Texas Stamp


PD-0710-17 08/23/2017

“Has a defendant who did not object to a trial court’s declaration of mistrial, despite an adequate opportunity to do so, impliedly consented to the mistrial?”

At Garrels’ trial, Garrels objected to the admission of the State’s expert testimony based on the State’s failure to provide proper notice.   Conceding this, the State opposed excluding the evidence and suggested a continuance.  Garrels objected, arguing it would be improper to give the State “a way out of their own mistake.”  The trial court granted a mistrial sua sponte.  Garrels filed a pretrial application for a writ of habeas corpus, claiming that her retrial is jeopardy barred.  The trial court denied relief.

On appeal, Garrels argued that the grant of a mistrial was improper absent her consent and because the court did not consider less drastic measures.  The court of appeals affirmed the trial court’s ruling.  It held that Garrels consented to the mistrial because she did not object when she had the opportunity to do so.

Garrels argues that the court of appeals created a per se rule that the failure to object to a mistrial constitutes implied consent.  This, Garrels contends, conflicts with Torres v. State, 614 S.W.2d 436 (Tex. Crim. App. 1981), which held that the totality of the circumstances must be considered before consent can be inferred.   Here, the court of appeals should have considered that Garrels wanted to proceed, did not benefit, unlike the State, and did not expect to be retried.  Garrels also notes that the rationale underlying her objection to a continuance applied equally to a mistrial; thus, the State and trial court understood she opposed a mistrial. 

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