Court of Criminal Appeals of Texas Rules Failure to Object Does Not Constitute Consent to a Mistrial

The United States and Texas Constitutions both afford protection against double jeopardy, which means a person cannot be tried more than once for the same crime. There are some exceptions to the rule preventing double jeopardy, such as when a suspect either explicitly or impliedly consents to a mistrial. In Ex Parte Elizabeth Ann Garrels, the Court of Criminal Appeals of Texas recently explained that while consent to a mistrial may be implied, a failure to object does not constitute implied consent. If you are charged with a crime it is important to retain an experienced Texas criminal defense attorney to advise you of your available defenses and prevent you from waiving your rights.

Facts of the Case

In Ex Parte Elizabeth Ann Garrels, the suspect was allegedly charged with driving while intoxicated. A jury was chosen, which placed her in jeopardy for the purposes of double jeopardy. The officer who stopped the suspect testified regarding the circumstances surrounding her arrest. The suspect objected asking the court to preclude the officer from testifying on the grounds he was not disclosed as an expert in a timely manner prior to the trial, as required under the Texas Code of Criminal Procedure. The state conceded the officer was not disclosed in a timely manner but requested a continuance rather than precluding the officer from testifying. The judge declined to preclude the testimony or grant a continuance and declared he would order a mistrial. The state objected, stating manifest necessity must be present for a mistrial, otherwise the state would not be able to try the suspect again due to double jeopardy. The judge ordered a mistrial regardless.

Reportedly, the state sought to retry the suspect for the same charges. The suspect filed a pre-trial application for a writ of habeas corpus, arguing double jeopardy prohibited the state from trying the case. The state argued the suspect’s application should be denied, in part due to the suspect’s failure to object to the mistrial order. The court denied the suspect’s application, and the suspect appealed. On appeal, the Ninth Court of Appeals affirmed, finding that the suspect had ample chances to object to the mistrial order but failed to do so. The suspect then appealed to the Court of Criminal Appeals of Texas.

Ruling of the Court of Criminal Appeals of Texas

 On appeal, the court found in favor of the suspect. The court noted that while consent to a mistrial may be implied, a finding of implied consent must still be supported by the facts of the record. The court explained that the double jeopardy clause grants suspects control over the path their case takes following a prejudicial error, and that any double jeopardy analysis based on a suspect’s consent should focus on the suspect’s control over the situation. While explicit knowing consent was not required, there still must be a purposeful surrendering of the suspect’s right to have her fate determined by the first trier of fact. As such, the court held that a failure to object could not constitute consent and overturned the Court of Appeals’ ruling.

Retain an Experienced Texas Criminal Defense Attorney

If you are charged with a crime it is essential to know your rights. You should consult a knowledgeable criminal defense attorney as soon as possible to assess the charges against you and ensure you do not waive any protections you are afforded by the law. Rick Davis is an experienced criminal defense attorney and will aggressively advocate on your behalf, to help you obtain a successful result. Contact him at (979) 779-4357 or via the online form to setup a consultation.

More Blog Posts:

Court of Criminal Appeals of Texas Holds Improper Jury Instructions Does Not Require an Automatic Reversal of a Conviction September 26, 2018, Rick Davis & Associates Blog

Court of Criminal Appeals of Texas Declines to Rule on Whether Prosecution Bears Burden of Proving Evidence was Legally Obtained September 6, 2018, Rick Davis & Associates Blog

WHAT IS THE “PLAIN VIEW DOCTRINE”? May 31, 2018, Rick Davis & Associates Blog

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