Ex Parte Bennett

• Decision Date: 10 January 2008
• Docket Number: No. 2-07-104-CR.,2-07-104-CR.
• Citation: 245 S.W.3d 616
• Parties: Ex Parte Michael Joseph BENNETT.
• Court: Texas Court of Appeals

245 S.W.3d 616

Ex Parte Michael Joseph BENNETT.

No. 2-07-104-CR.

Court of Appeals of Texas, Fort Worth.

January 10, 2008.

Anthony C. Odiorne, Wichita Falls, for appellant.

Barry L. Macha, Crim. Dist. Atty., John W. Brasher, Ed Lane, Asst. Crim. Dist. Attys., Wichita County, for state.

PANEL F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

OPINION

DIXON W. HOLMAN, Justice.

I. INTRODUCTION

Appellant Michael Joseph Bennett appeals the trial court's denial of relief on his pre-conviction application for writ of habeas corpus. In a single issue, Bennett argues that his retrial following a mistrial violates the state and federal constitutional protections against double jeopardy because the State elicited testimony from two witnesses that was intended to provoke him into moving for the mistrial. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Bennett's aggravated sexual assault trial began on January 8, 2007. During voir dire, Bennett's counsel asked the venire panel whether any of them knew any of the witnesses who were likely to testify at trial, including Don and Diana Shipley. Three venirepersons disclosed that they knew one or both of the Shipleys, but venireperson Albert remained silent. Venireperson Albert was subsequently selected to serve on the jury, which was immediately sworn in.

Don and Diana Shipley testified the next day. After their testimony, Juror Albert notified the trial court that he knew the Shipleys. Outside the presence of the jury, the trial court allowed each side to question Juror Albert as to whether he could set aside his relationship with the Shipleys and be a fair and impartial juror. Although he affirmed that he could render a fair and impartial verdict based on the evidence, he also responded to a question posed by Bennett's counsel that he "wouldn't have any doubt that what they [the Shipleys] were saying was true." At the conclusion of the questioning, Bennett's counsel moved to have Juror Albert struck from the jury. The trial court overruled the challenge, and the trial continued.

A counselor and a psychologist subsequently testified for the State about their treatment of the complainant. In response to the State's questioning and over Bennett's objection, both opined that the complainant had been truthful about the events constituting the alleged sexual assaults. Before the State rested, however, it alerted the trial court that the counselor's and psychologist's testimony about the complainant's veracity may not have been admissible and that a limiting instruction addressing this issue either read to the jury or included in the jury charge would "probably ... be appropriate."

At the charge conference, Bennett moved for a mistrial on two separate grounds. He requested a mistrial because the trial court allowed Juror Albert to remain on the jury despite Juror Albert's belated disclosure that he knew the Shipleys. The trial court responded that it would "take that under advisement" and that it would be "decided tomorrow morning." Bennett also requested a mistrial because, according to him, the limiting instruction included in the jury charge regarding the inappropriate testimony elicited by the State about the complainant's veracity would be insufficient to cure any possible harm. The trial court clearly and unambiguously denied Bennett's request for a mistrial on the second ground. It stated as follows:

THE COURT: On the second ground, as far as the Limine or the instruction, I overrule that part....

The trial court heard arguments from each side the next day on Bennett's request for a mistrial due to Juror Albert sitting on the jury. Bennett testified that he was not willing to proceed with the trial with only eleven jurors. The trial court then struck Juror Albert from the jury and declared a mistrial.

Bennett filed his application for writ of habeas corpus seeking relief from double jeopardy and motion to dismiss the indictment based on the previous mistrial. At the hearing on his writ of habeas corpus, Bennett testified that he would have continued on with the trial with only eleven jurors had the trial court struck Juror Albert from the jury when first requested to do so. He reasoned that he was forced to request the mistrial because of the State's questions inquiring into whether the counselor and psychologist thought the complainant was being truthful. The trial court denied Bennett's requested relief. This appeal followed.

III. DOUBLE JEOPARDY DOES NOT BAR BENNETT'S RETRIAL

Bennett argues that the protection against double jeopardy bars his retrial because the State's questioning the counselor and psychologist about their opinions of the complainant's truthfulness was "intended to provoke the defendant into moving for a mistrial."

Habeas corpus is an extraordinary writ used to challenge the legality of one's restraint. TEX.CODE CRIM. PROC. ANN. art. 11.01 (Vernon 2005). In reviewing the trial court's decision to grant or deny habeas relief, we review the evidence in the light most favorable to the trial court's ruling. Ex Parte Masonheimer, 220 S.W.3d 494, 507 (Tex.Crim.App.2007). Generally, we review a trial court's decision under an abuse of discretion standard of review. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006).

The Double Jeopardy clause of the United States Constitution provides, "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The primary guarantee offered by this constitutional provision is protection against being subjected to successive prosecutions for the same criminal offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The Texas constitution states as follows: "No 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." TEX. CONST. Art. I, § 14. Conceptually, the state and federal double jeopardy provisions are identical, and the Texas constitution does not afford any different or greater protections in this regard than does the Fifth Amendment. Stephens v. State, 806 S.W.2d 812, 815 (Tex.Crim.App.1990); Ex parte Gonzalez, 147 S.W.3d 474, 479-80 (Tex.App.-San Antonio 2004, pet. ref'd).

When a trial court grants a defendant's motion for mistrial, the double jeopardy clause is not violated unless the State's conduct giving rise to the motion was "intended to goad" the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). Under both the federal and state constitutions, retrial is barred only if the prosecutor intentionally caused a mistrial. Id.; Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007) (adopting Kennedy standard for determining when to grant double jeopardy relief under Texas constitution after a defense-requested mistrial and overruling Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996), which barred retrials under double jeopardy when the prosecutor was aware but consciously disregarded the risk that his conduct would require a mistrial at the defendant's request); see also Masonheimer, 220 S.W.3d at 507 (stating that appellee's mistrial motions were necessitated primarily by the state's intentional failure to disclose exculpatory evidence that was available prior to appellee's first trial with the specific intent...