Code Ann. §62.301 (1985),

simply states that a jury in county court cases “is composed of six persons.”

Although Tex. Gov. Code Ann. §62.301 (1985) does not expressly provide for an

exception to the six person jury requirement in county court cases, settled Texas

case law supports the permissibility of a five person jury panel with the

defendant’s consent based on an inclusive reading of §62.301.

       In Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997) the Court

addressed whether a Defendant could waive the requirement to a twelve panel jury

in a district court case. In Hatch, the State and the Defense agreed to proceed in a

felony delivery of cocaine trial after discovering that an empaneled juror was not a

United States citizen.   Id.   The appellant was found guilty and appealed the

conviction on the sole issue that the eleven panel jury could not render verdict

based on the requirements of Tex. R. Crim. P. 36.29(a), requiring a twelve member

jury in a district court case. The Hatch Court held appellant waived the right to a

twelve member jury based on Tex. Gov. Code Ann. §62.201 (1985) of the Texas

Government Code which provides:

State’s Brief                                                                 Page 4
       The jury in a district court is composed of 12 persons, except that the parties
       may agree to try a particular case with fewer than 12 jurors.

       In Ex Parte Garza, 337 S.W.3d 903, 905 (Tex. Crim. App. 2011) the

Defendant was on trial for Driving While Intoxicated and a six member jury was

selected. One of the jurors experienced a medical episode after the jury was

sworn but before the presentation of evidence.           Id. at 905.   The juror was

excused from the jury and the trial court declared a mistrial based on a finding of

manifest necessity over the objection of both the defendant and the state. Id. at

907. In affirming the court of appeals, the Texas Criminal Court of Appeals

found that the trial court abused its discretion by not first exploring the less drastic

alternative of continuing the trial with five jurors.   Id. at 918.

       Significantly, the Court in Ex Parte Garza ruled that a Defendant may waive

the constitutional and statutory requirement of a six member jury panel in a

misdemeanor case, if the trial court and the State are willing to consent to do so.

Emphasis added. Id. at 915. The Court held that although Texas Government

Code does not expressly allow for a waiver to a full six panel jury in Tex. Gov.

Code Ann. §62.301 (1985), judicial precedence consistently regards the lack of

statutory language prohibiting a waiver as implicitly permitting a waiver. Id. at

913. Furthermore, the Court held that the state holds the burden to show that the

trial court made a determination as to whether the state was willing to consent to

State’s Brief                                                                    Page 5
the Defendant’s waiver of a six panel jury.    Id. at 918.

Second Issue: Was there manifest necessity for the trial court to declare a
mistrial?

       Yes. Manifest necessity for a mistrial in a criminal trial exists in three

circumstances: (i) the circumstances render it impossible to arrive at a fair verdict,

(ii) it is impossible to continue with the trial, or (iii) a verdict would be

automatically reversed on appeal because of trial error.         Brown v. State, 907

S.W.2d 835 (Tex. Crim. App. 1995). The trial court must consider and rule out

less drastic alternatives to a mistrial before finding manifest necessity.   Id. at 840.

       A trial court abuses its discretion when it fails to inquire into whether there

existed less drastic alternatives to declaring a mistrial.   Hill v. State, 90 S.W.3d

308 (2002). The State maintains the burden of proving manifest necessity for a

mistrial after a preliminary showing by the defendant that he was tried for the same

offense after a mistrial. Id. at 313.

       The standard of review for a trial court’s determination of manifest necessity

necessitating a mistrial is a dynamic abuse of discretion standard.      United States

v. Fisher, 623 F.3d 713, 718 (5th Cir. 2010). The circumstances of the mistrial

determine the degree of scrutiny.       Id. Circumstances outside of the control of

the state or the court, jury-bias cases and deadlocked juries, are afforded the

broadest deference; while cases involving the unavailability of prosecution

State’s Brief                                                                     Page 6
evidence or delay based on the unavailability of government witnesses are

evaluated under a strict scrutiny standard. Id.

       A trial court’s decision to declare a mistrial is given broad discretion on

appellate review due to the trial court’s unique position to evaluate less drastic

alternative to a mistrial.   Ex Parte Rodriguez, 366 S.W.3d 291, 296 (Tex. Crim.

App. 2012). Manifest necessity must be apparent on the record, however the trial

court’s reasoning for declaring a mistrial may be absent.          Id. at 297.    In

Rodriguez, the state failed to disclose the existence of expert photographs to the

defense. Id. at 294. Despite the Court of Criminal Appeals applying a strict

scrutiny standard, the trial court’s declaration of a mistrial based on a finding of

manifest necessity was upheld based on the trial court’s evaluation of less drastic

alternatives. Id. at 299.

       Here, the circumstances surrounding the manifest necessity were not based

on the fault of either party or the trial court. Juror misconduct in this case based

on the failure of a juror to disclose a prior Driving While Intoxicated conviction

necessitated removal of said juror based on juror bias.                 (R.R. 3-3).

Subsequently, the trial court explored the less drastic alternative of continuing the

trial with a five panel jury. (R.R. 3-9,10). Continuation of the trial with five

jurors was not a viable alternative because the state did not agree to the reduced

jury as required by Tex. Gov. Code §62.201.            Therefore, the trial court’s
State’s Brief                                                                  Page 7
declaration of a mistrial based on a finding of manifest necessity was reasonable

and should be upheld by this court.

Third Issue: Did the trial court abuse its discretion by granting Defendant’s
Motion to Dismiss based on a finding of double jeopardy?

       Yes. The prohibition against retrial of any person for the same offense is a

constitutional guarantee. U.S. Const. amend. V. However, the Supreme Court

held that the fifth constitutional amendment allows reprosecution when there exists

a manifest necessity for the mistrial.         Arizona v. Washington, 434 U.S. 497

(1978).         Here, the trial court granted Defendant’s motion for habeas corpus relief

based on double jeopardy, despite the same trial court granting a mistrial based on

a finding of manifest necessity. (R.R. 4-5)

       The standard of review for a trial court’s decision to grant or deny habeas

corpus relief is an abuse of discretion standard.      Ex Parte Rodriguez, 366 S.W. 3d

at 295. An abuse of discretion will be found when the decision of the trial court

is outside the “zone of reasonable disagreement.” Id. at 296-97.

       The trial court in this case abused its discretion by granting appellee’s

motion dismissing the prosecution against the Defendant. At the time of trial on

August 6, 2013, the trial court was in the best position to determine less drastic

alternatives to declaring a mistrial based on the circumstances before the court.

The trial court made the reasonable determination that manifest necessity existed

State’s Brief                                                                      Page 8
for a mistrial at that time. On October 3, 2014, the same trial court, despite the

apparent manifest necessity on the record, dismissed the prosecution because the

trial court did not find a manifest necessity for its own decision for a mistrial.

Therefore, the trial court’s decision to grant appellee’s double jeopardy motion fell

well outside the “zone of reasonable disagreement” as evaluated by the Rodriguez

court.

                                    CONCLUSION

         The trial court’s decision in granting a mistrial based on a finding of

manifest necessity was sound in this case. The court, on the record, discussed the

possible alternative of avoiding a mistrial by continuing the trial with five jurors.

Consistent with Texas case law and legislative intent, the trial court could not

continue the trial with five jurors without the consent of both parties. Here, the

State did not agree to a reduced jury panel. Therefore, the trial court clearly

abused its discretion in granting appellee’s Motion for Dismissal Based on Double

Jeopardy.

                                        PRAYER

         WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that this Court will sustain appellant’s sole issue on appeal, and reverse the trial

court’s judgment of dismissal herein and remand this case for trial.


State’s Brief                                                                      Page 9
                                           Respectfully Submitted,

                                           LUIS V. SAENZ
                                           Cameron County District Attorney
                                           964 East Harrison Street, 4th Floor
                                           Brownsville, Texas 78520
                                           Phone: (956) 544-0849
                                           Fax:(956) 544-0869



                                     By:     /s/ Omar Antonio Saenz
                                           Omar A. Saenz
                                           Assistant District Attorney
                                           State Bar No. 08131380
                                           omar.saenz@co.cameron.tx.us
                                           Attorneys for the State of Texas




                       CERTIFICATE OF COMPLIANCE

       I certify that this document contains 2,139 words (excluding the cover, table

of contents and table of authorities). The body text is in 14 point font, and the

footnote text is in 12 point font.




                                            /s/ Omar Antonio Saenz
                                           Omar A. Saenz




State’s Brief                                                                    Page 10
                         CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State’s appellate Brief was served upon

Fred Kowalski, Attorney at Law, via email at kowalskilaw@yahoo.com, on the 4th

Day of June, 2015.


                                        /s/ Omar Antonio Saenz
                                       Omar A. Saenz




State’s Brief                                                                 Page 11
