This is being put out here after not finding any case in point.

Day One: Jury selected and sworn; Defendant enters plea of Not Guilty

Day Two: Before testimony begins, defendant changes plea to Guilty, is admonished, etc. etc., Plea is accepted by the trial court, and defendant pleads true to two priors. Punishment evidence begins.

Day Three: Both sides rest, etc., and jury goes out to deliberate. During deliberations, a probation officer enters courtroom and announces that one of the jurors had been previously transferred to his load from Collin County on a Felony DWI probation, which has several more years of duration. He produces photographic evidence.

After much gnashing of teeth the State agrees this is an "absolutely disqualified" juror. She is retrieved from the deliberation room, confirms the bad news, and is sent home by a polite but cool trial judge. She leaves, contrite, and almost in tears. Mistrial is declared.

Had the probation officer remained silent until AFTER the verdict, it would have shifted to defendant the burden of demonstrating harm if mistrial is denied. Receiving notice of the illegal juror BEFORE verdict left the trial court with no choice but to declare the mistrial.

Defendant now indicates his desire to change his plea back to Not Guilty for the new trial, (after seeing most of the State's evidence and figuring he has nothing to lose, the loser).

ORDINARILY a defendant's right to change his plea without question ends with the jury's retiring to deliberate, and allowance of same is addressed solely to the discretion of the trial judge. HOWEVER, in this instance the trial court declared a mistrial, which is tantamount to granting a new trial.

The question is, which new trial does he get; punishment only, or guilt innocence as well?

The cases uniformly treat Art. 44.29 CCP as applying to trial courts as well as appellate courts.

All the cases I've located anywhere near on point are under the OLD, (pre 1987), 44.29 which did not allow for a new trial on punishment only.

Apparently no case law exists addressing this situation under the NEW 44.29, and I found none under either version that exactly matches this case.

44.29 allows new trial on punishment alone where the new trial was granted, "...only on the basis of an error or errors made in the punishment stage...", and there is some indication in the cases that this language is to be construed literally.

At the time of voir dire, and at the swearing and seating of the jury, including its "absolutely disqualified" member, and at the reading of the indictment, and the defendant's initial plea of Not Guilty, it was understood by all there would be two stages of trial, (there never being any realistic view that this clown would not be convicted).

My argument is that regardless of the timing of the seating of the abominable juror, defendant's plea of Guilty prior to any evidence being introduced rendered the whole proceeding a punishment trial only, and that's all he gets on re-trial, and the withdrawing of his Guilty plea is strewn upon the trial court's discretion.

Other than their banishment from the courtroom, or the gagging of all probation officers during jury trials, what opines this august group?

37.07 Sec. 1 (b) if the plea is not guilty then the jury has to find him guilty then consider punishment. Since your defendant pled guilty, the only issue is punishment.

I'm aware of 37.07(b), and also that when a guilty plea is entered the court does not have to even submit the question of guilt to the jury, though we routinely do it as an instructed verdict sort of thing.

So - you don't see any problem with the fact that the absolutely disqualified juror was seated, and was part of the panel, when he pleaded not guilty, and the guilty plea did not occur until after the trial had actually begun, (in the sense the jury was sworn, not in the sense of evidence being produced)?