Petition — Texas v. Garza

— ... MAY 20 1983

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1982

THE STATE OF TEXAS,

Petitioner

V.

REY GARZA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

JIM MATTOX NANCY M. SIMONSON

Attorney General of Texas Assistant Attorney General

Acting Chief, Enforcement Division

DAVID R. RICHARDS CHARLES A. PALMER*

Executive Assistant Assistant Attorney General

Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

*Attorney of Record

ov

QUESTION PRESENTED

WHEN A DEFENDANT IS JOINTLY TRIED FOR TWO

SEPARATE CRIMINAL OFFENSES, AND THE STATE

ELECTS AT THE CLOSE OF THE EVIDENCE TO PROCEED

ON ONLY ONE CHARGE, AND THE JURY IS UNABLE TO

REACH A VERDICT ON THE CHARGE THAT IS SUBMIT-

TED TO IT, DOES THE DOUBLE JEOPARDY CLAUSE OF

THE UNITED STATES CONSTITUTION BAR A SECOND

TRIAL AND CONVICTION FOR THE OFFENSE WHICH WAS

NOT SUBMITTED TO THE JURY?

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TABLE OF CONTENTS

Page

QUESTION PRESENTED a eases

OPINIONS BELOW 7 RON es:

JURISDICTION . : Bee lee ae 6 2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED . 3

STATEMENT OF THE CASE . | ees a

SUMMARY OF THE ARGUMENT ......... ence eu Coe

Pee Ae? PU Ae «ee eee es 4

I. THERE ARE SPECIAL AND IMPORTANT REASONS

TO CONSIDER THE QUESTION PRESENTED ........ 4

II]. WHEN THE JURY IS UNABLE TO REACH

A VERDICT IN THE FIRST TRIAL, THE

DOUBLE JEOPARDY CLAUSE DOES NOT BAR

RETRIAL FOR AN OFFENSE NOT SUBMITTED

TO THE Pimms eUnm: ............ Pees ee ae

COINCIAISRUEN 2... ee es. En Ugo ee De UPN oh ere Ona

“lll

INDEX OF AUTHORITIES

Cases

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

Ashe v. Swenson, 397 U.S. 436 (1970)

Benton v. Maryland, 395 U.S. 784 (1969)

Downum v. United States, 372 U.S. 734 (1963)

Gori v. United States, 367 U.S 364 (1961)

Green v. United States, 355 U.S. 184 (1957)

Illinois v. Somerville, 410 U.S. 458 (1973)

North Carolina v. Pearce, 395 U.S. 711 (1969)

Price v. Georgia, 398 U.S. 323 (1970)

South Dakota v. Neville, __._ U.S.

103 S.Ct. 916 (1983)

United States v. Martin Linen

Supply Co., 430 U.S. 564 (1977)

United States v. Perez, 9 Wheat. 579 (1824)

United States v. Scott, 437 U.S. 82 (1978)

Statutes and Constitutional Provisions

U.S. CONST. amend V

28 U.S.C. §1257(3)

ee

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1982

THE STATE OF TEXAS,

Petitioner

‘.

REY GARZA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

The Petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment of the Texas Court

of Criminal Appeals entered in this case on March 23,

1983 denying Petitioner’s motion for rehearing.

OPINIONS BELOW

The panel opinion of the Texas Court of Criminal Ap-

peals is attached as Appendix B. The en banc opinion of

that court overruling Petitioner's motion for rehearing

is attached as Appendix A.

-2-

JURISDICTION

The panel opinion of the Texas Court of Criminal Ap-

peals was delivered on December 22, 1982. A timely fil-

ed motion for rehearing was denied on March 23,

1983. This petition for writ of certiorari is filed within

sixty days after final judgment in this case. This

Court’s jurisdiction is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides, in pertinent part, that ‘‘no person shall be

... Subject for the same offense to be twice put in jeopar-

dy of life or limb ...”’

STATEMENT OF THE CASE

Respondent was charged on May 17, 1978, in a two-

paragraph indictment. The first paragraph alleged that

he had participated in a riot in which a police officer, U,.

P. Hernandez, had been assaulted; the second paragraph

alleged that Respondent had committed the offense of

aggravated assault on Hernandez. On November 6,

1978, Respondent entered pleas of not guilty, in a jury

trial, to both paragraphs of the indictment. At the con-

clusion of the evidence, the State elected to proceed on

the aggravated assault paragraph of the indictment.

After the jury had deliberated approximately thirty

hours, a mistrial was declared because the jury was

unable to reach a verdict.

On February 19, 1979, Respondent's motion to quash

the indictment, specifically the felony riot paragraph

thereof, was denied. On February 21, 1979, Respon-

dent’s request for the State to elect as to which

paragraph of the indictment on which it would proceed

was denied. A jury was impaneled, and at the conclu-

ao

sion of evidence on February 26, 1979, the State elected

to proceed on the first paragraph of the indictment, the

felony riot allegation. On February 27, 1979, the jury

found Respondent guilty of the offense of felony riot.

Respondent appealed his conviction to the Texas

Court of Criminal Appeals, and on December 22, 1982, a

three-judge panel of that court, one judge dissenting,

held that Respondent’s retrial and conviction for the of-

fense of felony riot violated the federal constitutional

proscription against double jeopardy. That court

granted Petitioner’s motion for leave to file motion for

rehearing en banc, but on March 23, 1983, the en banc

court, four judges dissenting, denied the motion for

rehearing.

SUMMARY OF ARGUMENT

There are special and important reasons to consider

the question presented.

Respondent was not tried and convicted in violation of

the double jeopardy clause. Once the jury was discharg-

ed due to the ‘‘manifest necessity” of not having reach-

ed a verdict, the State was free to retry Respondent for

either of the two offenses originally alleged. There

should be no distinction, for double jeopardy purposes,

between the offense which was submitted to the jury in

the first trial and that which the State elected not to

pursue. In a case such as this, where manifest necessity

requires that the jury be discharged without reaching a

verdict, the slate is wiped clean, and the State should be

free to proceed, upon proper proof, with all criminal

charges it initially chose to bring against the defendant.

Because the State’s election not to proceed on one of the

charges did not amount to an acquittal and implies

nothing with respect to the question of guilt or in-

nocence, the subsequent retrial and conviction of

nfl

Respondent was not violative of the double jeopardy

doctrine.

ARGUMENT AND AUTHORITIES

i.

THERE ARE SPECIAL AND IMPORTANT

REASONS TO CONSIDER THE QUESTION

PRESENTED.

There are special and important reasons to

consider the issue presented herein. In holding

that Respondent’s retrial and conviction

violated the constitutional proscription against

double jeopardy, the Texas appellate court fail-

ed to adhere to settled principles established by

decisions of this Court. The state court's

misapplication of the federal double jeopardy

clause resulted in a miscarriage of justice

which, unless corrected by this Court, will be

repeated in other cases.

IT.

WHEN THE JURY IS UNABLE TO REACH

A VERDICT IN THE FIRST TRIAL, THE

DOUBLE JEOPARDY CLAUSE DOES NOT

BAR RETRIAL FOR AN OFFENSE NOT

SUBMITTED TO THE FIRST JURY.

The Fifth Amendment to the United States Constitu-

tion provides that a state may not put a defendant in

jeopardy twice for the same offense. Benton v.

Maryland, 395 U.S. 784 (1969). Whether a retrial,

following declaration of a mistrial over a defendant’s ob-

jection, constitutes double jeopardy within the meaning

of the Fifth Amendment turns on whether, taking all the

oa

circumstances into consideration, there was a ‘‘manifest

necessity’ for the mistrial. United States v. Perez, 9

Wheat. 579, 580 (1824); Illinois v. Somerville, 410 U.S.

458, 461 (1973). The phrase ‘‘manifest necessity” does

not articulate ‘‘a standard that can be applied

mechanically or without attention to the particular pro-

blem confronting the trial judge.’’ Arizona v.

Washington, 434 U.S. 497 (1978). Because he “is best

situated intelligently to make such a decision,” Gori v.

United States, 367 U.S. 364, 368 (1961), the trial judge is

accorded broad discretion in determining whether

“manifest necessity’’ exists to declare a mistrial over

the defendant’s objection. Arizona v. Washington, 434

U.S. at 514. Particularly is this so when the mistrial is

premised upon the trial judge’s belief that the jury is

unable to reach a verdict, which is the ‘“‘classic basis for

a proper mistrial.’’ Arizona v. Washington, 434 U.S. at

509; Downum v. United States, 372 U.S. 734, 735-36

(1963):

[IJn this situation there are especially compell-

ing reasons for allowing the trial judge to exer-

cise broad discretion in deciding whether or not

“manifest necessity”’ justifies a discharge of

the jury. On the one hand, if he discharges the

jury when further deliberations may produce a

fair verdict, the defendant is deprived of his

‘valued right to have his trial completed by a

particular tribunal.’’ But if he fails to

discharge a jury which is unable to reach a ver-

dict after protracted and exhausting delibera-

tions, there exists a significant risk that a ver-

dict may result from pressures inherent in the

situation rather than the considered judgment

of all the jurors. If retrial of the defendant were

barred whenever an appellate court views the

“necessity” for a mistrial differently from the

trial judge, there would be a danger that the lat-

ter, cognizant of the serious societal conse-

-6-

quences of an erroneous ruling, would employ

coercive means to break the apparent

deadlock. Such a role would frustrate the

public interest in just judgments. The trial

judge’s decision to declare a mistrial when he

considers the jury deadlocked is therefore ac-

corded great deference by a reviewing court.

Arizona v. Washington, 434 U.S. at 509-10. The deci-

sion of the trial judge is given such great deference in

this situation because he “‘is in the best position to

assess all the factors which must be considered in mak-

ing a necessarily discretionary determination whether

the jury will be able to reach a just verdict if it continues

to deliberate.”’ Jd. at n.28.

The foregoing authorities clearly demonstrate the lack

of a double jeopardy bar to reprosecution of Respondent

for aggravated assault, the offense which was submitted

to the jury and upon which it was unable to agree. What

construction of the federal double jeopardy clause’,

then, prevents the State from trying Respondent for the

offense of felony riot? As noted in the dissenting opi-

nion in the Texas appellate court, North Carolina uv.

Pearce, 395 U.S. 711, 717 (1969) teaches that the double

jeopardy clause provides three related protections:

It protects against a second prosecution for the

same offense after acquittal. It protects

against a second prosecution for the same of-

fense after conviction. And it protects against

multiple punishments for the same offense.

1. There is no room for doubt that this case was decided on

federal constitutional grounds and not on the basis of the Texas

state constitution. As may be discerned from both the majority

and dissenting opinions, the scope of the double jeopardy clauses of

both constitutions is the same. See, South Dakota v. Neville,

U.S. , 103 S.Ct. 916, 919 n.5 (1983).

No conviction was obtained in the first trial, and only

one punishment was assessed for the offense of which

Respondent ultimately was convicted. Plainly,

therefore, neither of the latter two protections is involv-

ed herein. Neither, however, is the first double jeopardy

safeguard, that against reprosecution following acquit-

tal, applicable in the instant case. This Court has defin-

ed acquittal as ‘‘the ruling of a judge, whatever its label,

[which] actually represents a resolution [in the defen-

dant’s favor], correct or not, of some or all of the factual

elements of the offense charged.’”’ United States v.

Scott, 437 U.S. 82, 97 (1978), citing United States uv.

Martin Linen Supply Co., 430 U.S. 564, 571 (1977). An

implied acquittal results when the jury returns a verdict

of guilty on a lesser included offense following trial on

the greater charge. Price uv, Georgia, 398 U.S. 323

(1970); Green v. United States, 355 U.S. 184 (1957). The

sine qua non of a finding of acquittal, either express or

implied, is a determination that the fact-finder had a full

opportunity to return a verdict on the charge and failed

to do so. Price, 398 U.S. at 239: Green, 355 U.S. at

225. Here, the jury in the first trial never was afforded

an opportunity to decide Respondent’s guilt or in-

nocence of the offense of felony riot. The charge of

felony riot was withdrawn before the jury began its

deliberations, and its failure to reach a verdict on the

charge which was submitted to it—aggravated

assault—can in no way be construed as an acquittal of

the offense which it did not consider. No issues of fact

were necessarily determined in Respondent’s favor in

the first trial, Ashe uv. Swenson, 397 U.S. 436 (1970),

and thus no factual preclusion on the charge of felony

riot arose from the jury’s inability to determine Respon-

dent’s guilt or innocence of the assault charge. Further,

there is no suggestion that the State's election not to

proceed on the riot charge was necessarily, under Texas

criminal procedure, or in fact premised on a determina-

tion of the merits of the allegation.

os

Once the jury was properly discharged, the slate was

‘‘wiped clean.’’ North Carolina v. Pearce, 395 U.S. at

721. The proceedings then reverted to the procedural

posture which existed prior to trial, ie, Respondent

stood charged with the two distinct criminal offenses

alleged in the indictment. There is no constitutional or

rational basis for distinguishing between the two for

double jeopardy purposes. The Texas Court of Criminal

Appeals’ holding to the contrary should be reversed.

CONCLUSION

For these reasons, Petitioner prays that the petition

for certiorari to the Texas Court of Criminal Appeals

issue.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

DAVID R. RICHARDS

Executive Assistant

Attorney General

NANCY M. SIMONSON

Assistant Attorney General

Acting Chief, Enforcement

Division

CHARLES A. PALMER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

A-1

APPENDIX A

REY GARZA, Appellant

NO. 63,005 vs. — Appeal from HARRIS County

THE STATE OF TEXAS, Appellee

OPINION ON STATE’S MOTION FOR REHEARING

This is an appeal from a conviction for felony riot,

V.T.C.A., Penal Code Sec. 42.02. Punishment was

assessed at three years and appellant was granted pro-

bation. On original submission a panel of this Court

held the conviction was obtained in violation of the

jeopardy clauses of the Texas and United States Con-

stitutions, and reversed the conviction.

The record reveals that appellant was prosecuted on

an indictment alleging two offenses in separate counts:

(1) felony riot and (2) aggravated assault. In the first

trial, at the close of the evidence, the state elected to

proceed on the aggravated assault charge. The jury

subsequently was unable to agree upon a verdict and

was discharged. At the second trial, after the evidence

was Closed, the state elected to proceed on the felony riot

charge. The conviction challenged in this appeal follow-

ed.

The issue decided in appellant's favor on original sub-

mission is whether the state’s decision to abandon the

felony riot charge after jeopardy attached in the first

trial created a jeopardy bar to further prosecution of

that charge, even though the first trial subsequently

resulted in mistrial as to the aggravated assault charge

when the jury was unable to agree upon a verdict.

The general rule is well established. In Ex parte

Scelles, 511 S.W.2d 300, 301, the Court wrote:

A-2

"an Parish v. State, 145 Tex.Cr.B. 117,

165 S.W.2d 748 (1942), the court held that

where the second count only of the two count

indictment was submitted to the jury, failure to

submit the first count had been quashed, and

‘jeopardy’ attached on such count, since failure

to submit was tantamount to a ‘dismissal’ of

such count. See also Black et al. v. State, 143

Tex.Cr.R. 318, 158 S.W.2d 795 (1942).

‘‘And in Deisher v. State, 89 Tex.Cr.R. 467,

233 S.W. 978 (1921), it was held that where the

second count of the indictment was abandoned

and the court submitted only the first count,

the defendant cannot on a subsequent trial be

prosecuted on the abandoned count. See also

Johnson v. State, 97 Tex.Cr.R. 658, 263 S.W.

924, 927 (1924); Gilliam v. State, 131 Tex.Cr.R.

8, 96 S.W.2d 86 (1936); Mizell v. State, 83

Tex.Cr.R. 305, 203 S.W. 49 (1918).”’

Under this general rule it is clear that the panel cor-

rectly decided this case. It is contended by the State,

however, as it was in the dissenting opinion on original

submission, that the general rule does not apply because

the first trial ended in a mistrial when the jury was

unable to reach a verdict. We find no persuasive reason

to support an exception to the general rule in these cir-

cumstances. The jeopardy bar arises from the state’s

decision to abandon prosecution after jeopardy had at-

tached. The jeopardy bar arises at that moment, and

the abandoned prosecution passes out of the case. Hav-

ing been terminated by the state’s decision to abandon

prosecution, the cause is cornplete.

In its brief on rehearing the state relies on the

arguments advanced in the dissenting opinion on

original submission.

Ad

The dissent relied on Jones v. State, 586 S.W.2d 542;

Walker v. State, 473 S.W.2d 499; and Stanley v. State,

625 S.W.2d 320. None of those cases, however, involved

a multicount indictment; none involved an election by

the state whereby a charged offense in which jeopardy

had attached was abandoned; none, in sum, presented

any of the controlling facts present in this case. The

rule applied today was not implicated in those cases, nor

is any rule from those cases applicable to the facts in

this case.

The cissent also relied on Articles 36.31 and 36.33,

V.A.C.C.P., for the proposition that when a jury is

discharged because it is unable to reach a verdict ‘‘the

cause may be again tried.’’ This was certainly true as to

the charge submitted to the jury and upon which they

were unable to reach a verdict. It is not relevant,

however, to this case. The felony riot cause was aban-

doned and never submitted to the jury; it was not a

cause upon which the jury was unable to reach a verdict

and for which it was discharged. To hold that Arts.

36.31 and 36.33, supra, authorize retrial of the felony

riot charge in this case would require a similar holding

under Articles 44.29 and 40.08, V.A.C.C.P., that a rever-

sal of a conviction on one count of a multicount indict-

ment after abandonment of other counts would allow

reprosecution of the abandoned counts, because Arts.

44,29 and 40.08, supra, place a cause after reversal ‘‘in

the same position in which it was before any trial had

taken place.’’ Such a construction of those statutory

provisions, however, would be in direct conflict with

previous holdings of this Court, e.g. Ex parte Scelles,

supra; Black v. State, 158 S.W.2d 795; Gilliam v. State,

96 S.W.2d 86, and would be contrary to the protection

afforded by the jeopardy clause of the Texas and federal

constitutions. The misplaced reliance on Arts. 36.31

and 36.33, supra, is precisely analogous and equally

without merit.

A-4

The arguments raised on rehearing are without

merit. Furthermore, as in Black v. State, supra, no pro-

secution may now be had on either count of the indict-

ment. One count of the indictment was abandoned after

jeopardy attached at the first trial; the other count was

abandoned after jeopardy attached at the second

trial. Thus, a jeopardy bar has been created against pro-

secution of either count.

The motion for rehearing is overruled.

ODOM, Judge

(Delivered March 23, 1983)

En Banc

REY GARZA, Appellant

NO. 63,005 v. — Appeal from HARRIS County

THE STATE OF TEXAS, Appellee

DISSENTING OPINION ON STATE’S

MOTION FOR REHEARING

The law of jeopardy bottomed on the Fifth Amend-

ment is derived from the common law. According to

Blackstone the principle underlying the two pleas of

autrefois acquit and autrefois convict is a ‘‘universal

maxim of the common law of England, that no man is to

be brought into jeopardy of his life more than once for

the same offense,’’ 4 W Blackstone. Commentaries

335-336. In United States v. Wilson, 420 U.S. 332, 340

(1975) the opinion of the Court by Justice Marshall ex-

plores history of adoption of the Double Jeopardy

Clause and concludes that the language ultimately ap-

proved by the first Congress ‘‘tracked Blackstone’s

A-5

statement of the principles of autrefois acquit and

autrefois convict.’’ Id., at 342-343. With that lore in

mind, the Supreme Court has declared that which it

discerned:

“The underlying idea ... is that the State with

all its resources and power should not be allow-

ed to make repeated attempts to convict an in-

dividual for an alleged offense, thereby subjec-

ting 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.’

Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct.

221, 21 L.Ed.2d 199 (1957).

‘‘When a defendant has been once convicted

and punished for a particular crime, principles

of fairness and finality require that he not be

subjected to the possibility of further punish-

ment by being again tried or sentenced for the

same offense.”

United States v. Wilson, supra, U.S. at 343.

Accordingly, North Carolina v. Pearce, 395 U.S. 711,

717 (1969) confirms that the Double Jeopardy Clause

provides three related protections:

“It protects against a second prosecution for

the same offense after acquittal. It protects

against a second prosecution for the same of-

fense after conviction. And it protects against

multiple punishments for the same offense.’”’

1. All emphasis is supplied throughout by the writer of this opi-

nion unless otherwise indicated.

A-6

The Bill of Rights in the Texas Constitution adopts

the guaranty of the Double Jeopardy Clause in the Fifth

Amendment, but it also adds another. Article I, §14

provides:

‘‘No person, for the same offense, shall be twice

put in jeopardy of life or liberty, nor shall a per-

son be again put upon trial for the same offense,

after a verdict of not guilty in a court of compe-

tent jurisdiction.’

Thus, as well as its own bar to another trial for the

same offense after a verdict of not guilty, like the

United States, Texas embraced the common law notions

of autrefois acquit and autrefois convict. Simco Vv.

State, 9 Tex.App. 338, 348° (Ct.App. 1880); Doggett v.

State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, 405 (1936)(Opi-

nion on Rehearing).

However, ‘’an accused must suffer jeopardy before he

can suffer double jeopardy,’’ Serfass v. United States,

420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265

(1975). Jeopardy attaches in a jury trial when the jury

is empaneled and sworn—a federal constitutional rule

that is applicable to the states. Crist v. Bretz, 437 U.S.

28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Still, “the con-

clusion that jeopardy has attached begins, rather than

ends, the inquiry as to whether the Double Jeopardy

9. This feature of our constitutional provision is not implicated in

the instant cause, and it will not be further noticed.

3. ‘“‘Autrefois acquit is only available in cases where the transac-

tion is the same and the two indictments are susceptible of, and

must be sustained by the same proof."’ See, e.g., Williams v. State,

58 Tex.Cr.R. 193, 125 S.W. 42, 43 (1910).

‘Autrefois convict only requires that the transaction, or the facts

constituting it, be the same.’’ See Doggett v. State, 130 Tex.Cr.R.

208, 93 S.W.2d 399, 405 (1936) (Opinion on Rehearing).

A-7

Clause bars retrial,’’ Illinois v. Somerville, 410 U.S. 458,

467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). For the Dou-

ble Jeopardy Clause ‘‘does not mean that every time a

defendant is put to trial before a competent tribunal he

is entitled to go free if the trial fails to end in a final

judgment,’’ Wade v. Hunter, 336 U.S. 684. 688, 69 S.Ct.

834, 93 L.Ed.2d 974 (1949). ‘‘[R]etrial is not

automatically barred when a criminal proceeding is ter-

minated without finally resolving the merits of the

charges against the accused,” Arizona v. Washington,

434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

When a jury is discharged without reaching a verdict

and from that ‘‘manifest necessity’’ the trial judge

declares a mistrial, the uniform answer to the inquiry

about whether a retrial is barred is that it is not pro-

hibited by the Double Jeopardy Clause of the Fifth

Amendment. Arizona v. Washington, supra; United

States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d

543 (1971); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834,

93 L.Ed. 974 (1949); Kepner v. United States, 195 U.S.

100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); United States v.

Perez, 9 Wheat. 578, 6 L.Ed. 165 (1824).* ‘‘[A] mistrial

4. The doctrine seems to have acquired its title from the opinion

of the court delivered by Justice Story, viz:

‘‘We are of the opinion that the facts constitute no legal

bar to a future trial. The prisoner has not been convicted

or acquitted, and may again be put to his defense. We

think that in all cases of this nature, the law has invested

courts of justice with the authority to discharge a jury

from giving any verdict, 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. *** [A]fter weighing the question

with due deliberation, we are of the opinion that such a

discharge constitutes no bar to further proceedings and

gives no right of exemption to the prisoner from being

again put upon trial.’

United States v. Perez, supra, 6 L.Ed. at 165-166.

A-8

premised upon the trial judge's belief that the jury is

unable to reach a verdict, long considered the classic

basis for a proper mistrial ... accords recognition to

society's interest in giving the prosecution one complete

opportunity to convict those who have violated its

laws,’’ Washington v. Arizona, supra, U.S. at 509.°

Before the unreported opinion of this Court on original

submission in McElwee v. State became a casualty of

constitutional uniformity mandated by the Supreme

Court of the United States in Crist v. Bretz, supra,

jeopardy in Texas did not attach in a jury trial until the

jury had been selected and sworn and thereafter the ac-

cused plead to the charging instrument. McElwee v.

State, 589 S.W.2d 455, 456, 457-460 (Tex.Cr.App. 1979);

Anderson v. State, 24 Tex.App. 705, 7 S.W. 40, 42

(Ct.App. 1886). However, once jeopardy attached, the

5. Society's interest had been recognized more elaborately by the

Supreme Court almost thirty years earlier, viz:

‘The double-jeopardy provision of the Fifth Amendment

... does not mean that every time a defendant is put to

trial before a competent tribunal he is entitled to go free if

the trial fails to end in a final judgment. Such a rule

would create an insuperable obstacle to the administra-

tion of justice in many cases in which there is no

semblance of the type of oppressive practices at which

the double-jeopardy prohibition is aimed. There may be

unforeseeable circumstances that arise during a trial

making its completion impossible, such as the failure of a

Jury to agree on a verdict. In such event the purpose of

law to protect society from those guilty of crimes fre-

quently would be frustrated by denying courts power to

put the defendant to trial again.*** What has been said

is enough to show that 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."’

Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 93 L.Ed.2d

974 (1949).

A-9

‘manifest necessity’’ teachings of United States v.

Perez, supra and see n. 4 ante, were followed by courts of

this State, e.g., Smith v. State, 22 Tex.App. 196, 2 S.W.

542, 544 (Ct.App. 1886), it being statutorily prescribed

in other terms since at least Old Code Article 619—the

genesis of present Article 36.31, V.A.C.C.P.: ‘‘... the

court may in its discretion discharge [the jury] where it

has been kept together for such time as to render it

altogether improbable that it can agree.’’ See generally

Bowles v. State, 606 S.W.2d 875, 878-880 (Tex.Cr.App.

1980) (Dissenting Opinion). And, consistent with the

consequences when a trial judge correctly determined to

apply the doctrine, Article 36.33, V.A.C.C.P., successor

to Old Code Article 621, provides: ‘‘When a jury has

been discharged ... without having rendered a verdict,

the cause may be again tried...’’ Thus, while the ‘‘valued

right’’ of an accused ‘‘to have his trial completed by a

particular tribunal is within the protection of the con-

stitutional guarantee against double jeopardy,” Crist v.

Bretz, supra, U.S. at 36, it is given full play until the

trial judge determines ‘‘it altogether improbable” that

the particular jury will agree and, perforce, ‘‘manitest

necessity’’ requires that he declare a mistrial. But once

that is done the prosecutor may invoke his correlative

right to retry the accused.

Just as such an accused is not prejudiced when merits

of charges against him are not finally resolved by a

jury, there seems to be no case which allows him to

assert harm in the failure to have the jury resolve other

charges against him that were not submitted to the

jury. Put another way, if the merits of the charges

against an accused have not been resolved when the trial

is terminated through manifest necessity, there is no

6. The accused has, of course, gone through the stress of a trial,

and I do not lightly dismiss the consequences of that. My reference

to ‘'‘prejudice”’ is the kind that substantially impairs presentation of

a defense and the like.

A-10

known constriction in the law of jeopardy that precludes

the State from calling upon the accused to answer to the

same charges and exercise his valued right to have that

trial completed by the particular tribunal in the selec-

tion of the members of which the accused has again par-

ticipated. If there is any authority to the contrary, the

majority does not reveal it.

What the majority characterizes as a ‘‘general rule’”’ is

inapposite and does not militate against the legal con-

clusions I reach. That rule is ‘‘general’’ only in the sense

that from time to time several decisions of the former

court of appeals and the Court applied it to a recurringly

common situation: a jury verdict is returned on one

count of a multicount indictment after either the pro-

secutor elected, or the trial judge elected for the State,

to submit just the one count. In such a situation the

consistent holding is that ‘‘jeopardy”’ barred reprosecu-

tion of that which had been ‘‘dismissed.’’ However, in

each instance the jury made findings and rendered a ver-

dict in the case. Thus, borrowing the phrase from

Justice Stevens in Arizona v. Washington, the criminal

trial is not terminated “‘without finally resolving the

merits of the charges against the accused, id., U.S. at

505.

To the creation of yet another abberation in the

already misunderstood law of jeopardy, I respectfully

dissent.

CLINTON, Judge

(Delivered March 23, 1983)

EN BANC

PUBLISH

Davis, W.C., J., McCormick, J., and Campbell, J., join

B-1

APPENDIX B

REY GARZA, Appellant

NO. 63,005 vs. —APPEAL From Harris County

THE STATE OF TEXAS, Appellee

OPINION

THE FIRST TRIAL

Rey Garza, appellant, was tried on a two count indict-

ment which alleged the felony offenses of aggravated

assault on a peace officer and knowingly participating in

a riot by assembly. By the allegations of the indict-

ment, the aggravated assault offense occurred during

the course of a felony riot in which appellant knowingly

participated. Appellant pled not guilty to both counts

of the indictment. At the conclusion of the case, the

State elected to proceed to the jury on the aggravated

assault on a peace officer count of the indictment. The

State abandoned the count of the indictment that alleg-

ed felony riot. After deliberating for 29 hours and 32

minutes the jury informed the trial judge that it was

unable to reach a verdict. A mistrial was declared, and

the jury was ordered discharged.

THE SECOND TRIAL

The State thereafter, over objection, reprosecuted the

appellant on the same indictment. However, during the

second trial, when the State made its election, it elected

to proceed to the jury on the felony riot count of the in-

dictment, which was the converse of what the State had

done at the first trial, i.e., at the first trial the State had

abandoned the felony riot count of the indictment and

the jury was only instructed on the aggravated assault

on a peace officer count of the indictment, whereas in the

B-2

second trial the State abandoned the aggravated assault

count and the case was submitted to the jury on the

felony riot count of the indictment. The jury convicted

the appellant of committing the offense of felony riot

and assessed punishment at three years’ confinement in

the penitentiary.

APPELLANT’S CONTENTION

Although appellant raises several contentions in his

appeal, because of the result we reach, we will only

discuss his contention that the trial court erred by fail-

ing to grant his ‘‘Motion to Quash Count I of the Indict-

ment Based on Double Jeopardy”’, which motion was fil-

ed prior to the commencement of the second trial. The

motion related to the felony riot count of the indictment

that had been abandoned by the State during the first

trial.

THE STATE’S RESPONSE

The State argues the following in its well written but

succinct brief: ‘‘[B]ecause Garza [the appellant] never

ran the gauntlet to a conviction at the first trial, jeopar-

dy should not attach as to either paragraph of the indict-

ment.”’

THE QUESTION

Because the State at the first trial, prior to the cause

being submitted to the jury, abandoned the felony riot

count of the indictment, was it thereafter precluded

from retrying the appellant for allegedly committing

that same offense?

THE ANSWER

Because we find that the double jeopardy provisions

of the Federal and State Constitutions bar such a retrial.

B-3

we answer the question in the affirmative. The ap-

pellant’s judgment of conviction for committing the riot

offense will be reversed and the prosecution ordered

dismissed.

THE PAST BLENDS IN WITH THE PRESENT

Although we find that this is probably a case of first

impression, in conjunction with this Court’s construing

the applicability of the double jeopardy clauses of the

respective Constitutions to such a factual situation as a

bar, nevertheless, we pause to observe that in the past

this Court has held that if conviction is based upon only

one count of several submitted to the jury, acquittal

may result as to the counts not submitted to the jury,

see Mizell v. State, 203 S.W.2d 49 (Tex.Cr.App.1918):

Martin v. State, 189 S.W.2d 262 (Tex.Cr.App.1916);

Millner v. State, 169 S.W. 899 (Tex.Cr.App. 1914); Davis

v. State, 136 S.W. 45 (Tex.Cr.App.1911), although an ac-

quittal as to the submitted count does not necessarily

result, see Hunt v. State, 59 S.W.2d 836

(Tex.Cr.App.1933); Blevins v. State 184 S.W.2d 290

(Tex.Cr.App.1944); Aven v. State 277 S.W. 1080

(Tex.Cr.App.1925), while an abandonment of a count

after jeopardy has attached always bars retrial of the

abandoned count. See Crocker v. State, 573 S.W.2d 190

(Tex.Cr.App.1978)(‘‘No double jeopardy problems are

extant with this type of submission because the jury

returns either an acquittal or a verdict of guilty on one

count only.’’); Parish v. State, 165 S.W.2d 748

(Tex.Cr.App.1942); Black v. State, 158 S.W.2d 795

(Tex.Cr.App.1942); Gilliam v. State, 96 S.W.2d 86

(Tex.Cr.App.1936); Johnson v. State, 263 S.W.2d 925

(Tex.Cr.App.1924); Lee v. State, 235 S.W.1093

(Tex.Cr.App.1921); Deisher v. State, 233 S.W.2d 978

(Tex.Cr.App.1921); Hewitt v. State, 167 S.W. 40

(Tex.Cr.App.1914); Betts v. State, 133 S.W. 251

(Tex.Cr.App.1911); Tracy v. State, 90 S.W. 308

(Tex.Cr.App.1905); Parks v. State. 79 S.W. 301

B-4

(Tex.Cr.App.1904); Stephens v. State, 37 S.W. 425

(Tex.Cr.App.1896); Moore v. State, 631 S.W.2d 245

(Tex.App. Amarillo. No P.D.R. 1982); Ex parte Scelles,

511 S.W.2d 300 (Tex.Cr.App.1794).

Recently, in Moore v. State, 631 S.W.2d 245

(Tex.App.Amarillo, No P.D.R.1982), Chief Justice

Reynolds of the Amarillo Court of Appeals stated the

following:

It is settled that jeopardy, in the sense of the

constitutional guarantee against double jeopar-

dy, attaches when the jury is empaneled and

sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct.

2156, 2162, 57 L.Ed.2d 24 (1978); Mc Elwee v.

State, 589 S.W.2d 457 (Tex.Cr.App. 1979). Ac-

cordingly, when the indictment’s second count

[in this cause] was dismissed after jeopardy at-

tached when the jury was impaneled and sworn,

the dismissal was tantamount to an acquittal of

the charge of aggravated assault, Black v.

State, 143 Tex.Cr.R. 318, 158 S.W.2d 795, 796

(1942), and, thereafter, appellant could not be

prosecuted for that act. Ex parte Scelles, 511

S.W.2d 300, 301 (Tex.Cr.App.1974).

Previously, this Court, in Black v. State, supra, had

stated the following:

Where a defendant has been tried on several

counts and convicted under one he is thereby

acquitted of the others, and may not later be

tried upon the ones for which he was so acquit-

ted. Thus, where there are several counts in an

indictment and only one is submitted to the

Jury, this amounts to an acquittal upon the

abandoned counts, and the defendant may not

upon a subsequeni trial be prosecuted on the

abandoned counts. [Emphasis Added].

B-5

Also, in Ex parte Scelles, 511 S.W.2d 300

(Tex.Cr.App.1974), this Court stated the following:

in Parish v. State, 165 S.W.2d 748

(Tex.Cr.App.1942), the court held that where

the second count only of the two count indict-

ment was submitted to the jury, failure to sub-

mit the first count had the same effect as if

such count had been quashed, and ‘jeopardy’

attached on such count, since failure to submit

was tantamount to a ‘dismissal’ of such count.

By adopting literally some of the language this Court

has stated in the past, with what the Amarillo Court of

Appeals stated in Moore v. State, supra, we find that

decision very persuasive and of great assistance to us in

our reaching the holding that the State was barred from

reprosecuting the appellant for committing the offense

of felony riot.

THE DOUBLE JEOPARDY CLAUSES OF THE

RESPECTIVE CONSTITUTIONS

The ‘‘Interpretive Commentary” to Art. I, Sec.14 of

the Texas Constitution, the double jeopardy clause of

the Texas Constitution, in Vol. I. V.A.Tex.Const., at

pages 332-333, states the following: ‘‘The guaranty in

this section ... is broader in scope [than autrefois acquit

and autrefois convict], for not only can a person not be

put on trial a second time for an offense of which he has

once been acquitted or convicted, but he may not be put

on trial a second time for an offense of which he has once

been placed in jeopardy. Hence, jeopardy, meaning

danger or hazard, can be based upon a prosecution

discharged for valid causes without a verdict, while

former conviction and acquittal are based upon verdicts

received.”’

B-6

The double jeopardy clause of the Fifth Amendment

to the United States Constitution is now made binding

upon the States through the due process clause of the

Fourteenth Amendment. Benton v. Maryland, 395 U.S.

784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Jeopardy at-

taches when a jury is empanelled and sworn. Bretz v.

Critz, supra; United States v. Martin Linen Supply Co.,

430 U.S. 564, 97 S.Ct. 1341, 51 L.Ed.2d 642 (1977); cf.

United States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50

L.Ed.2d 336 (1976); Mc Elwee v. State, supra.

In this instance, had both counts of the indictment

been submitted to the jury at the first trial, and the jury

had not been able to reach a verdict, and a mistrial had

been declared by the trial court on both counts, the fact

that a mistrial had been declared would not have

prevented a retrial on either count. A mistrial declared

because the jury was unable to agree ordinarily will per-

mit a second trial without violating the double jeopardy

prohibition. Gori v. United States, 367 U.S. 364, 81

S.Ct. 1523, reh den 368 U.S. 870, 82 S.Ct. 25, 7 L.Ed.2d

70 (1961); United States v. Perez, 9 Wheat 579, 6 L.Ed.

165 (1824). Thus, a second trial is not prohibited where

the first trial ends in a mistrial, provided the mistrial

was declared because it was manifestly or imperatively

necessary in order to preserve the doing of

justice. Therefore, we find it is necessary in this in-

stance to determine whether there was any showing by

the State of any manifest or imperative necessity that

would have warranted the trial court not submitting the

riot count of the indictment to the jury at the first

trial. In this regard, we observe that the State has fail-

ed to point out in this appeal where such manifest or im-

perative necessity existed that would account for the

trial court’s failure to submit to the jury at the first trial

the riot count of the indictment. Our search of the

record leads us to conclude that such necessity never ex-

isted,or if it did it is not reflected in the record.

B-7

‘‘A defendant’s valued right to have his trial com-

pleted by a particular tribunal is within the protection of

the constitutional guarantee against double

jeopardy.”’ Crist v. Bretz, supra. See also Torres v.

State, 614 S.W.2d 436 (Tex.Cr.App.1981). Only where

the prosecution has shown manifest or imperative

necessity may this valued right be defeated. McClen-

don v. State, 583 S.W.2d 777 (Tex.Cr.App.1979). In this

instance, jeopardy had attached in the first trial before

the State elected to abandon the felony riot

count. McElwee v. State, supra. The State’s abandon-

ment of the riot count precluded the appellant from hav-

ing the same jury decide his guilt on that allegation. If

the riot allegation had been submitted to the jury, the

jury may very well have been able to resolve appellant's

guilt for allegedly committing that offense. But, the

jury was not given that opportunity. We observe in this

regard that the jury at the first trial was able to find cer-

tain co-defendants guilty and others not guilty of the of-

fenses alleged against those persons, which offenses we

find arose out of the same transaction that implicated

the appellant. As noted, we are unable to find in this

record any manifest or imperative necessity that would

have precluded the first jury from resolving, or at least

attempting to resolve, the issue of appellant’s guilt for

committing the offense of felony riot. Therefore, the

State’s abandonment of the riot allegation of the indict-

ment at the first trial barred any retrial for that

offense. The appellant's trial, for allegedly committing

the offense of felony riot, was null and void.

In light of what we have stated above, we disagree

with the State that reprosecution is dependent upon

whether or not there was a conviction at the first trial on

at least one submitted count of the charging instrument.

Therefore, we will not further discuss the State's

response.

B-8

OUR CONCLUSIONS

Under the circumstances and facts of this cause, when

the jury was unable to agree upon a verdict at the first

trial, it should have thereafter been permitted to pro-

ceed only on the aggravated assault of a peace officer

allegation of the indictment. This was permitted by vir-

tue of manifest or imperative necessity and Art. 36.33,

V.A.C.C.P. However, the State was not permitted to

once again prosecute the appellant for allegedly commit-

ting the offense of felony riot. This was legally imper-

missible for the reasons stated. The riot count of the in-

dictment became poisoned by the double jeopardy

clauses of the Federal and State Constitutions’. The

mistrial order only permitted retrial of any non-poisoned

allegations still pending in the indictment—in this in-

stance the aggravated assault on a peace officer count.

See and compare Patterson v. State, 581 S.W.2d 696

(Tex.Cr.App.1979); Vardas v. State, 518 S.W.2d 826

(Tex.Cr.App.1975); Ochoa v. State, 492 S.W.2d 576

(Tex.Cr.App.1973). The State should not have been per-

mitted a second opportunity to persuade another jury to

return a verdict of guilty against the appellant upon the

riot count of the indictment.

The judgment of conviction is therefore reversed with

instructions to the trial court to enter an order dismiss-

ing the prosecution thereunder.

TEAGUE, Judge

Delivered December 22, 1982

Panel 2, 2nd Quarter, 1982

Composed of:

John F. Onion, Jr., Presiding Judge

Sam Houston Clinton, Judge

Marvin O. Teague, Judge

B-9

REY GARZA, Appellant

NO. 63,005 v. — Appeal from HARRIS County

THE STATE OF TEXAS, Appellee

DISSENTING OPINION

Constitutionally and statutorily the State of Texas is

prohibited from twice putting an accused in jeopardy.

Convicted of the felony offense of riot, denounced by

V.T.C.A. Penal Code, §42.02, the second time he was

tried on the same indictment, which also alleged the

felony offense of aggravated assault on a peace officer,

defined by id., §22.02(a)(2), appellant premises all his

four grounds of error on the facts that prosecution on

the count alleging riot had been abandoned by the State

just before the case was submitted to the jury at the

first trial, and that the jury was properly discharged

when it manifested the altogether improbability that it

could agree on a verdict with respect to aggravated

assault on a peace officer.

Thus, appellant contends the trial court erred in deny-

ing his pretrial motion to quash the indictment insofar

as it alleged riot, in overruling his motion that the pro-

secution be required to elect before trial which one of

two counts would be tried, in thereafter allowing the

prosecution to abandon the count of aggravated assault

and, lastly, in submitting to the jury only riot. The

question presented, then, is what remains in an indict-

1. Fifth Amendment to the Constitution of the United States,

made applicable to the States through the Fourteenth Amendment

by Benton v. Maryland, 395 U.S. 784, 39 S.Ct. 2056, 23 L.Ed.2d 707

(1969); §14, Bill of Rights, Article I, Constitution of the State of

Texas; Articles 1.10 and 1.11, V.A.C.C.P.

B-10

ment that may be prosecuted again after the State has

elected to abandon its first count and is unable to con-

vince a jury to find an accused guilty of the offense alleg-

ed in the second count. The answer, of course, is one of

law.

Jeopardy attached when the jury in the first trial had

been empaneled and sworn. Crist v. Bretz, 437 U.S. 28,

98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). But, in the or-

dinary case, ‘‘retrial is not automatically barred when a

criminal proceeding is terminated without finally resolv-

ing the merits of the charges against the accused,”’

Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54

L.Ed.2d 717 (1978). That a jury is unable to agree on its

verdict is a ‘classic example” of a happening that will

not preclude a second trial, Downum v. United States,

372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963),

and that matter is regulated by statute in this

State. See Article 36.31, V.A.C.C.P. and, e.g., Bowles v.

State, 606 S.W.2d 875.(Tex.Cr.App. 1980). In this kind

of ‘‘manifest necessity’’ for declaring a mistrial, the

jeopardy that had once attached becomes, so to speak,

unattached, and our statute provides that ‘‘the cause

may be again tried,”’ Article 36.33, V.A.C.C.P. United

States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d

17 (1976).

What is before the Court now, however, is not an or-

dinary case. Appellant urges that the issue presented

has already been resolved by the Court, early and late, in

a number of decisions cited in his brief. They run from

Mizell v. State, 83 Tex.Cr.R. 305, 203 S.W. 49 (1918),

through Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.

1974), which cites many more, to Patterson v. State, 581

S.W.2d 696 (Tex.Cr.App. 1979); but in each the accused

was convicted of an offense other than the one aban-

B-11

doned at some point in the proceeding.” The matter ap-

pears to be one of first impression in this State.

The principle at work in the line of cases relied on by

appellant is that when the merits of at least one of the

charges on trial has been resolved against the accused,

and the others have not been effectively withdrawn from

consideration by the jury, a general verdict of guilty

leaves the trial court uncertain as to which offense its

judgment should adjudicate guilt of the defendant.

Jones v. State, supra, at 544; Walker v. State, 573

S.W.2d 499, 500 (Tex.Cr.App. 1971). But when none of

the charges has been resolved on the merits, a general

proposition of Jeopardy law is that retrial of the cause is

not barred, and Article 36.33, supra, is in accord with

that if mistrial has been declared because the jury was

unable to agree on a verdict. The cause thus stands as if

it had never been tried, and the State is, as it should be,

allowed second opportunity to persuade another jury to

return a verdict of guilty on whichever count of the in-

dictment is ultimately submitted. See Stanley v. State,

625 S.W.2d 320, 323-324 (Tex.Cr.App. 1981).

2. Black v. State, 143 Tex.Cr.R. 318, 158 S.W.2d 795 (1942) is il-

lustrative of the rule applied in that situation, which the Court

quotes from Texas Jurisprudence:

‘‘Where a defendant has been tried on several counts

and convicted under one he is thereby acquitted of the

others, and may not later be tried upon the ones for which

he was so acquitted. Thus where there are several counts

in an indictment and only one is submitted to the jury,

this amounts to an acquittal upon the abandowed counts,

and the defendant may not upon a subsequent trial be

prosecuted on the abandoned counts." (All emphasis is

mine unless otherwise indicated.)

That rationale still obtains in this Court, as Jones v. State, 586

S.W.2d 542, 544 (Tex.Cr.App. 1979) demonstrates.

B-12

Accordingly, I conclude that the trial court did not err

in any of the particulars asserted by appellant, and

would perforce overrule his four grounds of errors.

However, the majority concludes that the trial court

erred in denying appellant’s pretrial motion to quash the

indictment insofar as it alleged riot. To reach that

result the majority utilizes the doctrine of ‘‘manifest

necessity’’ in a manner that, I must say frankly, is alien

to the jeopardy jurisprudence of this State and of the

Supreme Court of the United States. That is, a deter-

mination must be made ‘‘whether there was any show-

ing by the State of any manifest or imperative necessity

that would have warranted the trial court not submit-

ting the riot count of the indictment to the jury at the

first trial.’’

The ‘‘manifest necessity’’ doctrine, while not a precise

formulation, is the test to examine exercise by a trial

court of its discretionary authority ‘‘to discharge a jury

from giving any verdict,’’ United States v. Perez, 9

Wheat 579, 580, 6 L.Ed. 165 (1824), the declaration be-

ing made ‘‘over the objection of the defendant,”’ Arizona

v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54

L.Ed.2d 717 (1978). Compare United States v. Jorn, 400

U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). So far as

has been ascertained neither this Court nor the Supreme

Court has deemed the doctrine a measure for deciding

whether a trial court is justified in withholding one or

more counts of an indictment from consideration by the

jury, and the majority finds no support for its twisting

the square of manifest necessity into the round hole of

submission of counts to a jury. Conceptually the two

simply will not fit.

Accordingly, I respectfully dissent.

CLINTON, Judge

B-13

(Delivered December 22, 1982)

BY: Panel 2, 2nd Quarter, 1982, composed of:

John F. Onion, Jr., Presiding Judge

Sam Houston Clinton, Judge

Marvin O. Teague, Judge