IN RE: Jerome B ALLEN (2026)

OPINION

Relator, Jerome B Allen, seeks a writ of mandamus directing the Fourteenth Court of Appeals to withdraw its abatement order, which abated his appeal raising a double jeopardy claim and remanded for a hearing and findings on whether the first jury was sworn, whether a mistrial was declared, and whether a hearing was held in Relator's presence before the jury's discharge.

A relator seeking mandamus must establish both a ministerial duty—a clear and indisputable right to relief—and the absence of an adequate remedy at law. In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013). An appellate court may abate under Rule 44.4 only to correct a trial court error the trial court was empowered to correct. Tex. R. App. P. 44.4(a); Thomson v. State, 727 S.W.3d 200 (Tex. Crim. App. 2025); LaPointe v. State, 225 S.W.3d 513 (Tex. Crim. App. 2007). Rule 44.4(b)’s directive to remand for correction is triggered only where the circumstances in Rule 44.4(a) exist; absent a qualifying error in subsection (a), subsection (b) confers no independent authority to abate. None of the abatement order's three matters reflects such an error.

First, a silent record does not rebut the presumption that the jury was properly impaneled and sworn, Tex. R. App. P. 44.2(c)(2); see Osteen v. State, 642 S.W.2d 169, 171 (Tex. Crim. App. 1982) (applying former Art. 44.24(a) and holding that “[a]bsent an objection, bill of exceptions, or other affirmative showing that no oath was given the jury as a whole, the presumption ․ prevails, and nothing is presented for review”), and the general presumption of regularity yields the same result, see, e.g., Washington v. State, 550 S.W.3d 340, 341 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (holding that a silent record will not suffice as an affirmative showing and “will not overcome presumptions of regularity” (quoting Lincoln v. State, 307 S.W.3d 921, 923 (Tex. App.—Dallas 2010, no pet.))). Absent any affirmative showing that the jury was not sworn, the silent record presents no defect the trial court was empowered to correct.

Second, the record does not affirmatively show whether a mistrial was declared, and the docket sheet reflects that the jury was released upon the presiding judge's death. No law required the trial court to memorialize a mistrial rationale in the record. See Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002) (a trial court “need not expressly state [the] reasons in the record as long as the basis for his ruling is adequately disclosed by the record”). Because the docket entry adequately discloses the basis for the release, nothing in the record rebuts the presumption of regularity attaching to that disposition, and there was no correctable error for abatement to reach. See Washington, 550 S.W.3d at 341; Lincoln, 307 S.W.3d at 923.

Third, no law imposed on the trial court an affirmative duty to memorialize Relator's presence at the jury's discharge. Although Upchurch v. State, 36 Tex. Crim. 624, 38 S.W. 206 (1896), requires a judicial ascertainment made in the defendant's presence as a matter of substance, it does not require a written record of it. The written entry “is only the evidence of the judicial ascertainment, and not the judicial ascertainment itself.” Rodgers v. State, 93 Tex. Crim. 1, 245 S.W. 697, 699 (1922).

Because no provision of law assigned the trial court a duty that abatement could vindicate, there was nothing the trial court was empowered to correct. Davis v. State, 345 S.W.3d 71, 77 (Tex. Crim. App. 2011) (holding that Rule 44.4 does not compel remedial fact finding absent “some other provision of law that unequivocally assigns a burden exclusively to the trial court”); Thomson, supra; LaPointe, supra. Any gap in the proof of these matters was the State's to close at the time of occurrence, not a defect for the appellate court to cure by abatement. Rule 44.4 reaches only a trial court's own correctable error, not a party's failure to build the record.

Relator also lacks an adequate remedy at law. Once the abatement hearing occurs, Relator is irreversibly deprived of a decision on the silent record to which the governing presumption (either the presumption of a properly sworn jury under Rule 44.2(c)(2) or the general presumption of regularity it reflects) presently entitles him, a harm that later review on direct appeal cannot undo. See Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987) (holding that a remedy at law may technically exist yet be inadequate for mandamus where it is “so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate”).

Accordingly, Relator's motion for leave to file is GRANTED, and we CONDITIONALLY GRANT the writ of mandamus. The Fourteenth Court of Appeals is directed to withdraw its abatement order and to reinstate the appeal for disposition on the existing record. Any stay previously entered by this Court is LIFTED upon the court of appeals's compliance. The writ will issue only if the court of appeals fails to comply.

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 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 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.

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.

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 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 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.

FOOTNOTES

1.   For this and some later docket entries cited in this opinion, capitalization converted to lowercase for ease of reading.

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).

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).

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).

Per curiam.

Parker, J., filed a dissenting opinion, joined by Yeary, J., and Finley, J.