Ex parte Davis

• Citation: 957 S.W.2d 9
• Decision Date: 17 September 1997
• Docket Number: No. 495-95,495-95
• Parties: Ex parte Jack Warren DAVIS.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 9

957 S.W.2d 9

Ex parte Jack Warren DAVIS.

No. 495-95.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 17, 1997.

Stanley G. Schneider, Houston, for appellant.

Jeffrey L. Van Horn, Asst. State's Atty., Austin, Ray Taylor, Special Prosecutor, San Antonio, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

Applicant, Jack Warren Davis, was convicted of capital murder and sentenced to life in prison. The court of appeals reversed and remanded the cause to the trial court for a new trial. Davis v. State ("Davis I "), 831 S.W.2d 426 (Tex.App.-Austin 1992, pet. ref'd). Applicant subsequently filed a pretrial writ of habeas corpus, averring the double jeopardy clauses of the Texas and United States constitutions barred his retrial. The habeas court denied relief, and the court of appeals affirmed. Ex parte Davis ("Davis II "), 893 S.W.2d 252 (Tex.App.-Austin 1995). This Court granted applicant's petition for discretionary review to consider the following ground for review:

Does the rationale of Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), barring a retrial on state double jeopardy grounds following the granting of a mistrial because of prosecutorial misconduct, apply when the cause goes to a verdict but is reversed on appeal?

At applicant's trial, Fred Zain testified for the State as an expert witness. He testified as to DNA tests he allegedly performed on blood and other evidence, testimony which was found by the court at the habeas hearing to be false. The habeas court also found that the testimony of Lt. Richards, another State witness, was probably inaccurate, as it was based on Zain's testimony. The habeas court concluded Zain's conduct was intentional, outrageous and shocked the conscience of the court.

The court of appeals, in reversing applicant's conviction (Davis I), sustained applicant's contention the district attorney intimidated a witness, Toth, and, in effect, suborned perjury. Toth testified on direct examination she observed applicant and the victim's sister embrace shortly after the murder was discovered. The significance of this testimony is that it supported applicant's version as to how the victim's blood and saliva got onto applicant's vest (the victim's sister attempted to revive her by giving her CPR; while doing so blood from the victim's wounds stained the clothing she was wearing when she embraced applicant thus staining applicant's vest). On redirect examination she confirmed her earlier testimony as to the embrace.

The next day the State recalled Toth. She testified then that, on second thought, she did not actually see applicant and the victim's sister embrace. She testified she saw what she assumed was a just-concluded embrace. Defense counsel asked Toth if anyone had asked her to change her testimony or had threatened her if she did not do so; she said no one had done so.

Upon learning there had been contact between Toth and the district attorney after her testimony on the first day, applicant moved for a mistrial on the ground of prosecutorial misconduct. The trial court conducted an informal hearing outside the presence of the jury.

The district attorney told the court he reviewed statements by two police officers which said applicant had only come halfway up the stairs to the victim's apartment (Toth testified initially the embrace occurred at the top of the stairs). He also reviewed the sister's testimony that she did not embrace applicant. Subsequently, he asked a police officer to contact Toth and for her to call his office. Upon her arrival, he informed her there was a conflict between her testimony and that of other witnesses and that he would present the matter to the grand jury if he could not resolve the conflict. He said he would indict the officers if they had lied, "or the reverse if she had not told the truth." He told her he had already put one person in jail for lying on the stand last year. He finally asked her if she might have been mistaken about having seen a completed embrace; she said she had been mistaken.

The court then asked Toth, after granting her immunity from prosecution for perjury and assuring her she was not going to jail, if she had changed her testimony in response to the threat from the district attorney to have her brought before the grand jury. She answered, under oath, "that's why I changed it." She also told the court the district attorney had frightened and intimidated her. The district attorney and an employee of his office, Filkins, who was present when Toth appeared at his office to discuss her trial testimony, both testified there was no berating or intimidation of Toth; he only expressed his interest in cleaning up the inconsistencies in the testimony of Toth and the police officers. The district attorney did testify he would take anyone involved who was lying to the grand jury.

After the hearing, the trial court ruled there had not been prosecutorial misconduct that would justify a mistrial. He did indicate he would instruct the jury not to consider Toth's second day of testimony for any purpose, which he subsequently did.

The court of appeals acknowledged "it is not improper per se for a trial court judge or pro-secuting attorney to advise prospective witnesses of the penalties for testifying falsely." Davis I, supra, at 437, citing United States v. Blackwell, 694 F.2d 1325, 1334 (D.C.Cir.1982). The court of appeals characterized the actions of the district attorney as having gone far beyond a cautious or judicious warning to Toth to tell the truth or risk a perjury charge, noting the meeting took place outside the presence of the trial judge. The court of appeals criticized strongly the district attorney for giving the jury the impression that it was Toth who first contacted him because she thought her initial testimony was misleading when the opposite was true. The court of appeals found this to be the knowing use of perjured testimony, found it to have denied applicant a fair trial and violated his due process rights, and held the trial court erred in denying applicant's motion for mistrial. ¹

At the habeas hearing, the court's findings of fact noted: (1) certain key items of evidence were lost or mishandled, including hair and blood samples; (2) a taped statement of Marci French, made the night of the homicide, was erased by the police. French, a witness who testified at trial, did make a second taped statement the day after the homicide; (3) a second witness, Hanus, testified the two statements were contradictory as to French's description of the persons she observed leaving the victim's apartment the night of the crime; and (4) Zain committed aggravated perjury and tainted all of the evidence he handled.

The court of appeals, in affirming the denial of habeas relief, concluded "when a trial proceeds to conclusion despite a legitimate claim of serious prejudicial error and the conviction is reversed on appeal, retrial is not jeopardy-barred." Davis II, 893 S.W.2d at 254. See Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

The Supreme Court has held on several occasions that the concept of "continuing jeopardy" is applicable where an individual has obtained a reversal of his conviction. That is because he was not denied his right under the double jeopardy clause to have the charges against him tried to a verdict before the first tribunal. Whereas, where a mistrial takes place, he is denied the opportunity to have the case decided by the first tribunal. Therefore, retrial after reversal of his conviction is not barred by the double jeopardy clause of the United States Constitution. Price v. Georgia, supra; Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984); Montana v. Hall, 481 U.S. 400, 402-403, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354 (1987).

It is a venerable principle of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict (citation omitted), poses no bar to further prosecution on the same charge ... Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they are now in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interests.

Montana v. Hall, 481 U.S. at 402-03, 107 S.Ct. at 1826; citing United States v. Tateo 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964).

In general, double jeopardy "does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265 (1988). There are a few exceptions to this rule. For example, if a conviction is reversed because the evidence is legally insufficient to convict, retrial is barred because, for double jeopardy purposes, this is equivalent to a judgment of acquittal. See United States v. Doyle, 121 F.3d 1078, 1083 (7th Cir.1997), ci...