Bauder v. State

• Decision Date: 30 June 1994
• Docket Number: No. 04-93-00725-CR,04-93-00725-CR
• Citation: 880 S.W.2d 502
• Parties: Samuel BAUDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 502

880 S.W.2d 502

Samuel BAUDER, Appellant, v. The STATE of Texas, Appellee.

No. 04-93-00725-CR.

Court of Appeals of Texas San Antonio.

June 30, 1994.

Mark Stevens, John Hrncir, San Antonio, TX, for appellant.

Margaret Fent, Asst. Crim. Dist. Atty., San Antonio, TX, for appellee.

Before BUTTS, RICKHOFF and STONE, JJ.

OPINION

RICKHOFF, Justice.

This is a double jeopardy case. Before trial, the court granted a motion in limine barring evidence of any uncharged misconduct by the defendant, Samuel Bauder, that occurred before the charged offense.

After the jury was impaneled, the prosecutor presented the arresting officer's testimony that he approached a car parked on Raintree Path. The occupants fled in the car, but the officer quickly caught them. When the driver, the appellant, got out of the car, he was barely able to stand and his pants were unbuttoned. The officer thought he appeared intoxicated. Additional testimony covered the arrest and transportation for an intoxilyzer test. After this testimony, the prosecutor asked what appellant had been doing in the parked car before the alleged crime. The officer responded in graphic language that the defendant was receiving oral sex. Defense counsel moved for a mistrial. The prosecution argued for a curative instruction, but the court granted the mistrial.

The appellant filed a petition for a pretrial writ of habeas corpus. He claimed trying his case again would subject him to double jeopardy. The trial court found that (1) the officer's testimony about oral sex was based on conjecture and speculation, and lacked probative value; (2) the prosecutor had elicited the testimony to inject prejudice into the trial; and (3) the prosecution did not elicit the testimony to goad appellant into obtaining a mistrial. We affirm.

Mr. Bauder claims on appeal that trying him after that mistrial would violate the double jeopardy clauses of the state and federal constitutions. ¹ The federal double jeopardy clause bars retrial only if the government conduct in question intentionally provoked the motion for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 678-79, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982). The appellant argues we should create a more generous legal standard under the state double jeopardy clause, citing Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). Although existing cases on point predate Heitman, we see no reason to deviate from the pronouncements of the Texas Court of Criminal Appeals. See, e.g., Collins v. State, 640 S.W.2d 288, 290 (Tex.Crim.App.1982). (The Kennedy standard applies in Texas.).

As the Supreme Court stated in Oregon v. Kennedy:

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant's motion for a mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact."

456 U.S. at 675-76, 102 S.Ct. at 2089 (citation omitted).

As a matter of federal law the intent of the prosecutor is a question for the trier of fact. Collins v. State, 640 S.W.2d at 288. In this habeas corpus proceeding, the trial judge was the trier of fact. TEX.CODE CRIM.PROC.ANN. art. 11.44 (Vernon 1979). Since the trial judge in this case was present as the events unfolded, and since he had the opportunity to judge the demeanor and credibility of the actors and witnesses, it was and should be his responsibility to infer the existence or non-existence of the requisite intent from the objective facts and circumstances. Anderson v. State, 635 S.W.2d 722, 726 (Tex.Crim.App.1982).

While safeguarding fundamental rights is the responsibility of every member of the bar, the duty falls primarily on trial judges. Individual prosecutors have provoked--and will provoke--mistrials intentionally. Their testimony about their intent is not determinative. Judging the intent of advocates is but one of many difficult fact determinations for all trial judges. The great difficulty inherent in judging human behavior is why appellate courts impose their judgment only when the trial court's determination is clearly erroneous. Ex parte May, 852 S.W.2d 3, 5 (Tex.App.--Dallas 1993, pet ref'd).

Under the record, we cannot conclude he was wrong. The appellant's points are overruled, and the decision of the trial court is affirmed.

BUTTS, Justice, dissenting:

I respectfully dissent. The record and conclusions of the trial judge, viewed objectively, indicate the prosecutor's misconduct deprived the defendant of his jury. The United States Supreme Court set the federal double jeopardy standard for the defendant's predicament, which Texas courts have so far interpreted to be consistent with the Texas Constitution: "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct 2083, 2089, 72 L.Ed.2d 416 (1982). Thus, this court has held that the controlling question under Kennedy is whether the prosecutor in the present case intentionally acted to force a mistrial. Creekmore v. State, 860 S.W.2d 880, 891 (Tex.App.--San Antonio 1993, pet ref'd) (en banc).

THE SUBJECTIVE FEDERAL STANDARD

The present case, however, demonstrates the inherent impracticality of attempting to safeguard fundamental constitutional rights by subjectively trying to infer a prosecutor's thought processes from the facts and circumstances. The Supreme Court majority recognized this in Kennedy when it stated that a standard that examines the intent of the prosecutor is "certainly not free from practical difficulty." 456 U.S. at 674-76, 102 S.Ct. at 2089; see also 456 U.S. at 688, 102 S.Ct. at 2096, n. 22 (remainder of the Court agrees with the majority that there are practical difficulties in determining prosecutor's subjective intent). The Court understated the problem.

The Supreme Court noted in Kennedy that it contemplated the appellate and federal courts being able to review the trial courts' determinations. The court stated:

Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system. When it is remembered that resolution of double jeopardy questions by state trial courts are reviewable not only within the state court system, but in the federal court system on habeas corpus as well, the desirability of an easily applied principle is apparent.

456 U.S. at 675, 102 S.Ct. at 2089. ¹

To provide any meaningful protection, double jeopardy analysis must be objective. Kennedy, 456 U.S. at 679-80, 102 S.Ct. at In the present case, the record and the trial court's findings indicate that under the circumstances the prosecutor should have expected a mistrial to result from his misconduct. The trial court, however, concluded the prosecutor did not intend the natural consequences of his actions. The trial court found:

2092 (Powell, J., concurring) ("Because 'subjective' intent may be unknowable, I emphasize that a court--in considering a double jeopardy motion--should rely primarily upon the objective facts and circumstances of the particular case."). It is not meaningful protection for reviewing courts to surmise that a trial court has guessed the prosecutor's intent correctly.

1. that the prejudicial "evidence" was inadmissible conjecture and speculation, not based on personal knowledge;

2. that the court had already ordered the prosecutor not to present evidence of prior crimes or misconduct without first requesting another court hearing;

3. the prosecutor intentionally injected those statements to prejudice the defendant; and

4. by injecting inflammatory, graphic conjecture about oral sex into the DWI trial in violation of the court's ruling on hearsay and the order in limine, the prosecutor did not intend to goad the defendant into moving for a mistrial. ² Reviewing the record, the objective facts do not support the trial court's conclusion about the prosecutor's intent. The prosecutor denied he intended to goad the defendant into moving for a mistrial, but his testimony (and the trial court's finding) indicates he knew he was trying to get improper, extraneous behavior before the jury, that the court sustained an objection based upon hearsay and the motion in limine, and he then repeated the question and got the desired response. Under these circumstances, the trial court's finding of no intent is clearly erroneous because the objective facts belie the prosecutor's claim he did not intend to provoke a mistrial. See Anderson v. State, 635 S.W.2d 722, 726 (Tex.Crim.App.1982) (en banc) (apparently limiting review of trial court findings on this issue). If double jeopardy is to mean anything in Texas, appellate courts must be able to analyze the salient issues from the objective facts in the record.

If we cannot conclude from the objective facts in the record whether double jeopardy rights have been protected, then it is time to breathe life into the double jeopardy clause of the Texas Constitution and craft a standard more "free from practical difficulty" that will protect our citizens from governmental overreaching.

PRACTICAL DIFFICULTIES WITH THE KENNEDY STANDARD

The obvious difficulty with the Kennedy standard is that it requires "[i]nferring the existence or nonexistence of intent from objective facts and circumstances." Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089. Put plainly, this means, "look at the prosecutor's actions under the circumstances and try to guess what he was thinking." A fundamental right should not be left dangling from such a tenuous thread.

The focus on the...