IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-97,204-01
IN RE JEROME B. ALLEN, Relator
ON ORIGINAL APPLICATION FOR A WRIT OF MANDAMUS
APPEAL NO. 14-25-00088-CR
IN THE FOURTEENTH COURT OF APPEALS
CAUSE NO. 1772216
IN THE 228TH DISTRICT COURT
HARRIS COUNTY
PARKER, J., filed a dissenting opinion in which YEARY and FINLEY, JJ., joined.
DISSENTING OPINION
Appellant-Relator’s first jury was impaneled, but not sworn, on a Friday
before an associate judge. The elected trial judge died over the weekend, and that
jury was released on Monday, with nothing in the record suggesting that the jury
was sworn. The Court contends that the record was silent as to whether that jury
ALLEN DISSENT — 2
was sworn. I disagree, because the record supports a conclusion that the jury was
not sworn. In any event, I do not think the law is settled that there is no error to
correct when there has been no memorialization of the proceedings involving the
jury’s release. Consequently, the court of appeals’s abatement order does not
violate a ministerial duty. Moreover, Appellant-Relator has not shown that he
lacks an adequate remedy because he could complain in a petition for discretionary
review of any decision by the court of appeals to utilize the results of the abatement
hearing.
First, the Court is wrong when it says that the record is silent on whether the
first jury was sworn because the record at least supports an inference that the jury
was not sworn. We have a court reporter’s record of the voir dire. That record
reflects that voir dire before an associate judge ended on Friday, September 27,
2024, with the jury being impaneled but not sworn. Similarly, the docket sheet
reflects that “a jury was impaneled and admonished to return 09/30/2024 at 10:30
am. The remaining members of the panel were then excused from any further
duties. Court recessed for the day.” The next docket entry, on September 30,
2024, states: “Presiding judge Aguilar passed away and the jury was released from
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any further duties.”1 Later docket entries, on January 10, 2025, refer to a second
voir dire being conducted. One of these entries included the notation, “A jury was
impaneled and admonished to return on 01/27/2025 at 11:30 am.” Two later
docket entries on January 27, 2025, indicate that the jury was sworn, with the first
saying, “Jury was seated sworn and admonished,” and the second saying, “Jury
sworn.”
From the various docket entries we can infer that the trial court’s practice
was to impanel the jury without swearing it in and to have the jury sworn in the day
the evidentiary phase of trial was set to begin. This practice makes sense, because
(1) there is no reason to swear the jury in prematurely, and (2) an associate judge
would feel it better to leave the decision on when and how to swear in the jury with
the elected judge who will preside over the trial. And when the elected judge died
over the weekend, there was no one to swear in the jury on Monday. Consistent
with this common-sense inference is the fact that the docket sheet contains no
notation that the first jury was sworn but does contain notations that the second
jury was sworn. Consequently, the record rather strongly supports the inference
that the first jury was not sworn.
1
For this and some later docket entries cited in this opinion, capitalization converted to lowercase for ease of reading.
ALLEN DISSENT — 4
The Court also invokes the general presumption of regularity. The Court
concludes that this presumption reinforces the presumption that the jury was
sworn, but it is mistaken. To the contrary, presuming the regularity of proceedings
in this case conflicts with presuming that the first jury was sworn. It would be
highly irregular to dismiss a sworn jury in such a way as to create a double-jeopardy
bar to prosecution before the State has had a chance to put on any evidence—
which could occur if the jury’s dismissal was not requested by the defendant or
justified by a showing of manifest necessity.2 The most reasonable “regularity”
explanation for the dismissal of the jury under the present record is that the jury
was not sworn—and so could be freely dismissed without double-jeopardy
consequences. Indeed, presuming that the jury was sworn makes the most sense
when the evidentiary stage of the trial has begun—a stage of proceedings that
properly occurs only after the jury has been sworn. Here, nothing occurred that
would require the first jury to have been sworn.
2
See Martinez v. Illinois, 572 U.S. 833, 839 (2014) (“There are few if any rules of criminal procedure clearer than the rule that ‘jeopardy attaches when the jury is empaneled and sworn.’”); United States v. DiFrancesco, 449 U.S. 117, 130 (1980) (“This Court has long recognized that the Government may bring a second prosecution where a mistrial has been occasioned by ‘manifest necessity.’ Furthermore, reprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the Government did not deliberately seek to provoke the mistrial request.”) (citations omitted).
ALLEN DISSENT — 5
The record does not establish beyond all doubt that the first jury was not
sworn. But Rule 44.2(c) does not say that the record must conclusively negate that
the jury was sworn; it just says that, to rebut the presumption that the jury was
sworn, the record must “affirmatively show[] the contrary.”3 What exactly is
required to affirmatively “show” that the jury was not sworn has not been explored
in any prior cases. There is certainly no settled precedent saying that the record
must conclusively establish that the jury was not sworn in order to “show” it.
Mandamus will not lie to settle unsettled law.4
Perhaps one could argue that abatement is unnecessary because the record
affirmatively shows that the jury was not sworn. But it does not show it beyond all
doubt, and I do not blame the court of appeals for seeking to determine whether the
matter can be established with certainty.
Second, the Court employs faulty reasoning when it claims the record need
not show whether a mistrial occurred. The Court cites the proposition that the
record does not have to affirmatively show the rationale for a mistrial, but that is
not the same thing as saying the record does not have to show whether there was in
3
TEX. R. APP. P. 44.2(c)(2) (brackets to conform grammar).
4
In re Green, 713 S.W.3d 843, 847 (Tex. Crim. App. 2025).
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fact a mistrial. If a judge granted a mistrial, the record needs to show it, even if it
does not show the judge’s reasoning. And it is no answer to say that the docket
sheet shows the basis for the jury’s release. The docket sheet does not show how
that release was effectuated. Maybe the docket sheet’s silence in that regard (or
the absence of a court reporter’s record) does not matter if the jury was not sworn.
But if a court were to conclude that the jury was sworn, then it would matter, and
we would want to know how it is that the jury was released and what circumstances
led to that release. At any rate, the Court has pointed to no statute or case that says
that a trial court does not err in failing to memorialize what procedural vehicle was
used to dismiss a jury, and in fact, one of the cases cited by the Court suggests that
a failure to memorialize would be error.5
Finally, Appellant-Relator has an adequate remedy at law. If he thinks the
abatement was improper, he can complain about it in a petition for discretionary
review after the court of appeals gets the case back and renders a decision.6 The
Court is wrong to say that Appellant-Relator is irreversibly deprived of a decision
5
Rodgers v. State, 93 Tex. Crim. 1, 5 (Tex. Crim. App. 1922) (“We agree to the proposition that there should have been a judicial ascertainment of the facts justifying the discharge of the jury, and that this should have been evidenced by a proper entry in the court minutes.”).
6
See Thomson v. State, 727 S.W.3d 200, 202-03, 206 (Tex. Crim. App. 2025) (holding that abatement was improper in a petition from a court of appeals’s decision after abatement).
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on a silent record. If this Court were to determine that abatement were improper,
it could ignore or instruct the court of appeals to ignore any findings or evidence
from the abatement hearing.
I would deny leave to file. I respectfully dissent.
Filed: September 17, 2026
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