Bauder v. State

921 S.W.2d 696, 1996 Tex. Crim. App. LEXIS 62, 1996 WL 230719

• Court: Court of Criminal Appeals of Texas
• Decided: May 8, 1996
• Docket: 1058-94
• Status: Published

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Our previous opinions in this cause are withdrawn. Appellant is charged in County Court at Law Number 8 of Bexar County with the misdemeanor offense of driving while intoxicated. The State’s first two attempts to try him for this offense each ended in a mistrial. The second of these occurred when the prosecutor adduced evidence before the jury that appellant committed an act of misconduct other than that charged in the information. Before the State could schedule a third attempt at trial, appellant filed an application for writ of habeas corpus in the trial court, contending that further prosecution is jeopardy barred under the Texas and United States Constitutions.

The habeas judge found that the prosecuting attorney had deliberately adduced testimony of extraneous misconduct for the purpose of prejudicing appellant unfairly before the jury. However, the judge refused to dismiss the prosecution because appellant had moved for the mistrial himself and because the judge did not believe the prosecutor elicited the objectionable testimony for the purpose of goading appellant into making a motion for mistrial. The Fourth Court of Appeals affirmed. Bauder v. State, 880 S.W.2d 502 (Tex.App.—San Antonio 1994).

Under the United States Constitution, both of the lower courts are right. It is clear that the Fifth Amendment is not offended by a successive prosecution for the same offense when the earlier proceeding was terminated at the defendant’s request unless the attorney representing the government deliberately set out to provoke the defendant’s motion for mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2088, 72 L.Ed.2d 416 (1982). We have applied this standard of review to double jeopardy claims urged under the United States Constitution, as in Crawford v. State, 703 S.W.2d 655 (Tex.Crim.App.1986), and to generic double jeopardy claims, as in Collins v. State, 640 S.W.2d 288 (Tex.Crim.App.1982) (panel opinion, rehearing en banc denied), and Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982). But we have never specifically addressed the question whether the Texas Constitution applies in exactly the same way as the United States Constitution to mistrials provoked by the prosecution. We granted discretionary review in the instant cause to decide this important question of first impression. Tex.RApp.Proc. 200(c)(2).

A majority of the panel in the Fourth Court of Appeals considered the matter to have been settled by our opinion in Collins, to which it attributed the proposition, “[t]he Kennedy standard applies in Texas.” Bauder, 880 S.W.2d at 503. Of course Oregon v. Kennedy and all other definitive interpretations of the United States Constitution by the Supreme Court do apply in Texas, just as throughout the country. But that does not mean that such interpretations govern the meaning of the Texas Constitution.¹ Because we are not called upon in the instant cause to apply federal constitutional law, therefore, neither the United States Constitution nor anything the Supreme Court has to say about it is authoritative. On all questions of Texas law we examine the opinions of other courts, including those of the United States Supreme Court, only insofar as they may reveal the thinking of intelligent jurists on questions of common interest. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).

The Texas Constitution provides, in article I section 14, that “[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” It has long been the law in Texas that a mistrial granted at the defendant’s request in a criminal case poses no inhibition under this clause to further prosecution of the same offense in a new proceeding. De Young v. State, 160 Tex.Crim. 628, 274 S.W.2d 406 (1954). A criminal defendant may thus consent to have questions of his criminal liability for one offense resolved in more than one trial. But if he does not consent, the Double Jeopardy Clause requires that his culpability be determined in a single proceeding before the jury first selected to try him, if trial is before a jury, unless it becomes manifestly necessary to terminate the proceedings before a verdict is returned in order to assure fairness or efficiency in the trial process. Torres v. State, 614 S.W.2d 486, 441 (Tex.Crim.App.1981) (panel opinion). The question we decide today is whether and under what conditions our Double Jeopardy Clause also bars retrial when a defendant obtains a mistrial on account of events deliberately or recklessly brought about by the prosecutor.

At the outset, we emphasize that mistrials are an extreme remedy for prejudicial events occurring during the trial process. Even when a prosecutor intentionally elicits testimony or produces other evidence before the jury which is excludable at the defendant’s option, our law prefers that the trial continue. Because tactical decisions to offer prejudicial evidence are a normal and, in most respects, acceptable part of the adversary process, it would be counterproductive to terminate the trial every time an objection is sustained. Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App.1993). Consequently, it is considered a sufficient response to most well-founded objections that the material be withdrawn from jury consideration, if necessary, and that jurors be admonished not to consider it during their deliberations. Barber v. State, 757 S.W.2d 359, 362 (Tex.Crim.App.1988), cert. denied 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861; Von Burle-son v. State, 505 S.W.2d 553, 554 (Tex.Crim.App.1974).

The adversary system thus depends upon a belief that the declaration of a mistrial ought to be an exceedingly uncommon remedy for the residual prejudice remaining after objections are sustained and curative instructions given. For this reason, our system presumes that judicial admonishments to the jury are efficacious. Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App.1988). Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992), cert. denied 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268; Gardner v. State, 730 S.W.2d 675, 696-97 (Tex.Crim.App.1987), cert. denied 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206.

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.” United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). But we believe that the right to a trial before the jury first selected is the right to a fair trial before that jury. And although our system does not guarantee the right to a trial free of errors and mistakes, we think it clear that, when a prosecutor’s deliberate or reckless conduct renders trial before the jury unfair to such a degree that no judicial admonishment can cure it, an ensuing motion for mistrial by the defendant cannot fairly be described as the result of his free election.

The Texas Double Jeopardy Clause, like its federal counterpart, is meant to restrain the government from subjecting persons accused of crimes to the mental, emotional, and financial hardship of repeated trials for the same offense. Accord Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Accordingly, when the government, acting through its representatives, purposefully forces termination of a trial in order to repeat it later under more favorable conditions, we agree with the Supreme Court that the Double Jeopardy Clause is violated. But, unlike the Supreme Court, we do not think the prosecutor’s specific intent is a relevant aspect of the inquiry.

For example, when a prosecuting attorney, believing that he cannot obtain a conviction under the circumstances with which he is confronted, and given the admissible evidence then at his disposal, deliberately offers objectionable evidence which he believes will 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, it seems to us that the prosecutor’s specific intent, whether to cause a mistrial or to produce a necessarily unfair trial or simply to improve his own position in the case, is irrelevant. In our view, putting a defendant to this choice, even recklessly, is constitutionally indistinguishable from deliberately forcing him to choose a mistrial.

We therefore hold that a successive prosecution is 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. Under this rule, the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant’s motion. But he is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing. Under such circumstances, mistrial is not a necessary concession to the exigencies of trial, nor the unavoidable consequence of events beyond the prosecutor’s control, but an immediate result of conditions produced by the government’s representative which force upon a defendant the expense and embarrassment of another trial unless he is willing to accept an incurably unfair one. When this happens, we think the government should bear responsibility for denying the defendant his right, secured by the Texas Double Jeopardy Clause, to be tried in a single proceeding by the jury first selected.

Our decision to bar retrial under slightly more expansive conditions than those allowed by the United States Supreme Court is based on two important considerations. In the first place, we do not perceive a distinction of constitutional significance between conduct of a prosecuting attorney in which he intends to cause a mistrial and conduct of a prosecuting attorney which he is aware is reasonably certain to result in a mistrial. Making the constitutional rights of a criminal defendant to turn upon such a fuzzy and imponderable distinction as whether the prosecutor actually intended the trial to be terminated or, being aware that his conduct creates a risk that a mistrial is reasonably certain to occur, consciously disregards that risk seems to us far too insensitive a criterion for decision in these cases. In short, we do not believe that the purpose of the constitutional right here in issue really has anything to do with the prosecutor’s specific intent.

Secondly, there are practical advantages of a less subjective rule than one which necessarily depends upon proof of the prosecutor’s specific purpose. The most obvious of these, acknowledged by the Supreme Court in Oregon v. Kennedy and convincingly explicated in the instant cause by the dissenting opinion of Justice Butts in the lower appellate court, is that the conditions under which retrial is barred will generally be clearer when the prosecutor’s subjective intent is not an issue, permitting a more certain application of the rule in most cases. Gauging the subjective intent of a prosecutor is not an easy thing to do. And although we do it in a wide variety of contexts where it is universally acknowledged that subjective intent is and ought to be the important issue, e.g., Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that is really not the case here. As we see it, there is no wisdom in a double jeopardy standard of decision which is at once difficult to apply and does little to promote interests protected by the Double Jeopardy Clause.

It bears repeating, however, that conditions calling for the declaration of a mistrial before submission of a ease to the jury-should be considered very unusual in any adversary system. Because curative instructions are presumed efficacious to withdraw from jury consideration almost any evidence or argument which is objectionable, trial conditions must be extreme before a mistrial is warranted under Texas law. Accordingly, the line between legitimate adversarial gamesmanship and manifestly improper prosecutorial methods should be difficult for most prosecuting attorneys to cross unless they do it on purpose. Nevertheless, we hold that an attorney representing the State in a criminal action who does manage to cross the line, either deliberately or recklessly, must then forego any further prosecution for the same offense if the trial judge properly grants a mistrial at the defendant’s request.

Of course, we express no opinion as to whether the prosecutor crossed that line in the instant cause. Nor do we have an opinion whether the cause should be remanded to the habeas court for another evidentiary hearing on this essentially factual question, for additional judicial factfindings, or for both. Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992). We do, however, hold that the Fourth Court of Appeals did not employ the legal analysis appropriate to appellant’s Texas constitutional claim. We, therefore, reverse its judgment and remand the cause for reconsideration in a manner consistent with this opinion.

WHITE and KELLER, JJ„ dissent.

1 . In fact, in Oregon v. Kennedy, Justice Brennan noted that state courts were free to construe the Oregon Constitution differently from the Supreme Court's interpretation of the United States Constitution. Oregon v. Kennedy, 456 U.S. 667, 680-81, 102 S.Ct. 2083, 2092, 72 L.Ed.2d 416 (1982) (Brennan, J., concurring).