State v. Lee
| Decision Date | 18 December 1997 |
| Docket Number | No. 05-96-01894-CR,05-96-01894-CR |
| Citation | 971 S.W.2d 553 |
| Parties | The STATE of Texas, Appellant, v. David Allan LEE, Appellee. |
| Court | Texas Court of Appeals |
Tom O'Connell, Criminal District Attorney, Carrie Roberge Chavez, McKinney, for State.
J. Craig Jett, Dallas, for Appellee.
Before MALONEY, WHITTINGTON and BRIDGES, JJ.
The State appeals the trial court's order sustaining appellee's double jeopardy claim and dismissing the indictment against him with prejudice. See TEX.CODE CRIM. PROC. ANN. art. 44.01(a)(1), (4) (Vernon Supp.1998). In three points of error, the State contends the trial judge erred in (1) sustaining appellee's objection to a portion of the prosecutor's opening statement, (2) granting a mistrial based on the prosecutor's opening statement, and (3) barring a retrial of the charges against appellee based on double jeopardy. For the reasons set forth below, we dismiss the State's first and second points of error for want of jurisdiction. We overrule the State's third point of error and affirm the trial court's order dismissing the indictment in this cause.
The grand jury indicted appellee for indecency with a child. Appellee pleaded not guilty, and the case was called for trial in October 1995. Following voir dire, the jury was empaneled and sworn and the prosecutor began her opening statement to the jury. During the opening, the prosecutor told the jury that before any charges were filed in the case, Paul Raleeh, the officer investigating the charges, called appellee and asked if they could talk. According to the prosecutor, appellee told Raleeh (1) he was not interested in talking to Raleeh, and (2) Raleeh should call appellee's attorney. 1 Appellee immediately objected to the prosecutor's statement, arguing it was an improper comment on appellee's invocation of his right to counsel and his right to remain silent. 2 Following a brief discussion between the court and counsel, the trial judge sustained appellee's objection and granted appellee's motion for mistrial.
The State later sought to retry appellee under the same indictment. Appellee filed an application for writ of habeas corpus, arguing the State was barred from retrying him because jeopardy had attached at the previous proceeding. The trial judge held a hearing on appellee's application in December 1995. After hearing from a number of witnesses, the trial judge orally denied habeas relief.
Shortly thereafter, appellee filed a motion to reconsider, urging the trial judge to reconsider his ruling in light of the Texas Court of Criminal Appeals's recent decision in Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996). The trial judge did so and ultimately granted the relief requested in appellee's application. Having concluded that further prosecution was barred under the double jeopardy clause of the Texas Constitution, the trial judge dismissed the indictment with prejudice and discharged appellee. The court then entered various findings of fact and conclusions of law, and the State perfected this appeal.
In its first and second points of error, the State contends the trial court erred in sustaining appellee's objection to the prosecutor's opening statement and subsequently granting a mistrial based on that statement. According to the State, these rulings were improper because (1) the prosecutor's statement was not a "meaningful comment" on either appellee's right to remain silent or his right to counsel; and (2) a limiting instruction would have been sufficient to cure the error, if any, resulting from the comment. We conclude we lack jurisdiction to address these points.
In its third point of error, the State contends the trial judge erred in (1) concluding the State was barred from retrying appellee, and (2) dismissing the indictment in this case with prejudice. According to the State, dismissing the indictment was improper because the facts and circumstances presented by this case do not bar a retrial under the court's reasoning in Bauder. 3 We disagree.
The Texas Court of Criminal Appeals has recently announced a new standard for reviewing double jeopardy claims under the Texas Constitution. 4 In Bauder, the court held that, when a trial court properly grants a mistrial based on prosecutorial misconduct, a successive prosecution is barred if the court determines the prosecutor engaging in the objectionable conduct (1) acted with the intent to induce a mistrial; or (2) was aware of, but consciously disregarded, the risk that the conduct would require a mistrial at the defendant's request. See Bauder, 921 S.W.2d at 699.
The Bauder test requires us to follow a two-step analysis. See Janney v. State, 938 S.W.2d 770, 772 (Tex.App.--Houston [14th Dist.] 1997, no pet.); Bauder v. State, 936 S.W.2d 19, 20 (Tex.App.--San Antonio 1996, pet. granted) (op. on remand). Under that analysis, we first determine whether the mistrial was properly granted. 5 If we conclude it was, we then determine whether the prosecutor either intended to induce the mistrial or "was aware [of] but consciously disregarded the risk that an objectionable event for which he was responsible would require [the] mistrial." Bauder, 936 S.W.2d at 20. Under this test, the prosecutor is only accountable for mistrials that are (1) properly granted, and (2) made necessary by the deliberate or reckless conduct of the prosecutor. Bauder, 936 S.W.2d at 20.
Here, the trial judge granted a mistrial after the prosecutor told the jury that appellee (1) refused to discuss the allegations with Detective Raleeh, and (2) told Raleeh he should contact appellee's attorney. The trial judge concluded this statement was a comment on appellee's right to remain silent and his right to counsel and that (1) declaring a mistrial was manifestly necessary to ensure appellee a fair trial, (2) instructing the jury to disregard would have been insufficient to cure the error, and (3) the statement could be interpreted by the jury as evidence "of [appellee's] knowledge of his own guilt." As this Court noted in Ex parte May, 852 S.W.2d 3, 5 (Tex.App.--Dallas 1993, pet. ref'd), we accord great deference to a trial court's findings and conclusions when reviewing a double jeopardy claim. Deference is accorded because the trial court bases its ruling in part on a credibility determination that is inherently unreviewable by this Court. Accordingly, we view the evidence in the light most favorable to the trial court's ruling. Ex parte May, 852 S.W.2d at 5.
We begin our analysis by first determining whether the trial judge properly granted a mistrial following the prosecutor's opening remarks. Here, the trial judge concluded the mistrial was "manifestly necessary" because an instruction to disregard could not have cured the error associated with the prosecutor's comment. We conclude the trial judge's conclusion is supported by the record.
Granting a mistrial is proper when (1) error is committed, and (2) the error cannot be cured by an instruction to disregard. See Garcia v. State, 943 S.W.2d 215, 216-17 (Tex.App.--Fort Worth 1997, no pet.) ( it is error not to grant mistrial in case where error is so egregious an instruction to disregard could not cure harm). Here, the prosecutor's statement was clearly improper because it constituted a comment on appellee's invocation of his right to counsel. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991) (); Rezac v. State, 722 S.W.2d 32, 33 (Tex.App.--Dallas 1986) (), rev'd on other grounds, 782 S.W.2d 869 (Tex.Crim.App.1990); see also TEX.CODE CRIM. PROC. ANN. art. 38.38 (Vernon Pamph.1998) ( that prosecutor in criminal case may not comment on fact that defendant has retained attorney). The question then is whether the error could have been cured by an instruction to disregard. We conclude it could not.
The comment in this case was a direct reference to appellee's having retained counsel to represent him. As the trial judge recognized, this is precisely the type of comment that could be taken by the jury as evidence of appellee's guilt. However, in addition to informing the jury that appellee had already retained counsel, the comment also indicated that appellee was unwilling to talk to police about the allegations. We note that the purpose of opening statement is to give the jury a general picture of the facts of the case so the jury will be better able to understand the evidence presented. In this case, the prosecutor distorted this "general picture" by informing the jury, at the outset, that appellee had hired a lawyer even before...
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