VALLE, ANTHONY ANDREW v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0653-23

STATE OF TEXAS, Appellant

V.

ANTHONY ANDREW VALLE, Appellee

ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY

Per curiam.

OPINION

Appellee was charged with aggravated sexual assault of a child, pleaded not guilty,

and elected to be tried by a jury. TEX. PEN. CODE § 22.021(a), (e). Appellee filed an election

under Article 37.07, § 2(b) of the Code of Criminal Procedure to have the jury decide

punishment. TEX. CODE CRIM. PROC. art. 37.07, § 2(b). The statute requires that an election

be filed before voir dire begins. Id. Appellee’s election was file-stamped on November 9,
Valle, PD-0653-23--2

2021, the day after voir dire began.

The jury found Appellee guilty. During the punishment phase, he filed a motion to

recuse the trial judge and a motion for mistrial. His motion to recuse was granted, and the

new trial judge appointed to his case granted his motion for mistrial as to both guilt and

punishment.

On appeal, the State argued that Appellee was not entitled to a mistrial on guilt. The

court of appeals agreed, finding that because Appellee’s election was filed one day after voir

dire began, Article 37.07, § 2(b) did not provide a valid basis for the trial court’s decision to

grant a mistrial on guilt. The court of appeals reversed the portion of the trial court’s order

granting Appellee’s motion for mistrial as to the guilt phase of trial and affirmed the

remaining portion of the order granting a mistrial as to the punishment phase of trial. State

v. Valle, No. 01-22-00279-CR (Tex. App.—Houston [1st Dist.] Aug. 24, 2023).

Appellee has filed a petition for discretionary review and argues that the file-stamped

date of November 9, 2021, on his election is a clerical error. He points to other documents

in the record that are clearly file-stamped with the wrong dates. He urges this Court to grant

his petition, reverse the court of appeals’ judgment, and abate his case.

We grant Appellee’s petition for discretionary review, vacate the judgment of the

court of appeals, and remand the case to the court of appeals. The court of appeals shall abate

the case so the trial court can determine whether the November 9, 2021 date is a clerical error

and, if so, further determine when Appellee’s election was filed. See TEX. R. APP. P. 44.4;
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Taylor v. State, 247 S.W.3d 223, 223–24 (Tex. Crim. App. 2008) (given conflicting record,

court of appeals should have abated case so trial court could clarify which action it intended).

If the court of appeals determines that the election was, in fact, filed before voir dire began,

the court shall reconsider the State’s point of error claiming that Appellee was not entitled

to a mistrial on guilt.

DATE DELIVERED: January 17, 2024
DO NOT PUBLISH