*1 claim— liability the claim is a health care Further, expert health care
applies here. testimony prove is needed to or refute Nguyen
Sok’s claim that Bioderm and Dr. care, breached the standard appropriate and has not therefore Sok rebutted presumption. Because Sok filed a health liability
care claim but failed to serve expert required by the Medical report as Act,
Liability we conclude the court of affirming erred in the trial court’s denial of the to dismiss. motion Addition-
ally, requested Dr. Nguyen Bioderm and attorney’s fees and costs the trial court 74.351(b)(1) of the pursuant to section Act. we Liability Accordingly, Medical re- claim mand to that court dismiss Sok’s con- against Nguyen Bioderm and Dr. sider their attorney’s fees
costs. PIERSON, Jr., Appellant
Leonard of Texas. STATE No. PD-0613-13. Appeals Court of Criminal of Texas. 9, 2014. April *2 Attorney, Austin, TX,
State’s for The State.
OPINION J.,
HERVEY, opinion delivered the *3 KELLER, P.J., the Court in which MEYERS, PRICE, KEASLER, COCHRAN, ALCALA, JJ„ joined. Pierson, Appellant, Jr., Leonard was charged indecency with with a child aggravated assault sexual of a child. After completed the victim her direct-examina- tion testimony, the defense’s first was, on cross-examination you “Did also make an [Appellant] did things these same to his own daughter?” hearing, After a the trial court granted the for a State’s Appellant mistrial. then pretrial filed a habeas-corpus applica- seeking prevent a second trial on jeopardy. the basis of double The court application denied that because it again trial) (as found at it did that the mistrial of the was the fault defense and that there appropriate was no remedy other under circumstances; thus there was a mani- necessity retry fest Appellant, and his precluded second trial was not by double- jeopardy principles. convicted at his second of indecency of one count "witha child of aggravated
and seven counts sexual as sault of a child. He was sentenced to life On imprisonment. appeal, Appellant ar gued second trial that his violated double- but jeopardy principles, the Texarkana held Appeals Court of that the trial court properly granted the State’s request for mistrial. Pierson v. 2013). (Tex.App.-Texarkana We
granted Appellant’s ground sole for re Horton, Law, Attorney Lee Jason view:
Texarkana, TX, for Appellant. single posed by Petition- Sutton, N.
Lauren Assistant District At- type er’s trial counsel create the torney, Texarkana, McMinn, very extraordinary Lisa C. and striking cir- mean, nothing. there was That a find- did—I necessary to sustain
cumstances was the extent of it. necessity to declare ing of manifest either The court of mistrial. precedent or misapplied misinterpreted prepon- It’s proof [COURT]: contrary conclusion. to reach beyond proof derance evidence the court of judgment affirm the
willWe doubt; actually it’s that it’s a reasonable appeals. false. That’s the standard. background Factual # don’t 2]: ATTORNEY [DEFENSE fifth as its called the victim prove The State you how—how ever know The first in its case in chief. witness though? on cross-exami- question the defense asked That’s An admission. [COURT]: *4 was, you allega- make an “Did also nation it, any found was only way court’s ever things [Appellant] did these same tion that that it an admission the victim was objected daughter?” The State his own actually false. answered, question before it was to the no way And —there’s [PROSECUTOR]: Dur- jury. excused I can recover from that. hearing presence ing the outside you can I don’t see how ei- [COURT]: following place: took exchange
jury, ther. way not al- That’s [PROSECUTOR]: Well, #2]: ATTORNEY [DEFENSE mean, I I think that’s in cross. lowed into the actual —. yeah, get that doesn’t for a grounds mistrial. way an instruction any There’s on, Hold hold on a second. [COURT]: cure that? would The oth # 2]: COUNSEL [DEFENSE mean, No. I I’m ask- by the daughter questioned [PROSECUTOR]: er was CAC[1] out ing for mistrial. It’s there. allegation. on the based way get no I it—. There’s can admissible That’s not [PROSECUTOR]: here. I there’s any don’t see how [COURT]: Okay, the nature of way what’s could possible that a [COURT]: the—? And in the event testimony. this kind got right— no (Inaudi- appeal, of an [S]tate’s #2]: COUNSEL [DEFENSE the. acquittal, I mean in the event of an ble, whispering) appeal, no got right of so [S]tate’s 412, way. no Under [PROSECUTOR]: if the they’re absolutely prejudiced got Hold to have on. We’ve [COURT]: hears it. nature of the hearing on the—is the she a false out- recess, that has made twenty-four-minute After a tri- somebody else or that she’s cry against hearing and asked al court resumed the outcry other against a true some made argument out [their] the defense “flesh person? for more the basis a little bit about admissibility cross examination.” prove can’t [the] He [PROSECUTOR]: victim false, explained that the stat- the end The defense it’s but [the victim]—in the end of her interview that [Appel- ed at CAC her interview she said CAC things, That’s did “the same sorts daughter his too. molested] lant did, allegations, he the same he say he how same—made it. She didn’t what Advocacy acronym Child Center. "CAC" is an abbreviation 1. The allegations against subsequently investigated committed those was had and went nowhere. years own now sixteen daughter, who’s So she made an old. point, At this the court stated that alleged perpetrator in her case had done I find that to be so far removed [issue] types same to his own things biolog- begin with, from this case to it’s a collat- child.” went on ical Defense counsel eral issue that interject could confu- biological argue Appellant’s daughter sion jury[.][T]here’s to the not even molested, being Ap- enough denied ever and that to substantiate that it’s even her statement, own that she’s pellant’s biological daughter’s alleging denial it happened, but it’s her understand- credibility. be relevant to the victim’s ing happened.... following exchange place then took be- court, the prosecutor, tween and the The judge then cited discussed a num defense: ber of cases that he felt led to the conclu sion that the defense’s im But it’s a collateral issue. [COURT]: proper because the answer would not lead mean, you’re attacking her credibility to admissible Lopez evidence. See v. a statement her own
with
not—not
alle-
State,
Since
find that this was done because
of actions of the defendant and not be-
even really
So we don’t
know
[COURT]:
[S]tate,
cause of the
of the
actions
then
was.[2]
the
what
basis for her statement
there’s no
that
jeopardy
attaches.
# We don’t
[DEFENSE
1]:
COUNSEL
After the judge granted the State’s mo-
statement,
just
know the basis of the
Appellant
tion for a
filed a pre-
allegation
application3
she made the
and that
trial habeas-corpus
prevent
that
it
victim,
allegation
allegedly
by
2. The victim
made the
in
of what was said
or to the
but that
during
question
an interview with the
report
Sexual
was not
into evidence.
offered
See
However,
Pierson,
Assault Nurse Examiner.
that vid-
398 S.W.3d at
n. 5.
eo was not offered into evidence at trial.
addition,
trial,
Appellant’s
Pamela
second
judge presided
Applicant's
3. The
over
same
Freeman,
nurse,
registered
referred to a
trial,
Applicant’s habeas-corpus
first
ruled on
report
apparently
that
contained the content
that
disputed
characterization
Appellant’s
taking place
from
because
his second trial
the
argued
intentionally
recklessly
his second trial violated
caused
he
that
it
or
of the
prohibition
United
double-jeopardy
that
by objecting, and
asserted
mistrial
application,
In his
States Constitution.
was
precipitating
mistrial
question
“the mistrial was
Appellant alleged that
and, therefore,
mani-
there was a
incurable
objection to
prosecutor’s
by
caused
necessity
grant
fest
a mistrial.
to elicit whether
attempt
defense counsel’s
par-
hearing
arguments
After
alleged
allega-
had made other
victim
ties,
that “it stretches
concluded
and that “the
against [Appellant,]”
tions
say
question
that the
credulity just bit to
by
case
caused
mistrial in this
was
it was
or
intentionally
imply
or reckless-
that
true
prosecutor either
Bauder, 974
ly.”4
parte
that,
Ex
S.W.2d true[,]”
possible
of the two
out
The
(Tex.Crim.App.1998).5
defense
question
on cross-
asking
intentions
respect
with
changed
argument
also
examination, only
possibility made
one
admissibility
ques-
the basis for the
interpretation
“the
reasonable
sense:
argued
the defense
asked:
purpose
for the
was
proper as evidence of an
question was
yes,
and then
answer would
extraneous offense. See
Tex.R. Evid.
litigate
the truth of
defense
404(b). Furthermore, Appellant argued
allegation,
interjecting
essence
just
simply
that “there was
false
allegation
child victim had made a
asked,
this
you
allegation.
did
make
against
sexual abuse
the defendant
There
no inference
whether it was
o[f]
was
daughter,
own
and since
true
not true.”
concluded
liar,
false, ...
and since she’s
was
she’s a
asserting
there
no
ne-
manifest
liar,
allegation’s
...
false.”6
cessity
grant
the State’s
state,
judge went on
was not harmed
mistrial because
State
in-
reasonably
can
you
don’t see how
question and
there
by the
were less
*6
not
harm-
being
this
as
terpret
remedy
problem
drastic means to
than
inter-
proposes
ful
It
to
granting
vigorously
[S]tate.
a mistrial. The State
to
335,
presided
Applicant’s
(Tex.Crim.App.2007)
application, and
over
219 S.W.3d
State,
(”[W]e
921 S.W.2d
[v.
overrule Bauder
second trial.
progeny
and
(Tex.Crim.App.1996)
]
696
(.Bauder
III,
II
[15
Lee
[State v.]
prosecutor’s response,
part,
4. The
in relevant
],
(Tex.Crim.App.2000)
parte
II
Peterson
[Ex
]
that,
Applicant’s allegation
to
was
]).").
(Tex.Crim.App.2003)
S.W.3d 804
[117
absolutely ap-
am
[PROSECUTOR]: [I]
remembers,
palled,
everybody
If
offended.
404(a) (stating
general-
6.See Tex.R.
Evid.
right
sitting
happened,
I was
when it
there
ly
person’s
or char-
character
”[e]vidence
saying
not
a word.
purpose
for
acter trait is not admissible
they’[ve] alleged
The
that that's what
fact
conformity
on a
proving action in
therewith
occasion_”).
partially
absolutely
...
this motion is
particular
The
inten-
other
saying anything.
...
absurd
agreed
possible,
since
wasn’t
was
but
tion that the court
that,
say
unlikely,
And
for
to
"I
counsel
highly
[defense counsel]
so
was that defense
correct,” uh,
allegation
thought
swear
is true and
wow.
the victim had made
true
this
sexually
his
Appellant
also
abused
had
Appellant argues
Although
that this Court's
daughter
in-
biological
and that the defense
opinion
double-jeopar
in Bauder controls the
jury
was
to inform the
that their client
tended
case,
dy
assaulting
daughter.
issue in this
we note that Bauder was
guilty
sexually
obvious,
eight years ago.
by
overruled
this Court over
reasons that are
For
intention,
Bauder,
(Tex.
legitimate
parte
See Ex
S.W.2d 729
did not consider this
Lewis,
contrary.
argument to
by
parte
despite Appellant’s
Crim.App.1998), overruled
Ex
rejected
an
ject
jury
allegation upon
giving
before the
alternative of
an in-
struction
disregard,
to
and the
speculate
pro-
record
they
which
are to
vides some support for the trial
[Ap-
accusation that
court’s
child made a false
conclusion that
the intent of the
daughter,
his own
pellant] did this to
was to prejudice the
rather
therefore,
jury,
than a
and that
if that
is
realistic attempt
to solicit admissible evi-
false,
must be false
then this one
as well.
Pierson,
dence.”
S.W.3d 505-06, 98 S.Ct. 434 U.S. at Appellant did A. not consent to recognized exceptions are be- 824. These request a mistrial. State’s for a reasons exist for to cause valid in appeals opinion of stated its The court of trial the conclusion a discharged before that [Appellant] State concedes “[t]he “invariably those reasons and not all of for a opposed the State’s Thus, to accused[.]” create unfairness supports position.” and the record his con- right to have defendant’s Pierson, 398 at 412 n. 4. The State S.W.3d tribunal “is some- particular ducted challenged has not the conclusion of in public to the interest times subordinate in appeals petition court of for discre- one full and fair affording prosecutor merits, on tionary review or in its brief his evidence to an opportunity present record, agree we reviewing after Washington, 434 at impartial jury.” U.S. of appeals Appellant with the court 505, 98 S.Ct. of granting did not consent a mistri- prevail double-jeopardy To in a al at trial. his first claim, must a criminal defendant first show being that he she is tried the same appeals correctly B. con- The court which the mistrial was declared offense for court cluded that did objection. over The bur the defendant’s when exclud- abuse its discretion to the to demonstrate den then shifts State ed the at issue on cross- (also necessity” referred to as “manifest examination. “high degree” necessity) for the mis judge’s to the trial decision respect With trial. A trial court’s decision to declare a propounded question as im- exclude inquiry mistrial limited to the if there proper, court of on this relied necessity” grant was a “manifest a mis opinion Court’s Vinson Garza, trial. 909. We (Tex.Crim.App.2008), have that a trial court abuses its stated carry failed to conclude that if it a mistrial “without discretion declares 104(a) under of the Texas burden Rule availability less considering first prove Rules of Evidence to admissibili- reasonably ruling drastic alternatives and ty sought of the evidence he introduce out[,]” although them the basis for the therefore, and, that the cross-examination not be expressly mistrial need articulated agree proper. We with the Supreme in the Id. record. And Court appeals. conclusion overriding “the has stated that interest *8 Vinson, that our justice administration of In we stated “[i]n evenhanded system, the requires highest degree justice proponent that we accord the criminal ordinarily the burden of es respect judge’s to the trial evaluation of evidence has tablishing admissibility prof that impartiality the likelihood of one Vinson, may jurors by have been affected fered evidence.” more 104(a) 340; (“Preliminary see improper comment.” Tex.R. Evid. ... questions concerning the admissibility the victim’s allegation, it appears that de- of evidence shall be determined fense counsel Hoped, intended, more than court....”). Our statement from Vinson that the answer elicited would lead to ad- Texas, remains valid law in and we hold missible evidence.
that it the evidentiary controls issue in this Despite not knowing exactly case. As the court noted in its what the victim alleged, had the record opinion, indicates Appellant’s theory of admis
The record in this case is not suffi sibility at trial was that the question asked ciently developed for us to determine was to impeach intended the victim’s ve whether allegation evidence of the false racity Appellant because would call his at issue was admissible. Although biological daughter to the deny stand to defense announced an intent to call [Ap addition, the victim’s allegation. In at a pellant’s biological daughter to testify hearing Appellant’s on pretrial application falsity to the of the allegation, the rec for a writ of habeas corpus, Appellant ar ord concerning is unclear what gued for the first time that “trial counsel prior allegation false was. The attor ... made the trial court aware of the neys disagreed concerning whether [the possibility that the bad relationship be claimed to have personally victim] ob tween [Appellant] and [the moth victim]’s served some abuse or to have heard a er was a motive for the mother to coach report of abuse. As summarized [the to make victim] false accusations.” court, “So we don’t really even Because theory this new admissibility know what the basis for her statement presented was pretrial at the confer was.”[8] trial, ence at the second and the trial court Pierson, 398 (emphasis S.W.3d at 416-17 had no opportunity to consider it at the added). short, In parties trial, and the first we will not consider it. See Tex.R.App. court were not sure what the content of note, however, P. 33.1. We was, the victim’s allegation actually only Appellant’s continuation of argument allegation of some kind was made.9 attempting to prove that the victim was a However, However, without knowing the content of liar.10 the habeas ad- comment, response judge’s to the Appellant's one testified at second trial: "And stated, Appellant counsel for you’ve "We don’t know there’s been trials testified in that the statement, just jury the basis of the telling has found the child she made was not truth, hasn’t subsequently and that it there?”: investigated and went nowhere.” interjected [COURT]: You’ve now before that there have been other cases 9. Different theories of what the victim had where she's testified that the has found alleged points were discussed at different dur- lying. that the child was process, including the victim Judge, [DEFENSE COUNSEL But #1]: alleged Appellant sexually had also it’s cross examination. We're entitled to biological daughter abused his (prosecutor), get opinions into her findings. Appellant told the victim that he had also Objection [PROSECUTOR]: based on rele- (trial sexually biological daughter abused his vance, speculation. horribly prejudi- It’s judge), or the thought victim stated that she cial. sexually had also abused his about, [DEFENSE COUNSEL # 1]: What biological daughter (prosecutor). testifying nothing what she’s to has to do with this case. following exchange 10. The counsel], occurred in re- really [COURT]: [Defense does. sponse question Kathy to defense counsel’s your theory It’s rebuttal to that the child Lach, Examiner, a Sexual Assault lying Nurse inju- must be because she didn't have *9 wit- deny- quate showing complaining that argument before Appellant’s dressed allegation Ap- a writ of application for herself made the pretrial his ness concluded, skeptically biological habeas and corpus sexually abused his pellant Well, was false. daughter it is—I and that the Okay. I think [COURT]: circumstances, a bit to credulity just think it court stretches these Under imply say question that the Appellant failed free to was conclude it was true or not true. If Court burden, carry proponent his as of the the answer to were find evidence, was question show ‘yes! allegations and those question was impeach- anything prelude more than a true,’ essentially defendant are then imper- ment on a collateral matter and an interjected an extraneous would have complaining attempt missible to attack That’s offense his own client. against credibility evidence general witness’s with you reach. So only could conclusion of See specific of conduct. instances of the interpretation reasonable 608(b). Based on our review Tex.R. Evid. that the purpose for the was opinion court of appeals of the the de yes, answer and then would be case, we the record this hold of that litigate fense would the truth correctly concluded that appeals allegation, interjecting that in essence not abuse the trial court did its discretion allega child had a false victim made Appellant’s when it cross-exami- excluded tion of abuse the defendant sexual Appel- impermissible. nation as daughter, since that against his own burden, carry lant failed to his as the false, allegation was therefore she’s evidence, that the victim’s proponent therefore, liar, liar, this and since she’s Vinson, answer admissible. allegation’s false. 104(a). 340; S.W.3d at see Tex.R. Evid. State, Flannery v. curiam), (per (Tex.Crim.App.1984) appeals appropriately The court of C. im- explained general rule that Court “great ruling gave deference” imper- peachment on a collateral matter is trial court. Although to the exceptions missible. Id. The court held that it was exist, rules general rule and sometimes the grant “to the trial court’s evalua- required way give of evidence must to a defendant’s potential juror bias defer- ‘great or right to Sixth Amendment confront ” Pierson, at 419 398 S.W.3d ence.’ accuser,11 Appellant her has not shown Petro, 653, 661 (citing Ross 515 F.3d any exception in this v. applies such Cir.2008)). (6th Rather, case. an inade- Appellant made No, theory you testifying ries. what her that's the—the [COURT]: And she’s as to is, training, background always experience, proposed her her have to this there’s demonstrated, always the has that that's not trauma. Since there is no trauma —. any specific case. That doesn't discuss case, See, e.g., Hammer talk this case. It’s doesn’t about (discussing (Tex.Crim.App.2009) the rela- just rebutting theory you've simply tionship Texas Evidence proposed lying between the Rules of that the child must be be- right to and a Sixth Amendment cause she doesn't have trauma. defendant's her, against him or you opened have that door. confront witnesses So [COURT]: including qualified right theory. to attack the accus- they're doing rebutting your All is, “general credibility possi- ... theory always show Your there’s trauma. ers self-interest, No, bias, testify- my theory or motives in # ble [DEFENSE COUNSEL 1]: ing”). they any in this find case did trauma.
773
argues that the court of
Appellant
based on additional research that it argued
gave “great
mistakenly
deference”
appeals
showed that “there
theory
was no
on which
ruling granting
the trial
the
court’s
the
basis
the new trial ruling could be
appears
mistrial. He
assert
brought
of the jury,
attention
apply
assessing
when
standard does not
prejudice
jury
could not be
granting
correctness of
a mistrial
by
repaired
any cautionary instructions,
asked,
on a
but not an
based
a
and that mistrial was a ‘manifest necessi-
”
swered,
How
during cross-examination.
500,
ty.’
Id. at
824.
98 S.Ct.
This time
ever,
why
not
explain
does
granted
the trial court
the State’s motion.
court’s
should not be
ruling
trial
accorded
501,
Id. at
Court ordered that
should
compelling
are
There
institutional
in light
receive
new trial
of the State’s
militating considerations
favor
Brady
argu-
violation.
After
opening
Id.
ments,
appellate
judge’s
requested
deference to
State
a mistrial
comments,
significance
pos
evaluation of the
based on defense counsel’s
juror
499-500,
which the court
Id. at
sible
bias. He has seen
denied.
following
jurors during
824. The
their
morning,
S.Ct.
heard
voir dire
State renewed its
for a mistrial
examination. He
most fa-
*11
appeals
err in
The court of
the back- D.
the evidence and
miliar with
holding
acted
the trial court
that
He has
of
case on trial.
the
ground
it deter-
with sound discretion when
the
as it
argument
to
tone of
listened
the
instruction to disre-
mined that an
ap-
the
and has observed
was delivered
gard
be insufficient.
would
short,
jurors.
reaction
parent
the fac-
ap-
far
“conversant with
of
he is more
that the court
Appellant argues
incorrectly
the determination” than
and
concluded
peals
relevant to
trial court
tors
disregard
to
defense
that an instruction
possibly
can
be.
any reviewing court
cured
question would not have
counsel’s
added).
omitted)
(footnote
(emphasis
Id.
error,
if
on to
any. Appellant goes
the
contrast-
Finally,
Supreme
the
Court also
that, “[j]ust
appeals
as the court of
assert
with in
presented
it was
the situation
ed
the
court’s erro-
dodged the issue of
trial
arguments during
Washington opening
—
ruling,
ap-
of
evidentiary
the court
neous
jury
an entire
could be biased—with
which
by
tenu-
dodged
creating
this issue
a
peals
a
juror
one
on
in which
a situation
reaching
factual
instead of
ous
distinction
be
with
replaced
and could
jury is biased
Appellant sup-
proper
the
conclusion.”
a
granting
instead of
juror
an alternate
argument by citing
his
Justice Mose-
ports
n.
824
at 512
mistrial. See id.
opinion from the court
ley’s dissenting
(“[I]f
suggestion
there
a
of individual
instruc-
argues
jury
“a
bias,
possible
replace
may
be
to
juror
sufficiently
the tri-
tion should have
saved
alternate.”). Thus, it
juror with an
al,
unnecessary.”
rendering a mistrial
the Supreme
Court
appear
does
J.,
Pierson,
(Moseley,
at
426
the
comments
improper
considered when
State,
Simpson
119
dissenting) (citing
v.
trial
important
to be
when a
came
as
as
(Tex.Crim.App.2003);
272
S.W.3d
ability to
unique
uses
or her
judge
State,
103, 115
29
Wesbrook
S.W.3d
by an
any
bias created
potential
evaluate
13
Ovalle v.
(Tex.Crim.App.2000);
Harrison, 788
comment. See
improper
(per
(Tex.Crim.App.2000)
S.W.3d
result,
curiam)).
reasoning
As a
22.
explicated
Supreme
Court WasA-
argument
to
respect
With
with
to
created
ington
respect
bias
applies
judge’s
of what deference
to
carries
force
improper argument
the same
ruling,
necessity”
the court
“manifest
potential
on cross-examination because
ruling
held such
should
appeals properly
remains,
the trial
biasing
trial
accorded
deference when the
great
be
position
gauge
is still in the best
judge
Pier-
court exercised “sound discretion.”
has been biased because
whether
son,
Renico v.
(citing
398 S.W.3d at
ques-
judge listened to the tone of the
Lett,
766, 130
559 U.S.
S.Ct.
as it
observed
tion
was delivered and
(2010)). This
also
L.Ed.2d 678
deference
Washing-
jurors.
apparent reaction
judge’s
trial
applies
determination
512-13,
ton,
We
434 U.S. at
S.Ct.
disregard
an instruction to
would
trial
judge’s
hold that when a
decision
bias
any juror
remediate
insufficient to
is based on the risk
grant mistrial
because, just
a trial court is in the best
as
bias,
“great
ruling
is entitled to
juror
to hear the tenor of the
position
deference,”
com-
of whether the
regardless
apparent
and to
reactions
asked
see
open-
place during
of conduct took
plained
they
if
have been
jurors
determine
biased,
ques-
of a
in the best
ing arguments
judge
or took
form
is also
an instruc-
position to determine whether
on cross-examination.
be sufficient
unscrupulous
[u]nless
tion to
defense counsel
remedy any
the same reasons.
are to be
unfair advantage,
bias for
allowed an
have
power
must
following
hearing
Appellant’s
At
declare a
appropriate
mistrial in
cases.
cross-examination,
question on
the follow-
orderly,
impartial
interest in
proce-
place
took
exchange
relevant
with re-
dure would be
if
impaired
he were de-
spect
disregard,
to an instruction
exercising
terred from
power by
Well,
ATTORNEY
[DEFENSE
#2]:
*12
concern that
a
any
reviewing
time
court
yeah,
get
that doesn’t
into the actual —.
disagreed with his assessment of the
way an
any
There’s not
instruction
trial situation a retrial would automati-
would cure that?
cally be barred.
mean,
INo.
I’m ask-
[PROSECUTOR]:
Washington, 434
U.S.
trial court’s actions demonstrate deliberate Conclusion
consideration, than a precipitous rather ruling[,]” trial appeals correctly and that the court consid The court of concluded ered and ruled out “less drastic that the within alterna trial court was its discre- mistrial, than if including tives” an in tion to declare a based on mistrial manifest would disregard necessity struction have been due to the actions of defense Therefore, under Appellant’s sufficient the circumstances. Pier counsel. second son, Furthermore, 398 S.W.3d at trial was double jeopardy. 418-19. not barred are Supreme we mindful of the Court’s We affirm the of the court judgment in Washington appeals. statement Pierson, (“We say
12. This is not to
counsel in
this case
14.See also
which is to of neces- gard. willing But I am to concede that sity, and the trial court’s discretion to reasonable disagree minds could on the a mistrial on manifest declare based ne- efficacy of such an instruction in this case. to, cessity justi- is limited and must be circumstances, Under these the court extraordinary by, fied circumstances. appeals did not err to defer to the trial abused, said, That discretion is we have judgment question, court’s on that consis- whenever the trial court declares a mis- tent with the dictates Arizona v. Wash- considering without the avail- trial first ington. that, I only urge would in order to ability of less drastic alternatives and justify “highest degree of respect” reasonably out. ruling them But the that the Supreme has Court accorded appropriately trial court exercises its the trial court’s discretion in this regard, to declare a mistrial —that discretion is trial judges great take care not to “act say, necessity manifest for the mistri- precipitately in response prosecu- particular al exists—when the circum- tor’s for a mistrial.”18 What that giving stances rise to declaration that, means to me is when making deter- it impossible render to arrive at a fair necessity minations of manifest vel non— tribunal, verdict before the initial when that is to say, balancing when the State’s simply impossible it is to continue with right to a fair trial, designed trial to end just in any or when verdict that the origi- judgments against the defendant’s valued might nal tribunal return would auto- right to have matically subject completed by to reversal on ap- particular peal judges because of trial error.17 tribunal19—trial must give the same consideration to the remedi- case, appellant’s question how- potential al of an instruction to disregard inflammatory, ever erroneous or they routinely give would almost such trial, impossible it make to continue the any instruction time is the inject something nor did it into the record defendant who seeks a mistrial. result automatic reversal on So the appeal. basis manifest remarks, join With these additional necessity presented ques- here opinion. Court’s so as to contaminated the render *16 impossible for tribunal the initial to ar- rive at a fair Could the appel- verdict. at a
lant’s have arrived fair verdict instructed, it been in no had uncertain terms, recognize consciously poten- prejudice consciously
tial for
put
(and
appellant’s any prejudi-
implications they may may
cial
not have
Wade,
Garza,
19.Garza,
(citing
17.