EVELYN V. KEYES
Affirmed.
Raymond Coldren, The Caldron Law Firm, Houston, for Appellant. Devon Anderson, District Attorney, Alan Curry, Assistant District Attorney, Harris County, Houston, for State.
Panel consists of Justices KEYES, SHARP, and HUDDLE.
OPINION
EVELYN V. KEYES, Justice.
The State charged appellant, Joseph Montano, with the second-degree felony offense of theft from a nonprofit organization of property valued between $20,000 and $100,000. After a State witness incriminated himself during cross examination, the trial court declared a mistrial. The State indicated its intent to retry appellant, and appellant applied for a writ of habeas corpus, arguing that double jeopardy barred any retrial of the offense. The trial court denied habeas corpus relief. In his sole issue on appeal, appellant contends that the trial court erred in denying habeas corpus relief on double jeopardy grounds.
See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp.2013) (providing elements of offense of theft); id. § 31.03(e)(5) (providing that theft of property valued between $20,000 and $100,000 is third-degree felony); id. § 31.03(f)(3) (providing that offense is increased to next higher category of offense if owner of appropriated property was nonprofit organization).
We affirm.
The situation here is, instead, similar to that in Garner. In Garner, the trial court declared a mistrial after the first witness had testified because the court realized that a clerical error had caused the wrong juror to be placed on the jury. 858 S.W.2d at 658. Before declaring a mistrial, the trial court held an off-the-record conference with the parties in chambers. Id. Following the conference, the trial court declared a mistrial on the record and explained its reasoning; neither party objected to the mistrial on the record. Id. The Fort Worth Court of Appeals held: “The totality of the circumstances in this case reflects that appellant in effect consented to the mistrial. Even though appellant did not object on the record, he had ample opportunity to object at both the conference in the judge's chambers and in open court on the record.” Id. at 659. Similarly, here, appellant had opportunities to express his objection to the mistrial declaration in discussions off the record as well as in open court, where the trial court explained its reasoning for granting a mistrial. Under the totality of the circumstances, we may infer appellant's consent to the mistrial. See Torres, 614 S.W.2d at 441; Ledesma, 993 S.W.2d at 365; Garner, 858 S.W.2d at 659. We therefore conclude that the trial court did not abuse its discretion in denying appellant's request for habeas corpus relief.
We further note that, in a habeas corpus proceeding, the applicant bears the burden of alleging and proving specific facts which, if true, would entitle him to relief. See Druery v. State, 412 S.W.3d 523, 538 (Tex.Crim.App.2013). In Garza v. State, the Corpus Christi Court of Appeals addressed a situation in which the defendant argued that double jeopardy barred a retrial after the trial court declared a mistrial, but the defendant did not introduce a record of what happened at his prior trial. 803 S.W.2d 873, 875 (Tex.App.-Corpus Christi 1991, pet. ref'd). The court observed that defense counsel's testimony at the subsequent habeas hearing did not “indicate whether [Garza] consented or objected to the district court's declaration of mistrial.” Id. The court further noted that Garza bore the burden of establishing his entitlement to relief in a habeas proceeding and held that he had “failed to prove that jeopardy barred his second trial.” Id.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court. -------- Notes: