Cochran, J., filed a dissenting opinion in which Holcomb, J., joined.

I respectfully dissent. First, I believe that appellant failed to produce evidence to support his double jeopardy claim. Second, I do not believe that a trial judge is required to proceed with eleven jurors under article 36.29(a) if a juror becomes disabled, rather he has discretion to declare a mistrial for manifest necessity.

The record shows that the parties picked a jury in this non-death penalty capital murder case on November 10^th. The jury was sworn in at noon and told to return at 9:00 a.m. the next day for the start of testimony. The next morning, the record begins at 11:03 a.m. with the trial judge’s statement, outside the jury’s presence: “All right. Back on the record.” The judge noted for the record that, on the previous afternoon, a juror called the court coordinator and was “hysterical, said she couldn’t continue.” The judge related that this juror returned that morning and produced her own and a doctor’s note, which attested to the juror’s anxiety disorder and inability to perform adequately as a juror.

When the judge asked if he had anything further, defense counsel responded that the juror had not indicated any medical problem during the two days of voir dire or on her juror questionnaire. “Outside of that, Judge, we don’t have anything else to offer for this hearing.” The trial judge then stated:

All right. There’s been lengthy discussions in chambers about this. The Court, having weighed all the options, is now going to, on Court’s own motion, declare a mistrial. (emphasis added)

Both the State and defense objected to the declaration of a mistrial, but neither offered the trial court any additional options to consider after the “lengthy” discussions in chambers¹ nor did either side explain its opposition on the record. Hearing nothing more, the trial court responded: “All right. All right. With that, I’m going to overrule your objections. I’m going to declare a mistrial.” And he did.

Both the State and defense counsel stated that they were ready, willing, and anxious to pick a new jury and to begin testimony the next day. At that time, appellant’s counsel announced: “Judge, subject to a motion to dismiss on the grounds of a double jeopardy claim that I anticipate will be filed prior to Monday when we begin jury selection, we’ll be ready.” As promised, appellant filed his motion, which stated:

On November 11, 1999 the Honorable Judge of this Court declared a Mistrial “Sua Sponte” over the objection of both the State and Defendant.
The Defendant alleges that there was no Manifest Necessity that would have allowed the Court to declare the Mistrial “Sua Sponte.”

That was appellant’s “allegation,” but he did not offer any evidence to support his claim of a lack of “manifest necessity.” He made no argument that the trial judge failed to consider all available options, nor did he suggest any alternative. What he said was:

We don’t need to argue the motion. The motion speaks for itself. Have you seen it?

When the trial judge denied the motion, defense counsel stated:

Inasmuch as you summarily denied my motion to dismiss on double jeopardy grounds much in the same thing as you sua sponte granted that mistrial, I would request findings of fact and conclusions of law with regard to the mistrial that you declared last Thursday.

The trial judge agreed to do so, but appellant did not forward any such findings of fact or conclusions of law to the appellate court. Motions which “speak for themselves” frequently do not speak well.

Appellant had the burden to prove, by a preponderance of the evidence, that his double jeopardy claim was valid.² In the present case, appellant offered no evidence at all. His motion was not self-proving; his allegations were not-self-proving.³ His claim fails as a matter of law.

A trial judge may sua sponte declare a mistrial for “manifest necessity.”⁴ As the court of appeals correctly stated in this case: “We review the trial court’s finding of manifest necessity for a mistrial by applying an abuse of discretion standard.”⁵ Here, as in Arizona v. Washington:⁶

The trial judge did not expressly find that there was “manifest necessity” for a mistrial; nor did he expressly state that he had considered alternative solutions and concluded that none would be adequate.⁷

In affirming the state judge’s discretion to declare a mistrial, the Supreme Court held that the federal circuit court “applied an inappropriate standard of review to mistrial rulings of this kind, and attached undue significance to the form of the ruling.”⁸ The same occurred here.

The record facts in this case include:

* This was a non-death penalty capital murder case;⁹

* After the jury was sworn in, but before any witnesses testified, one juror became disabled because of medical or mental stress;¹⁰

* “Lengthy” discussions occurred in chambers about this situation between 9:00 a.m. and 11:03 on November 11th;

* During those discussions, the trial judge “weighed all the options”;

* After weighing all the options, and hearing no alternate suggestions or options, on the record, from either the State or the defense, he declared a mistrial;

* Both the State and appellant objected to the mistrial; neither explained their objections on the record;

* There is no evidence that the trial judge did not consider and “weigh all the options,” as he stated on the record that he had done.

Clearly one option that the trial court did consider, if we believe the trial judge, was to proceed with eleven jurors as permitted under article 36.29(a). This is where I respectfully disagree with the majority. Article 36.29(a) does not require a trial judge to continue a trial with eleven jurors, regardless of the objections of the defendant or the State. Article 36.29(a) reads, in pertinent part:

Not less than twelve jurors can render and return a verdict in a felony case. ... Except as provided in Subsection (b), however, after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.

Although a jury of eleven can render a verdict in a criminal trial, this does not mean that a trial judge must require a jury of eleven to render a verdict. There is an enormous difference between having the “power” to do something and being required to do it. For example, a jury has the power to return a verdict that flies in the face of the law and the facts,¹¹ but that does not mean that a trial judge must require jury nullification.

Furthermore, reading article 36.29(a) to require a judge to continue a trial with eleven jurors, even though no witness has testified, seems peculiar because article 36.29(c) states that both the defendant and State must consent to continue with eleven jurors if a juror becomes disabled after the testimony is complete and the jury charge is read.¹² I cannot easily reconcile a statute that forces a trial judge to start or continue a trial with eleven jurors despite the objections of the defendant and State, yet requires the parties’ consent to continue to a verdict with eleven jurors once the jury charge has been read.¹³

In Harrell v. State,¹⁴ this Court affirmed the Fourteenth Court of Appeals which had upheld the defendant’s right to expressly waive a twelve member jury and consent to proceed with eleven jurors when one of them became disabled.¹⁵ Neither this Court nor the court of appeals suggested that a trial court is required to proceed with eleven jurors when one juror becomes disabled.¹⁶

Finally, making article 36.29(a) a bar to judicial discretion in declaring a mistrial for manifest necessity when one juror becomes disabled during trial, poses the potential for enormous waste of judicial resources. Suppose, for example, that the State had announced that it needed three weeks to put on its evidence or suppose that another juror was constantly coughing, sneezing, and wheezing. Does the trial judge not have any discretion to assess the probabilities that, during the trial or deliberations, a second juror might become disabled, bringing the total number of jurors down to ten and thereby requiring a mistrial? I cannot conclude that the Legislature, in enacting article 36.29(a) prohibited the trial court from exercising any judicial discretion in declaring a mistrial for manifest necessity when one juror becomes disabled.

Federal courts, in considering whether a mistrial is manifestly necessary when a juror becomes disabled, give trial judges considerable discretion in deciding whether or not to proceed with eleven jurors.¹⁷ At least two federal circuits have explicitly held that there is no double jeopardy bar when a trial judge refuses to proceed with eleven jurors even when the defendant expressly states his desire to do so.¹⁸

Because there is absolutely no record evidence that appellant consented to continuing the trial with eleven jurors, I believe the trial court did not abuse its discretion in declaring a mistrial. A defendant is constitutionally entitled to a jury trial. Under normal circumstances, a Texas defendant is entitled to a twelve-person jury trial.¹⁹ To read article 36.29(a) as forcing all defendants to proceed with an eleven-person jury whenever one juror becomes disabled before the charge is read, diminishes the defendant’s right to a jury trial.²⁰ It also seems to contradict this Court’s holding in Hatch v. State,²¹ in which Presiding Judge McCormick stated:

Therefore, we overrule Hernandez and hold a defendant may waive Article 36.29(a)’s requirement that not less than twelve jurors can return a verdict in a noncapital felony case.²²

Before a defendant can waive a twelve-person jury, however, he must have a right to it. A rule requiring a judge to proceed with an eleven-person jury eliminates any such right.

Therefore, I respectfully dissent.

Cochran, J.

Filed: November 6, 2002

Publish

¹ Because the trial court instructed the jury to return at 9:00 a.m. on November 11^th, but the official hearing record begins at 11:03 a.m., I infer that these in-chamber discussions about the jury member and the possibility of a mistrial lasted approximately two hours. Although the State submitted a sworn affidavit to this effect (and setting out what it contends was the content of these discussions) to the court of appeals in an effort to have the case abated to the trial court for explicit findings concerning the in-chambers discussions, I do not consider this affidavit for the truth of its contents as it was not part of the trial record.

² See Anderson v. State, 635 S.W.2d 722, 725-26 (Tex. Crim. App. 1982) (“the burden is on the defendant to go forth at his second trial with evidence in support of his allegation of former jeopardy. A plea of former jeopardy constitutes nothing more than a pleading and does not establish the truth of the issues of fact alleged therein. ... [w]hen the record fails to contain the evidence offered in support of the plea of jeopardy, this Court is in no position to review a contention asserting that a trial court erred in overruling the plea”); see also Zimmerman v. State, 750 S.W.2d 194, 209 (Tex. Crim. App. 1988) (“[a] plea of former jeopardy constitutes nothing more than a pleading and does not establish the truth of the issues of fact alleged therein”).

³ Anderson, 635 S.W.2d at 725.

⁴ In Gori v. United States, 367 U.S. 364 (1961), the Supreme Court underscored the breadth of a trial judge’s discretion, and the reasons therefor, to declare a mistrial:

Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.

Id. at 368; see also Arizona v. Washington, 434 U.S. 497, 506 (1978) (“the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise sound discretion on the subject”) (quoting United States v. Perez, 22 U.S. 579, 580, 9 Wheat. 579, 580 (1824)).

In Cherry v. United States, 635 F.2d 414, 416 n.3 (5^th Cir. 1981), the Fifth Circuit explicitly noted that the defendant failed to offer “any suggestion, proposal or motion,” as an alternative to the trial judge’s sua sponte decision to excuse a juror whose mother had died and to declare a mistrial. The court further held that “a trial judge does not err for failing to consider or adopt a specific alternative for a mistrial,” nor does the Constitution “require canvassing of specific alternatives or articulation of their inadequacies.” Id. at 418. In sum, “[a] trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though ‘[i]n a strict, literal sense, the mistrial [is] not necessary.’” Id. at 418-19.

⁵ Hill v. State, No. 2-99-527-CR, slip op at 5 (citing Arizona v. Washington, 434 U.S. 497, 509-10 (1978))

⁶ 434 U.S. 497 (1978).

⁷ Id. at 501.

⁸ Id. at 503.

⁹ A capital murder charge is the most serious criminal case tried in Texas courts, and thus it is one in which a full, twelve-man jury is especially important, not only to the defendant but also to society and the ends of public justice. See Arizona v. Washington, 434 U.S. at 504 n.11 (“a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments”); see also note 20 infra.

¹⁰ The double jeopardy clause protects a defendant’s “valued right to have his trial completed by a particular tribunal,” because “a second prosecution may be grossly unfair.” Arizona v. Washington, 434 U.S. at 503. “It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.” Id. at 503-504 (footnotes omitted). The risks that the double jeopardy provision is designed to avoid are barely applicable here: appellant’s financial and emotional burden increased only by one additional morning of voir dire; the delay between the first mistrial and the start of the second one was a mere four days; no prosecution witnesses testified in the first trial, so there could be no honing of their testimony based upon perceived imperfections in an original trial; finally, it is difficult to think of how this mistrial, occurring before any opening statements, testimony, disclosure of defense strategy, could have increased the risk that appellant, though innocent, might have been convicted by the second jury but would not have been convicted by the original jury.

¹¹ See Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim. App. 1996) (“As for the so- called right to jury nullification, ... [t]he jury has the power to nullify, but the appellant does not have the right to a jury who will nullify”); Mouton v. State, 923 S.W.2d 219, 221-22 (Tex. App.-- Houston [14th Dist.] 1996, no pet.)(‘‘while jury nullification may exist as a part of our justice system, it is not a legal standard and is not a constitutional right of the defendant. The court's duty is to instruct the jury on the law”).

¹² Tex. Code Crim. Proc. Art. 36.29(c) (stating that, once the jury charge is read, if a juror “becomes so sick as to prevent the continuance of his duty ... the jury shall be discharged, except that on agreement on the record by the defendant, the defendant’s counsel, and the attorney representing the state 11 members of a jury may render a verdict”).

¹³ Section 62.201 of the Government Code explicitly permits the parties to agree to try a case in district court with fewer than twelve jurors. Tex. Gov’t Code § 62.201 (“[t]he 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”).

¹⁴ 980 S.W.2d 66, 661-621 (Tex. Crim. App. 1998).

¹⁵ Harrell v. State, 923 S.W.2d 104, 111 (Tex. App. – Houston [14^th Dist.] 1996) (“[a]rticle V, § 13 of the Texas Constitution mandates a petit jury of twelve jurors in district court. An exception is allowed when a juror becomes disabled. In that instance the remainder of the jury may render the verdict. ...The specific issue before us is whether appellant’s waiver of her right to a jury of twelve was valid even though not in writing. We believe that it was”); compare Bates v. State, 843 S.W.2d 101, 103-05 (Tex. App. – Texarkana 1992, no pet.) (waiver of twelve member jury when one member purportedly became disabled during trial could not be presumed from silent record).

¹⁶ Harrell, 980 S.W.2d at 661-62; Harrell, 923 S.W.2d at 111.

¹⁷ See United States v. Holley, 986 F.2d 100, 103-04 (5^th Cir. 1993) (trial judge’s sua sponte declaration of mistrial when one juror became ill did not violate defendant’s double jeopardy rights; trial court exercised “sound discretion in determining that manifest necessity existed for the declaration of a mistrial”); United States v. Ruggiero, 846 F.2d 117, 122-23 (2^nd Cir. 1988) (although “[n]either the court, the Government, nor defense counsel looked into the possibility ... of continuing with eleven jurors,” the court’s “mistrial ruling is entitled to great deference irrespective of any statement of reasons by the trial court”); Parker v. United States, 507 F.2d 587, 588-89 (8^th Cir. 1974) (trial judge did not abuse his discretion in declaring mistrial when juror was excused and not all defendants would consent to continuing with eleven jurors).

¹⁸ See United States v. Potash, 118 F.2d 54, 56 (2d Cir. 1941) (when one juror unable to continue, the trial court “had discretion to discharge the jury, even if both parties had consented (as they did not) to proceed with the reduced number”); Gardes v. United States, 87 F. 172, 177 (5^th Cir. 1898).

¹⁹ Tex. Const. Art. V, section 13 (“Grand and petit juries in the District Courts shall be composed of twelve persons .... When, pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict”). The language in article 36.29(a) mirrors that in the constitution, but neither provision states that an eleven member jury, which has the power to render a verdict, is thereby required to do so.

²⁰ In Patton v. United States, 281 U.S. 276 (1930), the Supreme Court held that a criminal defendant had the power to consent to a trial by less than twelve jurors when one becomes disabled. However, that was a “power” that the trial judge also must consent to.

In affirming the power of the defendant in any criminal trial to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons ... we do not mean to hold that the waiver must be put into effect at all events. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of the government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

281 U.S. at 312-13.(emphasis added). According to the Supreme Court, then, a trial judge’s discretion to declare a mistrial in lieu of proceeding with eleven jurors, is greatest in a capital murder trial such as the present one. His discretion to declare a mistrial should be unquestioned when, as here, neither the State nor the defendant have agreed, on the record, to proceed with eleven jurors.

²¹ 958 S.W.2d 813 (Tex. Crim. App. 1997).

²² Id. At 816.