In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00078-CR

                                                ______________________________

                                         EX PARTE:  ROY LEE HILL

                                        On Appeal from the 76th Judicial District Court

                                                              Titus County, Texas

                                                            Trial Court No. 15435

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

            Roy Lee Hill appeals the denial of his application for writ of habeas corpus.  He contends that his right to be free from double jeopardy was violated after the trial court previously declared a mistrial which allowed the State to amend its indictment and prosecute him.  Because the court’s mistrial was declared prior to the jury panel being sworn, we affirm the trial court’s judgment. 

            The Fifth Amendment to the United States Constitution and Article I, Section 14 of the Texas Constitution prohibit double jeopardy and protect individuals from being tried twice for the same offense, possibly receiving double punishments.  Albernaz v. United States, 450 U.S. 333, 343 (1981); Illinois v. Vitale, 447 U.S. 410, 415 (1980); Stephens v. State, 806 S.W.2d 812, 814–15 (Tex. Crim. App. 1990).  A prerequisite to the implication of double-jeopardy protections is the requirement that “jeopardy must have attached initially.”  State v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009).  In a jury trial, jeopardy attaches only when a jury is impaneled and sworn.  Id.; Ex parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992).  Once the panel is sworn, a defendant has a constitutional right to have his guilt or innocence decided by that particular jury.  Hubbard v. State, 798 S.W.2d 798, 799–800 (Tex. Crim. App. 1990) (citing Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App. 1981)).  Because the jury panel in this case was not sworn, jeopardy did not attach.   

            Despite the fact that a jury was not sworn, Hill argues that the trial court’s declaration of mistrial violated double jeopardy because no manifest necessity existed to justify the mistrial.^[1]  As stated in Dinkins v. State, “[t]he doctrine of manifest necessity is inextricably fused with the concept of jeopardy.”  894 S.W.2d 330, 343 (Tex. Crim. App. 1995).  We need not indulge Hill’s contention of lack of manifest necessity since “[j]eopardy principles pose no bar to declaration of a mistrial when the jury has not been impaneled or sworn.”  Reese v. State, 936 S.W.2d 327, 328 (Tex. App.––Tyler 1996, pet. ref’d) (citing Dinkins, 894 S.W.2d at 343).  In other words, because jeopardy did not attach, the trial court was not required to have manifest necessity to declare a mistrial to avoid double jeopardy. 

            We affirm the trial court’s judgment. 

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          August 9, 2010

Date Decided:             August 10, 2010

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