Kelson v. State

• Decision Date: 29 June 2005
• Docket Number: No. 09-04-146 CR.,09-04-146 CR.
• Citation: 167 S.W.3d 587
• Parties: Tobias D-Hun KELSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

167 S.W.3d 587

Tobias D-Hun KELSON, Appellant, v. The STATE of Texas, Appellee.

No. 09-04-146 CR.

Court of Appeals of Texas, Beaumont.

Submitted May 11, 2005.

Decided June 29, 2005.

COPYRIGHT MATERIAL OMITTED

Norman A. Desmarais, Jr., Law Office of Norman A. Desmarais, Jr., Port Arthur, for appellant.

Tom Maness, Criminal Dist. Atty., Asst. Criminal Dist. Atty., Beaumont, for state.

Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

Appellant, Tobias D-Hun Kelson, prosecutes this direct appeal from his conviction for Aggravated Assault. Appellant's guilt was determined by a jury with his punishment set by the trial court at confinement for life in the Texas Department of Criminal Justice — Correctional Institutions Division.¹ Appellant raises two issues for our consideration:

1. Whether the trial court abused its discretion in its denial of Appellant's Special Plea of Double Jeopardy and Pre-Trial Application for Habeas Corpus Seeking Relief From Double Jeopardy.

2. Whether the trial court erred by denying Appellant's Motion For Mistrial.

The record reflects that the trial from which this appeal proceeds was the State's second attempt to obtain a conviction on the aggravated assault charge. Appellant moved for and was granted a mistrial in the first trial. Prior to commencement of the second trial, appellant filed a "Special Plea of Double Jeopardy," and a "Pre-Trial Application for Writ of Habeas Corpus Seeking Relief From Double Jeopardy." Both instruments were filed under the same trial cause number, "87401." The trial court later conducted a brief hearing on appellant's special plea and writ application at which time appellant tendered a transcribed copy of the recorded testimony taken at the first trial. No further evidence was tendered either by appellant or the State. By agreement of the parties and the trial court, the cause was reset to allow the State to respond to certain case-authority provided to the court by appellant.

The record before us contains a written reply by the State along with an affidavit from the prosecuting attorney whose questioning triggered the events that ultimately led to the mistrial being declared.² On November 25, 2003, the trial court issued a written order. This order carefully analyzed the extant authority on whether retrial of a criminal defendant is proper in the face of a mistrial granted upon request of a defendant based on prosecutorial misconduct. The trial court concluded the written order by denying relief on both the special plea and the separate habeas corpus request. Thereafter, a jury trial was conducted resulting in appellant's conviction for aggravated assault and life sentence in the penitentiary. His first issue complains of trial court error in the denial of his special plea and his writ relief, but combines argument and authority in presenting the issue to us. Relying on a line of cases from the United States Supreme Court and the Court of Criminal Appeals, appellant contends his second trial was barred by the doctrine of double jeopardy because: 1) the prosecutor's misconduct was manifestly improper; 2) it was committed with the requisite mental state; and, 3) therefore violated the standards discussed in Ex parte Peterson, 117 S.W.3d 804, 817-19 (Tex.Crim.App.2003). Prior to addressing the merits of issue one, we must first resolve the threshold inquiries of jurisdiction and cognizability. See Castaneda v. State, 138 S.W.3d 304, 307 (Tex.Crim.App.2003) (appellate courts have authority to consider and address issues which are not directly raised by the parties but must be considered and decided in the course of reviewing the issues presented).

The prohibition against double jeopardy is found in the Fifth Amendment to the United States Constitution. A similar provision is set forth in art. I, § 14 of the Texas Constitution. The Fifth Amendment prohibition against double jeopardy is fully applicable to the States through the Fourteenth Amendment to the United States Constitution. See Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). While the State and Federal double jeopardy provisions have similar language, their application has taken divergent paths since the Court of Criminal Appeals' opinion in Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996) ("Bauder I"). See Peterson, 117 S.W.3d at 813-16.

The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. This has been interpreted so as to prevent: 1) a second prosecution for the same offense after acquittal or after conviction (successive prosecutions); and 2) multiple punishments for the same offense. See Monge v. California, 524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998); United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Bailey v. State, 87 S.W.3d 122, 126 (Tex.Crim.App.2002). Although originating from the same source, the nature of these two areas of protection are not necessarily coextensive. The contrast was noted in Gonzalez v. State, 8 S.W.3d 640, 643 n. 9 (Tex.Crim.App.2000):

We have decided that a pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant should raise a "successive prosecutions for the same offense" double jeopardy claim. See Ex parte Robinson, 641 S.W.2d 552, 553-56 (Tex.Cr.App.1982) (defendant may in pretrial writ of habeas corpus proceeding raise and appeal a successive prosecutions claim before the trial of the indictment which he attacks); see also Ex parte Apolinar v. State, 820 S.W.2d 792, 793-94 (Tex.Cr.App.1991). This is because requiring a defendant to go through trial before appealing a successive prosecutions claim is inconsistent with one double jeopardy guarantee against being consecutively tried for the same offense. See Robinson, 641 S.W.2d at 554. These considerations do not apply to a multiple punishments claim because it "can be fully vindicated on an appeal following final judgment." See id.

The Apolinar decision goes directly to the heart of our threshold inquiries. Apolinar, 820 S.W.2d at 792. The defendant in Apolinar filed a special plea in the trial court alleging his first trial, which resulted in a mistrial, was improperly terminated and, therefore, a second trial was prohibited as a successive prosecutions double jeopardy violation. See id. at 793. Apolinar's "special plea" was filed pursuant to TEX.CODE CRIM. PROC. ANN. art. 27.05(3) (Vernon 1989), which provides, in pertinent part:

A defendant's only special plea is that he has already been prosecuted for the same or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial, and that the former prosecution:. . . (3) was improperly terminated[.]

Thereafter, the trial judge, in a pretrial determination, denied Apolinar's special plea. Apolinar, 820 S.W.2d at 793. Apolinar appealed this interlocutory ruling directly to the San Antonio Court of Appeals. Id. The San Antonio Court interpreted the "special plea" as a pretrial writ of habeas corpus, found jurisdiction, and addressed the merits of the appeal. Id. In holding the court of appeals did not have jurisdiction to entertain Apolinar's appeal, the Court of Criminal Appeals discussed the nature and scope of a defendant's "special plea" under article 27.05:

A defendant may file a special plea in order to assert a former jeopardy claim. Article 27.05, V.A.C.C.P. However, all issues of fact presented in the special plea are to be tried by the trier of fact on the trial on the merits. Article 27.07, V.A.C.C.P. The appellant in this case appealed from the trial court's ruling on the special plea prior to trial on the merits.

Id. Indeed, as the Court further noted, special pleas of former jeopardy are only applicable when the former jeopardy claim involves successive punishments claims, not successive prosecutions claims. Id. at 794. In support of this observation, the Court quoted the following from the Fifth Circuit case, Robinson v. Wade, 686 F.2d 298, 302 n. 3 (5th Cir.1982):

Texas law provides that a claim of former jeopardy may be raised at the inception of the prosecution under attack, but that the facts concerning the special Plea are determined in the course of the trial on the merits, See Vernon's Ann.C.C.P. art. 27.05 & 27.07 (1966 & Supp.1981). The Plea is a mechanism for avoidance of reconviction, not retrial. In its limited function, it falls short of the protections extended to criminal defendants by the double jeopardy clause of the fifth amendment, Baker v. Metcalfe, 633 F.2d 1198, 1200 n. 3 (5th Cir.), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981), citing Abney v. United States, 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977), as applicable to the states through the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Apolinar, 820 S.W.2d at 794 (emphasis added).

The Court then discussed the proper procedural method for defendants to utilize when seeking relief by way of a claim of double jeopardy based upon successive prosecutions:

The pretrial writ of habeas corpus, however, provides relief. Article 11.01, et seq., V.A.C.C.P. In Ex Parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982), relying on Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), this Court wrote, "We are compelled to hold that there is a Fifth Amendment right not to be exposed to double jeopardy, and that it must be reviewable before that exposure occurs." Id. at 555; U.S. CONST. amends. V and XIV; Art. 1, sec. 10, TEX. CONST. This Court then explained that a pretrial writ under Chapter 11, V.A.C.C.P. was the mechanism to be utilized in seeking relief from exposure to double jeopardy.

Because the special plea procedure does not protect against retri...