Legal scholars and sources, such as Black’s Law Dictionary, provide two definitions of a mistrial: first, a trial is brought to an end by the judge before a determination on the merits has been made because a procedural error or serious misconduct; and, second, the trial judge declares a mistrial when the jury is unable to reach a verdict.


Mistrials Governed by Common Law


Unlike in most states, the Texas Code of Criminal Procedure provides sparse information and even less guidance to trial courts when it comes to mistrials. The Texas Court of Criminal Appeals recognized this procedural deficiency nearly fifteen years ago in Rodriquez v. State when it found that the Code provides little guidance concerning mistrials granted because of procedural errors or misconduct. The Court was forced to find that under Article 1.27 of the Code, mistrials are actually governed by common law because there are no statutory provision or regulatory rules governing mistrials.


All Trial Proceedings Ineffective


In 1960, the Texas Court of Criminal Appeals in Bullard v. State held that when a mistrial is declared, all trial proceedings before the granting of the mistrial become legally ineffective. In effect, the case returns to its pre-trial position before the mistrial was declared.


The Bullard decision was decided at a time when Texas only had a single trial process designed to determine guilt or innocence. However, in 1965 with its new Code of Criminal Procedure, Article 37.07, Texas became the fifth state in the country to adopt a bifurcated trial process—a first phase to determine guilt/innocence and a second phase to determine punishment. The defendant is permitted under both phases to have either a judge or jury determine guilt/innocence and punishment.


Bifurcated Trial Process Allows Any Evidence of Criminal Conduct, Bad Acts


In 1969, the Texas Court of Criminal Appeals held that bifurcation “was obviously designed to take the blindfolds off … when it came to assessing punishment. “Put simply, the State can present to the jury virtually any evidence about a defendant’s past criminal conduct and bad acts to determine the issue of punishment.


Mistrial at Punishment


But what happens when a jury hangs on punishment?


Article 37.07 § (3)(c) permits the judge to declare a mistrial with respect to punishment only.


Through Rule 21.9(a) of the Texas Rules of Appellate Procedure and Article 44.29(b) of the Code of Criminal Procedure, a trial judge also has the discretion to grant a new trial on the issue of punishment when the court finds that an error occurred during the punishment phase that affected the issue of punishment.


But what happens if a trial judge declares a mistrial during the punishment phase?


Does the mistrial under the Bullard v. State rule apply to the punishment phase as well?


On April 26, 2017, the Court of Criminal Appeals in Ex parte Pete answered this question.


Defendant Testified Before Jury in Shackles


Andrew Pete was tried in a consolidated trial on three counts of sexual assault of a child. The jury found him guilty on all counts. Pete elected to testify before the jury during the punishment phase. When he stood up to testify, it became evident that he was shackled and the jury had seen the shackles. Pete’s attorney moved for a mistrial—and the trial judge took the motion under advisement.




Pete testified, and after a “brief cross-examination by the State,” the judge interrupted the proceedings with a decision to grant a mistrial. Before a new jury could be empaneled, Pete’s attorney “filed a combined application for writ of habeas corpus and motion to reinstate his pre-trial bond.” Defense counsel argued that by granting a mistrial, the court had “restored” the case to its pre-trial status—the Bullard v. State rule. The trial court denied both the writ application and bond motion.


On appeal from the denial of the habeas application, the Fifth District Court of Appeals agreed with defense counsel’s position—that the Bullard v. State rule restored the case to the status “before the mistrial was declared.”


Trial Court Can Grant Mistrial as to Punishment Only


The Court of Criminal Appeals reversed the appeals court decision and upheld the trial court ruling, finding that the Bullard v. State rule “was decided at a time before prosecutions in Texas were bifurcated.” The new Ex parte Pete rule now holds that when an “irremediable error or misconduct occurs during a jury trial, but not until the punishment phase, trials courts … have the authority to grant a mistrial as to the punishment phase of trial only.”


Pointing out there is no “no specific code provision to consult” on this issue, the appeals court found:


“That being so, there is no compelling reason to wait for regulatory authority in order to say what the appropriate scope of a mistrial ruling should be. So long as it makes sense for us to conclude that a mistrial for ‘procedural error or serious misconduct’ affecting only the punishment phase of trial should only require a new punishment phase, and there is no statutory or regulatory impediment to our so holding, we are not constrained by the lack of an expressed provision in the Code of Criminal Procedure or the Rules of Appellate Procedure. We are free to recognize that cases such as Bullard and Bounhiza, holding that a mistrial necessarily wipes the entire slate clean, including the guilty verdict, are anachronistic—the product of our former unitary procedure in which a jury assessed guilt and punishment during the same phase of trial. We are not presently bound by those holdings…”


We find the court’s ruling misguided. A mistrial halts the trial process. We agree with the reasoning of the Fifth District Court of Appeals—once a mistrial is declared, regardless of whether it occurs during the guilt/innocence phase or the punishment phase, the case should be restored to its pre-trial status.