Summary
holding trial court properly denied special plea of double jeopardy where witness testified to inadmissible extraneous offense in response to open ended question which was not intended to elicit testimony regarding extraneous offense
Summary of this case from Lara v. StateOpinion
No. 05-06-01258-CR
Opinion Filed June 17, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F06-00821-PL.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
After Michael Wayne Taylor's first trial ended in a mistrial, a jury convicted him of murder. Thereafter, the trial court assessed punishment at 30 years' confinement. In three issues, appellant contends we must reverse his conviction because (1) the trial court submitted an erroneous jury charge; (2) his second trial was barred by double jeopardy; and (3) certain jury argument was improper. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court submitted an erroneous jury charge. Specifically, appellant claims the charge contained a lesser-included offense instruction on criminally negligent homicide rather than manslaughter. We agree with appellant that the jury charge in the clerk's record contains a lesser-included offense instruction on criminally negligent homicide and does not contain an instruction regarding reckless manslaughter. However, the jury charge is not file stamped and is marked as a copy and the supplemental clerk's record contains a notation that "there is no jury charge in the file." At the charge conference, the discussion indicates the trial court instructed the jury on both criminally negligent homicide and reckless manslaughter. Appellant did not object to either of the lesser-included instructions. The State objected to the negligent homicide instruction, and the trial court overruled the objection. Neither party objected after the charge was read to the jury. And, both the State and the defense referred to both lesser-included instructions during closing argument. After reviewing the record, we conclude the copy of the jury charge does not accurately reflect the charge that was given to the jury and that appellant's argument that the trial court failed to submit an instruction on the lesser-included offense of reckless manslaughter lacks merit. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred by overruling his special plea of double jeopardy. According to appellant, because the State's actions at his first trial constituted egregious misconduct, his second trial was barred. After reviewing the record, we disagree. The prohibition against double jeopardy is found in the Fifth Amendment to the United States Constitution and is intended to protect a criminal defendant from repeated prosecutions for the same offense. See Oregon v. Kennedy, 456 U.S. 667, 671 (1982). A similar provision is found in the Texas Constitution. See Tex. Const. art. I, § 14. Conceptually, the State and Federal double jeopardy provisions are identical. Stephens v. State, 806 S.W.2d 812, 815 (Tex.Crim.App. 1990). As a part of this protection, the double jeopardy provision affords a criminal defendant the right to have his trial completed by the jury first selected. Kennedy, 456 U.S. at 671. However, when the trial court declares a mistrial in a criminal prosecution at the defendant's request, the State is generally not barred from retrying the defendant. See Kennedy, 456 U.S. at 675. A narrow exception to this general rule exists when the State's conduct was intended to "goad the defendant into moving for a mistrial." See Kennedy at 675; Ex parte Lewis, 219 S.W.3d 335, 374 (Tex.Crim.App. 2007). Here, the record shows that prior to appellant's first trial, the parties agreed a hearing would be held outside the presence of the jury before introducing evidence of appellant's extraneous offenses or bad acts. Nevertheless, during the State's opening argument the prosecutor referred to one of the witnesses asking appellant (Mike) for some crack cocaine. After appellant objected, the trial court sustained the objection and instructed the jury to disregard. Thereafter, the State called Kevin Pendergrass to testify. Following a hearing outside the presence of the jury, the trial court instructed the State not to "insinuat[e] that the [drug] transaction was with [appellant], because there was no transaction. He's standing there. I think the evidence about the crack being there and the girl is fine. But I don't want you getting into him as being the seller. You can get into the fact there was crack cocaine at the location, but that's about it." The jury returned to the courtroom and the State began its direct examination of Pendergrass. In response to the State's question, "Okay. Who is Mike?", Pendergrass answered, "Mike, to me — you know, I used to, like I say, know that he would sell drugs." Appellant objected, and asked the jury be instructed to disregard. After the jury was so instructed, appellant requested a mistrial. The trial court granted the motion for mistrial and then told the prosecutor, "I'm not faulting you. The question was an open ended question." The trial court also stated it "absolutely [did] not" feel there was any misconduct by the State. At a subsequent hearing on appellant's motion to dismiss with prejudice, the prosecutor testified he inadvertently made the statement about a witness asking appellant for cocaine. With respect to Pendergrass's statement about knowing appellant as a drug dealer, the prosecutor explained he was attempting to show Pendergrass knew appellant and could make an in-court identification of him. The prosecutor denied any intention of eliciting extraneous offense evidence and denied any attempt to goad appellant into seeking a mistrial. The prosecutor also explained it was not to the State's benefit to seek a mistrial because the witnesses, including Pendergrass who came from North Carolina to testify, were present and prepared to testify. Because the record does not show the prosecutor intended to "goad" appellant into seeking a mistrial, we conclude the trial court properly denied appellant's special plea of double jeopardy. See Kennedy, 456 U.S. at 675. We overrule appellant's second issue. In his third issue, appellant contends we must reverse his conviction because the State's closing argument was improper. In particular, appellant argues the State impermissibly struck at him over the shoulders of counsel by pointing out to the jury that defense counsel failed to argue that appellant had not committed the offense. At trial, however, appellant objected to the complained-of argument because "I can't testify as to what I believe. If they want me to say what I believe happened and didn't happen, I will be happy to." Because appellant's complaint on appeal does not comport with his trial objection, appellant has failed to preserve error for our review. See Tex. R. App. P. 33.1(a)(1)(A); Gallo v. State, 239 S.W.3d 757, 768 (Tex.Crim.App. 2007), cert. denied, 2008 WL 558019 (June 2, 2008). We overrule appellant's third issue. Accordingly, we affirm the trial court's judgment.