Rios v. State

• Decision Date: 19 October 1977
• Docket Number: No. 53328,53328
• Parties: Joaquin H. RIOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 87

557 S.W.2d 87

Joaquin H. RIOS, Appellant, v. The STATE of Texas, Appellee.

No. 53328.

Court of Criminal Appeals of Texas.

Oct. 19, 1977 Appellant's Motion for Rehearing Denied Nov. 9, 1977.

C. Nick Rothe Jr., San Antonio, for appellant; Antonio G. Cantu, San Antonio, of counsel.

Ted Butler, Dist. Atty., Keith W. Burris and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for delivery of a controlled substance. The jury found that appellant had two prior felony convictions, and the court accordingly assessed his punishment at life in the Texas Department of Corrections. ¹

The appellant contends that the trial judge erred by (1) permitting the details of an offense and extraneous offenses to be introduced during the penalty stage; (2) overruling his plea of former jeopardy; (3) allowing evidence of a prior conviction against one George De La Garza to be introduced against the appellant; and (4) allowing evidence of an extraneous offense to be introduced over objection. We affirm.

The testimony reflects that on March 25, 1974, Melvin Lee Jackson, a paid government informer, went to the office of the Federal Drug Enforcement Administration (DEA) in San Antonio. Based on information supplied by Jackson, Henry Brown, a detective with the San Antonio Police Department assigned to the DEA, drove with Jackson to the vicinity of Chestnut and Burnet Streets in San Antonio. Jackson and Brown there met Fernando Castillo. Castillo entered the car and the three men proceeded to the 200 block of Burnet. They stopped at 219 Burnet, and Castillo left the car and entered the residence at 219 Burnet. Jackson and Brown remained in the car. Castillo came back to the car and after a short discussion he re-entered the residence. Shortly thereafter, Castillo and the appellant left the residence and entered the car with Jackson and Brown.

Castillo introduced the appellant to Jackson and Brown. Brown and the appellant then discussed the possibility of a delivery of heroin. The appellant then discussed the possibility of a delivery of heroin. The appellant told Brown that he could provide heroin and that Brown should come back whenever he wanted to purchase heroin.

The following morning, at approximately 11:40 a. m., Brown talked with the appellant at 214 Burnet Street. They negotiated a price of $100, but the appellant told Brown the heroin would not be delivered by "his man" for an hour. Brown left and subsequently returned at approximately 1:00 p. m. At that time, the appellant told him to return in 45 minutes. At 1:45 p. m., Brown returned and the appellant gave Brown seven balloons containing a substance subsequently identified as heroin. Brown paid the appellant $100.

Officer Alfonso Alonzo, a San Antonio Police Department patrolman assigned to the DEA, testified that he and Agent Montoya of the San Antonio Police Department had Brown's car under surveillance on March 25 and 26, 1974. His testimony corroborated the testimony of Officer Brown.

We will initially consider appellant's second contention that the trial judge erred in overruling his plea of former jeopardy. The record reflects that on November 6, 1975, the appellant was put to trial on the merits of this case.

The testimony of that earlier trial is in this record. It reveals that during the direct examination of the first witness for the State the following occurred:

"Q Okay. How, after this statement made by Fernando Castillo, without going into the conversation, what then occurred?

"A Mr. Castillo re-entered the house at 214 Burnet, returned to the undercover vehicle accompanied by a subject introduced to me as Guero, subsequently identified as Joaquin H. Rios. And, both Mr. Castillo and Mr. Rios entered the undercover vehicle, and some discussion was held relative to the delivery of a quantity of heroin to me on that day, at that location.

"MR. ROTHE (DEFENSE COUNSEL): Your Honor, I'm going to object to that and ask the jury to be instructed to disregard it as a direct violation of what counsel was instructed.

"THE COURT: Mr. Bailiff, take the jury.

"MR. PRYOR: Come with me, please.

"WHEREUPON, after the jury was removed from the courtroom the following proceedings were had as follows:

"THE COURT: I'm curious as to why this testimony came out that way?

"MR. BURRIS (PROSECUTOR): Your Honor, I

"THE COURT: Why don't we get to what we heard.

"MR. BURRIS: Well, I don't know.

"THE COURT: You didn't tell him that we didn't want extraneous offenses testified to?

"MR. BURRIS: Agent Brown, what did I instruct you when I walked up to you a little while ago?

"AGENT BROWN: Well, the way I understood it, nothing was to be said relative to a narcotic buy on the 25th

"MR. BURRIS: That's what I told you?

"AGENT BROWN: The actual narcotic transaction itself.

"MR. BURRIS: Didn't I tell you that?

"AGENT BROWN: Yes. You did. And, I, at this point, didn't think this was not what was, you know, wanted by the Court.

"THE COURT: You didn't say that we discussed the narcotic buy on the 25th?

AGENT BROWN: Yes, sir. Well okay.

"MR. ROTHE: Your Honor, if I might. My objection is

"THE COURT: I apologize to you because I assumed he was going to say what we were going to have the next day. It was a shock to me that he was doing it just exactly the way I told the State's attorney to tell him not to do.

"MR. ROTHE: I'll move for a mistrial.

"THE COURT: I'll declare a mistrial. You may return to Federal Court. (To Agent Brown)

"AGENT BROWN: Thank you, Your Honor.

"THE COURT: Do you want a mistrial?

"MR. ROTHE: Yes, sir.

"THE COURT: Okay. That will be granted."

Prior to the trial of the instant case, the appellant filed a special plea alleging former jeopardy. See Vernon's Ann. C.C.P., Article 27.05. The plea stated that the trial judge, when he granted appellant's motion for mistrial, did not inquire whether the appellant personally wished to have a mistrial declared and that this failure by the trial judge precluded a second trial of the cause.

The issue, therefore, is whether the double jeopardy clause ² will bar retrial where a motion for mistrial has been requested by defense counsel but the trial judge has not asked the defendant whether he personally wants a mistrial.

We have not previously addressed this specific issue, although we have addressed similar contentions. In De Young v. State, 160 Tex.Cr.R. 628, 274 S.W.2d 406, 407 (1954), the defendant asserted that the trial judge erred in overruling his special plea of former jeopardy. This special plea was based on a former trial that had resulted in a mistrial. The Court there stated:

"This he (the trial judge) did in response to appellant's written motion for mistrial, and therefore the appellant, having specifically prayed for the action of the court about which he now seeks to complain, cannot successfully raise the question of former jeopardy. This we think is so fundamental as to not require the citation of authorities."

In De Young, however, the defendant did not raise the issue of whether the defendant's personal consent to his counsel's motion was required before a subsequent prosecution would be barred. See also Abbott v. State, 94 Tex.Cr.R. 31, 250 S.W. 188 (1923); Vaccaro v. United States, 360 F.2d 606 (5th Cir. 1966).

In Speights v. State, 499 S.W.2d 119 (Tex.Cr.App.1973), the trial court overruled a special plea of former jeopardy. The basis of the special plea was the entry of a mistrial in a former prosecution. The record of the case, however, reflects that although the defendant's counsel originally requested a mistrial, the trial judge asked the defendant whether he (the defendant) personally wanted the mistrial. The defendant, over the objection of his counsel, responded that he wanted the mistrial. This Court held that the inquiry by the trial court into the circumstances surrounding the defendant's consent and the defendant's actual consent to the entry of the mistrial in the former case barred his claim of double jeopardy.

In Hipple v. State, 80 Tex.Cr.R. 531, 191 S.W. 1150 (1917), the jury was discharged and the case continued upon the motion of the prosecutor. The defendant's counsel consented to this action. The defendant, however, stood mute and neither objected nor consented in person. Upon his retrial, the defendant filed a plea alleging former jeopardy. The trial court dismissed the plea. This Court held that the trial court erred in dismissing the plea of former jeopardy, that the consent of the defendant's counsel was not binding on the defendant, and that the defendant had not waived the right to assert his plea of former jeopardy.

These cases, however, are not dispositive of the issue. In United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976) the Supreme Court stated that:

" . . . where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error."

In United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448, (1964) the Court stated:

"If Tateo had requested a mistrial on the basis of the judge's comments, there would be no doubt that if he had been successful, the government would not have been barred from retrying him." (Emphasis in original.)

Neither Tateo, supra, nor Dinitz, supra, involved a similar fact situation.

The language in Tateo and Dinitz, however, is instructive when viewed in light of our decision on rehearing in Landers v. State, 550 S.W.2d 272 (Tex.Cr.App.1977). ³ In Landers we held that there is no constitutional right to hybrid representation. We there stated that:

"Chief Justice Burger, then Judge of the United States Court of Appeals for the District of Columbia, discussed the proper roles of ...