COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-01-133-CR
EX
PARTE
KRISTIN
HOPE WHEELER
------------
FROM
CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
OPINION ON REMAND
In
November 2001, we issued our opinion reversing the trial court’s denial of
habeas relief on direct appeal. Because we determined that the State knew or
should have known that its question on fault findings in a separate insurance
investigation would likely result in a mistrial, we granted appellant’s
special plea on double jeopardy grounds. We rendered judgment granting appellant
habeas relief and dismissed her case with prejudice to refiling because of the
mistrial.
On
the State’s petition for review, the Texas Court of Criminal Appeals vacated
our judgment and remanded the case to us for further review in light of its Peterson
opinion, which was issued in 2003, after our earlier opinion. Ex Parte
Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003). In Peterson, the
court of criminal appeals clarified "the standards under which the Texas
constitutional double jeopardy provision, as explained in Bauder v. State,
prohibits retrial after the defense successfully requests a mistrial.” Id.
at 807. The parties have rebriefed in light of the Peterson opinion, and
we have resubmitted the case to apply the Peterson construct. Because we
conclude that the record shows prosecutor misconduct that meets the Peterson
three-prong analysis, we still reverse and render.
Facts
On
July 21, 1999, Dr. David Mitchell attempted to cross a rural road to access his
mailbox as appellant drove down the same road at approximately sixty-five miles
per hour. Appellant, traveling about twenty miles per hour over the speed limit,
was unable to avoid striking Mitchell, who later died of the injuries he
sustained. The grand jury indicted appellant in two counts for manslaughter and
criminally negligent homicide. A visiting judge presided over the first trial,
held in Criminal District Court Number One.
During
the first trial, both the State and appellant called accident reconstruction
experts. The State extensively cross-examined and questioned appellant’s only
witness, her expert, Alan Weckerling. After appellant passed the witness
following a redirect, the following exchange took place:
THE
COURT: Anything else?
[PROSECUTOR]:
Yes, Your Honor - -
THE
COURT: Thank you, sir. You may stand down.
[PROSECUTOR]:
I have one more question, Judge.
THE
COURT: I’m sorry. I misunderstood you.
FURTHER
RECROSS-EXAMINATION
[PROSECUTOR:]
Are you aware that her insurance carrier found her at fault?
[DEFENSE]:
Your Honor, may we approach?
THE
COURT: You don’t have to approach. Send the jury out.
(Jury
not present)
THE
COURT: Is there a motion in limine on that?
[PROSECUTOR]:
Only if she ever paid, Judge --
[DEFENSE]:
Your Honor, they filed a motion in limine not to go into any of the insurance
reports. They now have made a statement unsupported in bad faith to create a
mistrial in this case.
THE
COURT: Do you want a mistrial?
Appellant
answered affirmatively. The visiting judge who had heard the entire case also
heard the parties’ arguments a few days later and granted appellant’s motion
for a mistrial. After the visiting judge’s appointment expired, the regular
presiding judge of the court reset the case for a second trial the following
month. At that time, appellant refiled her motion to dismiss with prejudice and
filed a petition for a pretrial writ of habeas corpus. The visiting judge who
presided over the first trial and the hearing on the mistrial did not hear the
habeas petition. Instead, the trial court’s presiding judge heard the petition
and denied relief. Our opinion, reversing and rendering in appellant’s favor,
was vacated by the court of criminal appeals and is now before us again as
explained above.
Double Jeopardy
The
double-jeopardy clause of the United States Constitution provides that no person
shall be subjected to twice having life or limb in jeopardy for the same
offense. U.S. Const. amend. V.
This clause protects against (1) a second prosecution for the same offense after
acquittal; (2) a second prosecution for the same offense after conviction; and
(3) multiple punishments for the same offense. United States v. Dixon,
509 U.S. 688, 695-96, 113 S. Ct. 2849, 2855-56 (1993); Ex parte Herron,
790 S.W.2d 623, 624 (Tex. Crim. App. 1990) (op. on reh'g). The Texas and United
States Constitutions' double jeopardy provisions provide substantially identical
protections. Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App.
1997), cert. denied, 525 U.S. 873 (1998); Stephens v. State, 806
S.W.2d 812, 815 (Tex. Crim. App. 1990), cert. denied, 502 U.S. 929
(1991). Both constitutions are 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. See Bauder v. State, 921 S.W.2d
696, 698 (Tex. Crim. App. 1996) (Bauder I).
A
mistrial granted at the defendant's request in a criminal case, however, usually
does not implicate double jeopardy prohibitions and poses no inhibition to
further prosecution for the same offense in a new proceeding. United States
v. Jorn, 400 U.S. 470, 485, 91 S. Ct. 547, 557 (1971); Torres v. State,
614 S.W.2d 436, 441 (Tex. Crim. App. [Panel Op.] 1981). Essentially, we view a
defendant's motion for mistrial as a deliberate election on her part to forgo
her right to have her guilt or innocence determined before the first trier of
fact. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2089 (1982);
United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187, 2195 (1978).
When
a mistrial is declared because of improper actions of the prosecutor, however,
the double jeopardy prohibition may bar a second prosecution even if the
defendant has consented to the mistrial. Peterson, 117 S.W.3d at 811. It
is well settled under the federal constitution that the Fifth Amendment does not
allow successive prosecutions for the same offense when the earlier proceeding
was terminated at the defendant's request because the attorney representing the
government deliberately provoked the defendant's motion for mistrial. U.S. Const. amend. V; see Kennedy, 456 U.S. at
676, 102 S. Ct. at 2195. The Texas Constitution goes a step beyond the
protection provided under its federal counterpart and prohibits a subsequent
trial when the prosecutor caused the mistrial either intentionally or
recklessly. See Ex parte Bauder, 974 S.W.2d 729, 731 (Tex. Crim. App.
1998) (Bauder II); Bauder I, 921 S.W.2d at 697; see
also Tex. Const. art. I, §
14. The court of criminal appeals announced in Bauder I that a subsequent
prosecution is jeopardy-barred by the Texas Constitution after declaration of a
mistrial when 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
I, 921 S.W.2d at 699.
In
Bauder II, the court of criminal appeals clarified the application of the
prosecutor-misconduct bar to retrial, determining that the only question under
the Texas Constitution's double-jeopardy clause is whether the defendant truly
consented to, or deliberately elected, the mistrial. Bauder II, 974
S.W.2d at 731-32. Bauder II directs that in a case where a mistrial has
resulted from prosecutorial action, weighing the following two options will
illustrate whether the defendant voluntarily consented to the mistrial and
should be subject to retrial:
[O]n
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" that rendered trial before the jury unfair to such a degree that
no judicial admonishment could have cured it?
Id.
at 732 (citation omitted) (quoting Bauder I, 921 S.W.2d at 700).
Then,
in State v. Lee, another double jeopardy-mistrial case but one in which
both the trial court and the intermediate appellate court granted habeas relief
on double jeopardy grounds, the State urged the court of criminal appeals to
abandon its more expansive interpretation of the Texas constitutional
prohibition against double jeopardy, but the court declined its offer. 15 S.W.3d
921, 922 n.1 (Tex. Crim. App. 2000) (dismissing State Prosecuting Attorney's
grounds for review because district attorney's grounds were dispositive).
Instead, the court emphasized that trial courts are to find a double jeopardy
violation only under the standard articulated in Bauder II, i.e. when a
defendant is required to move for a mistrial “because the prosecutor
deliberately or recklessly crossed ‘the line between legitimate adversarial
gamesmanship and manifestly improper methods’ that rendered trial before the
jury unfair to such a degree that no judicial admonishment could have cured
it." Bauder II, 974 S.W.2d at 732 (citation omitted) (quoting Bauder
I, 921 S.W.2d at 700); see also Lee, 15 S.W.3d at 924.
Under
Lee, “if the prosecutor has a ‘legitimate’ view of the law (or of
the facts), even if that view is ultimately incorrect, his actions cannot be
considered intentional or reckless misconduct.” Peterson, 117 S.W.3d at
816 (quoting Lee, 15 S.W.3d at 924). Thus, in Peterson, the court
of criminal appeals concluded that the “prosecutor’s mens rea is
pivotal.” Id. at 815. Looking to the United States Supreme Court
opinion in Kennedy, the court of criminal appeals noted that under the Kennedy
line of cases, the "critical inquiry is whether the prosecutor’s
misconduct intended to goad the defendant into requesting a mistrial, and under Bauder
. . . a prosecutor must at least be aware that his manifestly improper
misconduct is likely to result in a mistrial, but he nonetheless consciously
ignores that likelihood and commits the misconduct.” Id. at 816. See
generally Kennedy, 456 U.S. at 675-76, 102 S. Ct. at 2089 (discussing intent
of prosecutor and prosecutorial conduct in determining whether double jeopardy
bars retrial). In Peterson, the court blended the Kennedy, Bauder, and
Lee tests and held that the trial and appellate courts of Texas are to
analyze a double jeopardy claim under the following three-part analysis:
1)
Did manifestly improper prosecutorial misconduct
provoke the mistrial?
2)
Was the mistrial required because the
prejudice produced from that misconduct could not be cured by an instruction to
disregard?
3)
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
court would be required to declare a mistrial (Bauder standard)?
Peterson,
117 S.W.3d at 816-17.
Standard of Review
When
raising a double jeopardy claim on pretrial writ of habeas corpus, the applicant
bears the burden of proof under a preponderance of the evidence standard in the
trial court. Id. at 818 (citing Ex parte Kimes, 872 S.W.2d 700,
703 (Tex. Crim. App. 1993) and Ex parte Adams, 768 S.W.2d 281, 287-88
(Tex. Crim. App. 1989)). When we review a trial court's decision to grant or
deny relief on a writ of habeas corpus, we review the “facts in the light most
favorable to the trial judge’s ruling and should uphold it absent an abuse of
discretion.” Id. at 819; accord Ex parte Mann, 34 S.W.3d 716,
718 (Tex. App.—Fort Worth 2000, no pet.); Ex parte Primrose, 950 S.W.2d
775, 778 (Tex. App.—Fort Worth 1997, pet. ref'd). We should “afford almost
total deference to a trial court’s determination of the historical facts that
the record supports especially when the trial court’s fact findings are based
on an evaluation of credibility and demeanor.” Peterson, 117 S.W.3d at
819 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
However,
“an abuse of discretion review of trial court decisions is not necessarily
appropriate in the context of the application of law to facts when the decision
does not turn on the credibility or demeanor of witnesses." Ex parte
Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). Instead, an appellate
court must conduct a de novo review when "the trial judge is not in an
appreciably better position than the reviewing court to make that
determination." Guzman, 955 S.W.2d at 87; see also Mann, 34
S.W.3d at 718. “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.” Peterson, 117 S.W.3d
at 819. Reviewing courts are to review “de novo those mixed questions
of law and fact that do not depend upon credibility and demeanor.” Id.
(citing Guzman, 955 S.W.2d at 89). In Peterson, the court of
criminal appeals reviewed its opinions in Bauder I, Bauder II, and Lee
and again declined to overrule its Bauder line of cases.
Analysis
In
this case, neither party offered testimony on the merits of the petition at the
habeas hearing; the parties had previously presented their arguments for and in
opposition to granting a mistrial and dismissal with prejudice at the mistrial
hearing held by the visiting judge. That judge granted appellant’s motion, and
the arguments and record from that hearing were offered into evidence at the
writ hearing. However, the presiding judge, who ultimately heard the petition,
was not the same judge who that presided over appellant’s first trial and
granted the mistrial. Thus, the trial court’s rulings at the habeas hearing
could not have turned on credibility and demeanor.1
Because the presiding judge who heard and ruled on the habeas petition was not
in any better position to determine questions of fact and to apply the law to
those facts than we would be, we will undertake a de novo review applying the
new Peterson three-prong analysis. See Peterson, 117 S.W.3d at
816-17; Guzman, 955 S.W.2d at 87. Further, our review of what the habeas
judge did necessarily includes a review of what the visiting judge, who presided
over the trial and granted the mistrial, did. Because the visiting judge’s
ruling is in the record and includes some findings and conclusions, we will
review his ruling under an abuse of discretion standard.2
1) Did Manifestly Improper Prosecutorial Misconduct
Provoke The Mistrial?
Under
this prong of the Peterson analysis, we must focus on whether misconduct
occurred and whether that misconduct caused the defense to request a mistrial. Bauder
I teaches us that courts should narrowly interpret the “objective facts
and circumstances of the prosecutor’s conduct and the events which led to that
conduct” in determining whether prosecutorial misconduct actually occurred. Peterson,
117 S.W.3d at 814-15. Further, we are to look at whether the defendant was
compelled to request a mistrial because she was denied her free choice of
requesting a mistrial. Id. at 816.
After
several redirects and recrosses and long after the State had already informed
the court that it had only one more question, the prosecutor asked one more
question of appellant’s expert witness: “Are you aware that her insurance
carrier found her at fault?” Appellant’s counsel immediately asked to
approach the bench. The court immediately said that approaching the bench was
unnecessary and ordered the jury removed. The court asked if appellant wanted a
mistrial even before appellant could articulate her objection. The court took
appellant’s motion for mistrial under advisement and reconvened court the
following Monday to hear counsels’ arguments and to rule on the motion. The
court recalled the specific question that the prosecutor asked appellant’s
expert witness, “Are you aware that her insurance carrier found her at
fault?”
In
support of her claim for mistrial and a dismissal with prejudice, appellant’s
counsel reminded the court of the pretrial motions in limine that both sides had
filed and that had been granted by the trial court. Both sides had obtained a
limine order prohibiting either from asking any witness for declarations or
statements made by someone other than the witness or asking for opinions from
witnesses that were not expert witnesses. An earlier question asked by the State
of its expert revealed only that there was insurance on the
Mustang—appellant’s car that was involved in the wreck. No prior question of
fault had been asked or answered in regard to an insurance investigation or the
results of any such investigation despite the prosecutor’s representations to
the court that the defense had “opened the door.”
In
its brief on remand, the State cites to this court’s prior opinion and the
habeas record as proof that the defense (or the State, for that matter) had
“opened the door” to the insurance/fault question. However, the State is
citing only to its own previous arguments made to the habeas judge, that
the “door had been opened” by someone. The State fails to cite in its brief,
and failed to cite to the habeas judge any record references proving that the
door to a third party or other fault determination had been opened. The State
points to only two places in the record where it contends the “door was
opened.” It points to its expert’s testimony, in which its expert
testified on direct that he had looked at the insurance report, and to
appellant’s expert’s testimony.
First,
the State’s expert testified that he looked at the report only in regard to
repairs on the Mustang involved in the wreck. Second, the State references
defense expert testimony that does not even exist. There is no page 168
contained in the seventh volume of the reporter’s record. Regardless, the
record actually discloses the opposite in regard to testimony by the defense
expert: when the State asked Dr. Wecklerling if he had reviewed any other
investigations by an insurance company or other individuals, he acknowledged the
existence of “something” in the materials that were provided to him but
specifically stated he had not reviewed them. The only testimony that
relates to insurance was given by the State’s expert, Tim Lovett, who said he
had reviewed a State Farm investigative report in connection with the “repair
of the Mustang” involved in the accident. At this point, the State neither
asked for nor did the witness supply any determination on fault by any insurance
company. This hardly opens the door to fault, a question that goes directly to
the heart of this cause.
As
we noted in our prior opinion, the only issue for this jury to decide was
whether the victim was at fault, or whether appellant was at fault and, if so,
with what mental state so as to determine whether manslaughter or criminally
negligent homicide was the appropriate offense. In other words, because
appellant had never denied that she was the person driving the vehicle that
struck the victim, the focus of the entire trial was who was at fault. The
visiting judge’s findings or conclusions on the record make this clear:
There
is one issue in this case and that’s who is at fault. The defendant . .
. or the deceased. Both sides knew as of Thursday I told you all I was
going to instruct the jury on concurrent cause that could have allowed the jury
if they decided to do so based on the evidence and the law found the defendant
not guilty assuming they found beyond a reasonable doubt the [deceased] was
guilty to start with. So the only issue in this case was fault. This
question goes right to that. It is not a collateral question [sic] not a
collateral issue.
Additionally,
the rules of evidence prohibit the admission of evidence of insurance coverage. Tex. R. Evid. 411. The rules of evidence
clearly do not allow evidence of insurance coverage to be introduced in most
circumstances. Id. ("Evidence that a person was or was not insured
against liability is not admissible upon the issue of whether the person acted
negligently or otherwise wrongfully."). Appellant specifically raised the
applicability of rule 411 of the rules of evidence at the hearing on the motion
for mistrial. Appellant noted that the question of whether a person acts
“negligently or otherwise wrongfully” is basically the same question the
jury would have to decide if the jury had found appellant at fault as opposed to
the victim. Manslaughter is defined as “recklessly caus[ing] the death of an
individual,” and “criminally negligent homicide” is defined as
“caus[ing] the death of an individual by criminal negligence.” Tex. Penal Code Ann. §§ 6.03(d),
19.04(a), 19.05(a), (Vernon 2003). Because the charges of manslaughter and
criminally negligent homicide would fit within rule 411's confines of when a
person acts negligently or otherwise wrongfully, we conclude and hold that rule
411 of the rules of evidence applies equally to criminal cases in which a
defendant has been charged with the offenses of manslaughter and criminally
negligent homicide.
On
remand, the State further contends that the prosecutor could not be held to have
known that evidence of insurance liability findings was inadmissible because
there is no criminal case construing or applying rule 411 to a criminal case. See
Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962); Beall v. Ditmore,
867 S.W.2d 791, 795 (Tex. App.—El Paso 1993, writ denied) (both holding that
the mere mention of insurance does not necessarily result in a mistrial). This
argument is not persuasive, however, because the court of criminal appeals
specifically adopted the combined, joint set of rules of evidence on February
25, 1998, and they went into effect March 1, 1998. 960 S.W.2d (Tex. Cases) XXX.
Also, the rules themselves specifically state that unless provided otherwise by
statute, the rules of evidence apply and govern all civil and criminal
proceedings. Tex. R. Evid. 101(b).
The rules further direct that the rules should be construed to “secure
fairness in administration . . . and promotion of growth and development of the
law of evidence to the end that the truth may be ascertained and proceedings
justly determined.” Tex. R. Evid.
102. We have found no cases, and the State cites none, that would support the
proposition that a rule of evidence or procedure, or a statute, previously
adopted and effective, does not apply simply because no court has yet ruled that
it should apply. If that were the appropriate prerequisite to the application of
rules or statutes, then no statute would ever be in effect until we, the courts,
had so stated.
In
this case, the prosecutor’s question did not merely mention the existence of
insurance; rather, the question addresses insurance coverage in the context of a
fault finding. Not only should the prosecutor have known that rule 411 prohibits
the mention of insurance coverage in this context, he should also have known
that, given the timing and subject matter of the question, the prejudicial
effect of the evidence would far outweigh any probative value under a rule 403
analysis.3 Tex. R. Evid. 403 (providing that
otherwise relevant evidence may be excluded if its probative value is
substantially outweighed by a danger of unfair prejudice). Additionally, the
question, as phrased, asks not if some insurance company had found
appellant at fault, but whether the witness knew that appellant’s insurance
company had found her at fault. The effect of a question asking whether the
witness knew that, not if, appellant’s own insurance company
found her at fault is particularly troubling because it implies that the one
entity that would normally be supporting appellant had already decided to do
otherwise.
We
therefore conclude that the prosecution’s question was not only manifestly
improper, just as the visiting trial judge had found, but also was the catalyst
that provoked the mistrial. We turn to the next Peterson question.
2) Was The Mistrial Required Because The Prejudice
Produced From That
Misconduct Could Not Be Cured By An Instruction To
Disregard?
This
prong of the Peterson analysis requires us to look at whether the
mistrial was required because the line the prosecutor crossed rendered the trial
before the jury so unfair that no judicial admonishment or instruction could
have cured the prejudice or harm that resulted from it. Peterson, 117
S.W.3d at 816. In other words, we must determine whether an instruction to the
jury to disregard the error could have overcome any harm that resulted from the
prosecutor’s misconduct. Id. We defer to the trial court's conclusion
on whether an instruction to disregard would have cured the problem. See
Bowen v. State, 131 S.W.3d 505, 509 (Tex. App.—Eastland 2004, pet. filed).
The
State points us to Waldo v. State for some nonexclusive factors the trial
court and the appellate court may consider in determining whether a curative
instruction would cure the harm: (1) the nature of the error; (2) the
persistence of the prosecutor; (3) the flagrancy of the violation; (4) the
particular instruction given; (5) the weight of the incriminating evidence; and
(6) the harm to the accused as measured by the severity of the sentence. 746
S.W.2d 750, 754 (Tex. Crim. App. 1988).
For
instance, the prosecutor’s misconduct was so obvious that the court told
defense counsel he did not even need to approach the bench and, on its own,
instructed the jury to be removed from the courtroom. And, immediately upon its
removal, the judge asked appellant, before she had made any legal arguments, if
she wanted a mistrial. It is thus clear, from the record before us, that the
trial court quickly and immediately decided the prosecution had used improper
methods or conduct in its cross-examination of appellant’s last witness. But,
the court held its decision on the mistrial and then recessed over the weekend,
instructing the parties to return the next Monday to argue their positions and
the law regarding the proper remedy for the prosecutor’s misconduct.4
At
the hearing the next Monday, appellant focused the trial court’s attention on
the inefficacy of a curative instruction, especially in a case before a jury
where a defendant’s negligence or reckless disregard is sufficient for a
conviction. Appellant argued that failure to grant the dismissal with prejudice
would be tantamount to shifting the burden to the defense in light of the
prosecutor’s statement about the insurance company’s fault finding. Further,
appellant pointed to the rule 411 violation, discussed infra, as well as
the way the question was asked. The prosecutor asked the question as if it were
a statement of fact as opposed to the more generic “have you heard
question.”
In
response, the State argued simply that the only “evil complained of in this
case is a violation of rule 411” and that we are to presume that an
instruction to disregard will cure any prejudice resulting from an improper
remark or question. However, the “evil” before us is more than just either
one of the foregoing; it is the combination of both a question that asks an
expert to testify on improper evidence combined with a question that presupposes
the answer that makes the question itself so prejudicial. Not only was the
question improper because it asked for inadmissible evidence, but the question
itself also disclosed inadmissible evidence because the prosecutor asked the
question in a way that conveyed the actual insurance investigation result. Thus,
the nature of the error is great.
Likewise,
we can also conclude that the prosecutor’s conduct was flagrant and weighty.
As we have noted above, the question came several questions after the prosecutor
had already notified the court that he had only one more question. And, as also
mentioned, the trial judge sua sponte removed the jury and asked if the
defense wanted a mistrial, which is another indication of the court’s
perception of the flagrancy of the prosecutor’s action. The State also
contends that this action by the trial judge demonstrates that the judge was
“overly quick to declare a mistrial.” The State characterizes the trial
judge’s question as a “reckless declaration” of mistrial. However, the
State ignores the fact that the trial judge did not immediately declare a
mistrial. In fact, the judge removed the jury, explained on the record his
concerns to counsel, and requested briefing and arguments after recessing over
the weekend. The judge did not rule on the mistrial until he had conducted
independent research, listened to counsels’ arguments, and concluded the
hearing on the following Monday. This cannot be construed as a hasty decision on
the part of the visiting judge and actually reflects the flagrancy of the
misconduct as well as its significance and weight.
Under
the objective facts and circumstances presented in this record, we conclude that
no instruction could have cured the prejudice that must have flowed from the
prosecutor’s question revealing that appellant’s own insurance company had
found her at fault—again, the key issue of the case.
3) Did The Prosecutor Engage In 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 Court
Would Be Required To
Declare A Mistrial (Bauder Standard)?
In
addressing the third Peterson prong, the court of criminal appeals also
instructs us that we should consider the following, where applicable:
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 court?
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 misconduct?
Peterson,
117 S.W.3d at 818-19 (footnotes omitted); see also State v. Easton, 123
S.W.3d 675, 681 (Tex. App.—Dallas 2003, no pet.)
a) Trial Going Badly for the State?
The
State says that the trial was going well. In making this claim, the State cites
only to its expert’s testimony on direct. The State’s evaluation of its case
in its brief on remand includes a review of the status of its case based only
upon its expert’s testimony; its evaluation fails to take into account the
fact that appellant had not yet presented her case.
Further,
the State points only to its expert’s testimony concluding that appellant was
speeding and that she had failed to control the vehicle and timely apply her
brakes. In its brief, the State fails to re-evaluate its case after the defense
had put on its case, in which the defense expert testified that appellant’s
speed was immaterial because the victim stepped into the road without yielding
to vehicles even though he was not at a street crossing. According to the
defense witness, a pedestrian is supposed to yield to traffic when not crossing
at a designated crossing.
Although
the State concedes that the case was a “battle of the experts” and that
expert testimony was critical to the causation or fault issue, we also know from
the hearing on the motion for mistrial that the visiting judge had already
notified the parties the day before the prosecutor asked the improper question
that he was going to give the jury the “concurrent cause” question. This
question would ask who was at fault before even asking the jury whether
appellant had the requisite mental intent required for conviction. In light of
this, we therefore conclude that the trial was going badly for the State.
b) Did the State repeat its misconduct despite
admonitions from the Court?
Again,
the State argues that neither of the motions in limine, which would have
required counsel to approach the bench before questioning any witness on covered
items, prohibited mentioning liability insurance. However, as discussed above,
the State’s own limine order prohibited both counsel from asking a witness to
testify about another’s conclusions or testimony. And, appellant’s limine
order also prohibited asking about any settlements. While the orders are not
examples of clarity, one could at least conclude that neither party was supposed
to go into opinion testimony of any other person not on the witness stand
without first approaching the bench.
The
State also points to the two references to insurance as if the fault issue were
already before the jury. There are only two places in the record that mention
insurance: first, the question the State asked its expert about what he
reviewed, which referenced insurance in general in regard to the Mustang; and
second, the question the State asked appellant’s expert, which ultimately
caused the mistrial. Again, these references did not open the door to further
questions and did not mean that any pending limine orders had been waived. Thus,
we conclude the State repeated its misconduct when viewed in light of the
pre-existing limine orders.
c) Did the prosecutor provide a reasonable, good faith
explanation for the conduct?
In
response to the court’s question to the prosecutor as to why he asked the last
question after already cross-examining the witness for three hours, he said,
“Judge, I got to ask it sometime.” Without more of an explanation, this
cannot be considered a reasonable, good faith explanation for the conduct, and
neither were the other arguments the State made at the hearing addressed
elsewhere in this section.
d) Was the conduct “clearly erroneous?”
The
prosecutor argued that he had the right to cross-examine the defense’s expert
because the witness was an expert and, under rule 702, experts are allowed to be
impeached by and cross-examined on anything they have reviewed. Tex. R. Evid. 702. However, as we know
from the record, the defense expert had never reviewed the insurance file the
prosecutor asked about; he just knew it was there. Therefore, a question asking
the defense expert about the content and result of an insurance investigation
that he had never reviewed was clearly erroneous.
e) Was there a legally or factually plausible basis
for the conduct, despite its ultimate impropriety?
The
prosecutor’s 702 argument could be applicable to this inquiry except for its
inapplicability on this record as explained above under our "clearly
erroneous" analysis. Likewise, we have already dispensed with the State’s
arguments regarding the inapplicability of rule 411. Therefore, we cannot
conclude there was a legally or factually plausible basis for the conduct.
f) 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 misconduct?
Appellant,
on trial for manslaughter and criminally negligent homicide, did not dispute
that she drove the car that struck the victim, so the only question before the
jury was whether the victim or appellant was at fault. The prosecutor's question
asking the defense expert’s knowledge of the results of an insurance
investigation, despite knowing that he had not reviewed the contents of the
report and that he only knew that it dealt with insurance on the car involved,
both disclosed the existence of insurance coverage and informed the jury that
others had independently determined that appellant had acted negligently or
recklessly.
Likewise,
the prosecutor's explanation for asking the question—"Judge, I got to ask
it sometime"—also shows that the prosecutor had actually planned on
asking the question. From this, we can only conclude that the prosecutor engaged
in this conduct with at least a conscious disregard for a substantial risk that
the trial court would be required to declare a mistrial. For this reason, we
conclude that the prosecutor had the requisite mens rea such that when he
crossed the line he knew or was aware that this last question was improper and
could result in a mistrial, yet he proceeded to ask the question anyway. See
Ex parte Twine, 111 S.W.3d 664, 669 (Tex. App.—Fort Worth 2003, pet. ref'd).
In
light of this, we do not believe the visiting judge abused his discretion when
he granted the mistrial. The visiting judge who heard the case and viewed the
buildup before the question knew when the prosecution had “kicked the dog”
as opposed to “stumbling over it.” See Peterson, 117 S.W.3d at 814,
818. We do, however, conclude that the court hearing the writ later abused its
discretion in denying appellant’s double jeopardy plea.
Conclusion
We
hold that the prosecutor, necessarily being acquainted with our rules of
evidence, should have known that his question crossed "the line between
legitimate adversarial gamesmanship and manifestly improper methods" and
created a substantial risk that a mistrial would result. Bauder II, 974
S.W.2d at 732. Having held that the prosecutor intentionally or recklessly
caused the trial to end in a mistrial, we sustain appellant’s sole point.
Because
the prohibition against double jeopardy bars a second prosecution of appellant
under the manslaughter and criminally negligent homicide indictment, we reverse
the order of the trial court and render judgment dismissing the case with
prejudice. See Tex. R. App. P.
43.2(c).
TERRIE
LIVINGSTON
JUSTICE
PANEL
A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
PUBLISH
DELIVERED:
July 22, 2004
NOTES
1.
The State argues that because the habeas judge stayed in contact with the
visiting judge who presided over appellant’s trial while the trial progressed,
because the habeas judge read the record, and because the prosecutor regularly
appears before the habeas judge, the habeas judge was, somehow, in a position to
gauge the credibility of the prosecutor’s explanations at the hearing on the
motion for a mistrial. However, the State cites, and we have located, no
authority that allows a judge to assess the credibility and demeanor of
witnesses remotely. In contrast, the visiting judge who presided over the
entire trial was in a better position to make credibility determinations and
weigh the harm caused by the error. Therefore, we should give, and the
presiding judge should have given, more deference to the visiting judge’s
findings and conclusions. This is particularly true if we accept the
State’s position that its “arguments” at the mistrial hearing may also be
considered testimony.
2.
The visiting/presiding judge’s findings and conclusions must be reviewed
because they relate specifically to so many of the Peterson factor
determinations we must make. The court's verbal rulings on the record
reflect the court's findings and conclusions. If the court of criminal
appeals concludes that these findings and conclusions are insufficient to our
review of the "objective facts and circumstances surrounding the event
which led to the mistrial," we would abate to the trial court for an
abatement hearing. See Peterson, 117 S.W.3d at 818; see also
Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
3.
The prosecutor asked this question as the last question of the last witness on
the last day of the lengthy jury trial.
4.
We point out that the visiting judge gave the parties the opportunity to present
the law and arguments for and against the mistrial because the State on remand
accuses the visiting judge of making a “reckless decision” for a
mistrial. Obviously, the State was mistaken.