Tenery v. State

• Decision Date: 01 November 1984
• Docket Number: No. 13-83-490-CR,13-83-490-CR
• Citation: 680 S.W.2d 629
• Parties: Leslie TENERY, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 629

680 S.W.2d 629

Leslie TENERY, Appellant, v. STATE of Texas, Appellee.

No. 13-83-490-CR.

Court of Appeals of Texas Corpus Christi.

Nov. 1, 1984.

Eric Brown, Corpus Christi, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, for appellee.

Before NYE, C.J., and GONZALEZ and SEERDEN, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for the offense of murder. The jury assessed punishment at confinement in the Texas Department of Corrections for fifty (50) years and a fine of $5,000.00. The sufficiency of the evidence is not challenged on appeal. We affirm.

Appellant was indicted for the offense of murder on January 20, 1983. In his first trial, the jury, after having found appellant guilty of murder, assessed punishment at confinement in the Texas Department of Corrections for twenty-five (25) years and a fine of $10,000.00. On May 25, 1983, appellant filed his Amended Motion for New Trial alleging, among other things, prosecutorial misconduct during jury argument. After hearing evidence and argument of counsel, the trial court vacated appellant's judgment of conviction, and granted his Amended Motion for New Trial because of "unintentional improper jury argument."

At the second trial, the jury found appellant guilty of the offense of murder and also assessed punishment at 50 years' confinement in the Texas Department of Corrections and a fine of $5,000.00. Appellant brings forward eight grounds of error on appeal.

In his first ground of error, appellant contends that the trial court erred in overruling his special plea of double jeopardy prior to the second trial. See TEX.CODE CRIM.PROC.ANN. arts. 27.05 and 27.07 (Vernon Supp.1984). ¹ By his special plea, appellant alleged that he had been previously placed in jeopardy for the same offense in his second trial. He also alleged that the trial court granted the new trial because of prosecutorial overreaching or intentional conduct on the part of the prosecutor wherein, during jury argument at the guilt/innocence phase of the trial, the prosecutor allegedly pointed at the appellant and called him a "Son-of-a-Bitch." In addition, during the punishment phase of the trial, the prosecutor allegedly referred to appellant's plea for leniency as "a bunch of crap." Appellant's plea of double jeopardy was overruled prior to the second trial on October 31, 1983.

The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense. U.S. Const. Amend. 5. See also TEX.CONST. art. I, § 14. Ordinarily, a motion by the defendant for mistrial is assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Only where the government conduct in question is "intended to provoke the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). "The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error." Id.

Whether the exception (i.e., intentional government overreaching) extends to situations where, as here, an earlier prosecution culminated in a jury verdict only to be set aside by an order of new trial is a matter of some doubt. The uncertainty arises from the established principle that "the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge." Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. DiFrancesco, 449 U.S. 117, 130-31, 101 S.Ct. 426, 433-34, 66 L.Ed.2d 328 (1980). Similarly, when the trial proceeds to its conclusion despite a legitimate claim of seriously prejudicial error, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is reversed on appeal. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Durrough v. State, 620 S.W.2d 134, 139 (Tex.Crim.App.1981).

In the present case, the alleged prosecutorial misconduct did not result in a mistrial. Appellant complains of the following jury argument by the prosecutor (Mr. Babcock) at the guilt/innocence phase of the trial:

"... Folks, you have got one thing to do in this case. I am going to ask you one thing. What is justice in this case? What is justice? That is what the bottom line is in this case. The tombstone reads Anthony Bernard Stein. He had a right to live, and no stupid chunk [sic], son of a bitch like this guy has a right to take his life away. I don't care if that guy is in Goofie's Lounge or whether he is on Hewit Drive, everybody has a right to live...."

Appellant's counsel contends that he did not object to the prosecutor's argument at the time it was made for the reason that he was "paralyzed with shock," and "couldn't believe that it had occurred." Additionally, appellant complains of the following jury argument at the punishment phase of the trial:

"... MR. BABCOCK: Whatever you do, you hit that guy up for a ten-thousand-dollar fine, ten thousand dollars. Every day that he--whatever time you put him in prison, I want him to think every day that he is going to have to put another dollar, five dollars toward paying for the things he has done, pay for this. I wish the law would provide that a man can go to prison for twenty-five years and pay a fifteen-thousand-dollar fine to the family in restitution. I wish that we had a provision for that, but we don't. But it is high time the people who start committing those crimes start paying back in more ways than one. He may not have much money, but brother, you are going to have to pay for it. The society gets fed up. We get fed up with all of this crap. We get fed up with --...."

At this instance, appellant did object to the language used by the prosecutor throughout the arguments. The trial court admonished Mr. Babcock and had him apologize to the jury for that remark, which Babcock did. The trial court then granted appellant's instruction to disregard these statements, and denied his motion for mistrial.

Appellant contends on appeal that the granting of the new trial in appellant's case was attributable to prosecutorial overreaching. Specifically, appellant contends that the prosecutor's conduct at the first trial, through "gross negligence or intentional misconduct," caused aggravated circumstances to develop which seriously prejudiced the appellant. Therefore, appellant argues that, since a mistrial should have been declared by the trial court on its own at the first instance of misconduct, and the new trial was necessitated because of the trial errors, this was sufficient to trigger preclusion of retrial. We disagree.

We hold that appellant's second trial for the same offense is not barred by virtue of the Double Jeopardy Clause of the Fifth Amendment or the related provision of the Texas Constitution. Appellant's first conviction was vacated when the trial court granted appellant's motion for a new trial. See Alberts v. State, 458 S.W.2d 83 (Tex.Crim.App.1970); Mahavier v. State, 644 S.W.2d 129, 134 (Tex.App.--San Antonio 1982, no pet.); McGee v. State, 629 S.W.2d 182, 184 (Tex.App.--Waco 1982, no pet.). Even assuming the narrow exception applied to this case, we cannot say on the facts here presented that the misconduct assigned by appellant constituted prosecutorial overreaching sufficient to bar appellant's retrial. See Robinson v. Wade, 686 F.2d at 309. There is no question but that the new trial came about as a result of prosecutorial error. However, the evidence clearly supports the trial court's finding of "unintentional improper jury argument." See Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982); Chvojka v. State, 582 S.W.2d 828, 830-31 (Tex.Crim.App.1979). We hold that the trial court properly overruled appellant's plea of double jeopardy. Ground of error number one is overruled.

In appellant's next four grounds of error, he contends that, for various reasons, the trial court erred by entering in the judgment and sentence an affirmative finding that a deadly weapon was used in the commission of the offense. ² Appellant's first contention is that the trial court erred in finding that a firearm was used in the commission of the offense because that issue was not submitted to the jurors, who were the exclusive triers of fact in this case. The indictment charged, in pertinent part, that appellant:

"... did then and there intentionally and knowingly cause the death of an individual, Anthony Bernard Stein, by shooting him with a firearm." (Emphasis added.)

The only theory of guilt submitted in the court's charge was that the appellant intentionally or knowingly caused the death of the individual by shooting the individual "with a firearm." The verdict, signed by the foreman, read: "We, the Jury, find the Defendant, Leslie Tenery, guilty of the offense of Murder, as alleged in the indictment."

The verdict necessarily included a finding that the appellant committed murder by shooting the individual with a firearm. Therefore, the jury's verdict reflects an affirmative finding that a firearm was used in the commission of the offense. Ex parte Moser, 602 S.W.2d 530, 533 (Tex.Crim.App.1980); see Chavez v. State, 657 S.W.2d 146 (Tex.Crim.App.1983); Ex parte Thomas, 638 S.W.2d 905 (Tex.Crim.App.1982). The jury's verdict, based...