Ex parte: Taylor, 08-01-00252-CR

Full title: Ex parte: RAYMOND TAYLOR, Applicant

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Jul 31, 2003

No. 08-01-00252-CR (Tex. App. Jul. 31, 2003)

Opinion

No. 08-01-00252-CR

July 31, 2003 (Do Not Publish)

Appeal from the 171st District Court of El Paso County, Texas (TC# 20010D02010)

Before Panel No. 2: Barajas, C.J., McClure, and Chew, JJ.

MEMORANDUM OPINION

RICHARD BARAJAS, Chief Justice

This is an appeal from the trial court's order denying Appellant's writ of habeas corpus. We affirm.

I. SUMMARY OF THE EVIDENCE

Applicant was previously convicted for three counts of attempted capital murder. In that trial, the State presented evidence that Applicant and his wife divorced in 1989. They were both named managing conservators of their two children. Applicants ex-wife, Josefina, married John Garmon and they had a son. On May 3, 1996, Applicant's children Jackie, age eleven, and Christopher, age ten, set the house of their mother and stepfather on fire. The three suffered injuries but survived the fire. During this trial, the State presented evidence in support of its theory that Applicant had utilized physical and psychological intimidation to goad the children into setting the fire. On appeal, this Court reversed the conviction based upon a then recent holding of the Court of Criminal Appeals which changed the law regarding the necessity to corroborate the accomplice witness testimony of juvenile witnesses. The Court of Criminal Appeals affirmed the holding of this Court. The retrial of the case began in April of 2001. Both Christopher Taylor and Jackie Taylor testified. Christopher, age ten at the time of the offense, testified that Applicant told him to set the fire and gave him instructions as to how to proceed. Christopher was given a watch with its alarm set at two a.m. He and his sister were to arise and pile clothes and sheets in front of each bedroom door. Christopher was shown how to cut the wires on the smoke alarm. He was to turn on the gas on the stove and the fireplace. He was to start the fire with a lighter provided by Applicant. Applicant told Christopher to leave the garage open one foot and they were to escape through that opening. The child failed to start the fire on the first two occasions demanded by Applicant. Applicant went to his garage with Christopher and spanked him with his pants down. He then read Bible verses to the child. On the date of the fire, Jackie woke up Christopher. He cut the wires on the smoke detector. They both piled up clothes and sheets in front of the doors of each bedroom and closed the doors so the Garmons and their son would not awake. They started a fire in front of the Garmons bedroom door and fled through the garage door. Christopher testified that he knew that the occupants might not be able to escape and they could be killed. He stated that he set the fire because he was told to do so by Applicant and he feared another spanking by Applicant if he did not comply with his wishes. Jackie Taylor testified that she was eleven-years-old at the time of the offense. She testified that she and her brother set the fire because they were told to do so by Applicant because he wanted the fire to kill his ex-wife. He gave Jackie a lighter and a watch with the alarm set for 2:40 a.m. She was instructed that when the alarm went off, she was to wake Christopher and he would cut the wires on the smoke detector. They were to pile clothes in front of the bedroom doors, close them, and turn on the gas. Jackie testified that Applicant threatened them with severe spankings if they did not set the fire. The alarm went off and Jackie woke up Christopher. They piled up clothes in front of the bedroom doors and closed the doors. Jackie gave Christopher the lighter and he lit three fires. She had raised up the garage door previously and they left by going under the garage door. Upon cross-examination, Jackie testified concerning a confrontation she had with her father after the fire. He wanted to know why she had lied to a psychologist, Dr. Gold, that he was involved with the fire. During the course of the trial, the State, outside the presence of the jury, proposed to offer the testimony of Dr. Karen Gold concerning Christopher's statements to her when she informed him that Applicant had been arrested. A hearing was held and Dr. Gold stated that she had performed evaluations of the children during the summer of 1996. Christopher had related to Dr. Gold why he had set the fire. During one session, she told Christopher that his father had been arrested. His version of the events then changed. The following exchange then occurred:

STATE: How did [Christopher] react when he was told that?

WITNESS: He became very upset. There was an initial shock. And then his demeanor changed and his physical behavior changed. He hurled himself at me physically.

STATE: And was he — obviously, he was upset, crying?

WITNESS: Yes.

STATE: What else?

WITNESS: He immediately opened up and started disclosing information to me that, up to that point, he had not said anything about.

STATE: Okay. Did he give you a version of the fire, of why he set the fire after you told-after he was told that his father was put in jail?

WITNESS: Yes.

STATE: Was that different from the version that he was giving before he was-before he was told about his father's incarceration?

WITNESS: Yes.

In response to the prosecutor's question about what Christopher told her about the fire after she told him about his father's incarceration, Dr. Gold responded:

WITNESS: The first thing that he did was ask me a question, which was, `Does that mean I don't have to keep the secret anymore?' And I asked him, `What secret?' And he proceeded to tell me that it was his-under his father's instructions that he had set the fire, which he had denied prior to that triggering event.

Over the course of the hearing, the prosecutor proposed that the child's statement was admissible under the excited utterance exception to the hearsay rule. Initially, the court held that the testimony was not admissible. However, after the weekend recess, the court announced that Dr. Gold's testimony would be allowed as an excited utterance. She testified before the jury that the Child Protective Services case worker for Christopher asked that Gold reveal to him that his father had been arrested. She related Christopher's reaction during the following exchange:

STATE: And what did you tell Christopher Taylor in regards to his father?

WITNESS: The relevant discussion began with my saying to him: Chris, I have something to tell you because we don't want you to find out from TV or somebody else.

STATE: And did Christopher ever have a response to that?

WITNESS: Yes. I saw a startled reaction, and he said, `What's happened?'

STATE: And what did you tell Christopher at that point?

WITNESS: I said, `Well, Chris, our daddy is in jail.'

STATE: How did he — what was his physical reaction to that?

WITNESS: Well, he gasped. His eyes got really big. He began crying and shaking, and, for the first time in our relationship, he made physical contact with me. He literally hurled himself at me, threw himself into my arms and wanted me to hold him. At least that's what I gathered from him throwing himself into my arms.

STATE: How was this — how was this compared to your earlier interactions with Christopher?

WITNESS: This was a very, very emotional display compared to anything else that I had seen from Christopher up to that point.

STATE: How long did this display take place?

WITNESS: He calmed down just a little bit. He regained some composure, and we were able to have some dialogue. We were together for about 35 minutes.

STATE: Okay, what was the next thing that was said?

WITNESS: Okay. He asked, `For how long?' And my answer was, `I don't know.' And then he said, `Why?' And then I responded, `The police think that they have figured things out and they think your dad might have taught you and Jackie what to do to get a fire to start.' And shall I go on?

STATE: What was his response to that?

WITNESS: He said, `But I tried so hard to keep it a secret. I tried for a whole month, but Jackie couldn't keep it inside anymore and she told, but I didn't tell. She told.'

STATE: Had Jackie already discussed the Defendant's involvement by this point?

WITNESS: I believe she had, yes. I asked him, `Told what?' And he responded, `That my dad told us what to do.' I said, `What do you mean?' I asked him. And he said. `My dad showed us and told us what to do.'

Applicant then objected that this was not the excited utterance that was outlined in the voir dire hearing. Outside the presence of the jury, the court expressed concern that the conversation lasted as long as four minutes. The prosecutor stated that the excited utterance exception was met in that the child was still under the excitement of the event which caused the excitement. The State was allowed to develop more testimony from Dr. Gold. She stated that the exchange that she testified to before the jury lasted at most thirty seconds. She stated that during this time, the child was crying, sobbing, shaking, clutching her and squeezing her around the shoulders and neck. He was hysterical and there were no gaps in time. Dr. Gold also testified that Christopher also went on to say that he tried to keep his father's involvement a secret as opposed to his sister. He was highly emotional during this discourse and it was of short duration. Christopher expressed feelings of guilt regarding his father's incarceration. After the child calmed down, they then went on to discuss other matters during the remainder of the session. Gold stated that the interlude when these statements were made lasted not more than two minutes and occurred in a rapid-fire manner. The court expressed concern that there was conflicting testimony regarding the issue of whether Christopher had calmed down while giving the statements and the statements were given during a dialogue instead of blurted-out statements. Applicant requested a mistrial maintaining that an instruction to disregard would be ineffectual. The court granted the motion for mistrial. Applicant filed a writ of habeas corpus alleging a double jeopardy violation. On June 15, 2001, a hearing was held on Applicant's writ of habeas corpus before the same judge that presided during the second trial. Applicant called William Ellis, Dr. Gold's counsel, to testify. Based upon Dr. Gold's initial voir dire testimony concerning Christopher's statements, he became aware that Dr. Gold's interview notes of her conversations with the child were different from her testimony. He mentioned this divergence to the prosecutor and he thought that he told the prosecutors that they should inform the court. Ellis intended to inform the court but he did not advise the court because he was in another hearing when Dr. Gold testified before the jury. The State called John Gibson, one of the prosecutors at trial, to the stand. Gibson testified that before Dr. Gold's testimony before the jury, Ellis spoke with him and told him that Dr. Gold had reviewed her notes and there were differences with regard to her testimony during the voir dire examination. Gibson testified that he spoke with Gold and determined that there were two minor variances concerning phrasing. He stated that he made sure that in spite of these variances, that Christopher was in the stress of the event when he made his statements. Gibson testified that he did not want a mistrial and that he had not intentionally or recklessly caused the mistrial. He stated that he had given much thought to the question of the excited utterances and he felt that the testimony was admissible. Gibson stated that he remembered the conversation with Ellis that the testimony might be different but he did not recall that Ellis advised him to inform the trial judge. Lori Swopes, the other prosecutor in the case, was then called to the stand. Swopes remembered Ellis approaching her and expressing concern about Gold's testimony. She stated that she spoke to Dr. Gold prior to her testimony before the jury. Swopes testified that she noticed a phrase in Gold's notes that Christopher had regained some composure and began talking. Dr. Gold responded that he regained enough composure to talk but he was still very excited and very emotional. Based upon her conversations with Dr. Gold, she felt that Gold's testimony would be within the parameters of the court's ruling. She stated that she did not desire a mistrial and she did not feel that she acted intentionally or recklessly in bringing about a mistrial. The court overruled Applicant's request for habeas corpus relief.

II. DISCUSSION

In three issues, Applicant asserts that the court erred in denying Applicant habeas corpus relief because the prosecutors consciously disregarded a substantial and unjustifiable risk that a mistrial would be granted on motion of Applicant during the trial.¹ When conducting an appellate review, an appellate court must determine the amount of deference given to the ruling at issue. Appellate courts either give almost total deference to trial court rulings, or review the rulings de novo, dependant on the basis of the decision being challenged. Where, as here a reporter's record of the hearing on the application for writ of habeas corpus is presented, almost total deference is given to the (1) trial court's determinations of historical facts with support in the record, (2) fact determinations which involve an evaluation of credibility or demeanor, and (3) rulings on those questions involving application of law to fact (also known as mixed questions of law and fact) if the resolution of those ultimate questions depends upon an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (en banc); Hill v. State, 79 S.W.3d 682, 686 (Tex.App.-Amarillo 2002, pet. ref'd). This level of appellate deference is referred to as a review for abuse of discretion. Guzman, 955 S.W.2d at 89; Hill, 79 S.W.3d at 686. Mixed questions of law and fact not falling within the foregoing categories may be reviewed de novo by the appellate court. Guzman, 955 S.W.2d at 89; Hill, 79 S.W.3d at 686. De novo review does not embody the abuse of discretion standard of review. Guzman, 955 S.W.2d at 89; Hill, 79 S.W.3d at 686. Even when the reviewing court is conducting a de novo review, however, an appellate court gives appropriate deference (abuse of discretion) to the trial court's findings on subsidiary factual questions. Guzman, 955 S.W.2d at 89; Hill, 79 S.W.3d at 686. The long-established general rule in Texas is that a mistrial granted at the defendant's request poses no double jeopardy limitation upon a re-trial of the defendant. See Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996) ( Bauder I). Thus, "ordinarily, when a defendant obtains a mistrial at his own request, a second trial is not jeopardy barred because the defendant's motion for mistrial is considered `a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact.'" Id. However, the Court of Criminal Appeals has recognized an exception to this general rule, holding that a subsequent prosecution will be jeopardy barred after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request. Id. at 699. This rule is invoked only where the mistrial is unavoidable, a very unusual circumstance given the presumption that curative instructions are effective in removing questionable argument and evidence from the consideration of the jury. Id. at 699-700. The Court of Criminal Appeals has recently further clarified this standard, noting that two critical questions must be answered: on the one hand, whether the Appellant's motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed "the line between legitimate adversarial gamesmanship and manifestly improper methods" . . . that rendered trial before a jury unfair to such a degree that no judicial admonishment could have cured it? See State v. Lee, 15 S.W.3d 921, 923 (Tex.Crim.App. 2000) (quoting Ex parte Bauder, 974 S.W.2d 729, 732 (Tex.Crim.App. 1998) ( Bauder II)). This standard imports a mens rea requirement into the double jeopardy context. When the prosecutor's conduct is either intentional or reckless as described above, subsequent prosecutions are barred by the double jeopardy protection. Bauder, 921 S.W.2d at 699. Thus, in order for a prosecutor's offer of evidence to be viewed as an intentional or reckless act within this context, he must have either (1) "believe[d the evidence would] materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury [;]" or (2) been "aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request" or have been aware but consciously disregarded the risk that a mistrial would be "reasonably certain" to occur as a result of his conduct. Lee, 15 S.W.3d at 925. In determining whether the prosecutor acted intentionally or recklessly, the reviewing court must take into account the appropriate substantive law. Id. at 924. We first address the question if a mistrial was unnecessary due to the fact an instruction to disregard would have cured any error that occurred. Improper evidentiary rulings are generally cured by an instruction to disregard. Lee, 15 S.W.3d at 926 n. 8. In this instance there was abundant testimony before the jury from the two children that Applicant had manipulated the children into setting the fire. Further, the general subject of the children relating Appellant's involvement to Dr. Gold was brought out by Applicant during the cross-examination of Jackie Taylor. The improper admission of hearsay testimony can be rendered harmless when an instruction to disregard is administered and other similar evidence is properly before the factfinder. See Brockway v. State, 853 S.W.2d 174, 177-78 (Tex.App.-Corpus Christi 1993, pet. ref'd). In this case, we find that an instruction to disregard would have cured any error. This has the effect of producing "ordinary reversible error," which does not bar retrial. See Bauder v. State, 974 S.W.2d 729, 732 (Tex.Crim.App. 1998). Further, the reviewing court must take into account the appropriate substantive law in assessing the prosecutor's mental state. Lee, 15 S.W.3d at 924. The appellate court in reviewing claims of this nature, must examine the prosecutor's intent from the evidence at the hearings and compare that with the substantive law. If the evidence that was the subject of the mistrial is not clearly erroneous under substantive law, then there is neither intent nor reckless disregard that a mistrial was reasonably certain to occur. Id. at 924-26. In Salazar v. State, 38 S.W.3d 141 (Tex.Crim.App. 2001), the Court of Criminal Appeals held that an excited utterance may be made in response to a question or it may be separated in time from the startling event as long as the declarant is still dominated by the emotions, excitement, fear, or pain of the event at the time of the statement. Id. at 154. In this case, the testimony revealed that the startling event, telling Christopher that his father had been arrested, caused the child to hold on to Dr. Gold and begin sobbing. While he calmed down enough to answer several short questions, there was only a two minute period when the child related Applicant's culpability, and, during this time he was crying and clutching Dr. Gold. We find that the prosecutor's decision to go on with Dr. Gold's testimony before the jury was not clearly erroneous and retrial is not barred. We overruled issues one through three. Having overruled each of Applicant's issues on review, we affirm the order of the trial court.