Opinion
05-21-00203-CR
12-21-2022
EX PARTE KURNICUS HAYES
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. WX20-93394-T
Before Justices Myers, Carlyle, and Goldstein
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE
Appellant challenges the trial court's denial of his writ of habeas corpus without a hearing. See Tex. Code Crim. Proc. art. 11.072 § 3(a). We affirm in this memorandum opinion. See Tex. R. App. P. 47.4.
In determining no hearing was required the trial court found that "Applicant is manifestly entitled to no relief and that his application is frivolous."
After the trial court granted a mistrial due to a deadlocked jury in the first trial, a second jury found appellant guilty but recommended suspending his sentence in favor of community supervision. The trial court followed that recommendation, suspended the five-year sentence, and placed appellant on ten years' community supervision on June 13, 2016. Appellant prosecuted a direct appeal to this Court, and this Court affirmed the conviction. See Hayes v. State, No. 05-16-00740-CR, 2017 WL 5663612 (Tex. App.-Dallas Nov. 27, 2017, pet. ref'd) (mem. op., not designated for publication). In the November 6, 2020, article 11.072 habeas proceeding that is the subject of this appeal, appellant raises three issues: double jeopardy, error to grant mistrial without first taking less drastic action, and error to grant mistrial because he never requested or consented to the mistrial.
The facts and record on direct appeal are well known and therefore used herein only where necessary for analysis and determination of this extraordinary writ.
A court may not grant relief pursuant to article 11.072 "if the applicant could obtain the requested relief by means of an appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure." Tex. Code Crim. Proc. art. 11.072, § 3(a). Habeas corpus is an extraordinary remedy, available only when there is no other adequate remedy at law, and even constitutional claims are forfeited if the applicant had the opportunity to raise the issue on appeal. See Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004); Ex parte Anwuzia, No. 05-21-01083, 2022 WL 3273724, at *2 (Tex. App.-Dallas Aug. 11, 2022, no pet. h.) (mem. op., not designated for publication).
As noted, appellant prosecuted a direct appeal to this Court after conviction in the second trial. He raised three issues, none of which were double jeopardy, though that issue was indisputably ripe at the time. See Hayes, 2017 WL 5663612, at *1. Therefore, he forfeited the issue, and may not raise it in habeas proceedings. See Townsend, 137 S.W.3d at 81; Anwuzia, 2022 WL 3273724, at *2. We overrule appellant's first issue.
Similarly, we overrule appellant's second and third issues, both of which pertain to the trial court's decision to grant a mistrial, and both of which could have been-but were not-raised on direct appeal. See id.
In any event, appellant's current mistrial complaints would have found no success even had he raised them on direct appeal. The trial court did take less drastic action before granting mistrial by giving the deadlocked jurors an Allen charge. See Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (citing Allen v. United States, 164 U.S. 492, 501 (1896)); Ex parte McMillian, No. 05-11-00642-CR, 2011 WL 3795727, at *3 (Tex. App.-Dallas Aug. 29, 2011, pet. ref'd) (not designated for publication). And the record indicates appellant requested the mistrial: it contains the trial court's May 8, 2015 order stating it is granting appellant's oral motion for mistrial. Moreover, appellant's motion for a transcript of the first trial in preparation for a second trial stated he made that request after "[s]aid Defendant was granted a Mistrial." See Ex parte Garrels, 559 S.W.3d 517, 522 (Tex. Crim. App. 2018); Ex parte Little, 887 S.W.2d 62, 65 (Tex. Crim. App. 1994). Even had appellant raised these issues on direct appeal, the record directly contradicts appellant's assertions, and they are without merit.
Having overruled appellant's three issues, we affirm the order of the trial court.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.