Bauder v. State

Decision Date08 May 1996
Docket NumberNo. 1058-94,1058-94
Citation921 S.W.2d 696
PartiesSamuel BAUDER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

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

Margaret M. Fent, Asst. District Attorney, San Antonio, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Our previous opinions in this cause are withdrawn. Appellant is charged in County Court at Law Number 8 of Bexar County with the misdemeanor offense of driving while intoxicated. The State's first two attempts to try him for this offense each ended in a mistrial. The second of these occurred when the prosecutor adduced evidence before the jury that appellant committed an act of misconduct other than that charged in the information. Before the State could schedule a third attempt at trial, appellant filed an application for writ of habeas corpus in the trial court, contending that further prosecution is jeopardy barred under the Texas and United States Constitutions.

The habeas judge found that the prosecuting attorney had deliberately adduced testimony of extraneous misconduct for the purpose of prejudicing appellant unfairly before the jury. However, the judge refused to dismiss the prosecution because appellant had moved for the mistrial himself and because the judge did not believe the prosecutor elicited the objectionable testimony for the purpose of goading appellant into making a motion for mistrial. The Fourth Court of Appeals affirmed. Bauder v. State, 880 S.W.2d 502 (Tex.App.--San Antonio 1994).

Under the United States Constitution, both of the lower courts are right. It is clear that the Fifth Amendment is not offended by a successive prosecution for the same offense when the earlier proceeding was terminated at the defendant's request unless the attorney representing the government deliberately set out to provoke the defendant's motion for mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). We have applied this standard of review to double jeopardy claims urged under the United States Constitution, as in Crawford v. State, 703 S.W.2d 655 (Tex.Crim.App.1986), and to generic double jeopardy claims, as in Collins v. State, 640 S.W.2d 288 (Tex.Crim.App.1982) (panel opinion, rehearing en banc denied), and Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982). But we have never specifically addressed the question whether the Texas Constitution applies in exactly the same way as the United States Constitution to mistrials provoked by the prosecution. We granted discretionary review in the instant cause to decide this important question of first impression. Tex.R.App.Proc. 200(c)(2).

A majority of the panel in the Fourth Court of Appeals considered the matter to have been settled by our opinion in Collins, to which it attributed the proposition, "[t]he Kennedy standard applies in Texas." Bauder, 880 S.W.2d at 503. Of course Oregon v. Kennedy and all other definitive interpretations of the United States Constitution by the Supreme Court do apply in Texas, just as throughout the country. But that does not mean that such interpretations govern the meaning of the Texas Constitution. 1 Because we are not called upon in the instant cause to apply federal constitutional law, therefore, neither the United States Constitution nor anything the Supreme Court has to say about it is authoritative. On all questions of Texas law we examine the opinions of other courts, including those of the United States Supreme Court, only insofar as they may reveal the thinking of intelligent jurists on questions of common interest. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).

The Texas Constitution provides, in article I section 14, that "[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." It has long been the law in Texas that a mistrial granted at the defendant's request in a criminal case poses no inhibition under this clause to further prosecution of the same offense in a new proceeding. De Young v. State, 160 Tex.Crim. 628, 274 S.W.2d 406 (1954). A criminal defendant may thus consent to have questions of his criminal liability for one offense resolved in more than one trial. But if he does not consent, the Double Jeopardy Clause requires that his culpability be determined in a single proceeding before the jury first selected to try him, if trial is before a jury, unless it becomes manifestly necessary to terminate the proceedings before a verdict is returned in order to assure fairness or efficiency in the trial process. Torres v. State, 614 S.W.2d 436, 441 (Tex.Crim.App.1981) (panel opinion). The question we decide today is whether and under what conditions our Double Jeopardy Clause also bars retrial when a defendant obtains a mistrial on account of events deliberately or recklessly brought about by the prosecutor.

At the outset, we emphasize that mistrials are an extreme remedy for prejudicial events occurring during the trial process. Even when a prosecutor intentionally elicits testimony or produces other evidence before the jury which is excludable at the defendant's option, our law prefers that the trial continue. Because tactical decisions to offer prejudicial evidence are a normal and, in most respects, acceptable part of the adversary process, it would be counterproductive to terminate the trial every time an objection is sustained. Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App.1993). Consequently, it is considered a sufficient response to most well-founded objections that the material be withdrawn from jury consideration, if necessary, and that jurors be admonished not to consider it during their deliberations. Barber v. State, 757 S.W.2d 359, 362 (Tex.Crim.App.1988), cert. denied 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861; Von Burleson v. State, 505 S.W.2d 553, 554 (Tex.Crim.App.1974).

The adversary system thus depends upon a belief that the declaration of a mistrial ought to be an exceedingly uncommon remedy for the residual prejudice remaining after objections are sustained and curative instructions given. For this reason, our system presumes that judicial admonishments to the jury are efficacious. Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App.1988). Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992), cert. denied 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268; Gardner v. State, 730 S.W.2d 675, 696-97 (Tex.Crim.App.1987), cert. denied 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206.

Ordinarily, when a defendant obtains a mistrial at his own request, a second trial is not jeopardy barred because the defendant's motion for mistrial is considered "a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact." United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). But we believe that the right to a trial before the jury first selected is the right to a fair trial before that jury. And although our system does not guarantee the right to a trial free of errors and mistakes, we think it clear that, when a prosecutor's deliberate or reckless conduct renders trial before the jury unfair to such a degree that no judicial admonishment can cure it, an ensuing motion for mistrial by the defendant cannot fairly be described as the result of his free election.

The Texas Double Jeopardy Clause, like its federal counterpart, is meant to restrain the government from subjecting persons accused of crimes to the mental, emotional, and financial hardship of repeated trials for the same offense. Accord Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Accordingly, when the government, acting through its representatives purposefully forces termination of a trial in order to repeat it later under more favorable conditions, we agree with the Supreme Court that the Double Jeopardy Clause is violated. But, unlike the Supreme Court, we do not think the prosecutor's specific intent is a relevant aspect of the inquiry.

For example, when a prosecuting attorney, believing that he cannot obtain a conviction under the circumstances with which he is confronted, and given the admissible evidence then at his disposal, deliberately offers objectionable evidence which he believes will materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury, it seems to us that the prosecutor's specific intent, whether to cause a mistrial or to produce a necessarily unfair trial or simply to improve his own position in the case, is irrelevant. In our view, putting a defendant to this choice, even recklessly, is constitutionally indistinguishable from deliberately forcing him to choose a mistrial.

We therefore hold that a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request. Under this rule, the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant's motion. But he is accountable for mistrials...

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