Crunk v. State, No. 13-07-00712-CR (Tex. App. 9/17/2009)
| Decision Date | 17 September 2009 |
| Docket Number | No. 13-07-00712-CR.,13-07-00712-CR. |
| Parties | DALE RAYMOND CRUNK, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 138th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and WITTIG.
1
Dale Raymond Crunk, appellant, appeals his conviction for intentionally causing serious bodily injury to Javier Ortega causing his death and intentionally or knowingly concealing Ortega's body. In five issues, appellant argues double jeopardy, error by not granting an instructed verdict, impermissible sentencing by imposing consecutive sentences, exclusion of his expert pathologist's testimony, and failure to instruct on sudden passion in connection with the tampering issue. We will affirm as modified.
According to appellant, his trial defense counsel appears to have conceded that appellant killed his step son, Ortega. The issue at trial was why the homicide occurred and why appellant buried the body. The evidence showed there was a fight and Ortega hit appellant many times with a pipe, following an argument about money. Appellant briefly secured the pipe from Ortega and hit him once. Appellant continued to try to wrest the pipe and the two fell down. Appellant then choked Ortega until he did not move. Appellant testified he passed out on top of Ortega. The State's pathologist Dr. Norma Jean Farley found no conclusive evidence of strangulation, given the youth of Ortega and decomposition of the body. Farley opined the cause of death to be "homicidal violence for a reason." Appellant admitted to burying the body after he panicked.
In his first issue, appellant maintains that he should not have been further prosecuted after his first jury was empaneled, sworn in, then dismissed. After his first jury was sworn in, the prosecution noted that a juror was impaneled and sworn who should not have been there. Apparently, the clerk misinterpreted a strike by the defense that was changed to "it was okay." As a result, the twelfth juror, Mary Ann Gallegos, (originally number 42) should have been seated and was not. Instead, juror number 44, Ignatio Jiminez, was seated and sworn. Gallegos was excused from the panel but was still available to serve and was present in the courtroom when the error was discovered by the State. The State initially objected, stating that an error was made, the error invalidated the panel, and there should be a new panel. The prosecutor added, The State also objected to the alternates. The trial court ultimately concluded there to be two approaches to the problem. One would be to include Gallegos as the twelfth juror, "or just call another jury tomorrow morning." The State offered a third alternative involving re-striking the juror alternates to which the defense objected. The trial court asked both the State and appellant: Defense counsel replied: "Yes." The State made no reply.
For the first time on appeal, appellant states that seating a new jury panel or a second trial was barred under double jeopardy principles because jeopardy attached when the first jury was impaneled and sworn in.
We will review the trial court's finding of manifest necessity for a mistrial by applying an abuse of discretion standard. Arizona v. Washington, 434 U.S. 497, 509-14 (1978); Ex parte Little, 887 S.W.2d 62, 66 (Tex. Crim. App. 1994); Ex parte Williams, 870 S.W.2d 343, 346 (Tex. App.-Fort Worth 1994, pet. ref'd). A mistrial ordinarily requires the balancing of two competing interests: the defendant's right to have the trial completed, and the public's interest in fair trials designed to end in just judgments. Ledesma v. State, 993 S.W.2d 361, 364 (Tex. App.-Fort Worth 1999 pet. ref'd.); Ex parte Homann, 780 S.W.2d 933, 935 (Tex. App.-Austin 1989, no pet.)
The defendant's "valued right to have his trial completed by a particular tribunal" is now within the protection of the constitutional guarantee against double jeopardy, since it is that "right" that lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 36 (U.S. 1978). An exception to this rule is made if the defendant consents to a retrial, or if a retrial before a new jury is mandated by some form of manifest necessity. Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App. 1981) (citations omitted).
Because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal, or even for the first time by collateral attack, when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).
Appellant contends, and we agree, that a double jeopardy claim may be raised for the first time on appeal, when the undisputed facts show that a double jeopardy violation is clearly apparent on the face of the record and when enforcement of the ususal rules of procedural default serve no legitimate state interest. See id. The trial court, and apparently the State, knew or should have known of a potential double jeopardy issue.2
The State contends on appeal that appellant consented to the dismissal of the first panel or that the dismissal was prompted by appellant's objection at trial. The record shows otherwise. The appellant clearly objected when the trial court offered to either seat the erroneously excused juror Gallegos "or just call another jury tomorrow morning." The trial court inquired whether both sides would object to either solution. The defense responded: "Yes." The defense also objected to the prosecution's alternative to seat Gallegos and then both sides "select the two alternates." As we understand the prosecution's offer, it wanted to re-exercise its peremptory challenges knowing the pool of alternates after the proper seating of Gallegos.
In addition, the State argues that the appellant impliedly consented to be retried. Consent need not be expressed, but may be implied from the totality of circumstances attendant to a declaration of mistrial. Torres, 614 S.W.2d at 441-42. While we agree with the stated legal principle, the facts do not support this conclusion as we discussed above.
Without citing any authority, the State argues appellant does not demonstrate how the enforcement of the usual rules of procedural default serve no legitimate purpose. See Tex. R. App. P. 38.1(i); 38.2(a)(1).
The State notes that in addition to consent to retrial, another exception to the rule is found where it is mandated by some "manifest necessity" citing, Torres, 614 S.W.2d at 442. Appellant counters that the State waived any error in not seating Gallegos by failing to object prior to the jury being sworn in. Thus, the State created the problem by failing to timely object. However, as the State notes, in certain circumstances double jeopardy is not violated unless the State's conduct giving rise to a mistrial motion was "intended to goad" the defendant into moving for a mistrial, citing Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982). According to the State, retrial is barred only if the prosecutor intentionally caused a mistrial, citing Ex parte Lewis, 219 S.W.3d 335, 358 (Tex. Crim. App. 2007) () (citations omitted). The record does not demonstrate that the State intentionally precipitated a mistrial. Nor is there a showing that the defendant retained primary control resulting in the mistrial. See id. Both sides agree that the error in not seating Gallegos was an administrative oversight by the clerk's office. The error affected both the State and appellant. See Tex. Code Crim. Proc. Ann. 35.26 () (emphasis added.)
"For at least 175 years, America's courts have had the sound discretion to discharge a jury before it has reached a verdict whenever a court concludes, after considering all of the circumstances, that there is a manifest necessity to declare a mistrial to prevent the ends of public justice from being defeated." Ledesma, 993 S.W.2d at 365 (citing Perez, 22 U.S. at 580; Harrison v. State, 788 S.W.2d 18, 22 (Tex. Crim. App. 1990)). An exception to this rule prohibiting the re-trial of a defendant exists when the defendant consents to a re-trial or a mistrial is mandated by "manifest necessity." Ex parte Fierro, 79 S.W.3d 54, 56 (Tex. Crim. App. 2002) (citing Washington, 434 U.S. at 509-14). We have determined that appellant did not consent to a mistrial or re-trial. We therefore turn to the question of manifest necessity.
Manifest necessity exists when the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversed on appeal because of trial error. Somerville, 410 U.S. at 462-64. A trial judge should make more than a perfunctory recitation of the alternatives before granting a mistrial, and should carefully and deliberately consider which of all the alternatives best balances the defendant's interest in having his trial concluded in a single proceeding...
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