Texas Stamp


PD-0771-16 09/14/2016

"A mistrial and a new trial are largely 'functionally indistinguishable.' Here, the jury reached lawful guilty verdicts, but error tainted the punishment phase after the jury saw Appellant in shackles. Under these facts, a trial court granting a new trial must grant the new trial only as to punishment. Under the same facts, may a trial court instead order a mistrial only as to punishment?"

At the punishment phase of Pete's trial, the jury saw Pete shackled when his attorney called him to testify. Defense counsel requested a mistrial, and the trial court granted it as to punishment only. Pete sought habeas relief, arguing that he was entitled to an entirely new trial because a pre-sentence mistrial restores the case to its original posture. The trial court denied relief.

The court of appeals overturned the denial. Citing Tex. R. Crim. Proc. art. 37.07 § 3(c), which states that a mistrial shall be declared as to punishment when the jury fails to agree, the court observed that, here, there was no opportunity to disagree. Therefore, the mistrial-punishment-only proviso is not controlling. Next, the court of appeals rejected the State's reliance on Tex. R. App. P. 21.1(b), which provides that a new punishment trial shall be granted when a trial court sets aside a sentence on the defendant's motion. Because no sentence was assessed, Rule 21.1(b) is not applicable.

The State maintains that there are dueling principles at play. First, historically, the Court of Criminal Appeals has held that a mistrial nullifies all prior proceedings. And second, mistrials and new trials are closely related and, under motion for new trial law, the trial court would not be authorized to set aside the guilty verdict. The State contends that the power to grant a mistrial derives from a trial court's inherent authority. And neither Article 37.07 § 3(c) or Rule 21.1(b) are permissive. The court of appeals therefore should have determined whether the law is restrictive and thus limits the court's inherent authority. It urges the Court of Criminal Appeals to reconcile the conflict and rule in the State's favor because mistrial law encourages the least extreme exercise of authority.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724