PD-0710-17 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/9/2017 10:24 PM Accepted 10/10/2017 1:07 PM DEANA WILLIAMSON No. PD-0710-17 CLERK
FILED COURT OF CRIMINAL APPEALS IN THE COURT OF CRIMINAL APPEALS 10/10/2017 DEANA WILLIAMSON, CLERK OF TEXAS
EX PARTE ELIZABETH ANN GARRELS
On Discretionary Review from the Ninth Court of Appeals Beaumont, Texas No. 09-17-00038-CR
On Appeal from the County Court at Law No. 5 Montgomery County, Texas Cause No. 17-29859
APPELLANT’S BRIEF ON THE MERITS
MATTHEW J. DELUCA State Bar No. 24069601 712 Main St., Suite 2450 Houston, Texas 77002 Tel: (713) 429-4400 Fax: (713) 228-2366 matt@mattdelucalaw.com Attorney for Appellant
Oral Argument Permitted IDENTIFICATION OF PARTIES AND COUNSEL
Appellant Elizabeth Ann Garrels
Appellant’s Trial Counsel James Fletcher 1017 Heights Blvd. Houston, Texas 77008
Appellant’s Appellate Counsel Matthew DeLuca 712 Main St., Suite 2450 Houston, Texas 77002
Appellee The State of Texas
Appellee’s Trial Counsel Phillip Harris Wesley LeRouax Brent Chappel Montgomery County District Attorney’s Office 207 W. Phillips St., 2nd Floor Conroe, Texas 77304
Appellee’s Appellate Counsel Jason Larman Montgomery County District Attorney’s Office 207 W. Phillips St., 2nd Floor Conroe, Texas 77304
Trial Judge The Honorable Keith Stewart County Court at Law No. 5 Montgomery County, Texas
i TABLE OF CONTENTS
Identification of Parties and Counsel ........................................................................ i
Table of Contents .................................................................................................... ii
Index of Authorities ................................................................................................ iii
Statement of the Case ............................................................................................... 1
Issue for Review ....................................................................................................... 2
Has a defendant who did not object to a trial court’s declaration of mistrial, despite an adequate opportunity to do so, impliedly consented to the mistrial?
Statement of Facts ................................................................................................... 2
Summary of the Argument ....................................................................................... 5
Issue for Review Restated .........................................................................................6
Argument .................................................................................................................6
I. The court of appeals only considered the failure to object in its implied consent analysis ................................................................................6
II. Implied consent must be based on the totality of the circumstances ............. 7
A. Torres does not support the court of appeals’ per se rule ......................... 8
B. Failure to object to a mistrial, despite an adequate opportunity to do so, does not constitute implied consent per se ................................9
C. The court of appeals’ per se rule fails to consider the totality of the circumstances ................................................................................. 11
ii III. Under the totality of the circumstances, Garrels did not consent to the mistrial .............................................................................................. 11
Prayer ..................................................................................................................... 14
Certificate of Compliance ....................................................................................... 15
Certificate of Service .............................................................................................. 15
iii INDEX OF AUTHORITIES
Cases
Arizona v. Washington 434 U.S. 497 (1978) ...........................................................................................6
Ex parte Garrels No. 09-17-00038-CR, 2017 WL 1953282, 2017 Tex. App. LEXIS 4225 (Tex. App.—Beaumont, May 10, 2017, pet. granted) (mem. op., not designated for publication) ............................................................................. 1,6
Ex parte Jackson Nos. 09-14-00138-CR, 09-14-00139-CR, 09-00140-CR, 2014 WL 3845780, 2014 Tex. App. LEXIS 8542 (Tex. App.—Beaumont Aug. 6, 2014, pet. ref’d) (mem. op., not designated for publication) .......................... 6,7
Ex parte Little 887 S.W.2d 62 (Tex. Crim. App. 1994) ...................................................... 6,9,10
Favorite v. State No. 09-16-00162-CR, 2017 WL 2687470, 2017 Tex. App. LEXIS 5656 (Tex. App.—Beaumont June 21, 2017, no pet. h.) (mem. op., not designated for publication) ................................................................................ 7
Hill v. State 90 S.W.3d 308 (Tex. Crim. App. 2002) .............................................................6
Little v. State 853 S.W.2d 767 (Tex. App.—Houston [14th Dist.] 1993) rev’d sub nom. Ex parte Little, 887 S.W.2d 62 (Tex. Crim. App. 1994) ......................................... 10
Pierson v. State 426 S.W.3d 763 (Tex. Crim. App. 2014) ..................................................... 10,11
Pierson v. State 398 S.W.3d 406 (Tex. App.—Texarkana 2013) aff’d, 426 S.W.3d 763 (Tex. Crim. App. 2014) ............................................................................................ 10
iv Torres v. State 614 S.W.2d 436 (Tex. Crim. App. 1981) ...................................................... 6,7,8
United States v. Goldman 439 F.Supp. 358 (S.D.N.Y. 1977) .......................................................................9
United States v. Goldstein 479 F.2d 1061 (2nd Cir. 1973) .............................................................................9
United States v. Smith 621 F.2d 350 (9th Cir. 1980) ........................................................................... 8,9
Constitutions
TEX. CONST. ART. 1, § 14 ..........................................................................................6
U.S. CONST. AMEND. V .............................................................................................6
v TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
ELIZABETH ANN GARRELS, Appellant, in accordance with Texas
Rule of Appellate Procedure 70, files this brief on the merits.
STATEMENT OF THE CASE
This is an appeal from the trial court’s denial of Garrels’s application
for writ of habeas corpus claiming double jeopardy in a driving while
intoxicated (“DWI”) case. 1 Garrels was charged by information with
misdemeanor DWI. (SCR 4).2 On July 11, 2016, after a jury was sworn and
testimony had begun, the trial judge sua sponte declared a mistrial. (1 RR 64).
On January 30, 2017, the trial judge denied Garrels’s application for writ of
habeas corpus, and Garrels appealed. (CR 89-91; 2 RR 11). The Ninth Court
of Appeals affirmed the trial court’s order in a memorandum opinion. Ex
parte Garrels, No. 09-17-00038-CR, 2017 WL 1953282, 2017 Tex. App.
LEXIS 4225 (Tex. App.—Beaumont, May 10, 2017) (mem. op., not
designated for publication). On June 6, 2017, Garrels’s motion for rehearing
was denied. On August 23, 2017, this Court granted Garrels’s petition for
discretionary review.
1 Garrels’s application for writ of habeas corpus was assigned a separate cause number, 17-29859, but related to the criminal matters in cause number 15-309944. 2 The original clerk’s record, filed on February 6, 2017, will be designated as “CR.” The supplemental clerk’s record, filed on March 27, 2017, will be designated as “SCR.” ISSUE FOR REVIEW
Has a defendant who did not object to a trial court’s declaration of mistrial, despite an adequate opportunity to do so, impliedly consented to the mistrial?
STATEMENT OF FACTS
On October 27, 2015, Garrels was charged by information with driving
while intoxicated, alleged to have occurred on October 24, 2015. (SCR 4).
Garrels filed a pre-trial written discovery request that included a specific
request for the State to disclose the name and address of each person it may
use at trial to present expert testimony at least 20 days before trial. (SCR 15).
On July 11, 2016, a jury was sworn and trial began. (1 RR 7). Garrels
pleaded “not guilty” to the charge, and each party presented an opening
statement. The State then called its first witness, Trooper Christopher
Lucchese, to testify. (1 RR 11-16). During direct examination, Garrels
objected to Lucchese’s testimony as an expert witness, on the grounds that
the State failed to timely disclose expert witness information under article
39.14(b) of the Texas Code of Criminal Procedure. (1 RR 47).
The State conceded that it had violated article 39.14(b) by failing to
timely disclose its expert witness list at least 20 days before trial. (1 RR 55, 57,
59). The trial judge found that the statute had been violated, and sustained
2 Garrels’s objection. (1 RR 52, 55-56). The State requested that the trial judge
grant a continuance, rather than exclude the testimony of the expert
witnesses. Garrels opposed a continuance, arguing it would unfairly allow the
State to correct its error.3 (1 RR 56-57). The trial judge was not inclined to
continue the case to a date that the State was in compliance with the
discovery order, which he estimated to be July 27, because the jurors had
been told the trial would only last three days. (1 RR 60). At this point, the
trial court took a break. (1 RR 61).
Once back on the record, the trial judge stated that he would declare a
mistrial, which he believed “would basically be the same as resetting but not
with the same jury.” (1 RR 61). But the prosecutor immediately cautioned
that unless Garrels requested the mistrial, there would need to be a finding of
manifest necessity, or the State would be barred from future prosecution.
The trial judge indicated his understanding that Garrels had not and would
not be requesting a mistrial. (1 RR 61-62). The prosecutor proposed that the
trial judge instead consider “less drastic measures,” such as admitting the
expert testimony, excluding the expert testimony, or granting a continuance.
(1 RR 63). The prosecutor told the trial judge that if a mistrial was declared,
3 Garrels’s trial counsel indicated that the State had previously been granted at least one continuance on the day of trial. (1 RR 56-57).
3 he anticipated that the State would try to re-file the case, and Garrels would
object on double jeopardy grounds. (1 RR 63-64). The trial judge declared a
mistrial, to which the State objected. (1 RR 64-65). The record reflects that
Garrels remained silent after the mistrial was declared.
On January 27, 2017, Garrels filed an application for writ of habeas
corpus, alleging a double jeopardy claim. (CR4). In an affidavit attached to
the writ, Garrels’s trial counsel stated that he did not consent to a mistrial.
(SCR 70). The trial judge denied the writ. (CR 89, 2 RR 11).
4 SUMMARY OF THE ARGUMENT
The Fifth Amendment to the United States Constitution prohibits a
State from twice putting a defendant in jeopardy for the same crime. And if a
mistrial occurs once a jury is sworn, double jeopardy bars retrial unless the
defendant consents to the mistrial or a manifest necessity exists for the
mistrial. A defendant’s consent to mistrial can be expressed or implied. Here,
the court of appeals held that a defendant’s failure to object to a trial court’s
declaration of mistrial, despite an adequate opportunity to do so, alone
constitutes implied consent to the mistrial. But this Court has rejected such a
per se rule, and instead has held that a reviewing court must consider the
totality of the circumstances when determining whether a defendant
consented to a mistrial. The court of appeals erroneously failed to consider
the totality of the circumstances in its analysis. And under the totality of the
circumstances, the record does not reflect that Garrels consented to the
mistrial.
5 ISSUE FOR REVIEW RESTATED
Has a defendant who did not object to a trial court’s declaration of mistrial, despite an adequate opportunity to do so, impliedly consented to the mistrial?
ARGUMENT
A defendant cannot be put in jeopardy twice for the same offense. U.S.
CONST. amend. V; TEX. CONST. art. 1, § 14; Arizona v. Washington, 434 U.S.
497, 503 (1978); Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). As
a general rule, if a defendant is put in jeopardy, and the jury is then
discharged without reaching a verdict, double jeopardy will bar retrial. Ex
parte Little, 887 S.W.2d 62, 65 (Tex. Crim. App. 1994). An exception to this
rule is made if the defendant consents to a retrial, or if a retrial is mandated
by manifest necessity. Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App.
1981). Consent can be expressed or implied from the totality of the
circumstances attendant to the declaration of mistrial. Id.
I. The court of appeals only considered the failure to object in its implied consent analysis.
In its memorandum opinion, the Ninth Court of Appeals held that a
“defendant who does not object to the trial judge’s sua sponte declaration of a
mistrial, despite an adequate opportunity to do so, has impliedly consented to
the mistrial.” Garrels, slip op. at 4 (citing Ex parte Jackson, Nos. 09-14-00138-
6 CR, 09-14-00139-CR, 09-00140-CR, 2014 WL 3845780, 2014 Tex. App.
LEXIS 8542, at *6-7 (Tex. App.—Beaumont Aug. 6, 2014, pet. ref’d) (mem.
op., not designated for publication)). The court concluded that Garrels
consented to the mistrial solely because her “counsel had an adequate
opportunity to object…but did not do so.” Garrels, slip op. at 5. The court
followed the same holding it had in Jackson, adopting a per se rule – that a
defendant’s failure to object to a mistrial, despite an adequate opportunity to
do so, always constitutes implied consent.4 In Jackson, the court cited Torres
in support of this per se rule. Jackson, at *6. But the court’s reliance on Torres
is misplaced, as this Court has never held that a failure to object to a mistrial,
despite an adequate opportunity to do so, by itself constitutes implied
consent. Such a strict rule conflicts with prior decisions of this Court, of
other Texas courts, and of federal courts.
II. Implied consent must be based on the totality of the circumstances.
This Court has long held that when analyzing implied consent to a
mistrial, a reviewing court must consider “the totality of the circumstances
attendant to the declaration of mistrial.” Torres, 614 S.W.2dd at 441.
4 Before this Court granted review, the court of appeals recognized this per se rule in another unpublished opinion. See Favorite v. State, No. 09-16-00162-CR, 2017 WL 2687470, 2017 Tex. App. LEXIS 5656, at *18 (Tex. App.—Beaumont June 21, 2017, no pet. h.) (mem. op., not designated for publication).
7 A. Torres does not support the court of appeals’ per se rule.
In Torres, this Court considered whether a defendant had impliedly
consented to be retried because of a failure to object to the court’s
declaration of mistrial. In finding that the defendant did not consent to the
mistrial, this Court cautioned, “before a failure to object constitutes an
implied consent to a mistrial, a defendant must be given an adequate
opportunity to object to the court’s motion.” Torres, 614 S.W.2d at 441-42.
The court of appeals has misconstrued Torres to read that a failure to
object to a mistrial, despite an adequate opportunity to do so, creates implied
consent per se. But Torres does not stand for such a rule. Instead, Torres
instructs that a failure to object can be considered in a reviewing court’s
consent analysis, but only if a defendant was given an adequate opportunity
to object. A reviewing court must still consider the totality of the
circumstances when analyzing consent to a mistrial. This Court cited
multiple federal opinions in Torres that are instructive on the issue of implied
consent analysis, and support this interpretation. Torres, 614 S.W.2d at 441-
42.
In United States v. Smith, the Second Circuit determined that a
defendant had impliedly consented to a mistrial based, not solely on
8 counsel’s failure to object, but on the totality of the circumstances. In
addition to the failure to object, the court found that defense counsel’s
comments after mistrial affirmatively indicated his understanding that there
would be a retrial. 621 S.W.2d 350, 352 (9th Cir. 1980). In United States v.
Goldstein, the court would not hold that the failure to object constituted
implied consent, but instead was one of several probative factors from which
consent may be implied. 479 F.2d 1061, 1067 n.11 (2nd Cir. 1973). In United
States v. Goldman, the court held that a failure to object to a mistrial may not,
in and of itself, constitute consent, but it is a factor to be considered. 439
F.Supp. 358, 362 (S.D.N.Y. 1977). That this Court cited these cases in Torres
indicates its intention that “a defendant’s failure to object, despite an
adequate opportunity to do so” should be a factor in an implied consent
analysis, but not the factor.
B. Failure to object to a mistrial, despite an adequate opportunity to do so, does not constitute implied consent per se.
Since Torres, this Court has refused to hold that a defendant’s failure to
object to a mistrial, despite an adequate opportunity to do so, alone will
constitute implied consent.
In Little, this Court rejected such a per se rule on the failure to object to
a mistrial. 887 S.W.2d at 66. The Fourteenth Court of Appeals initially held
9 that consent to a mistrial was implied if a defendant had an adequate
opportunity to object, but failed to do so. Little v. State, 853 S.W.2d 767, 767
(Tex. App.—Houston [14th Dist.] 1993) rev’d sub nom. Ex parte Little, 887
S.W.2d 62 (Tex. Crim. App. 1994). On review, this Court reversed, finding
that it could not infer from the totality of the circumstances that the
defendant consented to the mistrial. This Court reasoned that if it held that a
defendant waived his objection merely by failing to state, “I object,” it would
be to adopting hypertechnicalities it had previously rejected. 5 Little, 887
S.W.2d at 66.
More recently, this Court affirmed a Sixth Court of Appeals decision
holding that a defendant did not consent to a mistrial, despite his failure to
object. In Pierson v. State, the Sixth Court of Appeals determined that the
totality of the circumstances failed to establish that the defendant consented
to a mistrial, though he did not object to it. 398 S.W.3d 406, 412 n.4 (Tex.
App.—Texarkana 2013) aff’d, 426 S.W.3d 763 (Tex. Crim. App. 2014). The
court refused to infer consent from a silent record, reasoning that once the
trial judge announced its intention to declare a mistrial, it was reasonable
trial strategy not to challenge the decision. Id. On discretionary review, this
5 This Court noted that it did not need to decide the issue of whether a defendant’s silence in the face of a mistrial amounted to consent. Little, 887 S.W.2d at 66 n.4.
10 Court agreed that the defendant did not consent to the mistrial. Pierson, 426
S.W.3d at 770.
C. The court of appeals’ per se rule fails to consider the totality of the circumstances.
The court of appeals erred in concluding that a defendant’s failure to
object to a mistrial, despite an adequate opportunity to do so, constitutes
implied consent to the mistrial. Such a holding adopts a per se rule that
ignores this Court’s prior decisions in Torres, Little, and Pierson. This Court
has held that a reviewing court may consider a failure to object in its consent
analysis, but must always consider the totality of the circumstances attendant
to a declaration of mistrial. Here, the court failed to consider the totality of
the circumstances in the record, erroneously isolating Garrels’s failure to
object. The court of appeals’ analysis is flawed, and should be reversed.
III. Under the totality of the circumstances, Garrels did not consent to the mistrial.
Had the court of appeals considered the totality of the circumstances
attendant to the trial judge’s declaration of mistrial, rather than the failure to
object alone, it could not have inferred that Garrels consented to the mistrial.
The record supports the following relevant considerations:
1. Garrels wished to proceed with trial.
11 2. Garrels would not benefit from a mistrial.
3. The State would benefit from a mistrial.
4. Both the trial judge and the State understood Garrels did not want a mistrial.
5. Garrels did not expect to be retried.
The eventual mistrial grew out of an in-trial objection. During direct
examination of the State’s first witness, a police officer, Garrels objected to
the officer testifying as an expert witness because the State had violated a
discovery statute related to the disclosure of expert witnesses. (1 RR 47). The
trial judge agreed that the State violated the statute, and sustained the
objection. (1 RR 52, 55-56). It should be emphasized that Garrels’s objection
called for the exclusion of expert testimony. And after the trial judge
sustained the objection, Garrels expected that the testimony would be
excluded. The prosecutor suggested that the trial judge had three options;
exclude the testimony, grant the State’s continuance, or allow the testimony.
(1 RR 59). Garrels opposed the State’s request for continuance, arguing that
a continuance would allow the State an improper way out of its own mistake.
(1 RR 57).
Though Garrels did not formally object to the mistrial, her position after
the sustained objection never changed. She wanted to trial judge to follow his
12 ruling and exclude the expert testimony. The record reflects that the trial
judge and prosecutor both understood that Garrels did not want a mistrial.
An exchange between the trial judge and prosecutor supports this
conclusion:
Prosecutor: We would be jeopardy barred, very likely, and in fact be a dismissal.
Trial Judge: You think that’s true, even if –
Prosecutor: Because the defense has not requested a mistrial. I believe that you need a manifest necessity to declare a mistrial. You are free to grant a mistrial, generally, but I believe that would bar us. If the defense wanted to request a mistrial in lieu of submitting the testimony, that would be different.
Trial Judge: Doesn’t sound like that’s what –
Prosecutor: Correct. It’s my understanding when the defense doesn’t request a mistrial it needs to be due to manifest necessity.
(1 RR 61-62) (emphasis added). The prosecutor further warned the trial
judge that, if a mistrial was declared, the State would try to re-file the case,
and Garrels would file a motion on double jeopardy grounds. (1 RR 63-64).
The record supports a conclusion that both the trial judge and the State
understood that Garrels did not consent to a mistrial and would object to
further prosecution on double jeopardy grounds. And that is exactly what
13 happened. Garrels’s trial counsel subsequently stated in a verified affidavit
filed along with the application for writ of habeas corpus that he did not
consent to the mistrial. (SCR 70). Under the totality of the circumstances, it
is unreasonable to infer that Garrels consented to the mistrial.
PRAYER
Garrels asks this Court to find that she did not consent to the mistrial,
reverse the court of appeals’ opinion, and remand the case so that the court
of appeals can address the issue of manifest necessity. Alternatively, Garrels
asks this Court to reverse the court of appeals’ opinion, and remand the case
so that the court of appeals can address the issue of implied consent under
the totality of the circumstances.
Respectfully submitted,
/s/ Matthew J. DeLuca Matthew J. DeLuca State Bar No. 24069601 712 Main St., Suite 2450 Houston, Texas 77002 Tel: (713) 429-4400 Fax: (713) 228-2366 matt@mattdelucalaw.com Attorney for Appellant
14 CERTIFICATE OF COMPLIANCE
I certify that this document contains 2,644 words, and is in compliance
with Texas Rule of Appellate Procedure 9.4.
/s/ Matthew J. DeLuca Matthew J. DeLuca
CERTIFICATE OF SERVICE
I certify that a copy of this document was served on the following
parties through the efile.txcourts.gov e-filing system on October 9, 2017:
Jason Larman Assistant District Attorney Montgomery County District Attorney’s Office 207 W. Phillips, 2nd Floor, Conroe, Texas 77301 jason.larman@mctx.org
Stacey Soule State Prosecuting Attorney PO Box 13046, Austin, Texas 78711-3046 information@spa.texas.gov