In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00165-CR
______________________________
GRANT WILLIAM BARNETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 5
Harris County, Texas
Trial Court No. 1046797
Before Grant, Ross, and Cornelius,* JJ.
Opinion by Justice Grant
______________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
O P I N I O N
Grant William Barnett appeals his conviction for possession of less than two ounces of marihuana, with a sentence of thirty days in the Harris County Jail, suspension of his driver's license for one year, and court costs. In his sole issue on appeal, Barnett contends that his second trial for the offense charged was barred by double jeopardy because a mistrial was declared in the first trial due to intentional or reckless conduct by the prosecutor.
Procedural History/Statement of Facts
Before trial, Barnett's counsel filed a Motion to Suppress Evidence, alleging Barnett was searched in violation of Chapter 14 of the Code of Criminal Procedure, and in accord with Section 38.23 of the Code, evidence seized from such search should be suppressed. Tex. Code Crim. Proc. Ann. art. 14.01, et seq. (Vernon 1977 & Supp. 2002), art. 38.23 (Vernon Supp. 2002). Harris County Deputy Sheriff Dean Allred was the State's first witness at the suppression hearing. Allred testified he observed a vehicle with a taillight out traveling in the 11900 block of Jones Road in northwest Harris County. He followed the vehicle and stopped it, pulling into a Wells-Fargo Bank parking lot in the 12300 block of Jones Road. He testified that when he approached the vehicle, he smelled a strong odor of marihuana coming from the inside. He identified the driver as Barnett. Allred also observed "rolling papers" on the back floor of the vehicle, which are commonly used to roll marihuana cigarettes. After being given permission to search the vehicle, Allred testified he found a glass jar under the driver's seat which contained marihuana. He also located an eyeglass container, which contained a bag of marihuana, and another smaller bag containing an unknown substance. On redirect examination, Allred further stated he also found a compact disk (CD) case in the car, which contained an unknown substance in a small plastic bag. The trial court denied the motion.
In the first trial on the merits (labeled in the reporter's record as "Mistrial"), defense counsel filed a trial motion in limine regarding a Rule 404 notice received less than ten days before trial. The notice stated that the unknown substance found in the CD case at the traffic stop and recovered by police was a controlled substance, namely, mushrooms. Defense counsel complained of lack of proper notice and sought to suppress the evidence. The court ruled as follows:
[Defense Counsel]: So, I respectfully request that the Court grant my motion in limine to instruct the State not to use the mushrooms in their case.
THE COURT: All right. I will so instruct the State. Mushrooms can't be referred to, can't be admitted in evidence and so on.
. . . .
THE COURT: All right. I agree with the Defense on this one, Mr. Kitchen. We're not going to have mushrooms. We're going [to] have marijuana, okay. That's what the defendant is charged with. . . .
. . . .
THE COURT: Bottom line there will be no mushrooms in this trial. That's about as plain as I can get. No mushrooms.
However, despite the repeated warnings, during the State's direct examination of Deputy Allred, the prosecutor showed Allred State's Exhibit 3 and requested identification, the "unknown substance" from the CD case recovered from the car, i.e., the mushrooms. After a brief colloquy among counsel and the trial court, the trial court granted the Motion for Mistrial. After dismissing the first jury, the trial judge immediately summoned another venire, and proceeded with the retrial. No objection to the second trial was made.
Procedural Waiver
The State first argues that Barnett, by failing to file a trial objection to the second prosecution, and seeking to raise the issue for the first time on appeal, has waived his right to raise a double jeopardy defense. The State cites Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000), in support of its argument and contends the alleged double jeopardy violation is not apparent from the face of the record and the record is not adequately developed as to the "prosecutor's state of mind" in introducing the forbidden evidence despite the repeated instructions of the trial court.
The Gonzalez opinion clearly deals with a "multiple punishments for the same offense" federal double jeopardy claim. Id. at 640, 645. The type of double jeopardy claim being asserted here is "successive prosecution for the same offense." Bauder v. State, 921 S.W.2d 696, 697 (Tex. Crim. App. 1996). Gonzalez noted the distinction between the two types of double jeopardy claims, recognizing that "successive prosecution" claims are sufficiently "apparent" from the record as to permit the raising of such claim in a pretrial writ of habeas corpus. Gonzalez, 8 S.W.3d at 643 n.9. In any case, even if applicable in this "successive prosecution" type of claim, we note that, as held in Gonzalez, when the facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serve no legitimate state interest, a double jeopardy claim may be raised for the first time on appeal. Id. at 643.
The State asserts that a double jeopardy violation is not apparent from the face of the record. We disagree. There is, on the face of the record, a mistrial granted at the request of the defense after the prosecutor, after being repeatedly warned and admonished, offered into evidence materials he was expressly instructed not to mention. Further, the State argues the record has not been developed as to the prosecutor's state of mind at the time the erroneous evidence was introduced. We also disagree with this contention. Assuming for the purpose of argument that such state of mind evidence is required, it clearly appears in the record, as well as the state of mind of both the judge and the defense attorney.
We hold the double jeopardy claim was adequately raised and may be considered on the merits.
Double Jeopardy-Mistrial at Request of Defendant-Due to Prosecutorial Error
As a general rule, when a mistrial is declared in a criminal prosecution at the defendant's request, the government is not barred under the United States Constitution from retrying the defendant. However, a narrow exception to this general rule has been recognized in certain situations when the mistrial is caused by prosecutorial misconduct. The circumstances under which a defendant may invoke the bar of double jeopardy to a second effort to try him or her are limited to those cases in which the conduct giving rise to the successful motion for mistrial was intended to provoke the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 673, 102 S. Ct. 2083, 72 L. Ed. 2d 416, 423 (1982). In his concurring opinion, Justice Powell joins the Court's opinion which he characterizes as holding that the intention of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of the defendant under the Double Jeopardy Clause. Id. at 456 U.S. 679.
In Bauder v. State ("Bauder I") and Ex parte Bauder, 974 S.W.2d 729, 732 (Tex. Crim. App. 1998) ("Bauder II"), the Texas Court of Criminal Appeals, under the double jeopardy provision of Tex. Const. art. I, § 14, recognized a somewhat greater exception to the general rule.
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. It must be determined whether the defendant's motion for mistrial was a choice he or she made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, or retrial; or, on the other hand, was the defendant 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 it could not have been cured by judicial admonishment. State v. Lee, 15 S.W.3d 921, 923-24 (Tex. Crim. App. 2000) (citing and analyzing Bauder I and Bauder II). When such conduct occurs, the government should bear the responsibility for denying the defendant his or her right secured by the Double Jeopardy Clause to be tried in a single proceeding by the jury first selected. Bauder I, 921 S.W.2d at 699.
In applying the Bauder rule, the mens rea under which the prosecutor acted is pivotal. It is not sufficient that the incurable condition created by the prosecutor arose from simple negligence or sloppiness. Instead, the prosecutor must have created it while either intending that his or her actions result in a mistrial, or while actually knowing of that likelihood but nonetheless consciously ignoring it. Vasquez v. State, 22 S.W.3d 28, 32 (Tex. App.-Amarillo 2000, no pet.). The Corpus Christi court, in such a case, following State v. Lee, determined that the proper standard was whether the State intended to induce a motion for mistrial or was aware of, but consciously disregarded, the risk that its improper conduct would prompt a motion for mistrial by the defendant. State v. Cabrera, 24 S.W.3d 528, 532 (Tex. App.-Corpus Christi 2000, pet. ref'd). The ruling in the Cabrera case was that the state acted with such conscious disregard for the risk of a mistrial by its continuing reference to testimony which the trial court had properly ordered excluded and the trial court had not abused its discretion in ruling that double jeopardy barred a retrial. Id. at 532. The prosecutor must be aware his conduct creates at least a risk that a mistrial will be required. In other words, negligent conduct on the part of the prosecutor will not trigger double jeopardy protection in this context. Goss v. State, 944 S.W.2d 748, 750 (Tex. App.-Corpus Christi 1997, no pet.). As to how an appellate court may make this determination, we note that in the final disposition of Samuel Bauder's journey through our appellate court system, Ex parte Bauder, 2 S.W.3d 376 (Tex. App.-San Antonio 1999, pet. ref'd), the San Antonio court, in determining whether the prosecutor acted with conscious disregard for the danger of a mistrial, looked to a discussion, on the record but out of the jury's presence, in which the prosecutor basically said he did not mean to do it, that the witness's answer was unexpected. At the hearing held on Bauder's plea in bar, the prosecutor said he talked to the witness and, based on this interview, the answer he received at trial was a surprise. From this, the court concluded there was no deliberate or reckless conduct by the prosecutor. Id. at 377-78.
In the present case, the prosecutor admitted on the record, before the trial court but out of the jury's presence, that he had in fact attempted to introduce into evidence testimony concerning the "mushrooms," into evidence, but stated it was not deliberate; he grabbed the wrong piece of evidence by mistake, and the officer truthfully answered his question when shown the evidence. The trial judge specifically stated she did not think he had done so deliberately, as he was a new prosecutor. Before beginning the second trial, defense counsel agreed with the trial judge that he did not feel the prosecutor's actions were deliberate or intentional. Given these acknowledgments by counsel and the trial court, we cannot say the prosecutor's actions were deliberate or reckless, but rather, at most, negligent. Therefore, we find that under both state and federal standards regarding double jeopardy, Barnett's rights were not violated by the second trial.
The judgment of the trial court is affirmed.
Ben Z. Grant
Justice
Date Submitted: May 16, 2002
Date Decided: June 26, 2002
Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00216-CR
______________________________
THE STATE OF TEXAS, Appellant
V.
THOMAS JACOB EVANS, Appellee
On Appeal from the County Court at Law #1
Gregg County, Texas
Trial Court No. 2009-1097
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In early March 2009, around 2:00 a.m.when the bars were closing for the nightGladewater Police Officer Stephen Washburn observed an automobile driven by Thomas Jacob Evans travel for an eighth to a quarter of a mile to the left of center of Armstrong Road, a Gladewater street that had no center striping but was wide enough for two lanes of traffic. Washburn concluded that Evans had committed a traffic violation sufficient to authorize Washburn to stop Evans vehicle. When Washburn stopped Evans, he discovered evidence that confirmed Washburns earlier suspicion that Evans had been driving under the influence of alcohol.
Evans, charged with driving while intoxicated (DWI),[1] having one prior DWI conviction on his record, sought to suppress the evidence[2] from the traffic stop. After a pretrial hearing,[3] the trial court suppressed the evidence. The State appeals. Because Evans committed a traffic offense in Washburns view, we reverse the suppression order and remand this case for further proceedings.
A few minutes before stopping Evans, Washburn had been helping with an unrelated traffic stop, when he had noticed the Evans vehicle pass his vehicle on the right through the parking area of a nearby car lot. That had sparked Washburns interest, and he began following Evans. After traveling a short distance, Evans turned right on Shell Camp Road and then onto Armstrong Road, a blacktop road with no center striping, but of sufficient width for two traffic lanes. Evans did not commit any traffic violations before turning onto Armstrong Road.
After Evans turned onto Armstrong Road, he began driving left of center and failed to maintain his lane of travel for an eighth to a quarter of a mile. Even without the lane markings, it was obvious Evans was driving in the middle of the road, prompting Washburn to activate his emergency lights. When Evans failed to respond, Washburn hit his air horn and siren. In response, at least initially, Evans failed to respond. Evans finally stopped in response to Washburns continued activation of his cars siren. There was no other traffic in the area at 2:00 a.m.
Washburn testified that the local bars usually close at 2:00 a.m., about the time he noticed Evans drive through the car lot. Based on the fact that Evans was driving down the middle of the road at 2:00 a.m., Washburn believed Evans to possibly be intoxicated.
The trial court made specific findings of fact and conclusions of law[4] and suppressed the evidence.
On appeal, the State claims (1) Washburn had probable cause to stop Evans based on a traffic violation, and (2) Washburn had a reasonable suspicion Evans was driving while intoxicated. Because the traffic stop was authorized due to a traffic violation by Evans, we reverse the suppression order. Because that disposes of this appeal, we do not reach the States second claim.
We review a trial courts ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford almost total deference to the trial courts determination of the historical facts supported by the record, especially when the trial courts fact-findings are based on an evaluation of the credibility and demeanor of the witnesses. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman, 955 S.W.2d at 8990. When the trial courts rulings do not turn on the credibility and demeanor of the witnesses, we apply a de novo standard of review. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). That is, we give almost total deference to the trial court in determining what the actual facts are, but we review de novo the application of the law to those facts. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Because the historical facts in the present case are not in dispute, we make a de novo determination of whether those facts give rise to a reasonable suspicion of criminal activity. Guzman, 955 S.W.2d at 87.
The Traffic Stop Was Authorized Due to a Traffic Violation by Evans
The State asserts Washburn had probable cause to make the traffic stop. Detention, as opposed to an arrest, may be justified on less than probable cause. Carmouche, 10 S.W.3d at 328. A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention and, therefore, must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). An officer conducts a lawful temporary detention when in possession of reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Thus, if Washburn had a reasonable suspicion that a traffic violation was in progress or had been committed, the detention was lawful. See Doyle v. State, 265 S.W.3d 28, 31 (Tex. App.Houston [1st Dist.] 2008, pet. refd).
Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead to a conclusion that a particular person is, has been, or soon will be engaged in criminal activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Doyle, 265 S.W.3d at 31 (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). The determination of reasonable suspicion is factual, and must be examined in terms of the totality of the circumstances at the time of the stop. Curtis v. State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). It is the States burden to prove the warrantless detention was lawful. State v. Huddleston, 164 S.W.3d 711, 716 (Tex. App.Austin 2005, no pet.).
The States contention, urged at the suppression hearing and on appeal, is that Evans violated Section 545.051 of the Texas Transportation Code. This section of the Code provides that an operator on a roadway of sufficient width shall drive on the right half of the roadway unless the operator is passing another vehicle, an obstruction requires moving the vehicle to the left of the center of the roadway, the operator is on a roadway divided into three marked lanes for traffic, or the operator is on a roadway restricted to one-way traffic. Tex. Transp. Code Ann. § 545.051(a) (Vernon 1999).
Evans contends that, because there is no evidence that he was speeding or driving erratically, there was no traffic violation. Although the trial court found that Evans was driving to the left of center on Armstrong Road for an eighth to a quarter of a mile and that Armstrong Road was an undivided, two-lane road without a center stripe, it concluded that Evans driving on Armstrong Road was not unsafe on an unmarked blacktop road traveled only by Evans and Washburn. The trial court, therefore, concluded that Washburn lacked reasonable suspicion to stop Evans for a traffic violation. We disagree.
The specific factual findings of the trial court indicate Evans was driving left of center of the roadway for an eighth to a quarter of a mile and that the road was an undivided, two-lane road without a center stripe. In other words, Evans failed to drive on the right half of the roadway as required by Section 545.051(a) of the Texas Transportation Code. See id. This observation alone was enough to create a reasonable suspicion that a traffic violation was in progress. See Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.Fort Worth 2001, no pet.) (officers observation of defendants vehicle crossing center line one time provided reasonable suspicion for traffic stop). The fact that Armstrong Road did not have a center stripe is of no consequence in making this determination. Section 545.051 of the Texas Transportation Code does not limit the requirement of driving in the right lane to only roadways marked with a center stripe. Tex. Transp. Code Ann. § 545.051(a).
The trial court concluded that, even though Evans drove his vehicle to the left of the center of the roadway, to do so was not unsafe in this circumstance. But Section 545.051 does not allow for a driver to move from the right half of the roadway if that movement can be made safely. It merely requires that, if a roadway is of sufficient width, a driver must remain on the right half of the roadway, unless one of the statutory exceptions applies. Washburns testimony established that none of the exceptions to the requirement to drive on the right half of the roadway applied in this circumstance.[5] Accordingly, the determination of whether Evans could safely drive left of center is irrelevant to our reasonable-suspicion analysis. See Bracken v. State, 282 S.W.3d 94, 9899 (Tex. App.Fort Worth 2009, pet. refd) (because Section 545.051(a) has no unless movement can be made safely exception to prohibition against crossing center of road, issue of safety is irrelevant to analysis of reasonable suspicion).
For these reasons, we conclude that Washburn had a reasonable suspicion that a traffic violation was in progress by virtue of the fact that Evans failed to travel in the right half of the roadway for a distance of an eighth to a quarter of a mile.[6]
Having found that, based on the traffic violation, Washburn had specific articulable facts to justify the traffic stop, we conclude that the trial court erred in granting Evans motion to suppress. Accordingly, we reverse the suppression order and remand this cause to the trial court for further proceedings.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 1, 2010
Date Decided: April 2, 2010
Do Not Publish
[1]A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). Intoxicated means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance in the body. Tex. Penal Code Ann. § 49.01(2)(A) (Vernon 2003).
[2]Evans sought to suppress evidence of his arrest and the fruit of that arrest, alleging a warrantless arrest made without reasonable suspicion or probable cause to believe Evans was engaged in criminal activity. Evidence sought to be suppressed included written and oral statements made by Evans to officers at or after his arrest, testimony of officers regarding Evans statements or officers observations or identification of Evans, any evidence obtained as a result of Evans arrest, and photographs or video recordings taken by officers at Evans arrest.
[3]At the suppression hearing, the State called Washburn to the witness stand and played for the court a portion of a video recording shot by a camera mounted in Washburns patrol car.
[4]The trial court made the following findings of fact:
1. On March 3, 2009, Officer Stephen Washburn of the Gladewater Police Department was assisting in a traffic stop and first noticed defendants vehicle as it passed by him on the right in a used vehicle parking lot at approximately 2:00 a.m.
2. Officer Washburn then followed defendants vehicle west on Highway 80 for a short period of time observing defendant turn right onto Shell Camp Road and then turn right onto Armstrong Road.
3. Armstrong Road is an undivided, two-lane blacktop road and was not marked with a center lane. There is no shoulder, fog line or curbing. Armstrong Road is a public street.
4. Officer Washburn observed no traffic violations by the defendant on the parking lot, Highway 80, or Shell Camp Road. Officer Washburn initiated a traffic stop after observing defendants vehicle driving left of the center of Armstrong Road for a distance of approximately an eighth to a quarter of one mile. Officer Washburn did not observe any weaving by the defendant.
5. There was no other traffic on the blacktop road, and the defendant did not appear to be driving in an unsafe manner.
6. Officer Washburns testimony was credible.
7. The incident was captured on video, reviewed by this Court and admitted into evidence.
The trial court made the following conclusions of law:
1. The Court finds that Officer Washburn did not have reasonable suspicion to stop defendant for a violation of traffic code or for suspicion of driving while intoxicated under the totality of the circumstances.
2. The Court finds that the defendant did drive his vehicle to the left of center of the roadway; however, the Court does not find that to be unsafe on the blacktop road that is not marked with center markings and void of any traffic other than the defendant and the officer traveling in the same direction.
3. Any finding of fact that is a conclusion of law shall be deemed a conclusion of law. Any conclusion of law that is a finding of fact shall be deemed a finding of fact.
[5]Evans was not driving in the middle of the road for the purpose of passing another vehicle or to avoid obstructions or hazards in the roadway. Armstrong Road was not divided into three marked lanes for traffic, and it was not a one-way street.
[6]The State also contends that Washburns authority to stop Evans was supplied by his reasonable suspicion to believe that Evans was driving while intoxicated. Because our ruling as to the traffic offense is dispositive of this appeal, we do not reach that claim.