Pierson v. State

• Citation: 398 S.W.3d 406
• Decision Date: 19 April 2013
• Docket Number: No. 06–11–00065–CR.,06–11–00065–CR.
• Parties: Leonard PIERSON, Jr., Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

398 S.W.3d 406

Leonard PIERSON, Jr., Appellant

v.The STATE of Texas, Appellee.

No. 06–11–00065–CR.

Court of Appeals of Texas, Texarkana.

Submitted: Nov. 20, 2012.

Decided: April 19, 2013.

Jason L. Horton, Horton Law Firm, Texarkana, for Appellant.

Lauren Sutton, Asst. Dist. Atty., for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Before the mistrial was declared during the presentation of evidence in Leonard Pierson, Jr.'s, first jury trial on charges of indecency with a child and aggravated sexual assault of a child,¹ the purported victim, Bianca, had testified on direct examination regarding multiple instances in which she said Pierson sexually assaulted her or at least had sexual contact with her. Defense counsel's first question on cross-examination caused the trial court to declare a mistrial. The question was, “Did you also make an allegation that [Pierson] did these same things to his own daughter?” ²

Pierson's second jury trial resulted in Pierson's conviction for one count of indecency with a child, enhanced by a prior felony conviction, and seven counts of aggravated sexual assault of a child and in Pierson being sentenced to life imprisonment. A central question before us is whether Pierson's second trial violated his right to be free from double jeopardy. We affirm the judgment of the trial court because—although (1) Pierson did not consent to the mistrial—(2) the evidentiary ruling was not shown to be incorrect, (3) the finding of manifest necessity was not an abuse of discretion, (4) overruling Pierson's relevancy objection was not an abuse of discretion, and (5) the evidence is legally sufficient.

(1) Pierson Did Not Consent to the Mistrial

A bedrock principle of constitutional law is that a State may not put a defendant in jeopardy twice for the same offense. Arizona v. Washington, 434 U.S. 497, 502, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); see also United States v. Newton, 327 F.3d 17, 21 (1st Cir.2003). “[A]s a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Washington, 434 U.S. at 505, 98 S.Ct. 824. “Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's ‘valued right to have his trial completed by a particular tribunal.’ ” ³Id. at 503, 98 S.Ct. 824.

Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unreasonable accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.

Id. at 503–04, 98 S.Ct. 824;see Ex parte Lewis, 219 S.W.3d 335, 353 (Tex.Crim.App.2007).

Although a retrial is absolutely prohibited when a trial ends in an acquittal or a conviction, a retrial may not be “automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.” Washington, 434 U.S. at 505, 98 S.Ct. 824. Under such circumstances, a retrial over the objection of a defendant is permitted only when the prosecutor demonstrates “manifest necessity.” Id. “Neither party has a right to have his case decided by a jury which may be tainted by bias.” Id. at 516, 98 S.Ct. 824. A trial court's decision to declare a mistrial is reviewed for an abuse of discretion, but “the trial court's discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances.” See Ex parte Garza, 337 S.W.3d 903, 909 (Tex.Crim.App.2011).

Once a defendant establishes that he or she is being tried for the same offense after a mistrial, the State has the burden to prove that there was manifest necessity for the mistrial. Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App.2002). Manifest necessity exists in three situations: (1) “when the particular circumstances giving rise to the declaration render it impossible to arrive at a fair verdict before the initial tribunal,” (2) “when it is simply impossible to continue with trial,” or (3) “when any verdict that the original tribunal might return would automatically be subject to reversal on appeal because of trial error.” Garza, 337 S.W.3d at 909. The State confines its arguments to the first situation—whether a fair trial was impossible. The State argues that, in simply posing the initial question it did, even without an answer to it, the defense committed an egregious error that biased the jury against the State's case, preventing a fair trial.

Different standards apply to our review if Pierson consented to the mistrial. See Oregon v. Kennedy, 456 U.S. 667, 670, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Ex parte Masonheimer, 220 S.W.3d 494 (Tex.Crim.App.2007); Lewis, 219 S.W.3d at 371. If there was consent by Pierson, the State is not required to demonstrate manifest necessity. Harrison v. State, 767 S.W.2d 803, 806 (Tex.Crim.App.1989). The State concedes that Pierson opposed the State's request for a mistrial, and the record supports that position.⁴ Pierson did not consent to the mistrial.

(2) The Evidentiary Ruling Was Not Shown to Be Incorrect

Pierson argues that the trial court erred in finding the question improper and that such error requires a finding that manifest necessity did not exist. In Washington, the United States Supreme Court started with the assumption that the statements by defense counsel were error. Washington, 434 U.S. at 505, 98 S.Ct. 824. The Texas Court of Criminal Appeals, however, has permitted questions similar to the question in this case.

The record does not contain the substance of the allegedly false allegation Pierson's counsel sought to get before the jury with his question. The parties could not agree, at the first trial, concerning what collateral claim had been alleged. The following excerpts contain the entirety of the details presented to the trial court before it declared a mistrial:

[Defense Counsel 1]: The other daughter was questioned by the CAC based on the allegation.

[The State]: That's not admissible here.

THE COURT: Okay, what's the nature of the—?

[Defense Counsel 2]: (Inaudible, whispering)

[The State]: Under 412, no way.

THE COURT: Hold on. We've got to have a hearing on the—is the nature of the question that she has made a false outcry against somebody else or that she's made a true outcry against some other person?

[The State]: He can't prove that it's false, but she—in the end of her CAC interview she said that he did it to his daughter too. That's it. She didn't say what he did, how he did—I mean, there was nothing. That was the extent of it.

[Defense Counsel 1]: And there was an investigation in that CAC interview and—a full investigation, and nothing came of it.

THE COURT: Well, to introduce evidence that a child has made a false outcry, there has to be evidence that the outcry is actually false. The only reported case that's ever found that to be the case is Thomas v. State, 669 S.W.2d 420, and that was a case where both the child victim and her mother admitted they were false. Absent an admission from the victim or the victim's mother that the other outcry against another person was actually false, you can't get into that they've made allegations against other people that were false.

....

THE COURT: Mr. McFarland, let me get you to flesh out your argument a little bit more about the basis for the admissibility of this cross examination.

[Defense Counsel 1]: Your Honor, ... Bianca, at the end of her interview with Karrah at the CAC, ... stated that Mr. Pierson had done the same sorts of things ... against his own daughter, who's now sixteen years old. So she made an allegation that the alleged perpetrator in her case had done the same types of things to his own biological child.

THE COURT: Okay.

[Defense Counsel 1]: Karrah subsequently interviewed, there was a forensic examination done, of Mr. Pierson's biological daughter, there at the CAC, where his biological daughter denied any allegations, denied any abuse, and did not make an outcry.

[The State]: The evidence of that is what, his word?

[Defense Counsel 1]: No, the evidence is Karrah's word when I cross examine her as to that also. And also, we plan to call his biological daughter who is now sixteen to testify that she was never abused by Mr. Pierson.

....

[Defense Counsel 2]: No, sir, Judge, that wasn't the—my understanding of it was she claimed that this happened in DeKalb in her presence when he abused his daughter, I believe is my understanding.

[The State]: No, that was her cousin.

....

[The State]: She merely said—and Karrah can come and tell you—she merely said that either she thought or she said he even did it to his own daughter. That was the extent of the statement. There was no details, there was no—

[Defense Counsel 2]: He didn't tell her that.

[Defense Counsel 1]: She just, it just came up in the CAC interview.

THE COURT: So we don't even really know what the basis for her statement was.

[Defense Counsel 1]: We don't know the basis of the statement, just that she made the allegation and that it was subsequently investigated and went nowhere.

There is still uncertainty as to what the allegation was.⁵

Though the State's original objection was based on Rule 412 of the Texas Rules of Evidence,⁶ the trial court, at the first trial, referred to the question as a “collateral issue” which suggests its decision also may have been based on Texas Rule of Evidence 608. At the second trial, the trial court explicitly referenced Rule 608. Rule 608 forbids inquiry into specific instances of a witness' conduct for the purpose of attacking or impeaching that witness' credibility. Tex.R. Evid. 608(b). Exceptions to Rule 608 exist, however. The Texas Court of Criminal Appeals has recognized Rule 613, which permits...