*1 Dunn, Rod L. Douglas Poirot and R. Dal- las, for Larry Hunnicutt. Glenn ANDERSON & Charles Hunnicutt, Appellants, Wade, Henry Atty. Dist. & Ronald D. Hinds, Hubble, Brady. Sparks John & Rick Russell, Dallas, Attys., Asst. Dist. Robert Texas, Appellee. The STATE of Huttash, Austin, Atty., State’s Nos. 64110. State. Texas, Appeals Court of Criminal
En Banc. July 1982. OPINION 15,1982. Rehearing Sept. Denied DAVIS, Judge. TOM G.
Appeals are taken from convictions for aggravated robbery.1 Following pleas of guilty, the court pun- assessed Anderson’s years punish- ishment at 25 and Hunnicutt’s years. ment at 20 appellants single Both raise the same ground They of error. maintain that the overruling special trial court erred in pleas of jeopardy. Appellants double con- prosecutions tend that the instant were barred because the first trial of these caus- es ended in mistrials due to overreaching. appellants
The record reflects origi- nally guilty jury entered of not and a picked on March 1979. The was ordered to return for trial to commence the following day. following morning, called to the attention of the court jurors, that one of the Sampson, Leon had a hearing problem impair severe which would ability juror. to serve as a The State appellants agreed then substitu- Sampson. tion of Cornelia Green for This place substitution never took because the appellants sign refused to a document styled “WAIVER OF RIGHT TO MIS- TRIAL, NEW MOTION FOR TRIAL AND APPELLATE RIGHT TO CLAIM DOU- BLE JEOPARDY ON OF GROUNDS JUR- SUBSTITUTION,” which had been pre- OR pared by prosecutors. one of the In ex- plaining why he felt that document, sign needed to one of the Dallas, prosecutors for Anderson. stated: Stephen Halsey, L. Appellants separately indicted for the C.C.P. 36.09, jointly. same Art. V.A. offense and tried *2 is, jurors, Judge, problem
“MR. with eleven the State had intention- RUSSELL: go if we and hear the case with- forward ally sought to have a mistrial declared in previously juror, I can en- out sworn the first trial. It was therefore maintained problem jeopardy already. vision that the first trial ended in a mistrial due to We know has attached. There prosecutorial overreaching any and that any prejudice been hasn’t unless subsequent prosecution by jeop- was barred twelfth substituted hears evidence ardy. Sampson. instead of Mr. hearing appellants’ The held a court they “If won’t waive jeopardy motions. At the conclusion of jeopardy, we can have three felonies hearing, the motions were overruled ought blown out of the tub. I we think impliedly found the ask- and court Sampson forward with Leon be- question forming of the the basis of the going cause I know damned well are mistrials constituted more than (sic) appeal.” to aseert it on prosecutorial error. questioned Sampson The court then Russell, Rick Attorney Assistant District learned that he was deaf in one ear and had County, of Dallas testified that he was the hearing in the only Samp- 30% other ear. prosecutor in prosecutions. lead the instant son stated that he qualified did not feel Russell stated that he was to handle the jury. sit on the The court then excused picking jury arguments and final Sampson proceeded to trial with eleven Attorney these cases. Assistant District jurors.2 assigned John Hubble was duty of ex- first witness called the State was amining the witnesses in the cases. Russell complainant, Oliver Anderson. The stated that he and Hubble had discussed evening witness stated that on the of No- complainant about the threats 25, 1978, vember he was driving his car in which his wife had received. In this re- stopped Dallas. Anderson the car at a red gard, Russell stated as follows: light approached by and was a woman who Now, “Q. you did tell him to that standing aon street corner. Anderson question? to ask that knew, thing testified that the next he “A. I did. placed knife had been at his throat. “Q. you Did tell him prior to that to ask then asked Anderson the hopes that the Court following questions: grant would a mistrial? Anderson, “Q. you Mr. scared and No, thought “A. I being nervous of here in the court- in good asked faith and I am still not today? room it, although my certain of the law on Yes, “A. I am nervous. understanding you now is must be able “Q. fact, your In did wife receive a directly connect threat threatening phone call?” my defendant. That was not under- asked, questions ap- After these standing prior I to that. had never had pellants made motions a mistrial. up that situation come before and if I granted. Those motions were again, suppose had it to do over I would not do it. causes, Prior to trial in the instant is, point “But wasn’t done inten- special pleas jeop- filed tionally, your alleges, as motion and I ardy. They alleged that in fear of reversi- regard to trial that without proceeding qualification.” ble error with can assert felony excusing juror pending pending any “... when the trial of 2. The a disabled case, may proceeding jurors with eleven is authorized one die or be disabled from 36.29, sitting charge Allen v. time before the Art. V.A.C.C.P. See 364; jury, Johnson 525 S.W.2d court is read to the the remainder of the 536 S.W.2d 36.29, power supra, provides part: ver- shall have the render the Art. dict; ...” describing following following actions defendant’s first trial had ended In mistrials, Russell testified: stating his motion for a mistrial. situation, applicable law to such a apologize
“A.
I did
to the Court
necessity of a declaration of a mistrial Court held:
Hubble
and stated that
instructed Mr.
obtain,
“Different
how-
considerations
question.
to ask the
I also stated that
ever, when the mistrial has been declared
*3
I
I did not do it in bad faith and that
Where the
request.
defendant’s
seeking
wasn’t
an intentional mistrial.
circumstances which occasion a mistrial
Judge
apol-
Ryan
my
I think
will recall
prosecutorial
not
attributable
or
ogy
having
caused the
the Court
judicial overreaching,
a motion
waste of time and the inconvenience.
I
ordinarily
defendant
for mistrial
is as-
‘Oh,
say,
boy,
didn’t
back there and
reprose-
sumed to remove
barrier to
got
glad
we have
three mistrials.
am
cution,
if
even
the defendant’s motion is
”
right.’
we did it
by prosecutorial
judicial
necessitated
or
Prosecutor Hubble testified that
in his
Dinitz,
error. United
v.
States
U.S.
[424
opinion, the trial court had not erred in
600,
1075,
(1976) ];
96
47
S.Ct.
L.Ed.2d 267
v,
deciding
proceed
eleven
to trial with
Jorn,
470,
United States
U.S.
[400
jurors.
regard
propriety
With
to both the
547,
United
(1971)];
S.Ct.
“When had Mr. Russell
overreaching
Prosecutorial
will be found
you
that
be asked?
government,
through ‘gross
where the
Well,
misconduct,’
negligence
“A.
we had
it due to Mr.
or
intentional
discussed
being
aggravated
Anderson’s nervousness and his
caused
circumstances to de-
ques-
very upset,
velop
that we felt that the
‘seriously prejudice[d]
which
a de-
proper question
explain
fendant,’
tion was a
causing
‘reasonably
him to
con-
upset
he
why
his nervousness and
was
clude that a
continuation
tainted
voice,
he
shakey
in his
that
re-
conviction,
proceedings would result in a
phone
ceived a
call
to this
Dinitz, United
v.
States
424 U.S. at
(sic)
Chvojka State,
supra at 830 and 831.
“Q.
right.
you
All
Did
and Mr. Russell
California,
In Divans v.
discuss,
in connection with the
(1977),
applicant
question,
of that
of an
possibility
sought
stay
of a second trial
in state
objection being
question?
made to that
stay
court. The
was denied after it was
Well,
“A.
no. We knew that
the de-
noted that
the state court had found that
attorneys
fense
would not
like the
error which formed the
object.
obviously
and would
applicant’s
basis of
mistrial
first
“Q.
know that?
you
Did
also
type
was not the
of error which was
question,
improper
“A. As far as an
we
purposes
forcing
ap-
committed for
improper.
didn’t feel it was
plicant to move for a mistrial. The Court
“Q.
objection
you
But
did feel like
went on to state:
would be made?
“Any
granting
order
a mistrial at
Well,
questions
I feel that a lot
“A.
behest of a
in a
defendant
criminal case is
witnesses,
going
ask
counsel is
to ob-
based
error or
typically
misconduct
ject.”
of other counsel or the court.
Chvojka
typical
In order to elevate such a
order
(Tex.
In
into one which could form the basis for a
Cr.App.), the defendant contended that his
it must be
jeopardy.
second trial was barred
claim
error,
“major
as
trafficker.” The
was
defendants
only
not
there
shown
rejected by
the trial
plea
to all such
predicate
is a common
which
stated that he
committed court. The
knew
but that such error was
orders
in advance what
witness’ characteriza-
prosecution
the court
be; but,
forcing
to move
tion of
defendant would
the defendant
purpose
added).
opinion
supported
such
(Emphasis
mistrial."
at trial. No error was
by the evidence
Davis,
United
F.2d 904
States
concluding
found in
trial court
1979),
(5th Cir.
the trial
found that
court
as
prosecu-
first trial ended
a result mere
in a
error which resulted
not
de-
torial error
intended
force the
was the result of inadvertence
mistrial
for a mistrial.
fendant to move
appeal,
than bad faith.
the de
rather
rejected
fendant’s
claim was
Bell v.
Finally, in
Md.
find
Court noted that the trial court’s
(1979), the defendant was
A.2d 909
convict-
would not be set
unless was
aside
Ralph
ed of
hired
Mason to kill her
having
*4
Likewise,
clearly
to be
shown
erroneous.
apprehended
husband. Mason was
and
Crouch,
(5th
v.
566
1311
United States
F.2d
testify against
At
agreed to
the defendant.
1978),the
of the
complained
Cir.
defendant
trial,
testified
Mason
that the defendant’s
finding
trial end
trial court’s
that his first
threatened
the
attorneys had
his life and
error
as a result of
rather
ed
family
lives of
of his
if he
not
members
did
prosecutorial misconduct.
Court
than
testify
refuse to
and that he had been of-
the
after
rejected
defendant’s contention
$5,000.00to
fered
remain silent. After this
noting
finding
that: “Our
review of this
given,
was
the
testimony
defendant’s mo-
by
provision
the
of Fed.R.Civ.P.
limited
granted.
tion
was
it
Although
for mistrial
provides
‘findings of fact
52(a) which
that
that
prosecutor
was later shown
the
knew
clearly
not be set aside
errone
shall
unless
allegations
Mason would make
”
Crouch, supra
United
ous.’
States v.
at
against
defendant’s
de-
attorneys,
the
the
added).
(Emphasis
1318
jeopardy motion was
fendant’s
overruled.
The trial court found that the first trial had
States,
Moroyoqui v.
570
In
United
F.2d
of
ended as a result
error and
(9th
1977),
Cir.
the
first
defendant’s
deliberately
that
the
had
not
improper
trial ended
a mistrial due to
sought
appeal,
a mistrial. On
the Court
questioning
government
by
of a
witness
the
refused
set aside the trial court’s
factual
prosecutor. Prior to the commencement of
concerning the
conclusions
mistrial which
trial,
his second
the trial court held a hear-
were
not to be clearly
found
erroneous.
ing
alleging
on the defendant’s
that
motion
State, supra
Bell v.
“... The as indicated support lants had to offer in of their testi- appellant’s does not show that the jeopardy. all mony is uncontradicted as to cattle *5 being taken at one and the same time. It There is no but that the mis- positively, is true that no witness swears prosecutori- trials came about as a result of fact, they were not taken at one However, al error. the evidence from Rus- time, witnesses, yet all the and the same clearly negate appellants’ sell and Hubble except appellant, testify to circum- allegations prosecutorial overreaching by clearly they indicate that stances that gross means of intentional misconduct or time. were not taken at one and the same negligence. supports The evidence the trial proving The burden of the fact that overruling appellants’ court’s order same time is were taken at one and the jeopardy. Appellants’ grounds upon appellants, jury and the have decid- error are overruled. them, question against ed the and we see judgments are affirmed. disturbing verdict.” no cause for State, supra Davidson v. 49 S.W. at CLINTON, Judge, dissenting. Likewise, Chvojka ground presented, In the sole of error was found that the trial court would have complaint is made that the trial court erred properly overruling special plea acted in overruling appellant’s special plea each was devoid of when record after their first guilty was evidence that the upon pleas guilty, of not ended in a mistrial any conduct which could be characterized as prompted by improper ques- a manifestly overreaching. by prosecuting tion asked one of the attor- regard
With to conflicts in the evidence neys. Specifically, the contention is ad- questions, and the resolution of factual this that, vanced because the mistrial was de- Court has stated: “prosecutorial clared as a direct result of appel- overreaching,” Jeopardy “It the Double Claus- is to be remembered 1 effectively any prosecu-
late court does not resolve the conflicts in es barred further argued appellant. setting such as those tion of each After first Rights 1. Fifth Amendment to the Constitution of the in Constitution of the State of Texas. I, States; United Article Section Bill of granted Anderson, scene victim of the robbery, for rea- Oliver agree. sons then stated am constrained to by called He testified briefly State. concerning leading up the events morning of March 1979 the offense, made an in-court identification of called three separately trial court2 indicted particular each accused as he described the companion but cases. Certain motions were objection acts of each. There was no heard and ruled on the trial court. The to, jury given by, court and counsel then conducted voir or answer Anderson. selected, jurors dire and twelve im- was watchfully Cross-examination limited sworn; panelled jury appropri- by the trial court to the matter of identifi- ately instructed and excused a. m. until 9:30 cation, objection sometimes following morning. One who thus be- State; objections three such were made. Sampson. came was Mr. Leon Redirect getting State consisted of two answers for clarification of his testimo- morning,
Tuesday March outside the ny point.4 on one The trial court presence initially dehors the overruled record, objection but later as related the trial to identification testimony and record, court in following recess, occurred: then declared a ten minute 9:20, upon reconvening be reminded morning at there approximately “This presence the Court in the was one of counsel for “that have to administer to,” doubt, and counsel for the meaning, defendant the oath no Green. [sic], Sampson’s was advised that Mr. doc- When court reconvened the trial court tor had called the Court and his nurse up took Sampson’s being the matter of ex- had called the Court —that is the doctor’s and, cused and Green’s substitution for him nurse —and his wife had called the Court reciting for the record that which we very to advise us that he had a serious ante, have set carefully forth verbatim as- hearing problem Sampson— and that Mr. certained from each counsel and accused well, prior to Mr. Sampson’s appearance, personally stipulation for substitu- the Court discussed with counsel the al- But, tion was agreement.” “still in as we proceeding ternative of with eleven and see, shall agreement by the defense did counsel for defense refused to do not allay yet fully apparent some not mis- agreed that. Then it was by and be- *6 giving on the part prosecution. tween counsel for the counsel for they defendants that would substi- juncture For at this assistant district at- tute Cornelia A. Green who was a resi- torney produced Russell a handwritten County jur- dent of Dallas as the twelfth requested waiver and the accused and their or.”3 lawyers sign “to this if it is in keeping with expectations.” their paper styled This is After had Green been substituted for Mistrial, Right “Waiver of to Motion for Sampson may and have retired unsworn to Appellate Right New Trial and to Claim jury room, arraigned. the accused were court, Jeopardy Double on Grounds of The Juror Sub- observing quar- trial that “it is a ten,” proceeded provisions reproduced ter after then to stitution” and its are hold hearing. complainant, margin.5 identification The then an- presided pertinent 2. The trial court was over a “visit- 4. It is to observe that other- ing” judge pursuant during proper or wise remarkable the course of the untoward occurred trial to administra- testimony Anderson, assignment. which tive record, thirty pages consumes some for I shall advert to the five point presently. initially represented State was two Russell, attorneys: assistant district Rick who 5. “Now comes the Defendants in the above later characterized himself as “the senior coun- styled through and numbered causes case,” Hubble, sel in this prosecutor,” and John “a new attorneys respectfully their of record and actually who into this entered prays permit this Honorable Court to agreement which Russell said was made “out alternate, juror substitution unsworn my presence.” previously Cornelia Green selected and juror Sampson sworn Leon it inasmuch as nounced to the trial court that unless objected all Defense counsel to the State’s attorneys and signed pur- agreement all accused this refusal to fulfill the proceed to ported “waiver,” juror, Russell, with a substitute State did not want to ex- pressly exercising proceed juror, with a his “senior noting substitute that counsel” sta- tus, retorted, “we abrogate any agree- “it such point juror a ticklish because that ment at this time.” Hubble said “for the [Sampson] had been jeopardy sworn and record” agreement he had made has attached.” After defense counsel stat- agreement.” was “a non-final Russell re- ed their collective unwillingness sign quested a recess to research the law “in waiver, such a expressed as in the second now, full” because “as I read the law I paragraph,6 judge and the trial received got think we have a double prob- negative responses inquiry from his wheth- lem.” At 11:30 a. m. the court excused the anyone er moved for a Russell jurors p. lunch, until 12:45 m. After revealed his thoughts own on the matter: opined there was authority no is, problem “... go if we forward juror, Green to opted become a pro- and hear the case without previously ceed with Sampson or the remaining eleven juror, sworn problem can envision a jurors, explaining: later jeopardy already. We know jeopardy has “Well, the reason we abrogated the attached. any preju- There hasn’t been agreement is that we stand to lose either dice unless the juror twelfth substituted way. get You guilty a not with a new hears evidence Mr. Sampson. instead of juror you raise double on they “If won’t waive [the defendants] appeal juror because the old was excused. rights we can have you If will waive double jeopardy, we will three felonies blown out of the tub. agreement.” have an think ought we forward with Leon The trial court hearing decided hold a Sampson because I know damned well juror Sampson’s ability going to ascert ap- [sic] to “continue” spread upon peal.” the record the facts concerning hearing his After one pointed defense counsel out disability. During hearing, Sampson jurors that a agree- substitution of was the attempted testified that he bring ment, the same continued to hearing problem to the attention of the voice his fear present record in its during court the voir dire examination state contained reversible error: but that he was doing dissuaded from so “Well, we have checked the law and I the court bailiff who told him that “he was have Appellate checked with the Section along too far in the numbers” and would and the only problem that exists not therefore have to serve on the jury. At problem of double jeopardy. the conclusion of the hearing, the court “I don’t want to accepting be bullied into found that Sampson was disabled as a *7 position Appellate the has Section provisions 36.29, under the of Article V.A.C. right. get told me is not If I can’t an C.P. and over objections, defense ordered agreement, Samp- we will with Mr. proceed the cause to to trial with eleven son.” jurors. parties has become grounds known to all that the said mistrial and for a new trial on Sampson profound hearing mis-impanelling Leon juror suffers a of the said Cornelia disability adequately and cannot serve on Green. jury request impanelling this and accord the Defendants a fair “Defendants of Cornelia peers. time, trial as a of their Green to the release of waive, respectively Sampson juror.” “The Defendants know- Leon ingly, voluntarily, intelligently as well as originally paragraph 6. As drafted the any second rights might advice of counsel grounds mentioned also claims or of double complaining against otherwise have to assert jeopardy: problem in an effort to resolve the including said substitution or the [sic] judge the trial
impanelling offered to and did strike out prejudicial juror of a to [sic] the jeopardy. references in the text to double Defense. Defendants waive motions for a himself, day, judge afternoon of the same trial?” and the trial corrected jurors eleven were returned to the court- announcing that he wanted to see the law- room where the three defendants entered yers in chambers after the jury had been guilty. of not discharged.
As its first witness the
called the
The following day, prior to a new trial on
complainant, Oliver Anderson. This time
merits,
hearing
conducted on
the same assistant
attorney
district
who
Special
Jeopar
Defendants’
Plea of Double
questioned
had
him earlier in the identifica-
dy.
support
special plea,
In
of their
hearing
personal
tion
adduced considerable
appellants first called Russell. Russell stat
began
Anderson
testifying
data.7
about a
although
ed that
he was not certain that
conversation he had with one of two female
proceedings regarding
Sampson and
pedestrians
stopped
while
light
at a red
error,
Green
constituted
he want
the corner of
Metropolitan,
Second and
guarantee
ed to
against
by having
court,
identified her as she sat in
and then
sign
defendants
the waiver alluded to
having
told of
had a
placed
knife
to his
above.9 Russell admitted to having told
neck
pocket
someone. After a
knife was Hubble to ask Anderson about his wife’s
following
marked as State’s Exhibit
receiving threatening phone
Though
call.
immediately occurred:
faith,10
he denied bad
Russell conceded that
Q [By
prosecutor]:
Anderson,
Mr.
properly preserve
record,
his appellate
are you
being
scared and nervous of
here
attorney
pursue
defense
objections
must
today?
courtroom
i.e.,
ruling,
an adverse
objection
if an
Yes,
A:
I am nervous.
sustained, a curative instruction must be
and,
fact,
sought
Q:
given,
if
your
did
a motion for a mistrial
wife receive a
must
threatening phone
be made or
preserved
call?8
will be
See,
for review.
e.g., Cain v.
Objections were promptly
made “to
(Tex.Cr.App.1977);
S.W.2d707
Broussard v.
hearsay
any type
like that” and “to Mr.
State, 505
282 (Tex.Cr.App.1974);
Hubble testifying concerning any phone
(Tex.Cr.
Gleffe v.
question.
jeopardy point,
prosecutors
there was a double
is that the
by appellants
vanced
up ...
might have been cleared
case, believing
instant
that reversible
well,
honest,
thought,
record,
to be
Secondarily,
crept
into the
already
error had
good
guess
anything
if there was
proceedings by asking
decided to abort the
this,
coming from
if there was
was
knowing
manifestly improper question
jeopardy point, it had been waived
double
attorneys would
full well that the defense
point
at this
[sic].
jury or
prejudiced
have to continue with a
Hubble,
Appellants
sought to call
then,
then
fully
if
abort
ask for a mistrial
not
is not in the
only to be informed
“[h]e
protect
appellate
record.
recess, Hub-
morning.”
After a
office
poten-
there was no
The State counters that
Hubble was
appeared
questioning.11
ble
tial error extant at the time the mistrial
Rus-
acknowledged
unclear but
that he and
were,
and,
“there
granted
was
even if there
putting
complained
sell had discussed
it was
showing
is no
in this record that
The
tes-
question to Anderson.12
by bad faith or under-
either motivated
and Russell felt “that
tified that he
appel-
these
prejudice”
taken to harass or
explain
proper question
was
question
contending
in so
even
lants.
complainant’s] nervousness and
his [the
argue
the trial court’s
goes so far as to
upset
shakey
was
in his voice
why he
instruction cured the error and the
prompt
conceded that
[sic].”
trial court therefore need not have declared
and,
stated,
he
“we
question
leading
as
mistrial.13
attorneys
would not
knew that
defense
obviously
would
ob-
question
like the
long
The claim should not detain us
question
that the
ject.” Hubble admitted
cursory
an even
examination of the authori
statements,
hearsay
yet insisted
contained
prejudice
ties attests to the manifest
flow
improper, pointing out that “if
it was not
State,
question.
from the
Benavides v.
attorney objects
[hearsay]
to it
from the
(1929):
111 Tex.Cr.R.
side,
objectionable.”
cross
defense
it is
“highly improper”
pre
to ask if accused
examination,
ques-
Hubble denied
away
witnesses to remain
vailed on State’s
Following
in bad faith.
tion was asked
court;
Lackey
from
148 Tex.Cr.R.
counsel,
over-
arguments by
the trial court
(1945)
731
requesting
Oregon
into
that result.
v. Ken-
viewed as
[exhibiting
harassment or
bad
-
-,
2083,
nedy,
72
102
faith],
U.S.
S.Ct.
if
justify
even
sufficient
a mis
(1982).14
416
L.Ed.2d
motion, therefore,
trial on defendant’s
does
not
on the
bar retrial absent intent
of
of
is de
circumscription
this issue
the
protections
the
to subvert
pronouncements
Supreme
from
rived
by the
Jeopardy
afforded
Double
Clause.”
States;
Oregon
Court of the
United
in
U.S. at -,
at -,
102
at 2089.
Kennedy,
-
S.Ct.
102
at 2088
S.Ct.
explained,
that Court
standard,
Having delineated the
the
principal
“Since one of
mak-
the
threads
guidance
applying
Court offered
the
ing up
protection
embodied
facts of a case to it:
right
Jeopardy
Double
Clause is the
“...
standard that examines the in-
[A]
completed
the defendant
have his trial
though
the prosecutor,
certainly
tent of
jury impanelled
try
before the first
entirely
not
free
practical
from
difficul-
him, may
why
wondered
be
...
ties,
manageable
apply.
standard to
defendant’s
to terminate
first
election
merely
It
calls for the court to make a
trial
be
by his own motion should not
Inferring
of fact.
finding
the existence
deemed a renunciation of that
objective
nonexistence
intent from
purposes.
all
have
how-
recognized,
We
facts and circumstances
a familiar
ever,
great difficulty
that there would be
...”15
process.
applying
prose-
in
a rule where
such
giving
U.S. at -,
cutor’s actions
rise to the motion
102
at 2089.
-
S.Ct.
ed
claim,
acquit
would,
cases such as
Cf. United
.
.
prosecutions.]’ United States v. Dinitz
substantial burdens
In distilling the criterion
[and
for mistrial
L.Ed.2d 267
[424
.
from a
impropriety justifying
(1964) [where,
n.
intimation in
[defendant]
the Court
U.S.
thereby (subject
course,
accused,
fear that
600,
States
S.Ct.
this,
(1976)].”
were
611,
obtain”].
observed,
1587, 1590n.3,
into
in rejecting
different considerations
done ‘in
case that
Tateo,
requesting
imposed by multiple
a)
S.Ct. 1075
Supreme
defendant
a mistrial result
to be
“If
order to
there
applied
Court
a mistrial
U.S.
[1081]
jeopardy
likely
L.Ed.2d
goad
463,
ac-
(Frankfurter,
young
prearranged question.”
do, for:
confused
zeal
Brock v. North
time.”
when it
order to allow a
to see
ceeding
“... A
incompetent or casual or even ineffective
S.Ct.
to follow the
the mistrial came about because “the
State
if
349, 351,
and inappropriate
to a
inexperienced prosecutor,
..
he cannot
here urges
J., concurring).
.
determination
prevents
Carolina,
falls
game plan,
short
do
this Court to find
This would not
better
version of the
who has been
... merely
blurted out a
its
from
obligation
a second
424, 429,
(1953)
in his
pro-
Moreover,
knowledged
wrought by
totality
“the confusion”
its
circumstanc-
opinions
subject
on the
and determined that
es shown here reveals otherwise. Though
“[p]rosecutorial
might
faith,”
conduct
be
both prosecutors disclaimed “bad
rely primarily upon
objective
14. “...
under
[We
circumstances
should
hold]
facts
may
particular
which a
bar of
defendant
invoke the
and circumstances of the
case.”
try
at-,
(Powell, J.,
double
in a second
him
effort to
-U.S.
S.Ct. at
concurring.)
are limited to those cases in
con-
which the
giving
duct
rise to the successful motion for
generally
“Deliberate misconduct
must be in-
provoke
mistrial was
defend-
objective
intended
from
ferred
egregious
evidence. The more
moving
ant into
for a
error,
mistrial.”
and the
at-,
-U.S.
ly evidence only were the relevant expressions us; record before contained in the entire Texas, Appellee. STATE course, Indeed, if the they are not.21 but of No. 68859. presuming that such majority is correct in evidence expressions only were the con- Texas, Appeals Court of Criminal court, alone then that sidered En Banc. abating this cause justification would be July correct findings to be made
standard, i.e., and cir- objective facts Kennedy, supra. Oregon
cumstances. sum, it seems hollow for this Court State, 86
cite Chadwick v. Tex.Cr.R. (1919), proposition S.W. as these will be reviewed on
claims such wholly defer to a trial court’s
appeal22 then To the ma-
ruling which is unreviewable. require
jority’s refusal to at least bases for its express
court to the factual
rejection plea in appellants’ with the correct constitutional
consonant
standard,23 respectfully dissent. TEAGUE, JJ., join.
ROBERTS
discharge
jury,
Oregon
Kennedy, supra,
of a
is in contrast to “the strict-
21. Even in
where
arguably
prosecutor’s
scrutiny
applied]
should not
conduct
when
est
be
...
there
[to
all,
precipitated
using
have
a mistrial at
Justice Pow-
reason to believe that the
ell added:
superior
resources of the State to harass or
“Nevertheless,
advantage
close
this would have been a
over the ac-
to achieve a tactical
for me if there
been substantial
[had]
case
cused.”
beyond
ques-
factual evidence of intent
508-509,
Washington,
Arizona
U.S.
tion itself.”
824, 831-832,
(1978).
at-,
2092.
-U.S.
102 S.Ct. at
example of
treats
23.For
how
Court
noted, however,
Chadwick,
It should be
questions of constitutional
law which are ex
here,
appropriately
for it
is not
cited
pressly
on an
resolved
the trial court
incor
plea
advanced after
deals with a
standard,
rect constitutional
see Faulder v.
sponte
a trial over
the trial court sua
aborted
(Tex.Cr.App.1979)