Anderson v. State

635 S.W.2d 722, 1982 Tex. Crim. App. LEXIS 987

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeals are taken from convictions for aggravated robbery.¹ Following pleas of guilty, the court assessed Anderson’s punishment at 25 years and Hunnicutt’s punishment at 20 years.

Both appellants raise the same single ground of error. They maintain that the trial court erred in overruling their special pleas of double jeopardy. Appellants contend that the instant prosecutions were barred because the first trial of these causes ended in mistrials due to prosecutorial overreaching.

The record reflects that appellants originally entered pleas of not guilty and a jury was picked on March 19, 1979. The jury was ordered to return for trial to commence the following day. The following morning, it was called to the attention of the court that one of the jurors, Leon Sampson, had a severe hearing problem which would impair his ability to serve as a juror. The State and appellants then agreed to the substitution of Cornelia Green for Sampson. This substitution never took place because the appellants refused to sign a document styled “WAIVER OF RIGHT TO MISTRIAL, MOTION FOR NEW TRIAL AND APPELLATE RIGHT TO CLAIM DOUBLE JEOPARDY ON GROUNDS OF JUROR SUBSTITUTION,” which had been prepared by one of the prosecutors. In explaining why he felt that the appellants needed to sign the document, one of the prosecutors stated:

“MR. RUSSELL: Judge, the problem is, if we go forward and hear the case without the previously sworn juror, I can envision a problem of jeopardy already. We know jeopardy has attached. There hasn’t been any prejudice unless the twelfth substituted juror hears evidence instead of Mr. Sampson.

“If they won’t waive their right to jeopardy, we can have three felonies blown out of the tub. I think we ought to go forward with Leon Sampson because I know damned well they are going to aseert (sic) it on appeal.”

The court then questioned Sampson and learned that he was deaf in one ear and had only 30% hearing in the other ear. Sampson stated that he did not feel qualified to sit on the jury. The court then excused Sampson and proceeded to trial with eleven jurors.²

The first witness called by the State was the complainant, Oliver Anderson. The witness stated that on the evening of November 25, 1978, he was driving his car in Dallas. Anderson stopped the car at a red light and was approached by a woman who was standing on a street corner. Anderson testified that the next thing he knew, a knife had been placed at his throat.

The prosecutor then asked Anderson the following questions:

“Q. Mr. Anderson, are you scared and nervous of being here in the courtroom today?

“A. Yes, I am nervous.

“Q. In fact, did your wife receive a threatening phone call?”

After these questions were asked, the appellants made motions for a mistrial. Those motions were granted.

Prior to trial in the instant causes, the appellants filed special pleas of double jeopardy. They alleged that in fear of reversible error with regard to proceeding to trial with eleven jurors, the State had intentionally sought to have a mistrial declared in the first trial. It was therefore maintained that the first trial ended in a mistrial due to prosecutorial overreaching and that any subsequent prosecution was barred by jeopardy.

The court held a hearing on appellants’ jeopardy motions. At the conclusion of that hearing, the motions were overruled and the court impliedly found that the asking of the question forming the basis of the mistrials constituted nothing more than prosecutorial error.

Rick Russell, Assistant District Attorney of Dallas County, testified that he was the lead prosecutor in the instant prosecutions. Russell stated that he was to handle the picking of the jury and final arguments in these cases. Assistant District Attorney John Hubble was assigned the duty of examining the witnesses in the cases. Russell stated that he and Hubble had discussed asking the complainant about the threats which his wife had received. In this regard, Russell stated as follows:

“Q. Now, did you tell him prior to that to ask that question?

“A. I did.

“Q. Did you tell him prior to that to ask that question in hopes that the Court would grant a mistrial?

“A. No, I thought the question was asked in good faith and I am still not certain of the law on it, although my understanding now is you must be able to connect the threat directly to the defendant. That was not my understanding prior to that. I had never had that situation come up before and if I had it to do over again, I suppose I would not do it.

“But the point is, it wasn’t done intentionally, as your motion alleges, and I can assert that without qualification.”

In describing his actions following the mistrials, Russell testified:

“A. I did apologize to the Court for the necessity of a declaration of a mistrial and stated that I instructed Mr. Hubble to ask the question. I also stated that I did not do it in bad faith and that I wasn’t seeking an intentional mistrial. I think Judge Ryan will recall my apology to the Court for having caused the waste of time and the inconvenience. I didn’t go back there and say, ‘Oh, boy, we have got three mistrials. I am glad we did it right.’ ”

Prosecutor Hubble testified that in his opinion, the trial court had not erred in deciding to proceed to trial with eleven jurors. With regard to both the propriety of and the actual asking of the question forming the basis of the mistrial, Hubble testified:

“Q. ...

“When had Mr. Russell suggested to you that question be asked?

“A. Well, we had discussed it due to Mr. Anderson’s nervousness and his being very upset, that we felt that the question was a proper question to explain his nervousness and why he was upset and shakey in his voice, that he received a phone call prior to this trial, (sic)

“Q. All right. Did you and Mr. Russell discuss, in connection with the asking of that question, the possibility of an objection being made to that question?

“A. Well, no. We knew that the defense attorneys would not like the question and would obviously object.

“Q. Did you also know that?

“A. As far as an improper question, we didn’t feel it was improper.

“Q. But you did feel like an objection would be made?

“A. Well, I feel that a lot of questions I ask witnesses, counsel is going to object.”

In Chvojka v. State, 582 S.W.2d 828 (Tex.Cr.App.), the defendant contended that his second trial was barred by jeopardy. The defendant’s first trial had ended following his motion for a mistrial. In stating the law applicable to such a situation, this Court held:

“Different considerations obtain, however, when the mistrial has been declared at the defendant’s request. Where the circumstances which occasion a mistrial are not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial ordinarily is assumed to remove any barrier to reprose-cution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. United States v. Dinitz, [424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) ]; United States v, Jorn, [400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ]; United States v. Crouch, 566 F.2d 1311 (5th Cir. 1978); United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976); United States v. Beasley, 479 F.2d 1124 (5th Cir. 1973). Prosecutorial overreaching will be found where the government, through ‘gross negligence or intentional misconduct,’ caused aggravated circumstances to develop which ‘seriously prejudice[d] a defendant,’ causing him to ‘reasonably conclude that a continuation of the tainted proceedings would result in a conviction, United States v. Dinitz, supra, 424 U.S. at 608, 96 S.Ct. at 1080.” Chvojka v. State, supra at 830 and 831.

In Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977), the applicant sought a stay of a second trial in state court. The stay was denied after it was noted that the state court had found that the prosecutorial error which formed the basis of the mistrial in the applicant’s first trial was not the type of error which was committed for purposes of forcing the applicant to move for a mistrial. The Court went on to state:

“Any order granting a mistrial at the behest of a defendant in a criminal case is typically based upon error or misconduct on the part of other counsel or the court. In order to elevate such a typical order into one which could form the basis for a claim of double jeopardy, it must be shown not only that there was error, which is a common predicate to all such orders but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for a mistrial." (Emphasis added).

In United States v. Davis, 589 F.2d 904 (5th Cir. 1979), the trial court found that the prosecutorial error which resulted in a mistrial was the result of inadvertence rather than bad faith. On appeal, the defendant’s jeopardy claim was rejected after the Court noted that the trial court’s finding would not be set aside unless it was shown to be clearly erroneous. Likewise, in United States v. Crouch, 566 F.2d 1311 (5th Cir.1978), the defendant complained of the trial court’s finding that his first trial ended as a result of prosecutorial error rather than prosecutorial misconduct. The Court rejected the defendant’s contention after noting that: “Our review of this finding is limited by the provision of Fed.R.Civ.P. 52(a) which provides that ‘findings of fact shall not be set aside unless clearly erroneous.’ ” United States v. Crouch, supra at 1318 (Emphasis added).

In Moroyoqui v. United States, 570 F.2d 862 (9th Cir. 1977), the defendant’s first trial ended in a mistrial due to improper questioning of a government witness by the prosecutor. Prior to the commencement of his second trial, the trial court held a hearing on the defendant’s motion alleging that reprosecution was barred due to prosecuto-rial overreaching in his first trial. The motion was overruled after the trial court heard evidence from the prosecutor and various witnesses. On appeal, it was noted that the trial court was in the best position to weigh the testimony of the witnesses and evaluate their credibility. It was held that the trial court’s order denying the defendant’s motion would not be overturned unless it was clearly erroneous.

In United States v. Nelson, 582 F.2d 1246 (10th Cir. 1978) the defendant was tried for possession with intent to distribute cocaine. A mistrial was declared on the defendant’s motion after a government witness on direct examination referred to the defendant as a “major trafficker.” The defendants plea of jeopardy was rejected by the trial court. The prosecutor stated that he knew in advance what the witness’ characterization of the defendant would be; but, that in his opinion such testimony was supported by the evidence at trial. No error was found in the trial court concluding that the first trial ended as a result of mere prosecu-torial error not intended to force the defendant to move for a mistrial.

Finally, in Bell v. State, 286 Md. 193, 406 A.2d 909 (1979), the defendant was convicted of having hired Ralph Mason to kill her husband. Mason was apprehended and agreed to testify against the defendant. At trial, Mason testified that the defendant’s attorneys had threatened his life and the lives of members of his family if he did not refuse to testify and that he had been offered $5,000.00 to remain silent. After this testimony was given, the defendant’s motion for mistrial was granted. Although it was later shown that the prosecutor knew of the allegations Mason would make against the defendant’s attorneys, the defendant’s jeopardy motion was overruled. The trial court found that the first trial had ended as a result of prosecutorial error and that the prosecutor had not deliberately sought a mistrial. On appeal, the Court refused to set aside the trial court’s factual conclusions concerning the mistrial which were found not to be clearly erroneous. Bell v. State, supra 406 A.2d at 916.

We have previously held that the burden is on the defendant to go forth at his second trial with evidence in support of his allegation of former jeopardy. Wockenfuss v. State, 521 S.W.2d 630 (Tex.Cr.App.); Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.). A plea of former jeopardy constitutes nothing more than a pleading and does not establish the truth of the issues of fact alleged therein. Ray v. State, 150 Tex.Cr.R. 80, 198 S.W.2d 906. In Chadwick v. State, 86 Tex.Cr.R. 269, 216 S.W. 397, it was held that when a defendant is not satisfied with the trial court’s ruling upon the facts presented in support of his plea of former jeopardy, an appeal of such ruling may be taken to this Court. Finally, when the record fails to contain the evidence offered in support of the plea of jeopardy, this Court is in no position to review a contention asserting that a trial court erred in overruling the plea. See Dedmon v. State, 478 S.W.2d 486 (Tex.Cr.App.).

In Davidson v. State, 40 Tex.Cr.R. 285, 49 S.W. 372, the Defendant was prosecuted for cattle theft. At trial, the defendant raised the issue of former jeopardy and testified that he had previously been convicted of the theft of a group of cattle. He maintained that the cattle, the subject of the instant prosecution, had been a part of the group of cattle for which he had previously been convicted of stealing. On appeal, the defendant’s claim of jeopardy was rejected and the Court stated:

“... The evidence, as indicated above, does not show that the appellant’s testimony is uncontradicted as to the cattle all being taken at one and the same time. It is true that no witness swears positively, as a fact, that they were not taken at one and the same time, yet all the witnesses, except the appellant, testify to circumstances that clearly indicate that they were not taken at one and the same time. The burden of proving the fact that they were taken at one and the same time is upon appellants, and the jury have decided the question against them, and we see no cause for disturbing their verdict.” Davidson v. State, supra 49 S.W. at 373.

Likewise, in Chvojka v. State, supra, it was found that the trial court would have acted properly in overruling a special plea of jeopardy when the record was devoid of evidence that the prosecutor was guilty of any conduct which could be characterized as prosecutorial overreaching.

With regard to conflicts in the evidence and the resolution of factual questions, this Court has stated:

“It is to be remembered that the appellate court does not resolve the conflicts in the testimony such as those argued in the appellant’s brief. The conflicts of the testimony are resolved by the trier of the facts. The trial court, as the trier of the facts, is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may accept or reject all or any part of the witnesses’ testimony.... ” Guillory v. State, 487 S.W.2d 327 (Tex.Cr.App.).

The pleas of double jeopardy filed by the appellants in the instant causes, allege that the State intended to cause a mistrial by asking the question which ultimately formed the basis of the mistrial. The pleas further alleged that “the [defendants’ motion for mistrial was necessitated by the direct overreaching and unacceptable conduct of the prosecution. . . . ” These allegations were rejected by the trial court after it heard the evidence which the appellants had to offer in support of their pleas of double jeopardy.

There is no question but that the mistrials came about as a result of prosecutorial error. However, the evidence from Russell and Hubble clearly negate appellants’ allegations of prosecutorial overreaching by means of intentional misconduct or gross negligence. The evidence supports the trial court’s order overruling the appellants’ pleas of jeopardy. Appellants’ grounds of error are overruled.

The judgments are affirmed.

1 . Appellants were separately indicted for the same offense and tried jointly. Art. 36.09, V.A. C.C.P.

2 . The excusing of a disabled juror pending trial and proceeding with eleven jurors is authorized by Art. 36.29, V.A.C.C.P. See Allen v. State, 536 S.W.2d 364; Johnson v. State, 525 S.W.2d 170. Art. 36.29, supra, provides in part:

“... when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; ...”