Woodson v. State, 13-88-061-CR

Decision Date31 August 1989
Docket NumberNo. 13-88-061-CR,13-88-061-CR
Citation777 S.W.2d 525
PartiesKenneth WOODSON, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Carl Lewis, Tinker & Tor, Corpus Christi, for appellant.

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

Before NYE, C.J., and KENNEDY and BENAVIDES, JJ.

OPINION

KENNEDY, Justice.

A jury found appellant guilty of murder and assessed punishment at life imprisonment in the Texas Department of Corrections. Appellant asserts five points of error. We affirm the conviction.

On June 15, 1983, Mr. Gabriel Gengler was killed in his motel room. Mrs. Gengler testified that while she was asleep, her husband left the room to get some ice. She awoke upon hearing a scratching noise coming from the door. When she first heard the noise, she turned on the bedside light and put on her eyeglasses. When Mr. Gengler entered the room, he was accompanied by a man carrying a handgun. Mrs. Gengler testified that she could see the intruder's face when he entered the room, while he was in the room, and when he left the room. Although he was initially wearing a baseball cap and wig, both dropped to the floor when he turned to flee after shooting Mr. Gengler. Mrs. Gengler testified that the intruder was in the room for five to seven seconds. Shortly after the shooting, Mrs. Gengler described her husband's murderer to the police.

In August of 1983, Mrs. Gengler received a newspaper clipping from her brother which contained a photograph of the appellant accompanied by a news story depicting the appellant as a suspect in Mr. Gengler's murder as well as a suspect in various robberies in the San Antonio and Corpus Christi areas. Mrs. Gengler testified that she immediately recognized appellant as the man who shot her husband.

On September 1, 1983, the police presented to Mrs. Gengler a photographic array which included a photograph of the appellant. Mrs. Gengler then made an unequivocal and positive identification of the appellant.

Appellant was tried for murder in two previous trials, both ending in a declaration of mistrial as neither jury was able to reach a unanimous verdict. This appeal is taken from the third trial in which appellant was tried for capital murder and convicted of the lesser included offense of murder. The more serious capital murder charge of the third trial arose from the State's additional allegation that Mr. Gengler's murder was committed during the course of a robbery.

By his first point of error, appellant claims that the State improperly subjected him to double jeopardy. Specifically, he asserts that there was no manifest necessity for the declaration of mistrial in the second trial.

Both the U.S. Const. amend. V and the Tex. Const. art. I § 14, bar the Government and the State, respectively, from subjecting any person "for the same offense to be twice put in jeopardy of life or limb." Thus "an accused must suffer jeopardy before he can suffer double jeopardy." Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975), quoted in, Ex parte McAfee, 761 S.W.2d 771, 772-73 (Tex.Crim.App.1988). A trial court's declaration of mistrial following a hung jury is not an event that terminates the original jeopardy to which a defendant is subjected. Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984). In a landmark case, the United States Supreme Court held that when jurors are unable to reach a verdict and the trial court is of the opinion that there is manifest necessity for discharging the jury and declaring a mistrial, such action is not a bar to further proceedings, and the accused is not exempt from being put to trial again. United States v. Perez, 22 U.S. [9 Wheat] 579, 6 L.Ed. 165 (1824). Thus, the trial court at appellant's second trial must have had manifest necessity to declare a mistrial 1 for jeopardy to continue and allow a third trial for the same offense.

Tex.Code Crim.Proc.Ann. art. 36.31 (Vernon 1981) provides:

After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree (emphasis ours).

Whether the trial court properly exercised its discretion is determined by the amount of time the jury deliberates considered in light of the nature of the case and the evidence presented. Patterson v. State, 598 S.W.2d 265, 268 (Tex.Crim.App.1980). Generally, the length of time the jury deliberates rests in the sound discretion of the trial court, and absent an abuse of discretion, there is no error. DeLuna v. State, 711 S.W.2d 44, 48 (Tex.Crim.App.1986). When evaluating an alleged abuse of discretion, the trial court's communications with the jurors are particularly significant. United States v. Gordy, 526 F.2d 631, 636 (5th Cir.1976).

In the case before us, the appellant has presented us with the docket sheets for the first two trials and the testimony of Mr. Ron Baroso, appellant's counsel during those proceedings. The only evidence presented to us concerning the circumstances surrounding the declaration of mistrial during the second trial is the testimony of Mr. Baroso. He testified as follows:

Defense: Do you recall particularly during the second trial the circumstances surrounding the granting of the mistrial? In other words do you recall specifically whether either Counsel made a motion for it or how much time was consumed in the process of declaring the mistrial?

Mr. Baroso: Was this during the second trial?

Defense: Yes, sir.

Mr. Baroso: No, I'm sorry, the timeframes there I can't recall that.

However, Mr. Baroso did testify that the jury in the second trial deliberated for approximately eight hours before the trial court declared a mistrial. Appellant urges us to find an abuse of the trial court's discretion on the basis of this evidence alone. The record before us does not contain a statement of facts regarding the circumstances surrounding the declaration of mistrial. Further, appellant has failed to present a record reflecting the communications between the jury and the trial court. Even if we examine the docket sheet, it merely reflects that four notes were sent to the trial court by the jury during their deliberations and that their deliberations lasted approximately eight hours. We have nothing in the record before us reflecting either the content and nature of all four jury notes or the content and nature of the trial court's responses.

We decline to hold that declaration of a mistrial following eight hours of jury deliberation ipso facto constitutes an abuse of the trial court's discretion. See Patterson, 598 S.W.2d at 268 (where declaration of mistrial after jury deliberations for four hours did not constitute an abuse of discretion).

Through this same point of error, appellant asserts that the trial court erred by failing to allow the jury in the second trial to deliberate as long as the jury in the first trial. Appellant cites Guerra v. State, 690 S.W.2d 901 (Tex.App.--San Antonio 1985 no pet.) in support of his contention. After a careful reading of Guerra, we cannot find any language that could be interpreted as imposing such a requirement on a trial court. Appellant has not cited to us any other authority in support of his position, and we decline to adopt such a mechanical rule.

Finally, through this same point of error, appellant contends that the trial court erred by failing to issue an Allen charge 2 to the second jury prior to declaring a mistrial. First, we are not convinced that an Allen charge was not given to the jury. The only evidence before us is the testimony of Mr. Baroso which follows:

Defense: And do you have a specific recollection of whether an Allen charge is given at the second trial?

Mr. Baroso: No, I don't.

It is clear that appellant would have us rely on the absence of an entry on the docket sheet to establish that an Allen charge was not presented to the jury. Assuming that the absence of an entry on the docket sheet is sufficient to show the absence of an Allen charge, we fail to see any error. Just as before, appellant has cited several cases in support of his contention, 3 and upon a careful reading, we cannot find any language in those cases which might be interpreted as imposing an affirmative duty on the trial court to issue an Allen charge prior to declaring a mistrial. The cited authority holds that there was no error by the trial court in presenting the jury with an Allen charge. We are not aware of any requirement that a trial court must present the jury with an Allen charge, and we decline to adopt such a view. The United States Supreme Court expressed the appropriate standard in Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973): "The propriety of declaring a mistrial in the varying and often unique situation arising during the course of a criminal trial is not judged by the application of any mechanical formula; rather, the trial judge exercises a broad discretion in such circumstances." Appellant's first point of error is overruled.

By point of error two, appellant asserts that jeopardy should have attached at his first trial because the State withheld exculpatory evidence from the defense. During the first trial, appellant was unaware that Mrs. Gengler had received a newspaper clipping, prior to identifying appellant at the photographic array, containing appellant's photograph and identifying him as a suspect in her husband's murder. Appellant claims that Mrs. Gengler's receipt of this news article tainted her identification of the appellant, that it had the potential of being very suggestive. Appellant further claims that disclosure of this information could have had a substantial impact upon the outcome of the first trial, that the State's action...

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  • Hernandez v. State
    • United States
    • Texas Court of Appeals
    • December 22, 1993
    ...In addition, the trial court's communications with the jurors are accorded particular significance. Woodson v. State, 777 S.W.2d 525, 527 (Tex.App.--Corpus Christi 1989, pet. ref'd), citing United States v. Gordy, 526 F.2d 631, 636 (5th This trial began at 9:00 a.m. on Wednesday, April 7, 1......
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    ...raise a recognizable presumption of vindictiveness); State v. Person, 781 S.W.2d 868, 871 (Tenn. Crim. App. 1989); Woodson v. State, 777 S.W.2d 525, 529 (Tex. Ct. App. 1989). But see Twiggs v. Superior Court, 667 P.2d 1165, 1173 (Cal. 1983)(concluding that a strong presumption of vindictive......
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    ...(Tex.Crim.App.1982). The trial court did not err in admitting appellant's oral statements made to Conner. See Woodson v. State, 777 S.W.2d 525, 531 (Tex.App.1989, pet. ref'd); Ortiz v. State, 727 S.W.2d 37, 38 (Tex.App.1987, pet. In the same point of error, appellant complains that the tria......
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11 books & journal articles
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    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 2
    • May 5, 2022
    ...the call, the contents of the statement and disclosure of knowledge of facts known peculiarly to the speaker. Wilson; Woodson v. State, 777 S.W.2d 525 (Tex.App.—Corpus Christi 1989, pet. ref’d ). EVIDENCE 16-21 Evidence §16:35 The testimony is admissible even though the sponsoring witness h......
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