Opinion
No. 04-17-00721-CR
04-11-2018
EX PARTE Brandon Stanley GRIGG
MEMORANDUM OPINION
From the County Court at Law No. 14, Bexar County, Texas
Trial Court No. 497283
Honorable Karen Crouch, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Luz Elena D. Chapa, Justice AFFIRMED
Brandon Stanley Grigg appeals an order denying his application for pre-trial writ of habeas corpus. On appeal, Grigg argues he is being prosecuted in violation of the Double Jeopardy Clause after his first trial resulted in mistrial due to the bailiff's improper conduct. We affirm the trial court's order.
Grigg also raises a conditional issue regarding findings of fact and conclusions of law only "if this Court deems findings necessary." We abated this appeal and remanded to the trial court to make findings of fact and conclusions of law, which have been filed in this court.
BACKGROUND
Grigg was charged with driving while intoxicated. The case proceeded to trial, and a jury was empaneled and sworn. After a lunch break, Grigg and Deputy Rudy Weresch, the bailiff, were alone in the courtroom. According to Grigg, Deputy Weresch told Grigg he had reviewed the evidence in the case and said, "Well, if you've got two boys you need to think about your boys, because you're definitely going to jail and you should have taken the plea."
The trial court held a hearing in chambers, where Grigg's trial counsel raised a complaint about the bailiff's conduct. Trial counsel contended any plea Grigg might take would be involuntary. The State responded "there's a remedy issue . . . there really is none." Trial counsel responded:
As far as remedy, I think there are some remedies. I don't think they're obvious. I don't think they're necessarily easy, but I think they exist.The State initially opposed the "drastic measures" of granting a mistrial because it was "not necessary" and "would waste the time that we've already put into this, day two." The State insisted that before a mistrial was granted, the trial court should have an in-camera hearing and have Grigg and Deputy Weresch testify. Grigg testified, but Deputy Weresch did not.
I think the first remedy we would propose at this point is a mistrial. I don't know what the Court's opinion of that is, but I agree with Mr. Sandoval that it's really not the State's issue, in that there was no State action here, other than the court official. However, I disagree very much that the court's officer is not in a sufficient position of authority. That his actions could render these proceedings unfair or even taint them with the appearance of unfairness.
The trial court asked the parties whether jeopardy would "attach" if a mistrial were declared. When the parties gave conflicting answers and noted they had no authority, the trial court gave the parties a ten-minute break to research the issue. After the break, the parties stated there was no case law on point, but the State asserted there "seem[s] to be a split on the issue of manifest necessity. Grant the mistrial, whether or not that would definitively or not bar a retrial." The trial court declared a mistrial and ordered the parties to get a new trial date.
Grigg filed an application for writ of habeas corpus, alleging he was "unlawfully restrained of liberty" by the Sheriff of Bexar County. The trial court held a hearing, at which Deputy Weresch testified. The trial court also admitted the transcript from the in-chambers hearing. The trial court took the case under advisement, and subsequently signed an order denying Grigg's request for habeas relief.
Grigg produced another witness to impeach Deputy Weresch's testimony about a prior incident of misconduct.
DISCUSSION
Grigg argues he did not consent to the mistrial, and it was the State that urged the mistrial. He argues, alternatively, that the bailiff's misconduct was intended to goad him into declaring a mistrial.
A. Standard of Review
In reviewing a trial court's denial of a pretrial petition for habeas corpus, we must defer to the trial court's assessment of the facts. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). We view the record in a light most favorable to the trial court's ruling and will uphold the ruling absent an abuse of discretion. Id. Broad deference is appropriate because the trial judge is in the best position to assess the relevant considerations. Arizona v. Washington, 434 U.S. 497, 513-14, (1978). We therefore afford almost total deference to the trial court's determination of historical facts that are supported by the record, and to mixed questions of law and fact, when the resolution of those questions turn on evaluations of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). If the resolution of the ultimate question turns on an application of the law, we review the determination de novo. Id. We must also grant deference to the fact findings that support the trial court's ultimate ruling. Id.; Wheeler, 203 S.W.3d at 324 n.23.
B. Double Jeopardy
A defendant may not be twice put in jeopardy for the same offense. U.S. CONST. amend. V; TEX. CONST. art. 1, § 14; Washington, 434 U.S. at 503. Jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35 (1978); Ex parte Perusquia, 336 S.W.3d 270, 275 (Tex. App.—San Antonio 2010, pet. ref'd). "When a defendant requests a mistrial, the defendant has elected to terminate the proceedings against him and the double-jeopardy clause generally does not bar retrial." State v. Yetman, 516 S.W.3d 33, 36 (Tex. App.—Houston [14th Dist.] 2016, no pet.). But, even where a defendant moves for mistrial, a retrial may be barred when the prosecutorial misconduct was intended to goad the defendant into requesting the mistrial. Id.
C. Analysis
Grigg contends he did not request a mistrial, the State did. In its findings of fact and conclusions of law, the trial court found the defense, and not the State, requested the mistrial. The record shows Grigg raised the complaint regarding Deputy Weresch's alleged misconduct. Grigg's trial counsel stated, "I think the first remedy we would propose at this point is a mistrial." The State initially disagreed and protested a mistrial throughout the in-chambers conference. At the end of the conference, the State acquiesced to granting a mistrial. The record supports the trial court's finding that Grigg requested the mistrial. See Peterson, 117 S.W.3d at 819; Yetman, 516 S.W.3d at 36.
Grigg further contends Deputy Weresch's conduct was intended to goad him into requesting a mistrial. The trial court found no evidence the defense was goaded into requesting the mistrial. The record supports the trial court's finding because Deputy Weresch's purported statements were facially an attempt to have Grigg accept a plea deal, not to persuade Grigg to move for a mistrial for the purpose of avoiding a Double Jeopardy-bar to a retrial. As reflected by counsels' remarks during the in-chambers conference, it was not clear a mistrial would be an appropriate remedy for such alleged misconduct by a bailiff. The record supports the trial court's finding that Grigg was not goaded into requesting a mistrial. See Peterson, 117 S.W.3d at 819; Yetman, 516 S.W.3d at 36.
CONCLUSION
We affirm the trial court's order denying Grigg's application for habeas corpus.
Luz Elena D. Chapa, Justice DO NOT PUBLISH