State v. Boyd

• Decision Date: 28 August 2006
• Docket Number: No. 05-05-00914-CR.,05-05-00914-CR.
• Parties: THE STATE OF TEXAS, Appellant, v. SHAWN ONEAL BOYD, Appellee.
• Court: Texas Court of Appeals

202 S.W.3d 393

THE STATE OF TEXAS, Appellant, v. SHAWN ONEAL BOYD, Appellee.

No. 05-05-00914-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed August 28, 2006.

Before Justices RICHTER, LANG, and MAZZANT.

OPINION

Opinion By Justice LANG.

The State of Texas appeals the trial court's post-verdict order granting Shawn Oneal Boyd's pre-verdict motion for mistrial.

In three issues, the State asserts the trial court abused its discretion when it granted Boyd's motion for mistrial because: (1) the trial court cured the error when it sua sponte instructed the jury to disregard; (2) Boyd forfeited his right to relief because he did not object to the evidence, request an instruction to disregard, or obtain a ruling on his motion before the jury returned its verdict; and (3) the trial court's ruling sanctioned unwarranted departures from the rules governing the orderly administration of criminal proceedings when it condoned Boyd's alleged improper gamesmanship.

Boyd responds that this Court does not have jurisdiction to reach the merits of the State's appeal because the order appealed from is an order granting a mistrial. The State replies that this Court has jurisdiction over the State's appeal under article 44.01(a)(3) of the Texas Code of Criminal Procedure because case law provides that when an order granting a mistrial is "functionally indistinguishable" from or the "functional equivalent" of an order granting a new trial the State may appeal pursuant to article 44.01(a)(3).

We conclude this Court has jurisdiction over this appeal. Also, we conclude the trial court did not abuse its discretion when it granted Boyd's motion for a mistrial. This Court's order staying the proceedings in the trial court pending the disposition of this appeal is vacated and the trial court's order granting Boyd's motion for mistrial is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Boyd was charged by information with the offense of driving while intoxicated. Also, the information contained an enhancement paragraph alleging a prior DWI conviction. Before trial, Boyd filed a motion in limine seeking a hearing outside the presence of the jury before the State referred to any of his prior convictions. However, the record does not show the trial court ruled on the motion in limine.

During the trial, the State offered Exhibit No. 2, the videotape of the defendant recorded from the officer's car, and Exhibit No. 3, the videotape of the defendant recorded in the intoxilyzer room. Boyd requested permission to voir dire the officer regarding State's Exhibit No. 2, which the trial court permitted. At the conclusion of Boyd's voir dire, the trial court admitted State's Exhibit Nos. 2 and 3, without an objection. After the videotapes were published to the jury, Boyd cross-examined the officer regarding the contents of the videotapes.

During jury deliberations, a juror brought to the bailiff's attention that State's Exhibit No. 3 was marked with a label that read: "DWI 2nd."¹ The bailiff reported his conversation with the juror to the trial court and stated the jury had the impression the case they were deliberating was Boyd's second DWI offense. The trial court brought the matter to the attention of Boyd and the State. Boyd did not object to the labels on the videotapes. After the trial court prepared an instruction to disregard, both the State and Boyd stated they had no objection to the instruction. Before the trial court instructed the jury to disregard the label on State's Exhibit No. 3, the bailiff informed the trial court the jury also brought to his attention that the label on State's Exhibit No. 2 read: "DWI 2nd."² Again, Boyd did not object.

The trial court sua sponte, verbally and in writing, instructed the jury that the labels on the videotapes were not in evidence and contained hearsay. Also, the trial court instructed the jury not to consider and to disregard any inference that the case involved a second DWI offense. Then, the trial court declared a recess, sent the jury home for the evening, and instructed the jury to be back at 8:30 a.m. the following morning. After the jury left for the day, Boyd moved for a mistrial. The trial court said, "Well, let's talk about that in the morning." The record does not reflect any discussion of Boyd's request for a mistrial the next morning. However, at 9:29 a.m., the jury returned to the courtroom with a guilty verdict, and the trial court adjourned.³

Twenty-one days after the jury returned the guilty verdict, the case was set for a hearing on punishment before the trial court and the following occurred:

TRIAL COURT: [A]re you ready on your sentencing hearing, motion for new trial, whatever it is?

DEFENSE COUNSEL: We're ready Your Honor. Judge, we do have a number of witnesses to swear in at this time as well.

TRIAL COURT: Are we going forward with the sentencing hearing, is that what we're doing?

DEFENSE COUNSEL: Well, Judge, right now I've got a-there is a motion in [sic] mistrial that's under advisement. Based on my interpretation of the Rules of Appellate Procedure, I believe that the motion for new trial would be more appropriately filed and urged after sentencing in the event the mistrial is not granted. So I believe that the order of the proceedings should be [sic] ruling on the motion for mistrial, which we'd ask to argue briefly. If the motion for mistrial is denied, then move on to sentencing, and then I have a motion for new trial which has to be presented to the Court within ten days of filing it. I would ask to file that in open court, get it set for a hearing. I'm sure the State would want some notice. However, I would be prepared to proceed on it today.

TRIAL COURT: All right. [Boyd's] motion for mistrial is based on the fact that the videotape was marked "DWI 2nd" going back to the jury room?

DEFENSE COUNSEL: Yes, Your Honor.

TRIAL COURT: State's response.

PROSECUTOR: Your Honor, there was sufficient evidence to support the verdict outside the DWI 2nd. The jury didn't have time to consider it until-the DWI 2nd until well into deliberations, and you did provide them with an instruction with which they were advised to take as law in this court and that should have been sufficient to cure the-and there is a presumption that it does cure it [sic] anything that comes in there that shouldn't.

TRIAL COURT: All right. The motion for mistrial is granted. So we'll set this case for trial again. When Ms. Andrews comes back, you can see Ms. Andrews, she'll give you a new trial date.

After the trial court orally granted Boyd's motion for mistrial, the trial court issued a written order, which states:

ORDER GRANTING THE DEFENDANT'S MOTION FOR MISTRIAL

Following the jury's guilty verdict in this cause, this Court considered the Defendant's pending motion for mistrial and hereby orders it GRANTED. Therefore, the jury's guilty verdict is set aside and the cause is returned to the docket of this [C]ourt pending retrial.

The trial court reset this case for a jury trial one month after it declared the mistrial. However, the State announced "not ready" and moved for a continuance because of a missing witness. The case was again reset for a jury trial two months after the mistrial was granted, one month after the first resetting. Before the case came to trial, the State petitioned this Court for a writ of mandamus requesting an order staying the proceedings. This Court stayed the trial court's proceedings pending disposition of this appeal.

II. APPELLATE JURISDICTION-THE STATE'S RIGHT TO APPEAL

Boyd argues this Court does not have jurisdiction to reach the merits of the State's appeal because the order appealed from is an order granting a mistrial. According to Boyd, the State may appeal only from the orders listed in article 44.01(a) of the Texas Code of Criminal Procedure and an order granting a mistrial is not included in the list. The State asserts that this Court has jurisdiction over the State's appeal under article 44.01(a)(3) because, in accordance with the applicable case law, an order granting a mistrial, like the order issued in this case, is "functionally indistinguishable" from an order granting a new trial, which the State may appeal pursuant to article 44.01(a)(3).

A. Applicable Law

To accept an appeal, a court of appeals must have jurisdiction. See State v. Johnson, 843 S.W.2d 252, 254 (Tex. App.-Texarkana 1992),

aff'd,

871 S.W.2d 744 (Tex. Crim. App. 1994). The State is entitled to appeal in a criminal case as authorized by law. Tex. Const. art. V, § 26; State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992) (en banc). Article 44.01 of the Texas Code of Criminal Procedure permits the State to appeal a trial court's order in a criminal case under limited circumstances. The "plain" language of article 44.01(a) is unambiguous. See State v. Gutierrez, 129 S.W.3d 113, 115 (Tex. Crim. App. 2004).

Article 44.01(a) provides as follows:

(a) The [S]tate is entitled to appeal an order of a court in a criminal case if the order:

(1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;

(2) arrests or modifies a judgment;

(3) grants a new trial;

(4) sustains a claim of former jeopardy;

(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case; or

(6) is issued under Chapter 64.

Tex. Code Crim. Proc. Ann. art. 44.01(a) (Vernon Supp. 2006). A new trial, as contemplated by Article 44.01(a)(3) of the Texas Code of Criminal Procedure, is "the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt." Tex. R. App. P. 21.1; Evans, 843 S.W.2d at 577 (quoting former rule of...