If a mistrial occurs once the punishment case has started, is the mistrial only as to punishment or to guilt as well? Art 37.07 says that if the jury hangs on punishment, then the mistrial only applies to punishment. Would this be the same?
In general, I would think the defendant is entitled to have the guilt jury decide his punishment (with the exception of the unanimous verdict requirement). So, if the State does something to create the need for a mistrial, it will have to start all over, with the possibility that the prosecution just becomes barred if the State's error is deemed intentional. If it is something beyond anyone's control, then result may be different.
Well, 37.07 allows for a mistrial on punishment only now where you have a hung jury, and the TRAP rules allow a new trial on punishment only. Isn't this some authority for the proposition of a declared mistrial on punishment only?
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
