Torres v. State (961 S.W.2d 391, 1997)

OPINION

TAFT, Justice.

Appellant, Rebekah Zacarías Torres, was charged with driving while intoxicated (DWI). She'pled not guilty and the case proceeded to trial. After the ease was presented to a jury, the trial court declared a mistrial because the jury had not reached a verdict after deliberating for five and three-quarters hours. Appellant filed an application for writ of habeas corpus arguing that a retrial would violate her right not to be placed twice in jeopardy for the same offense because the trial court had prematurely declared a mistrial. The trial court issued the writ but denied relief. We address whether the declaration of a mistrial was an abuse of discretion and whether the double jeopardy clause of the Texas Constitution provides greater relief. We affirm.

Background

At trial, the arresting officer testified that he stopped appellant’s vehicle because she was speeding and weaving into the adjoining lane of traffic. He testified that appellant appeared intoxicated and that he arrested her after she had difficulty performing field sobriety tests and failed the horizontal gaze nystagmus test. An intoxilyzer operator testified that appellant refused to take an intoxi-lyzer test. A videotape of appellant performing sobriety tests was admitted into evidence. The person who led appellant through the videotaping testified that appellant made mistakes performing the tests. All three witnesses testified that they believed appellant was intoxicated.

Appellant testified that she drank one glass of wine and two beers on the night in question. She testified that she did not commit any traffic violations and that she was not intoxicated. Appellant called four witnesses that were with her prior to her arrest. They testified that appellant had a glass of wine at a friend’s apartment and two beers at a nightclub. In their opinions, appellant was not intoxicated. Defense counsel estimated it took five and one-half hours to present the evidence in this case.

The jury was instructed to determine whether the arresting officer had reasonable suspicion to stop appellant and whether the State had proven beyond a reasonable doubt that appellant was intoxicated at the time she was driving. The following is the sequence of jury deliberations:

December 13

Jury deliberations began at 2:42 p.m.

Jury asked to see videotape of appellant at 3:19.

Jury resumed deliberations at 3:34 p.m. after watching videotape.

Jury asked to see police offense reports and field notes and asked what would happen if it did not reach a verdict “this evening;” trial court responded that the items were not in evidence and asked the jury the numerical division of disagreement. The jury responded they were “pretty much split.”

The trial court recessed at 5:12 p.m.

December 14

Jury deliberations resumed at 9:00 a.m.

Jury asked to hear testimony about “clues” for determining intoxication and asked for clarification of the terms “intoxication” and “reasonable doubt.” Trial court responded that it could not elaborate.

At 10:00 a.m. the jury told the trial court it was “split in our decision regarding the defendant’s innocence” and was “a hung jury, with no chance of reconciliation.” Trial court instructed the jury to continue to deliberate.

At 12:25 p.m. the jury told the trial court,