Ex Parte Bauder

974 S.W.2d 729, 1998 Tex. Crim. App. LEXIS 76, 1998 WL 300947

Opinions

PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge,

delivered the opinion of the Court, in which

OVERSTREET, MEYERS, PRICE, HOLLAND and WOMACK, JJ., joined.

We granted discretionary review of this case to determine whether the Fourth Court of Appeals applied the correct standard of law in determining the double jeopardy provisions of the Texas Constitution do not bar re-trial of Appellant’s case.

Appellant is charged with driving while intoxicated. Appellant’s second trial¹ ended in a mistrial after the prosecutor adduced testimony from the arresting officer that, immediately prior to Appellant’s arrest, Appellant was engaged in extraneous misconduct. Before a third trial could begin, Appellant filed a pre-trial application for writ of habeas corpus, claiming further prosecution was jeopardy-barred under the Texas and United States Constitutions. The habeas judge found the prosecuting attorney deliberately elicited the testimony from the arresting officer at the second trial for the purpose of prejudicing Appellant unfairly before the jury. However, the habeas judge denied relief, because Appellant sought the mistrial and because it did not appear that the prosecutor elicited the objectionable testimony for the purpose of goading Appellant into seeking a mistrial. The Fourth Court of Appeals affirmed, holding that the Fifth Amendment to the United States Constitution is not offended by a successive prosecution for the same offense in a case such as this, and that the Texas Constitution’s double jeopardy provisions do not accord any greater protections that those in the federal constitution. Bauder v. State, 880 S.W.2d 502, 503 (Tex.App.—San Antonio 1994).

After granting Appellant’s petition for discretionary review, this Court determined that Texas constitutional double jeopardy provisions may be interpreted more broadly than the federal counterpart,² reversed the judgment of the Court of Appeals, and remanded for reconsideration of Appellant’s state constitutional argument. Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App.1996). Specifically, we held that a subsequent prosecution may be jeopardy-barred after declaration of a mistrial if the objectionable conduct of the prosecuting attorney was intended to induce a motion for mistrial, or if “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.” Bauder, 921 S.W.2d at 699. We also noted that trial conditions must be extreme before a mistrial is warranted under Texas law; therefore, a prosecutor will not be accountable, and a subsequent prosecution not barred by jeopardy, when the trial judge need not have granted the defendant’s motion. Id. at 699-700. Because we declined to express an opinion as to whether the conduct of the prosecutor in this ease was such as to bar the subsequent prosecution, we remanded the cause to the Fourth Court of Appeals for a determination of Appellant’s state constitutional double jeopardy claims.

On remand, the court of appeals concluded the trial court need not have granted Appellant’s motion for mistrial; therefore, his subsequent trial was not jeopardy-barred. Bauder v. State, 936 S.W.2d 19 (Tex.App.—San Antonio 1996). In reaching this conclusion, the Court of Appeals found that this Court’s opinion called for a two-step analysis:

First, we must determine whether the trial judge “need not have granted the defendant’s motion” for mistrial. This first step in the analysis is necessary because the prosecutor can only be accountable for a mistrial if the mistrial was properly granted. Second, we must determine whether the prosecutor either intended to induce the mistrial or “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.”

Bauder, 936 S.W.2d at 20 (citations omitted). The first part of the test, the court of appeals stated, required it to determine whether the trial court would have abused its discretion had it denied Appellant’s motion for mistrial. Id. at 21. The court therefore concluded that it must determine “whether any reasonable view of the record supports not granting the mistrial.” Id. at 22. Appellant claims the Court of Appeals has misconstrued our opinion and applied an incorrect appellate standard of review.³

The test used by the Court of Appeals asks whether the trial court would have abused its discretion had it denied a mistrial. This is, of course, the test which is applicable where an appellant avers the trial court erred in denying his motion for mistrial. However, the trial court did grant the motion for mistrial, so this test is not applicable to the present ease. The court of appeals found the trial court need not have granted appellant’s motion for mistrial in the present case, but that does not resolve the ground for review: given that the trial court did grant appellant’s motion for mistrial, is retrial barred by the Texas Constitution’s Double Jeopardy Clause due to prosecutorial misconduct? ⁴

The question is not the correctness of the ruling granting the mistrial. The question under the Double Jeopardy Clause is wheth er the defendant truly consented to the mistrial.

Most motions for mistrial are with the defendant’s consent. “[W]here circumstances develop not attributable to prosecuto-rial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). This rule is fully consistent with the interests protected by the Double Jeopardy Clause. “The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant’s mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause—the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.” United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). The question is whether the defendant made the choice. The issue may not be resolved by the standards for a waiver. “[Tjraditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecuto-rial error. In such circumstances, the defendant generally does face a ‘Hobson’s choice’ between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error. The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” Id. at 609, 96 S.Ct. 1075 (citations and footnote omitted).

But “the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar to double jeopardy in all circumstances.” Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). If the circumstances prompting the mistrial were attributable to a prosecutor’s using “manifestly improper methods... deliberately or recklessly” (Bauder v. State, 921 S.W.2d at 700) which “render 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.” Id. at 698. Such a motion would not prevent a defendant from invoking the double jeopardy bar to retrial.

Therefore the questions presented in this case are, on the one hand, whether the appellant’s motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed “the line between legitimate adversarial gamesmanship and manifestly improper methods” (id. at 700) that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?

Appellant’s sole ground for review is sustained. The decision of the San Antonio Court of Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.

BAIRD, J., delivered a concurring opinion. KELLER, J., delivered a dissenting opinion, in which McCORMICK, P.J., joined.

Footnotes

1

. Appellant's first trial also ended in a mistrial.

2

. We found the Court of Appeals ruled correctly in regard to Appellant’s federal constitutional claims. Bauder, 921 S.W.2d at 696, citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

3

. The Court of Appeals acknowledged that application of this "test" is contrary to prevailing law in that it ignores the findings of the trial court and fails to accord proper deference to the same. Bauder, 936 S.W.2d at 19 n. 3; see also, Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997) (when considering mixed questions of law and fact great weight should be given to the trial judge's determinations of historical fact, findings, and application of law to fact questions).

4

.We note that where the trial court has granted a motion for mistrial, that decision is, for all intents and purposes, not subject to review on appeal. The reasons are self-evident: trial has been halted, the jury has been dismissed, and it would be impractical to resume trial at that point sometime in the future.