Traylor v. State, No. 13-13-00371-CR (Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)
In this appeal from a retrial and conviction for first-degree burglary of a habitation, the Thirteenth Court of Appeals held that a discharged jury’s informal statement on the record required a judgment of acquittal, triggering the double jeopardy clause and preventing a second trial on the issue.
On July 9, 2010, Peter Anthony Traylor allegedly broke into his ex-mother-in-law’s home and attempted to assault her. Traylor was arrested for the offense on September 14, 2010, and indicted for first-degree burglary of a habitation three months later. Traylor remained in custody for the next fourteen months.
During this time, he filed numerous speedy trial motions, along with a motion requesting a hearing on his case, and a federal lawsuit against his attorney for violating his speedy trial rights. His attorney meanwhile, sought discovery from the State and moved for the appointment of a private investigator to help locate witnesses. However, after thirteen months, Traylor accused his attorney of professional misconduct and the attorney asked to withdraw. Traylor’s new counsel filed a “reservation of speedy trial rights” that purported to reserve Traylor’s rights, but he sought a continuance based on his new counsel’s other commitments. The trial court granted a seven-month continuance and released Traylor on bond. Traylor then requested an additional five-month continuance before his case was tried.
At the conclusion of the trial, the jury was instructed on both first-degree burglary of a habitation and the lesser included offense of second-degree burglary of a habitation, which did not require a deadly-weapon finding. After approximately eight hours of deliberation, the jury reported—in a note and again on the record—that it unanimously agreed Traylor was not guilty of first-degree burglary, but it was deadlocked regarding the second-degree offense. The State requested a mistrial, but Traylor requested an Allen instruction or “dynamite charge,” sending the jury back to deliberate. The trial court declared a mistrial and scheduled a second trial for five months later. One week before the second trial, Traylor requested a continuance, which was denied. Traylor then requested a dismissal on speedy trial grounds, but the motion was also denied without a hearing.
The second jury returned a verdict finding Traylor guilty of first-degree burglary of a habitation. The court sentenced Traylor to twenty years’ confinement. Traylor appealed, claiming that the conviction violated his rights under the Sixth Amendment’s speedy trial clause and the Fifth Amendment’s double jeopardy clause.
Held: Although the defendant’s speedy trial rights were not violated, the jury’s informal acquittal of his first-degree burglary charge triggered the double jeopardy clause. Defendant’s second trial and conviction for first-degree burglary of a habitation was thus a violation of double jeopardy. The judgment was reversed and the cause remanded for a retrial on the second-degree, lesser included offense of burglary of a habitation.
In Barker v. Wingo, the Supreme Court established four factors a court must analyze to determine if a defendant’s right to speedy trial has been violated: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice caused by the delay. However, this analysis is triggered only if the defendant makes a threshold showing that the length of the delay is presumptively prejudicial.
The length of the delay is measured from the time of accusation to the time of trial. Here, the delay was approximately 28 months. A delay is presumptively prejudicial if it is 12 months or more. Here, the factor met the threshold to trigger the Barker v. Wingo analysis and weighed against the State.
Next, the court considered the reason for the delay. The court attributed the initial 13-month delay to “a communication breakdown” between Traylor and his then-attorney. Moreover, during this time Traylor’s counsel was requesting help from a private investigator, thus delaying the case to secure favorable witnesses. After Traylor’s new counsel was appointed, all of the continuances were granted at Traylor’s request. Thus, this factor did not weigh heavily against the State.
Regarding Traylor’s assertion of his right, the Thirteenth Court noted that Traylor moved for a speedy trial several times while confined pre-trial. However, in each instance Traylor requested dismissal, revealing that he wanted “no trial at all rather than a speedy one.” Thus, this factor did not weigh heavily in Traylor’s favor.
Finally, the court examined the prejudice caused to Traylor by the delay. Specifically, the court focused on preventing pretrial incarceration, minimizing the anxiety of the accused, and—most importantly—limiting the effect of the delay on the accused’s ability to present a defense. Here, Traylor spent half of his pretrial delay—approximately fourteen months—behind bars, expressing consistent frustration with his counsel. During this time, Traylor missed the birth of his child. However, after Traylor was appointed new counsel and released on bond, he did not appear to suffer any prejudice or anxiety. Regarding the third consideration—the effect of the delay on Traylor’s defense—Traylor presented no evidence that the delay harmed his case. Although the Supreme Court has held that prejudice may be presumed from a delay, such presumption is weakened if the defendant agreed to the delay. Here, Traylor agreed to or requested over half of the delay. Thus, this factor did not weigh against the State.
Balancing these four factors, the Thirteenth Court emphasized that Traylor acquiesced in the majority of the delay, and thus held that Traylor’s right to a speedy trial had not been violated.
The Thirteenth Court then proceeded to the double jeopardy issue. The court noted that, under the double jeopardy clause, a defendant acquitted of a charge may not be retried for the same offense. An acquittal occurs when some or all of the fact issues of the offense are resolved in the defendant’s favor. Generally, a jury that is discharged before verdict based on a deadlock does not trigger the double jeopardy clause or prohibit a second trial. Trial courts are given great deference to determine when a deadlock has occurred.
The Thirteenth Court referenced the United States Supreme Court’s decision in Blueford, where the jury deadlocked and the foreperson indicated halfway through deliberations that the jury had been unanimous as to an acquittal on one offense. Blueford v. Arkansas, 566 U.S. ___, 132 S. Ct. 2044 (2012). The Supreme Court held that the report of the foreperson lacked the finality necessary to amount to an acquittal for double jeopardy purposes since the jurors could have reconsidered their votes after the foreperson’s report. Nonetheless, the Court acknowledged that an acquittal based on a discharged jury’s informal statement was possible.
Here, at the end of deliberations, the jury foreperson stated on the record that the jury unanimously agreed Traylor was not guilty of the first-degree offense. This provided the key element missing in Blueford, and amounted to an informal verdict of acquittal. Texas Code of Criminal Procedure article 37.10(a) requires a trial court to acquit a defendant if a jury issues an informal verdict revealing their unanimous intent to acquit the defendant. Although the court conceded that no Texas cases have applied article 37.10(a) to constitute an acquittal in similar situations, these cases were decided prior to Blueford. Thus, the court held that Traylor could not be retried for the first-degree offense of burglary of a habitation, and his second trial violated the double jeopardy clause.
The court then considered whether Traylor could be retried for the second-degree, lesser-included offense of burglary of a habitation. The court gave deference to the trial court’s finding that the jury was deadlocked and noted that an Allen instruction was not required. Thus, the court held that a retrial as to the second-degree offense was permitted.
In summary, the Thirteenth Court reversed Traylor’s conviction for first-degree burglary of a habitation and remanded the case for a retrial on the second-degree burglary charge.
Texas Workforce Commission v. Macias, No. 13-15-00255-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)
In this appeal from a trial court’s reversal of a TWC decision denying unemployment benefits, the Thirteenth Court of Appeals determined whether a school’s prior write-ups gave reasonable notice of their policy such that a paraprofessional’s violation of such policy could be considered “mismanagement” of her position.
Patricia Macias worked for the Harlingen Independent School District as a “paraprofessional” helping teachers in the classroom for more than twenty years. In 2012, Macias was fired for violating a school policy which prohibited paraprofessionals from having “conferences” with parents about students. A student’s grandfather asked Macias “How did my grandson do?” and Macias responded “He [was] just jumping up and down. Just a boy. But if you want further information, you can find the teacher.” Macias was overheard having this conversation regarding the student’s behavior, and the conversation was reported to the principal.
Four months later, Macias filed a claim with the Texas Workforce Commission (“TWC”) for unemployment compensation. The TWC denied the claim because Macias was fired for committing “misconduct” and “mismanag[ing] her position of employment.” Macias appealed the finding of misconduct to a trial court. The court held an evidentiary hearing and reversed the TWC’s decision. The TWC appealed.
Held: The TWC did not have substantial evidence to support their finding that Macias mismanaged her position because the school lacked a coherent “conferencing” policy and Macias did not have notice of the allegedly prohibited conduct. The trial court’s judgment was affirmed.
The Thirteenth Court began by reiterating the standard of review: that the trial court’s judgment would stand if the TWC’s finding was not supported by “substantial evidence,” i.e., more than a scintilla.
Under Texas Labor Code section 207.044, an employee cannot receive unemployment benefits if she is discharged for misconduct, i.e., the mismanagement of a position of employment more than the simple failure to perform a job duty. Here, the TWC found that Macias mismanaged her position by holding a prohibited “conference” and advising a grandfather regarding the conduct of his grandson. However, the Thirteenth Court noted that there was no written school policy defining the phrase “conference” so as to encompass Macias’s discussion with the grandfather. Instead, the TWC argued that Macias knew she was holding a “conference” based on prior write-ups Macias had received.
Macias’s first write-up occurred more than three years before her termination, when Macias allegedly discussed a child with the child’s parent. The principal instructed Macias on how to politely avoid such discussions. Four days later, Macias was written-up for another discussion with a student’s parent, although the write-up provided no details. Later, Macias was written up for talking to a parent in the school cafeteria. The parent was attempting to locate students that had bullied her child, and Macias directed the parent to the office. The write-up provided no further information regarding Macias’s allegedly prohibited conduct. The Thirteenth Court of Appeals held that these write-ups did not reflect a coherent conferencing policy. More importantly, the write-ups failed to reasonably notify Macias of what conduct was prohibited; there was no evidence that she disregarded or intentionally violated the policy. Such intent was necessary to support a finding that Macias mismanaged her position. The Thirteenth Court thus affirmed the trial court’s decision that substantial evidence did not support the TWC’s finding of misconduct.