Ex Parte Andrew Pete
NOS. PD-0771-16, PD-0772-16 & PD-0773-16
In the Court of Criminal Appeals of Texas
Procedural History: This case was brought to the Court of Criminal Appeals by way of the appeal of a district court’s decision on a pre-trial writ of habeas corpus. The defendant’s matter was tried to a jury. During the punishment phase of trial, before a jury, defense counsel moved for a mistrial based on the jury seeing that the defendant was restrained at counsel table. The trial court granted the mistrial as to the punishment phase only. Defense counsel filed a pre-trial writ of habeas corpus asserting that the defendant was entitled to a new trial as to both phases of trial. The trial court denied the defendant relief. The Court of Appeals in Dallas held that the trial court could not grant limited relief in the form of a new trial in the punishment phase alone. The Court of Appeals held that the defendant was entitled to a new trial on both guilt and punishment.
Holding: Generally, where a criminal defendant moves for a mistrial, and does not limit his motion to the punishment phase, a mistrial effects the entire proceeding, and a new trial on both guilt and punishment is warranted. In this case, where the defense moved for a mistrial, the trial judge stated that the motion for mistrial was as to the punishment phase only, and defense counsel did not correct the trial court’s statement, the defense invited the error and could not remedy it on appeal.
During trial on punishment, the defense called the defendant to the stand. When then defendant stood, it became obvious that he was shackled at counsel table. Defense counsel moved for a mistrial. The trial court took the motion for mistrial under advisement and allowed the punishment trial to proceed. After the defendant testified, the trial judge and counsel retired to the court’s chambers. After the conference, the trial court stated “The Defense has made a motion for mistrial with regard to the punishment phase of this trial. I’m going to grant that motion for mistrial with regard to the punishment phase.”
The Court of Criminal Appeals ruled that trial counsel did not preserve the issue complained of on appeal. The record showed that defense counsel moved for a mistrial and did not limit his motion for a mistrial to the punishment phase alone. After the motion for mistrial, and prior to ruling on the motion, the trial court held a hearing off the record. After the conference, the trial court stated “The Defense has made a motion for mistrial with regard to the punishment phase of this trial. I’m going to grant that motion for mistrial with regard to the punishment phase.” The written order granting mistrial did not limit the scope of the mistrial. The record did not show any effort on the part of defense counsel to correct the trial court’s characterization of the motion for mistrial as limited to the punishment phase alone.
This Court of Criminal Appeals decision seems to establish that had the trial record established that defense counsel sought a mistrial as to guilt and punishment, then a new trial for the entire trial would have been warranted. In so noting, the Court of Criminal Appeals cited Article 37.07 § 2(b)(2), which requires “the same jury” that convicts a defendant to assess punishment. The Court emphasized that this provision, and the requirement for an entirely new trial, only applies where the defendant properly elects, in writing, for the jury to assess punishment as opposed to the judge.
The Court of Criminal Appeals noted that this is a different result than where the new trial is requested by way of a motion for new trial after sentencing, or on appeal. After sentencing, if the error is limited to the punishment phase only, a trial court may only grant a new trial as to punishment. Similarly, where an appellate court finds error on appeal that is limited to the punishment phase, a defendant is limited to a new trial at punishment alone. Tex. R. App. P. 21.9(a) & (c); Tex. Code Crim. Proc. Ann. Art. 44.29(b).
The full opinion is available here.
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