Opinion
No. 05-01-01093-CR.
Opinion issued February 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court Collin County, Texas, Trial Court Cause No. 219-80522-00. Reversed and Remanded.
Before Justices WHITTINGTON, WRIGHT, and MOSELEY.
OPINION ON REMAND
In a single indictment, James Michael Peterson was charged with possession with intent to deliver cocaine and possession of cocaine. Following a mistrial, Peterson filed an application for writ of habeas corpus claiming retrial was barred by double jeopardy. The trial judge granted Peterson relief as to the possession with intent to deliver charge, but denied relief as to the possession charge. Both the State and Peterson appealed. On original submissions, we affirmed the trial court's orders. The Texas Court of Criminal Appeals granted the State's petition for discretionary review, clarified the standards set out in Bauder v. State, vacated our judgment, and remanded the case for us to reconsider in light of new three-pronged analysis. The facts are well known to the parties and have been set out in both our previous opinion and the court of criminal appeals's opinion. Therefore, we will not recount them here. The issue before this Court is whether, under the analysis set out in Ex parte Peterson, 117 S.W.3d 804 (Tex.Crim.App. 2003) (per curiam), double jeopardy bars retrial of the possession with intent to deliver case. For the reasons that follow, we conclude it does not, and we reverse the trial court's order.
Ex parte Peterson, No. 05-01-01093-CR (Tex.App.-Dallas Dec 20, 2001) (not designated for publication) (State's appeal). Ex parte Peterson, 05-01-01286-CR (Tex.App.-Dallas Dec. 20, 2001, no pet.) (not designated for publication) (Peterson's appeal).
921 S.W.2d 696 (Tex.Crim.App. 1996).
Ex parte Peterson, 117 S.W.3d 804 (Tex.Crim.App. 2003) (per curiam).
Applicable Law
In reviewing a trial judge's decision to grant or deny relief on a writ of habeas corpus, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. We afford the same amount of deference to the trial judge's rulings on "application of law to fact questions," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819. If the resolution of those ultimate questions turns on an application of legal standards, we review the determination de novo. Ex parte Peterson, 117 S.W.3d at 819. In a habeas corpus proceeding, the applicant has the burden to prove by a preponderance of the evidence that retrial is barred by double jeopardy. Ex parte Peterson, 117 S.W.3d at 818. Absent a clear abuse of discretion, we accept the trial judge's decision whether to grant the relief requested in the habeas corpus application. See Ex parte Peterson, 117 S.W.3d at 819. The double jeopardy protections of the United States and Texas Constitutions are intended to protect a criminal defendant from repeated prosecutions for the same offense. See Oregon v. Kennedy, 456 U.S. 667, 671 (1982); Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996) ( Bauder I). As a part of this protection, the double jeopardy provisions afford a criminal defendant the right to have his trial completed by the jury first selected. See Kennedy, 456 U.S. at 671; Bauder I, 921 S.W.2d at 699. As a general rule, when a mistrial is declared in a criminal prosecution at the defendant's request, double jeopardy does not bar the State from retrying the defendant. See Kennedy, 456 U.S. at 673; Bauder I, 921 S.W.2d at 698. An exception exists to the general rule under both the United States and Texas constitutions if the prosecutorial misconduct that gives rise to a successful motion for mistrial was intended to provoke the defendant into moving for mistrial. See Kennedy, 456 U.S. at 679; Bauder I, 921 S.W.2d at 699. Additionally, under the Texas Constitution, retrial may be barred if the prosecutor was aware of but consciously disregarded the risk that an objectionable event for which he is responsible would require a mistrial at the defendant's request. See Bauder I, 921 S.W.2d at 699. Under Kennedy or Bauder, trial judges and appellate courts analyzing a double jeopardy mistrial claim must conduct a three-part analysis:* Did manifestly improper prosecutorial misconduct provoke the mistrial?
* Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard? And
* Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial ( Kennedy standard) or with conscious disregard for a substantial risk that the trial judge would be required to declare a mistrial ( Bauder standard)?Ex parte Peterson, 117 S.W.3d at 816-17. For double jeopardy to bar retrial, it is not enough that the prosecutor's incurably prejudicial misconduct was the result of inadvertence, sloppiness, or simple negligence. Ex parte Peterson, 117 S.W.3d at 817. Moreover, in determining whether the prosecutor acted intentionally or recklessly, the reviewing court must take into account the appropriate substantive law. See State v. Lee, 15 S.W.3d 921, 924 (Tex.Crim.App. 2000). If the prosecutor has a legitimate view of the law or facts, even if the view is ultimately incorrect, his actions cannot be considered intentional or reckless misconduct. Lee, 15 S.W.3d at 924-25. In analyzing the third prong — the prosecutor's mens rea — trial judges and appellate courts should focus primarily upon the objective facts and circumstances surrounding the events that led to the mistrial. Ex parte Peterson, 117 S.W.3d at 818. A non-exhaustive list of facts and circumstances to be considered include:
1) Was the misconduct a reaction to abort a trial that was "going badly for the State?" In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal?
2) Was the misconduct repeated despite admonitions from the trial judge?
3) Did the prosecutor provide a reasonable, "good faith" explanation for the conduct?
4) Was the conduct "clearly erroneous"?
5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety?
6) Were the prosecutor's actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional or reckless conduct?Ex parte Peterson, 117 S.W.3d at 818-19.
Analysis
The State asserts that retrial is not jeopardy-barred because the mistrial was not provoked by manifestly improper prosecutorial conduct; any error could have been cured by an instruction to disregard; and the prosecutor did not act with intent to goad Peterson into moving for mistrial or recklessly disregard the risk that a mistrial would be required. Peterson replies that double jeopardy bars retrial because the prosecutor's conduct was manifestly improper; the error was not curable by an instruction to disregard; and the prosecutor did act with intent to goad Peterson into moving for mistrial or recklessly disregarded the risk that a mistrial would be required. We first must decide whether we review de novo or afford deference to the trial judge's ruling because it involved the resolution of mixed questions of law and fact based on credibility determinations. The State asserts the de novo standard applies; Peterson contends we must afford deference to the trial judge's ruling because the resolution involved issues of credibility and demeanor. In Ex parte Peterson, the court of criminal appeals set out the law regarding the deferential and de novo standards. The court further stated:Although reviewing courts should also grant deference to "implicit factual findings" that support the trial court's ultimate ruling, they cannot do so if they are unable to determine from the record what the trial court's implied factual findings are.
In this case, the trial court did not make any explicit findings of fact, did not comment on the prosecutor's mens rea, or set out the legal basis for his grant of the defendant's double jeopardy motion. He granted it without comment or explanation.Ex parte Peterson, 117 S.W.3d 819-20. Therefore, we will review the trial judge's ruling under a de novo standard. See State v. Easton, No. 05-02-00234-CR, 2003 WL 27785206, at * 5 (Tex.App.-Dallas Nov. 25, 2003, no pet.). A. Manifestly Improper Conduct Conduct is not manifestly improper if it is the result of inadvertence, sloppiness, or even simple negligence. See Ex parte Peterson, 117 S.W.3d at 817. Rather, prosecutorial misconduct reasonably reaches only that conduct which is qualitatively more serious than simple error and connotes an intentional flouting of known rules. See Ex parte Peterson, 117 S.W.3d at 816-17 n. 55. If the prosecutor's conduct, viewed objectively, was not manifestly improper, the double jeopardy inquiry ends at its first stage. Ex parte Peterson, 117 S.W.3d at 816-17 n. 55. If the law is unsettled or application of the law in the particular situation is debatable, conduct cannot be said to be manifestly improper. See Ex parte Peterson, 117 S.W.3d at 816-17 n. 55. The State asserts that the prosecutor's conduct was not manifestly improper. Rather, the prosecutor believed she was proceeding within the scope of the discovery order, especially in light of the breadth of her opening statement. Further, the State argues, any error was the result of inadvertence or negligence, not intentional misconduct. Peterson responds that the prosecutor was an experienced prosecutor and clearly understood the difference between Spears's statements and Peterson's statements. In this case, the prosecutor was questioning Spears about her contacts and conversations with Peterson. Spears testified that she had conversations with Peterson about purchasing cocaine from Peterson. The arrest summary, from which the prosecutor was allowed to proceed, states Spears had conversations with Peterson, and that Peterson said he had three grams of cocaine in his possession. The question and answer that ultimately resulted in the mistrial, however, was not limited to Spears's general conversations with Peterson. Rather, it directly inquired about Peterson's statements regarding his ability to provide cocaine to Spears. In the context of the previous testimony, the prosecutor's question could have been the result of inadvertence, sloppiness, or negligence, rather than a deliberate flouting of the known rules. However, because the question and answer went directly to the charge of possession with intent to deliver, and Peterson's own statements, we will proceed to the next step in the analysis. B. Curability of Misconduct Even manifestly prejudicial blunders act as a trigger for a defendant's free choice mistrial request because of ordinary reversible error based on prosecutorial misconduct. See Ex parte Peterson, 117 S.W.3d at 817. It is the right of appeal, not the double jeopardy clause that protects defendants from trial error. Ex parte Peterson, 117 S.W.3d at 817. "`The double jeopardy clause serves not to punish prosecutorial misconduct; it simply ensures that the defendant, not the government, gets to choose whether to go to verdict.'" Ex parte Peterson, 117 S.W.3d at 817 (quoting Beringer v. Sheahan, 934 F.2d 110, 113 (7th Cir. 1991)). The State argues that an instruction from the trial judge could have cured any error, and nothing in this record shows the question and answer were clearly designed to inflame the jury or were of such damning character as to suggest the impossibility of removing the impression from the jurors' minds. Morever, the trial judge's explicit explanation for declaring the mistrial was to give the parties the opportunity for full discovery. Peterson responds that an instruction would not have cured the error. Peterson argues that the prosecutor's question elicited evidence directly related to the charge for which he was being tried. It would have burned into the jurors' minds that Peterson said he could get Spears an "eight ball" of cocaine, and the only evidence more powerful would have been if Peterson himself took the witness stand and made that same statement. As previously stated, there was testimony that Spears had conversations with Peterson regarding the purchase of cocaine. Spears specifically testified she was to purchase cocaine from Peterson. The arrest summary contained a general statement that Spears had conversations with Peterson, the police were conducting surveillance on his residence, and that Peterson had told Spears he had three grams of cocaine in his possession. Because the mistrial was declared so early in the proceedings, it is not clear what other evidence might have been presented regarding the possession with intent to deliver charge. In light of the record before us, we cannot say with any certainty that an instruction to disregard would not have cured the error. However, because the question and answer went directly to the charged offense, we will proceed to the third step of the analysis. C. Mens Rea of Prosecutor This third prong of the analysis is the most problematic. See Ex parte Peterson, 117 S.W.3d at 817. "Intent or recklessness is rarely clear-cut. No one is immune to mistakes or lapses in judgment." Ex parte Peterson, 117 S.W.3d at 817. During the "rough and tumble" of a jury trial, courts must expect that much rule-violating conduct is unplanned, inadvertent, or impulsive. Ex parte Peterson, 117 S.W.3d at 817-18. However, judges can distinguish between intentional and reckless misconduct and inadvertent and negligent mistakes. We will review the mens rea prong using the five factors set out by the court of criminal appeals. 1. Attempt to abort a trial that was going badly? The State argues that the trial in this case was not going badly, it had barely started, and the prosecutor was not attempting to abort the trial. Peterson responds that the trial started badly because the videotapes were not disclosed. Peterson asserts there was no way to introduce Peterson's statements regarding the delivery without the videos, and the prosecutor agreed it would be hard to obtain a conviction without the tapes. The prosecutor testified that admission of the tapes would have substantially increased the chances of conviction, and it would be difficult to obtain a guilty verdict on the possession with intent charge without the tapes. However, she wanted to proceed to trial anyway. She believed the possession with intent and possession charges were interwoven, and that she could still obtain a conviction on the possession charge. Although she agreed she benefitted from the mistrial in that the tapes would be admissible at another trial after discovery was supplemented, she was not seeking to abort the trial. Rather, the prosecutor believed her line of questioning was permissible in light of the trial judge's earlier rulings and her opening argument. Having reviewed the evidence presented, we cannot conclude the record supports a finding that the prosecutor was attempting to abort a trial that was going badly. Therefore, we conclude this factor weighs in favor of the State. 2. Repeated despite admonition? The State asserts that the prosecutor's conduct was not repeated despite admonitions from the judge. Peterson claims that in light of the discovery order, motion in limine, and the trial judge's admonition at the bench, the prosecutor did repeat the objectionable conduct after being admonished. We agree with the State. Peterson objected that a question about Spears's conversations with Peterson regarding purchase of cocaine violated the discovery order. The trial judge, however, allowed the prosecutor to continue the line of questioning as long as it was limited to the arrest summary. Peterson concedes the questions immediately preceding the one that resulted in the mistrial were not objectionable. The trial judge declared the mistrial after the first question that directly elicited a response regarding Peterson's statements. Therefore, we cannot say the prosecutor continued to ask questions that elicited responses about Peterson's statements after being admonished not to. We conclude this factor weighs in favor of the State. 3. Reasonable, good faith explanation? The State asserts that the prosecutor gave a reasonable, good faith explanation for asking the objectionable question. She believed she was within the parameters of the trial judge's rulings. Peterson argues that a prosecutor acting in good faith would have requested a continuance once the tapes were discovered and would not have attempted to get inadmissible statements into evidence through witness testimony. The prosecutor's explained that she believed she was acting within the limits of what she was permitted to do. That she may have taken other action, such as requesting a continuance, does not render her explanation unreasonable or in bad faith. Cf. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App. 1979) (that another attorney may have pursued a different course of action does not render trial counsel ineffective); Johnston v. State, 959 S.W.2d 230, 236-37 (Tex.App.-Dallas 1997, no pet.) (same). We conclude the prosecutor provided a reasonable, good faith explanation for her actions. This factor weighs in favor of the State. 4. Clearly Erroneous? In determining whether the prosecutor's conduct is clearly erroneous, we may look to substantive law. See Lee, 15 S.W.3d at 924. If the law is not well settled, the prosecutor's actions cannot be clearly erroneous. See Lee, 15 S.W.3d at 926. The State contends the prosecutor's conduct was not clearly erroneous because the judge conditionally overruled appellant's objection to the first question and the prosecutor was permitted to ask three more questions before Peterson objected. Therefore, the prosecutor believed she was acting within the confines of the trial judge's ruling. Moreover, the State argues, the trial judge clearly contemplated retrial after discovery was given. The State also contends that Peterson's remedy for the late disclosure was to request a continuance, and the failure to do so defeats his claim that a mistrial was compelled. Peterson responds that the prosecutor was permitted to question Spears within the confines of the arrest summary, which dealt with the possession, not the possession with intent to deliver, charge. Peterson did not object to those questions because they were not objectionable, and the fact that the prosecutor had earlier distinguished between Spears's statements and Peterson's statements showed she knew the difference. Further, Peterson asserts he was not required to move for a continuance because the evidence in question was not Brady evidence, it was evidence favorable to the State's case. Evidence willfully withheld from disclosure under a discovery order should be excluded from trial. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). However, the court of criminal appeals has found no prejudice by the admission of evidence where it was disclosed in time to use for cross-examination. See Jackson, 17 S.W.3d at 673. In this case, the record does not support a conclusion that the evidence was willfully withheld. Rather, it appears the prosecutor attempted to locate the videotapes, but was told they no longer existed. Only on the day of trial were the videotapes given to the prosecutor, who immediately offered Peterson's attorney the opportunity to review the videotapes. And the prosecutor voluntarily chose not to use the tapes during trial. Neither party requested a continuance to either review the tapes or supplement discovery. The record does not reflect whether the judge would have granted a continuance if presented with the information about the videotapes before testimony began. On the other hand, the objectionable question elicited as least some of the information that was contained on the videotape — that appellant could provide Spears with an "eight ball" of cocaine. Contrary to the earlier questions that elicited general information concerning Spears's conversations with Peterson about purchasing cocaine, this question and answer went directly to the heart of the possession with intent offense for which Peterson was being tried. We conclude this factor is, at best, neutral. 5. Legally or factually plausible basis for conduct? The State argues there was a legally or factually plausible basis for the prosecutor's conduct, even if it was ultimately determined to be improper. The prosecutor believed she was operating within the limits of the trial judge's ruling. She was doing her best to present a case on possession with intent to deliver cocaine with the little evidence she had left. The failure to disclose the tapes before trial was not her fault; she had attempted to obtain them, but had been told the tapes did not exist. Peterson responds that nothing in the discovery motions or any other ruling could have led the prosecutor to believe she could elicit testimony about Peterson's statements. The judge had admonished the prosecutor to limit herself to the arrest summary and the prosecutor's responses to questions shows she knew the difference between Spears's statements and Peterson's statements. Moreover, the prosecutor is not being held responsible for the officer's conduct, but for her own conduct between obtaining the videotapes and eliciting the objectionable evidence. The prosecutor testified that she believed she as acting within the limits of the trial judge's ruling. The prosecutor had put a different interpretation on the contents of the arrest summary than did the trial judge and Peterson's attorney. Although the judge and Peterson's attorney viewed the arrest summary as only referring to possession of cocaine, the prosecutor did not believe that was what she had given Peterson's counsel at that time. Moreover, the prosecutor had stated during her opening statements, without objection, that Peterson had told Spears he could get her cocaine. Reviewing the arrest summary in the context of the other testimony given regarding Spears's conversations with Peterson about the purchase of cocaine, it could be plausible that the prosecutor viewed the three grams of cocaine mentioned in the summary related to the discussions about the purchase of cocaine. Therefore, even though the prosecutor's question was ultimately improper in light of the discovery order, we conclude the prosecutor had a factually plausible basis for her actions. Therefore, we conclude this factor weighs in favor of the State. 6. Actions leading up to mistrial? The State claims the prosecutor's actions leading up to the mistrial were not intentional or reckless. Rather, the evidence shows that her conduct was consistent with inadvertence, lack of judgment, or negligence. Peterson responds that the prosecutor's actions leading up to the mistrial are consistent with intentional or reckless misconduct. Peterson asserts the prosecutor was trying to avoid an acquittal, which would have been the result on the possession with intent charge absent Peterson's statements. Therefore, the prosecutor had every reason to seek a mistrial. The prosecutor notified Peterson of the existence of the tape before the trial started. The prosecutor agreed not to use the tapes, but would proceed to trial on the basis of other evidence. The prosecutor mentioned during opening statements that Peterson said he could provide Spears with cocaine, even though Peterson's statements were not admissible at trial. The prosecutor believed during her questioning of Spears that she was working within the limits of the discovery order and the trial judge's ruling on Peterson's earlier objection. Although the prosecutor recognized the benefit of the mistrial in her ability to use the videotapes at a second trial, recognition of that benefit does not translate into a finding that the prosecutor approached the trial with a "win at any cost" attitude. We conclude the record supports a finding that the prosecutor's actions leading up to the mistrial are consistent with inadvertence, lack of judgment or negligence, rather than intentional or reckless misconduct. Therefore, this factor weighs in favor of the State.