Fielder v. State
| Decision Date | 23 January 1985 |
| Docket Number | No. 2-82-253-CR,2-82-253-CR |
| Citation | 683 S.W.2d 565 |
| Parties | Pamela Ruth McGoldrick FIELDER, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Pizzitola, Hinton & Sussman, Michael J. Hinton and Stanley G. Schneider, Houston, for appellant.
Tim Curry, Dist. Atty. and Joe C. Lockhart, Asst. Dist. Atty., Fort Worth, for the State.
Before HUGHES, JORDAN and JOE SPURLOCK, II, JJ.
Appellant, Pamela Ruth McGoldrick Fielder, shot and killed her husband, Darwin Fielder, on July 23, 1981, at their home in Fort Worth, Texas. On her plea of not guilty to the offense of murder, she was found guilty of voluntary manslaughter. The jury assessed punishment at two years in the Texas Department of Corrections.
We affirm.
Fielder raises nine grounds of error on appeal. As none challenge the sufficiency of the evidence, the facts of the case will be reviewed only in regard to her grounds of error.
In ground of error one, Fielder contends that she was deprived of her rights guaranteed under: 1) the Double Jeopardy provision of the Fifth Amendment and Article One, Section Fourteen of the Texas Constitution; and 2) the Due Process Clause of the Fourteenth Amendment and Article One, Section Nineteen of the Texas Constitution. Fielder alleges she was wrongfully tried twice for the same offense as the first trial ended in a mistrial due to prosecutorial misconduct.
The first trial of Fielder commenced on April 19, 1982. On April 30, 1982, a mistrial was granted on defendant's motion. On June 21, 1982, Fielder filed defendant's special plea of jeopardy and a hearing was conducted on August 2, 1982. On August 6, 1982, the trial judge filed findings of fact and conclusions of law in connection with the August 2, 1982, hearing on defendant's special plea of former jeopardy. The controlling authority in a situation where a mistrial, due to prosecutorial misconduct, has been declared on the defendant's own motion is the Supreme Court's holding in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982) where it was held that: "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of Double Jeopardy to a second trial after having succeeded in aborting the first on his own motion."
The trial court's findings of fact numbers fifteen through eighteen state: "15) [c]ounsel for the State did not intend to provoke defense counsel into moving for a mistrial; 16) [c]ounsel for the State did not intend to cause a mistrial; 17) [n]o benefit or detriment accrued to either the State or the Defendant beyond the normal disclosures attendant to any re-trial of a criminal case; and 18) [n]othing was demonstrated to the re-trial court to cause a conclusion that the State had reason to fear that the case was being lost; that acquittal was imminent; or that the State might fare better on a second presentation." These facts, if true, would preclude the defense of double jeopardy being raised under the authority of Oregon v. Kennedy.
At the August 2, 1982, pretrial hearing, the trial court was the trier of fact and the sole judge of the credibility of the witnesses and the weight to be given their testimony and "[t]he findings of fact and conclusions of law filed by the trial court should not be disturbed absent a clear abuse of discretion." Stone v. State, 583 S.W.2d 410, 413 (Tex.Crim.App.1979). Fielder contends that the record does not support the trial court's findings of fact and conclusions of law. The record before this court does not, however, contain a statement of facts from either the first trial or the hearing held on August 2, 1982. As stated by the Court of Criminal Appeals of Texas in Anderson v. State, 635 S.W.2d 722, 726 (Tex.Crim.App.1982), "when the record fails to contain the evidence offered in support of the plea of jeopardy, this Court is in no position to review a contention asserting that a trial court erred in overruling the plea." We find that the trial court did not abuse its discretion in its findings of fact or in overruling the appellant's special plea of former jeopardy. Fielder's ground of error one is overruled.
Fielder's grounds of error two, seven and eight are closely related in that they pertain to error surrounding a single juror, Joe Manuel Carranza. Ground of error two contends that Fielder was deprived of an impartial jury since a juror, through no fault of the appellant, withheld material information which precluded her from effectively exercising her right to peremptory challenge or challenge for cause. Ground of error seven contends that the trial court erred in failing to grant Fielder's motion for new trial because the jury, after having retired to deliberate upon the case, received other evidence detrimental to the accused. Ground of error eight contends that Fielder was denied a fair and impartial trial based upon jury misconduct in discussing facts not admitted in evidence.
Prior to trial, the court had approved the use of juror information sheets to aid in the jury selection process. A proposed questionnaire was submitted by the State, slightly modified by agreement of the parties and accepted by the court. The juror information sheet contained the following question: "Have you, any member of your family, or close friend, been charged with a crime?" At trial, the court explained certain matters and expounded on certain questions contained in the juror information sheets. The court stated:
Now, have any member of your family or close friend been charged with a crime. Speeding, overparking, jaywalking are crimes. We are not interested in finding out if somebody has gotten a ticket for a minor traffic violation. If it's a major violation, such as driving while intoxicated or some type of recklessness that really became a serious matter, you might include that, but primarily, we are concerned with the more serious misdemeanor and any felony.
Joe Manuel Carranza, a prospective juror who was later impanelled in the present case, answered this question in the negative.
During voir dire, another prospective juror in the present case, James Everett Busbee, was questioned regarding his affirmative response to this same question. Busbee stated that a "[f]riend of mine was arrested for DWI." Subsequently, it was learned that Carranza was serving a term of two years probation for misdemeanor driving while intoxicated. During the jury's deliberations on punishment, Carranza related to the other jurors the fact that he was on probation and made certain representations to the jury concerning his probation.
A hearing on Fielder's motion for new trial was held on December 9, 1982. At the hearing, Carranza was questioned about his answer on the juror information sheet. On direct examination by counsel for appellant, Carranza testified that he had answered the question negatively because he "figured a crime would be like a felony." He also testified that at the time he answered the question he was on probation in Tarrant County for the offense of driving while intoxicated.
Carranza was further questioned about what had taken place at voir dire. Carranza recalled the jury panel being asked as a group the question, "Have you or any member of your family ever been charged with a crime?" He did not recall Mr. Busbee, who later turned out to be the foreman of the jury, standing up and stating that he had a friend who had been arrested for D.W.I.
Counsel for the appellant then questioned Carranza about the jury's deliberations on punishment. Carranza testified that the jury talked about different forms of punishment including probation and what would be required of a person on probation. He testified that during those deliberations, he mentioned to the other jurors that he was on probation at that time. In response to questions concerning what he had told the jurors about probation Carranza stated, "I just said you have to go by the rules that are stated on the--on the forms," and that "I had to report every month."
Upon cross-examination, Carranza testified that he never told the jury that the defendant did not have to follow the conditions of probation set by the judge. Carranza further testified that during voir dire, he determined that since he was on probation for a traffic offense it was not the type of crime that the attorneys were interested in and that he did not intentionally mislead the court.
Ten of the remaining eleven jurors also appeared and testified at this hearing. The affidavit of the twelfth juror was admitted into evidence. All of these jurors admitted that some discussion of Carranza's probation had taken place. All of the jurors additionally stated that these discussions in no way affected their individual determination of the proper sentence to impose on the appellant. Only one of the jurors, Maggie Burke Mooney, recalled the term "inconvenience" to have been used by Carranza in describing probation. Mooney testified as follows:
[By counsel for appellant]
Q. (By Mr. Gandy) All right. What did he say?
A. That he was--he had to report to his probation officer and that he wasn't free, well, he felt like he wasn't--he had to report to his probation officer. He couldn't go and come as he had once did. If he would leave town, he would have to report, and that's all that I remember.
Q. Did he make any statement about whether he considered that punishment or not?
A. I don't think so. I didn't hear him mention that.
Q. Did he describe probation as being an inconvenience?
You may answer the question.
THE WITNESS: Yes, he thought it would be an inconvenience.
Q. (By Mr. Gandy) All right. What did he say about it being an inconvenience? Do you recall? As closely as you remember.
A. Well, just...
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