AT AUSTIN
NO. 3-90-268-CR
CLEVE MOTEN,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY, NO. 302,051, HONORABLE WENDELL ODOM, JUDGE
PER CURIAM
A jury found appellant guilty of driving while intoxicated, first offense. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Supp. 1991). The court assessed punishment at incarceration for two years and a $600 fine, but imposition of sentence was suspended and appellant was placed on probation. In his only point of error, appellant urges that the court below erred by overruling his plea of prior jeopardy.
This was appellant's third trial for this offense. Appellant's first trial resulted in a hung jury and a mistrial. During his opening statement at the second trial, defense counsel told the jury that this was not an easy case, that it had been tried previously, and that the jurors at appellant's first trial had been unable to reach a verdict. The State then moved for a mistrial on the ground that these remarks had incurably prejudiced the jury. The court granted the State's motion over appellant's objection. Unless this mistrial was manifestly necessary, appellant's third trial was barred by jeopardy.
Jeopardy attached when the jury was impaneled and sworn at the second trial, and appellant possessed a valued right to have his guilt or innocence determined before that trier of fact. Crist v. Bretz, 437 U.S. 28 (1978); McElwee v. State, 589 S.W.2d 455 (Tex. Crim. App. 1979). Because the mistrial decision affects a constitutionally protected right, there must be a high degree of necessity that the trial come to an end to avoid the double jeopardy bar. A reviewing court must determine that the trial judge did not act irrationally or irresponsibly, and that the mistrial order reflects the exercise of sound discretion. Arizona v. Washington, 434 U.S. 497 (1978); Ex parte Moore, 695 S.W.2d 715, 719 (Tex. App. 1985, no pet.). In short, manifest necessity must be shown for declaring a mistrial over the objection of the accused. United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); Harrison v. State, 788 S.W.2d 18, 21-22 (Tex. Crim. App. 1990).
The words "manifest necessity" do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial court. Arizona v. Washington, 434 U.S. at 506. Where the necessity for a mistrial turns on an assessment of the prejudicial impact of some impropriety by defense counsel, the trial court's decision is entitled to great deference. Id. at 510; Harrison, 788 S.W.2d at 22. In such cases, the trial court is far more conversant with the factors relevant to the determination than a reviewing court can be.
Arizona v. Washington involved a fact situation similar to this cause. The defendant's original conviction was reversed on appeal because the prosecutor withheld exculpatory evidence from the defense. During his opening statement to the jury at the second trial, defense counsel told the jurors that evidence was suppressed by the prosecutor at the first trial, and that the defendant had been awarded a new trial because of the prosecutor's misconduct. Based on these statements, the prosecutor moved for a mistrial. After hearing arguments on the propriety of counsel's remarks and the prejudicial effect they might have had, the court declared a mistrial. In doing so, the court stated that alternative solutions had been considered and found inadequate. The Supreme Court found no abuse of discretion:
The trial judge did not act precipitately in response to the prosecutor's request for a mistrial. On the contrary, evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. We are therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to [the defendant's] interest in having the trial concluded in a single proceeding. Since he exercised "sound discretion" in handling the sensitive problem of possible juror bias created by the improper comment of defense counsel, the mistrial order is supported by the "high degree" of necessity which is required in a case of this kind. Neither party has a right to have his case decided by a jury which may be tainted by bias; in these circumstances, "the public's interest in fair trials designed to end in just judgments" must prevail over the defendant's "valued right" to have his trial concluded before the first jury impaneled.
434 U.S. at 515-16 (footnotes omitted).
Appellant relies primarily on Harrison. In that case, the defendant was accused of hindering the arrest of his brother. The arresting officer testified that appellant struck him during the episode, giving him a black eye. During cross-examination, defense counsel asked the officer if he remembered seeing the person who came to get the defendant out of jail following his arrest. The officer said he did not. Counsel then asked, "Would you be surprised if I said I remember seeing you?" After receiving a negative response, counsel asked, "If you'd had a black eye, do you think I would have seen it through that window?" The officer replied, "I couldn't say." 788 S.W.2d at 20. The State moved for a mistrial, arguing that counsel made himself a fact witness by his questioning of the officer. The State indicated that it might be necessary to call defense counsel as a witness if a mistrial were not declared, forcing counsel to withdraw from the case in the middle of trial. The motion was granted. The Court of Criminal Appeals concluded that a mistrial was not manifestly necessary:
While the questions in the instant case sought to call [the officer's] credibility into question on one rather insignificant and undeveloped aspect, they did nothing to impeach his testimony regarding [the defendant's] actions in committing the offense. . . . We hold that the questions posed by defense counsel, even if improper, were of "merely tangential importance" to the case itself and did not "irreversibly inject" counsel's credibility as an issue in the trial. In addition, because the trial judge failed to consider any less drastic alternatives the declaration of a mistrial was improper. . . .
788 S.W.2d at 23, 24.
We find this cause to be more closely analogous to Washington v. Arizona than to Harrison. The outcome of a prior trial of the defendant in the same cause is generally irrelevant. Where a new trial is granted following a conviction, allusion to the conviction at the new trial is forbidden. Tex. R. App. P. Ann. 32 (Pamph. 1991). A reference to a previous hung jury is also improper. Heidingsfelder v. State, 81 S.W.2d 510 (Tex. Crim. App. 1935). By revealing the result of the first trial as he did, counsel may have affected the impartiality of the jury by suggesting that the other jurors had found the State's evidence weak and unpersuasive. This distinguishes this cause from Harrison, where counsel's improper questions related only to an insignificant and undeveloped aspect of the State's case.
Before ruling on the State's motion for mistrial, the court gave both parties a full opportunity to be heard. The prosecutor argued that counsel's opening statement was inflammatory and prejudicial to the State, and that the harm could not be overcome by an instruction to disregard. Defense counsel urged that his statement had not been improper; he did not comment on the possibility of curing the error by an instruction. In granting the State's motion, the court expressly found that an instruction would not be sufficient to cure the error. This also distinguishes this cause from Harrison.
This passage from Washington v. Arizona accurately summarizes our conclusion in this cause:
We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not "necessary." Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
434 U.S. at 511. We accord the same degree of respect to the trial court's judgment in this cause. We find that the court did not abuse its discretion in granting the State's motion for mistrial at appellant's second trial. As a consequence, the court did not err by overruling appellant's plea of prior jeopardy.
The judgment of conviction is affirmed.
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Affirmed
Filed: October 23, 1991
[Do Not Publish]