Opinion
No. 08-04-00121-CR
November 17, 2005. DO NOT PUBLISH.
Appeal from the 346th District Court of El Paso County, Texas, (Tc# 20030D01043).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
This is an appeal from the trial court's order denying Appellant's pretrial writ of habeas corpus. We affirm the order of the trial court.
I. SUMMARY OF THE EVIDENCE
In Appellant's sole issue, he contends that the court committed reversible error by not granting his application for writ of habeas corpus on a special plea of double jeopardy. Appellant was charged by indictment with two counts of indecency with a child. Trial began on October 17, 2003. The trial ended in a mistrial which was granted upon Appellant's motion. On March 5, 2004, Appellant filed a writ of habeas corpus alleging double jeopardy in that prosecutorial misconduct had provoked the mistrial. A hearing was held on Appellant's motion, and the court entered a written order denying the writ on April 1, 2004. Appellant appeals the order of the trial court denying his writ. At the original trial, the complainant testified that when she was between the ages of thirteen and fourteen, Appellant, her father's brother-in-law, had kissed her intimately, touched and caressed her, and touched her breasts, buttocks, and vaginal area. Appellant testified in his own behalf, and he denied any improper conduct with the complainant or any other child. During closing argument at the guilt-innocence stage of trial, the following exchange occurred:STATE: [T]he rift started and it got worse and worse and worse. She went to the park with her dad and the defendant and his wife, she's there with three adults, three authority figures and one who is a child molester.
DEFENSE: I object to that. I object to that, Your Honor.STATE: Judge, this is closing argument. DEFENSE: I object to it. COURT: Sustained. The court then instructed the jury to disregard the comment, and the prosecutor proceeded in the following vein:
STATE: She is there with her father and she is there with the man who has touched her breasts and vaginal area. And the question —
DEFENSE: Excuse me, Mr. Anderson. Your Honor, he is assuming — he is assuming a mischaracterization and I ask him not to proceed in that fashion. What he has done is he has taken from a child molester, abuser or whatever it is to some other characterization and I object to it.
STATE: Your Honor, may I have a legal basis for the objection?
DEFENSE: Yes. It's a mischaracterization. It invades the province of this jury.
STATE: [Complainant] sat right there and said, he [sic] touched my breast and touched my vaginal area. Am I not allowed to argue from the evidence?
COURT: What's your legal — I want to see counsel in chambers.. . .
DEFENSE: Your Honor, very quickly. Now comes Kevin Munson and moves for a mistrial based upon the comments made by Mr. Anderson and his closing arguments to the ladies and gentlemen of the jury with regards to his comments about a child abuser. I object to it and move for a mistrial.COURT: State?
STATE: Judge, I did not use the phrase child abuser. I used the phrase child molester. The objection was made, it was sustained. I did not use it after that, after the sustaining of the objection in argument.
DEFENSE: And furthermore, Your Honor, whether he used the child abuser or child molester, both of those terms are absolutely objectionable and the Court sustained it. And more importantly, Your Honor, I think there was a statement that had been made by Mr. Anderson previously in the trial of this cause where he made some comment about a child molester or child abuser, referring to Kevin Munson. The Court sustained it and frankly Mr. Anderson knew better and based upon those reasons, Your Honor — and based upon those reasons we move for a mistrial.
STATE: Judge, an instruction to the jury to disregard if it was improper will cure any error.
DEFENSE: And my comments are, Your Honor, is that any type of a comment, any type of a comment like that and an admonition to the ladies and gentlemen of the jury not to consider it or to disregard it is so inflammatory, so prejudicial that any instruction by this Court cannot cure that.COURT: Anything further from the State? STATE: No, Your Honor. COURT: Motion for mistrial is granted.
II. DISCUSSION
The burden of proof is on the applicant for a writ of habeas corpus. He or she must present evidence that shows by a preponderance of the evidence that he or she is entitled to relief. Ex parte Peterson, 117 S.W.3d 804, 818 (Tex.Crim.App. 2003). In reviewing the trial court's decision, appellate courts review the facts in the light most favorable to the trial judge's ruling and should uphold it absent an abuse of discretion. Id. at 819. Reviewing courts, including this Court, should "`afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.'" Id. We also afford that same level of deference to a trial court's ruling on "`application of law to fact questions,' also known as `mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Id. But appellate courts review de novo those "`mixed questions of law and fact'" that do not depend upon credibility and demeanor. Id. Although a defendant has a valued right to have his trial completed by a particular tribunal, the double jeopardy provision does not guarantee that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. Ex parte Peterson, 117 S.W.3d at 810. Thus, double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that: (1) was justified under the manifest necessity doctrine; or (2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial. Id. at 810-11. A mistrial which the defense freely chooses does not bar retrial. Id. at 811. On the other hand, a mistrial that the defense is compelled to request because of manifestly improper prosecutorial conduct may, under certain circumstances, bar retrial. Id. The Texas double jeopardy provision bars a retrial only when the defendant is required to move for a mistrial because the prosecutor deliberately or recklessly crossed the line between legitimate adversarial gamesmanship and manifestly improper methods that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it. Id. at 816 (citing State v. Lee, 15 S.W.3d 921, 923 (Tex.Crim.App. 2000)). In analyzing a double jeopardy mistrial claim, we engage in the following three-part analysis:(1) Did manifestly improper prosecutorial misconduct provoke the mistrial?
(2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard?
(3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial?Id. at 816-18. Under the first part of the test, prosecutorial misconduct reasonably reaches only that conduct which is qualitatively more serious than simple error and connotes an intentional flouting of known rules or laws. Id. at 816 n. 55. If the prosecutor's conduct, viewed objectively, was not "manifestly improper," then the double jeopardy inquiry ends at this first stage. Id. If, for example, the law itself is unsettled or the application of the law in the particular situation is debatable, the prosecutor's conduct cannot be said to be manifestly improper. Id. Proper jury argument must fall within one of four categories; namely, (1) a summary of the evidence, (2) a reasonable deduction from the evidence, (3) an answer to opposing counsel's argument, and (4) a plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993). Even so, an improper jury argument is only reversible if it is extreme or manifestly improper, it violates a mandatory statute, or if it injects new facts that are harmful to the defendant. Id. at 95. "Name calling" can constitute a permissible argument as long as the reference is supported by the evidence. See Drew v. State, 743 S.W.2d 207, 219 n. 7 (Tex.Crim.App. 1987). Certainly, in the present case, there was evidence before the jury that Appellant had molested the complainant. However, Appellant contends that other instances of alleged prosecutorial misconduct should be considered in evaluating whether or not the prosecutor flouted known rules or laws. Specifically, Appellant contends that the prosecutor repeatedly: (a) referred to the complaining witness as a victim; (b) called Appellant a molester or child molester; (c) told the judge that "he can do all that he wants;" (d) stated the court should "follow the rules of evidence;" and (e) told the court that it was commenting on the weight of the evidence. Further, Appellant asserts that the court had to command the prosecutor to sit down, and the court commented that the prosecutor was engaging in theatrics. With regard to the last five contentions, we note that they do not amount to the flouting of any rule or law. When the prosecutor made the statement that "he can do all that he wants," the prosecutor was not referring to himself. Rather, he seems to have been stating that the Appellant could bring in impeaching statements, but then the State was entitled to come back with consistent statements. The prosecutor then stated that all he was asking was that the court follow the rules of evidence. The prosecutor objected during one of the court's rulings that the court had commented on the evidence which is clearly a permissible objection. The court told the prosecutor to "Have your seat, please" after a series of objections but there appears to be no violation of a rule or law. There is an exchange between the prosecutor and the court concerning engaging in theatrics. From the record, it is not clear what was the context of the court's comments; further, there appears to be no violation of a rule or law. Regarding Appellant's other contentions, he cites to a number of instances where the prosecutor referred to the complainant as a victim. However, this does not appear to be a reference that constitutes any error. Appellant cites no authority that utilizing the term victim constitutes error, and there is authority that the use of the term victim has been approved at the appellate level. See Villalon v. State, 791 S.W.2d 130, 134 n. 1 (Tex.Crim.App. 1990). At the least, the application of the law in this instance is debatable and the use of the term victim does not constitute manifestly improper conduct. Aside from the molestation comment during argument that precipitated the granting of the mistrial, Appellant points to other instances during the trial where the prosecutor referred to molestation. During the State's opening statement, Appellant objected that the prosecutor's comment that, "We're here today because the man seated right over here, ladies and gentleman, Mr. Munson, molested his 15-year-old niece" constituted argument during an opening statement. The court sustained the objection. Next, during the examination of the complainant, the prosecutor asked her why she did not want her mother to know about the molestation. Appellant objected that the answer to the question would invade the province of the jury. The court sustained the objection. No instruction to disregard was requested. The State points to many instances where some form of the word molest was used during the examination of various witnesses without objection or the objection was overruled. We find that in the context of the trial these references did not constitute improper conduct or a violation of a rule or law. Accordingly, we find that Appellant has not met his burden to show that the court abused its discretion in not granting his writ of habeas corpus. Appellant's sole issue on appeal is overruled. Having overruled Appellant's sole issue on review, we affirm the order of the trial court.