Full Opinion

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 Per curiam. PARKER, J., filed a dissenting opinion, joined by YEARY, J., and FINLEY, J. 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 2 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 3 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. 4 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 5 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. Delivered: September 17, 2026 Publish