Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellant, Octabiano Cantu Jr., challenges the trial court’s denial of relief on his petition for a writ of habeas corpus. The appellant stands (at the time of this opinion) indicted for aggravated sexual assault on a child, but he claims that in an earlier trial, he was acquitted of the offense giving rise to the indictment. In a pretrial habeas corpus petition, the appellant asked the trial court to bar the state from prosecuting him for aggravated sexual assault on the grounds that it would constitute double jeopardy. The court held a habeas hearing but ultimately denied relief. The appellant challenges that denial of relief. HOLDING:Affirmed. In October 2002, a jury tried the appellant on charges of aggravated sexual assault on a child (the “greater offense”) and the lesser-included offense of indecency with a child (the “lesser included offense”). The jury deadlocked, and the trial court granted appellant’s motion for a mistrial. In his habeas petition, appellant argued that the jury implicitly acquitted him of the greater offense because its notes to the trial judge indicated that it was deadlocked on the lesser-included offense. The trial court disagreed with appellant’s “implied verdict” theory. The appellant’s argument is based on the instructions given to the jury and three notes the jury passed to the judge during its deliberations. In relevant part, the jury instructions explained, “Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of the [greater] offense . . . and next consider whether he is guilty of the lesser included offense.” The appellant argues that this language prohibited the jury from considering the lesser included offense unless it first acquitted him of the greater offense. During its deliberations, the jury sent a note that read, “Your honor, we are at a split vote 10-2 (G/N) on [the] lesser charge. What do we do now?” The court instructed the jury to keep deliberating, but then a second jury note later declared, “Your honor, we are sorry – but we are hopelessly deadlocked . . . [at] 10-2 (G-NG) on [the] lesser charge.” This second note prompted the appellant to move for a mistrial. After declining to grant the motion, the court admonished the jury as follows: “If this jury finds itself unable to reach a unanimous verdict, it will be necessary for the court to declare a mistrial and dismiss the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. You are requested to continue your deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury if you can do so without doing violence to your own conscience.” After further deliberations, the jury sent a third note to the judge, which stated, “We are still deadlocked – do you wish us to continue tonight? Or do you want us to continue tomorrow? The panel is firm in their [sic] deliberations. We are still . . . [at] 10-2 (G-NG).” After reading the note and bringing the jury back into the courtroom, the judge instructed, “If you feel that further deliberations will result in a verdict, whether tonight or tomorrow, then please hold up your hand.” No hands went up, and the court subsequently granted the appellant’s second motion for a mistrial. At the habeas hearing, the appellant argued that the jury notes constitute an implied acquittal on the greater offense, but the court ruled as follows: “There’s a presumption that the juries follow the instructions given to them in the Charge of the Court, and with that presumption in mind, the jury took the higher offense first, considered it, and moved on to the lesser charge; however, the jury made no specific finding in this case. There was no verdict returned.” Even where a jury indicates that it has reached a verdict of not guilty on the greater offense, as a matter of law, a verdict is not reached until the jury has answered all the charges against a defendant. Consequently, the court holds that because the jury did not return an answer to both charges presented to it, there was no verdict in this case. The trial judge did not err in concluding that the jury had not returned a verdict. The law regarding double jeopardy in such cases is well-settled. A trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which a defendant is subjected. Richardson v. United States, 468 U.S. 317 (1984). The appellant faces only one jeopardy, the court concludes. OPINION:Yanez, J.; Hinojosa, Yanez and Garza, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.