Ex parte Wheeler

• Decision Date: 04 October 2006
• Docket Number: No. PD-1216-04.,PD-1216-04.
• Citation: 203 S.W.3d 317
• Parties: EX PARTE KRISTIN HOPE WHEELER, Applicant.
• Court: Texas Court of Criminal Appeals

203 S.W.3d 317

EX PARTE KRISTIN HOPE WHEELER, Applicant.

No. PD-1216-04.

Court of Criminal Appeals of Texas.

Delivered October 4, 2006.

COCHRAN, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined. KELLER, P.J., filed a concurring opinion. KEASLER, J., filed a concurring opinion, in which KELLER, P.J., and HERVEY, J., joined.

OPINION

COCHRAN, Judge.

In this manslaughter/criminally negligent homicide trial, the visiting judge granted a defense-requested mistrial when the prosecutor asked the defendant's expert, "Are you aware that her [the defendant's] insurance carrier found her at fault?" The defendant then filed a habeas corpus application, claiming that a second trial was barred by federal and Texas constitutional double-jeopardy principles. The trial court denied relief. The court of appeals held that "the prosecutor intentionally or recklessly caused the trial to end in a mistrial," so it reversed the trial court and dismissed the case with prejudice.¹ We conclude that the court of appeals misapplied the standard of review by failing to assess the objective facts "in the light most favorable to the trial judge's ruling."² Under that standard, the trial judge did not abuse her discretion in denying Ms. Wheeler's double-jeopardy claim. We therefore reverse the judgment of the court of appeals and remand this case for further proceedings in the trial court.

I.

On the afternoon of July 21, 1999, Herman West was driving down a rural road in southwest Tarrant County when he saw Dr. David Mitchell standing near the rear of his parked truck, ready to walk across the road to his mailbox. A few seconds later, Mr. West saw a white Ford Mustang pass him in the opposite direction. Eighteen-year-old Kristin Wheeler was driving that Mustang. Mr. West heard the squeal of brakes, and, looking in his rear-view mirror, saw Dr. Mitchell flying through the air above the Mustang. He immediately turned his truck around and drove back to the accident scene. Dr. Mitchell later died from his injuries, and Ms. Wheeler was charged with manslaughter and criminally negligent homicide. The primary contested issue at trial was, "Who was at fault in causing this accident and Dr. Mitchell's death?" The State's theory was that Ms. Wheeler caused the accident because she was speeding and failed to exercise proper control of her car. The defense theory was that Dr. Mitchell failed to look before he walked into the road, and he failed to yield the right-of-way to the oncoming car. The trial was a battle between the State and defense accident-reconstruction experts.

After the State put on its case-in-chief, the defense called Alan B. Weckerling, an expert in accident-reconstruction analysis. His measurements, calculations, methodology, and conclusions differed significantly from those offered by Tim Lovett, a certified peace officer and the State's expert accident investigator who had testified extensively over four different days.³ Much of Mr. Weckerling's opinion was based on a tape-recorded statement given by Mr. West a few days after the accident. This tape recording of Mr. West's eyewitness account and his actions immediately after the accident was played to the jury. What the attorneys knew, but the jury apparently did not, was that the tape recording had been made by Ms. Wheeler's insurance adjuster, who conducted his own investigation of the accident. Based on Mr. West's recorded recollection of time, distance, and other factors, Mr. Weckerling concluded that it would not have mattered whether Ms. Wheeler was speeding-there was not time for her to avoid hitting Mr. Mitchell once he appeared out from behind his truck and started across the road in front of her. After Mr. Weckerling's lengthy direct testimony over two days, the State cross-examined him for three hours.

The defense then conducted redirect and clarified Mr. Weckerling's testimony in several respects. The State briefly re-cross-examined. Then, the defense, on re-redirect examination, asked a summing-up question: "Sir, based on everything that you have heard, all of the cross-examination, every exhibit you have looked at, going to the scene, reviewing every document, autopsy, this, that and the other, what caused the accident?" Mr. Weckerling responded: "The pedestrian walking in front of the Mustang." The defense passed its witness for the third time. The record then shows the following:

Court: Anything else?

State: Yes, Your Honor—

Court: Thank you, sir. You may stand down.

State: I have one more question.

Court: I'm sorry I misunderstood you.

State: Are you aware that her insurance carrier found her at fault?

Defense: Your Honor, may we approach?

Court: You don't have to approach. Send the jury out.

(Jury not present)

Court: Is there a motion in limine on that?

State: Only if she ever paid, Judge—

Defense: Your Honor they filed a motion in limine not to go into any of the insurance reports. They now have made a statement unsupported in bad faith to create a mistrial in this case.⁴

Court: Do you want a mistrial?

Defense: Yes, sir—

Defense:⁵ With prejudice, Your Honor.

Defense: With Prejudice.

Court: I'm going to take it under consideration. We will recess until Monday morning at 9:00 o'clock.

At the Monday conference, the visiting judge stated that he had researched the issues over the week-end. He listened as both the defense and State set out, at great length, their respective positions concerning the granting of a mistrial; he questioned the prosecutor concerning his legal theory for admission of the insurance investigator's conclusion that Ms. Wheeler was at fault; and, finally, he asked: "Why did you say the very last question, Mr. [prosecutor]? You cross-examined him for three hours." The prosecutor responded: "Judge, I've got to ask it sometime." The judge then said,

I know. I'm just thinking I don't think I need any more argument. It is a very troublesome case. I made notes for myself. We [have] been at this a month, nine or ten days of actual testimony. This jury has been in and out of the courtroom. You all have fought over everything from pictures of a telephone pole to marking someone else's exhibit. . . .

There is one issue in this case and that's who is at fault, The defendant as alleged or the deceased. Both sides knew as of Thursday[,] I told you all I was going to instruct the jury on concurrent cause. . . . So the only issue in this case was fault. This question goes right to that. It is not a collateral question, not a collateral issue. I am going to grant the motion for mistrial.

The defense later filed an application for a pretrial writ of habeas corpus and a plea of double jeopardy, which was heard by the presiding judge of the court, who stated that she had been in daily contact with the visiting judge during the trial, so she understood the issues. She explained:

I also have the benefit of a letter as well as legal case law that he left me when he left town stating the reasons for his rulings, and quite frankly, some opinions that he seemed to have on the issue before us today.

The defense offered various exhibits into evidence and then rested on its pleading. The State did not call any witnesses, but the trial judge questioned the prosecutor extensively about his reasons for asking the offending question, why he thought the question was a proper one, why he thought his question did not violate Rule 411 of the Texas Rules of Evidence,⁶ and why he thought that the defense had opened the door to the results of the insurance investigation. The trial judge then questioned the defense about whether it was clear that Rule 411 prohibits the type of question that the prosecutor asked, as there were no Texas criminal cases dealing with Rule 411. After both sides had fully explained their positions, the trial judge ended the hearing without ruling on the defense motion, saying that she wanted to see the transcript of Mr. Weckerling's entire testimony first.

The trial court later denied the defendant's double jeopardy motion and pretrial writ application, and the defense appealed. The court of appeals reversed the trial court and dismissed the charges.⁷ This Court then granted the State's PDR⁸ and remanded the case for reconsideration under Ex parte Peterson,⁹ the newly announced clarification of the Texas double-jeopardy analysis set out in Bauder v. State.¹⁰ The court of appeals, using the Peterson analysis, once again concluded that the trial judge abused her discretion in denying Ms. Wheeler's double-jeopardy claim based on manifestly improper prosecutorial conduct which forced the defense to request a mistrial.¹¹

II.

The double jeopardy provisions of the federal and Texas constitutions protect a citizen from repeated attempts at prosecution for the same criminal offense.¹² However, if a defendant requests a mistrial, double jeopardy normally does not bar reprosecution.¹³ Under the federal double jeopardy clause, a retrial is prohibited after the defendant requests and is granted a mistrial only if the prosecution intentionally commits manifestly improper conduct with the intent to provoke that mistrial.¹⁴ In Bauder v. State, this Court held that, under the Texas Constitution, double jeopardy principles bar reprosecution when the prosecution acts, not only with the intent to goad the defendant into requesting a mistrial, but also when the prosecutor's reckless misconduct requires a mistrial.¹⁵ Under either standard, the constitutional violation is that of depriving the defendant of his chosen jury, a jury presumably poised to acquit him.

In Ex parte Peterson, this Court explained that, under Kennedy,

the prosecutor's goal is to terminate a first trial which is going badly. [Under Bauder], the prosecutor's goal is to "win at any price," either by mistrial and a subsequent retrial, or by using manifestly improper means to obtain a conviction in the first trial that he likely would

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