Ex parte Raines

EX PARTE CHARLES RAINES

No. 06-21-00002-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: March 24, 2021

April 21, 2021

On Appeal from the 85th District Court Brazos County, Texas

Trial Court No. 19-03987-CRF-85

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

After one day of testimony in August 2020, the State had rested its Brazos County¹ case against Charles Raines for continuous violence against the family.² The next morning, the trial court had learned that Raines had been in close contact with a person who had been diagnosed with COVID-19, and after a short hearing and over Raines's objection, the trial court sua sponte declared a mistrial.

Before his second trial, Raines filed an application for a writ of habeas corpus (the Application) asserting that a re-trial was barred by his right against double jeopardy. After an evidentiary hearing, the trial court denied the Application.

On appeal, Raines complains that there was no manifest necessity that justified a mistrial because the COVID-19 exposure resulted from judicial and law enforcement disregard of their own COVID-19 risk avoidance protocols and because the trial court did not reasonably rule out the less drastic alternative of a fourteen-day continuance. Because (1) the mistrial declaration is entitled to great deference and (2) the trial court's manifest-necessity determination was not an abuse of discretion, we affirm the denial of Raines's application for a writ of habeas corpus.

After the Office of Court Administration approved a COVID-19 safety plan for holding jury trials developed by the Brazos County district courts (the Brazos COVID-19 Plan),³ the trial court and the 361st Judicial District Court of Brazos County both held criminal jury trials that began on August 17, 2020. The courts held jury selection in separate locations away from the courthouse on August 17 and began testimony in their separate courtrooms on August 18. The defendant in the 361st Judicial District Court was Teron Pratt, and Raines was the defendant in the 85th Judicial District Court. Both Pratt and Raines were incarcerated in the Brazos County Jail, which is located about one mile from the courthouse.

In the Pratt trial, testimony was concluded on the morning of August 18, arguments were concluded that afternoon, and the jury members deliberated until they were sent home for theevening at 5:00 p.m. In this case, the State called ten witnesses against Raines and then rested its case.

That night, Judge Smith was informed by Sergeant Doug Chambers, the jail transportation sergeant, that Pratt had tested positive for COVID-19. The next morning, Judge Smith informed Judge Hawthorne, the judge in this case, that Pratt had tested positive for COVID-19 and that, on August 18, Pratt and Raines had been transported in the same vehicle between the jail and the courthouse. The trial court also learned that Pratt had tested positive for COVID-19 on August 10.

Later the morning of August 19, the trial court addressed the situation in open court with Raines, Raines's attorney, and the district attorney. The trial court expressed its concern that, because Raines had been transported with Pratt, there was a potential exposure to Raines, his attorneys, the court bailiff, the court coordinator, and, because the bailiff escorted the jurors between the jury room and the courtroom, the jury. The trial court also acknowledged that, contrary to guidelines of the Centers for Disease Control and Prevention, the state health department, and the Brazos COVID-19 Plan, Pratt had not been quarantined. Finally, the trial court recounted its contact with David Slayton, the administrative director of the OCA, who informed the trial court that anybody who had a potential exposure to COVID-19 would have to be quarantined and tested. The following exchange ensued:

THE COURT: So, that puts us at the very least of continuing this trial for at least 14 days and that's if nobody comes back and tests positive. So we're assuming that we may be able to continue in 14 days assuming nobody -- everybody clears.

This Court's got concerns about informing the jury that they have a potential event related to COVID. One of the first questions I asked them on voir dire was whether -- what their comfort level -- if they were concerned just by the mere fact that they were being called as potential jurors during this time period that we're going through with all the Governor's mandates and -- related to COVID-19 under his emergency orders; all the OCA's orders related to the situation the courts have been in; and the general public about dealing with COVID-19 that could materially affect their decision-making process one way or the other, good or bad for both sides; and whether their decision would be based on the facts that are presented in the case versus the surrounding circumstances that they're having to make this decision under. Obviously, that's speculation on my part; but having been a trial attorney for 28 years and a judge for 6 and given the nature of their responses during jury selection, I don't think there's any guarantee that either side receives a fair trial because of the information that they would get related to what we're exposed to at this particular point in time.

Comments from the State?

[The State]: Judge, I'd like to ask in addition to that for the record to reflect that during my voir dire the first -- one of the first questions I asked was, "How many people here are uncomfortable just being in a group of other individuals"; that around -- between one third and one half of the panel raised their hands indicating that they were uncomfortable being in a room, that we repeatedly assured them of their safety and the protocols that we would take in regards to their safety -- the preparations we were making and the assurances that we would make.

I would ask the record to reflect that when you asked whether or not they were comfortable with us removing masks or us talking to them without masks, a good percentage of the -- the venire panel indicated they were uncomfortable with us removing masks even 6 feet social distancing or -- because of the nature of the Corona virus, and that they continued to approach Mr. Tyler throughout the trial and the venire process concerned about safety with the ongoing global pandemic.

We would ask you to find based on their responses and their answers to questions in voir dire that granting a mistrial in this case over the defendant's objection is manifestly necessary, that there is no other lesser measures including a continuance that could assure both the State and the Defense a fair trial and thus it is necessary to grant one and that it's at no fault of the prosecution of the State of Texas that this mistrial is granted.

THE COURT: If I grant a mistrial, it's nobody's fault. I'll find that for the record. I don't think it's either side's fault -- not related to this courtroom. I'll putit to you that way. And I don't specifically recall your questions on voir dire without going back to look at the record. I do recall that there was -- there was concern -- deep -- I don't know if I would qualify it as deep concern; but there was specific concern about just the mere fact they were there and the effect of the environment COVID-19 that we were working under, by the jurors. I think I expressed that.

Mr. Turnbull?

[Defense Attorney]: Judge, just simply the State has known -- they can try and separate themselves from the Sheriff's Department if they want to, but they're all one entity. They have known for seven days I think at least that -- that Mr. Pratt, the other defendant, was positive; and the Court -- there are less restrictive means that the Court could take to take care of this.

THE COURT: What are those?

[Defense Attorney]: We object.

THE COURT: What are those?

[Defense Attorney]: The Court -- that's up to the Court for what those are.

THE COURT: Well, give me some suggestions. I'm looking for some suggestions.

[Defense Attorney]: Well, it's not my place to do so, Judge. It's the Court's place to make those decisions. It's the Court's decision and the Court's making the decision, but we object to it obviously.

THE COURT: Well, I will put on the record -- and I've held off talking to the judge -- I mean, talking to the Sheriff's Department because I don't think I'm in a proper place to be talking to them about it right now. But I'll note for the record that we were not told about this until this morning, the other court was not told about it until last night; that's at least eight days from the testing of -- positive test out at our jail and a person is being transported while they're supposed to be in quarantine. That's the facts that I know as of right now . . . .

[The State]: And, Judge, just as an officer of the Court -- and you recognize that you were the ones that informed the prosecution -- of the State of Texas about this testing result, that we did not have any prior knowledge or prior information about any inmate that had tested positive or were supposed to be quarantined.

THE COURT: If I didn't make that clear - I immediately told y'all about 8:15 this morning, and that was -- y'all didn't know anything about it -- neither side knew anything about it at that time.

Anything else, Mr. Turnbull? . . .

[Defense Attorney]: Yes, sir . . . . Just to reurge to the Court that there are less restrictive means that the Court could take under the circumstances. Those are, of course, the decision of the Court but there are and we object to the mistrial. State has known that this was going on for over a week and told none of us, as you've said on the record.

THE COURT: I've run through every scenario you can think of of a manner that I could take less drastic actions than considering a mistrial, and I can't think of what it is. Take a smarter person than me, I guess, at this particular point in

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