Leonard Pierson, Jr. v. State , 2013 Tex. App. LEXIS 4868 ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-11-00065-CR
LEONARD PIERSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Bowie County, Texas
Trial Court No. 09F0258-005
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
Dissenting Opinion by Justice Moseley
OPINION
Before the mistrial was declared during the presentation of evidence in Leonard Pierson,
Jr.’s, first jury trial on charges of indecency with a child and aggravated sexual assault of a
child, 1 the purported victim, Bianca, had testified on direct examination regarding multiple
instances in which she said Pierson sexually assaulted her or at least had sexual contact with her.
Defense counsel’s first question on cross-examination caused the trial court to declare a mistrial.
The question was, “Did you also make an allegation that [Pierson] did these same things to his
own daughter?” 2
Pierson’s second jury trial resulted in Pierson’s conviction for one count of indecency
with a child, enhanced by a prior felony conviction, and seven counts of aggravated sexual
assault of a child and in Pierson being sentenced to life imprisonment. A central question before
us is whether Pierson’s second trial violated his right to be free from double jeopardy. We affirm
the judgment of the trial court because—although (1) Pierson did not consent to the mistrial—
(2) the evidentiary ruling was not shown to be incorrect, (3) the finding of manifest necessity
1
The State alleged Pierson repeatedly molested Bianca Shaw Montana, a pseudonym, who was the daughter of his
girlfriend. Bianca’s mother testified that, in the early morning hours of November 27, 2008, she walked into the
living room to find Pierson on the couch where Bianca was sleeping. Pierson claimed to be rocking Bianca to sleep,
but Bianca’s mother pulled back the covers and found that Bianca’s gown was pulled up and her panties were pulled
down. The sexual assault examination did not find any evidence of trauma, but DNA consistent with Pierson’s
epithelial cells was found on Bianca’s panties. Bianca told the registered nurse who did the examination that the
abuse happened every day. Pierson claimed that the allegations were false due to a bad relationship he had with
Bianca’s mother. Pierson does not direct us to where in the record there is evidence of a bad relationship. Bianca’s
mother denied having a fight that evening with Pierson and denied throwing a hammer at him. Pierson did not
testify.
2
The State immediately objected to defense counsel’s question before Bianca had answered. The State also
requested and was granted, over the defense’s objection, a mistrial. The following week, Pierson filed a pretrial writ
of habeas corpus and motion to dismiss the indictment. The trial court denied the motion, and a second jury was
selected and sworn. The second jury acquitted Pierson of one count of aggravated sexual assault, but found Pierson
guilty of the one count of indecency with a child and of the seven remaining counts of aggravated sexual assault.
2
was not an abuse of discretion, (4) overruling Pierson’s relevancy objection was not an abuse of
discretion, and (5) the evidence is legally sufficient.
(1) Pierson Did Not Consent to the Mistrial
A bedrock principle of constitutional law is that a State may not put a defendant in
jeopardy twice for the same offense. Arizona v. Washington, 434 U.S. 497, 502 (1978); see also
United States v. Newton, 327 F.3d 17, 21 (1st Cir. 2003). “[A]s a general rule, the prosecutor is
entitled to one, and only one, opportunity to require an accused to stand trial.” Washington, 434
U.S. at 505. “Because jeopardy attaches before the judgment becomes final, the constitutional
protection also embraces the defendant’s ‘valued right to have his trial completed by a particular
tribunal.’” 3 Id. at 503.
Even if the first trial is not completed, a second prosecution may be grossly
unfair. It increases the financial and emotional burden on the accused, prolongs
the period in which he is stigmatized by an unreasonable accusation of
wrongdoing, and may even enhance the risk that an innocent defendant may be
convicted.
Id. at 503–04; see Ex parte Lewis, 219 S.W.3d 335, 353 (Tex. Crim. App. 2007).
Although a retrial is absolutely prohibited when a trial ends in an acquittal or a
conviction, a retrial may not be “automatically barred when a criminal proceeding is terminated
without finally resolving the merits of the charges against the accused.” Washington, 434 U.S. at
505. Under such circumstances, a retrial over the objection of a defendant is permitted only
when the prosecutor demonstrates “manifest necessity.” Id. “Neither party has a right to have
his case decided by a jury which may be tainted by bias.” Id. at 516. A trial court’s decision to
3
Jeopardy attaches when the jury is sworn. See Downum v. United States, 372 U.S. 734 (1963); see also Proctor v.
State, 841 S.W.2d 1, 4 (Tex. Crim. App. 1992).
3
declare a mistrial is reviewed for an abuse of discretion, but “the trial court’s discretion to
declare a mistrial based on manifest necessity is limited to, and must be justified by,
extraordinary circumstances.” See Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App.
2011).
Once a defendant establishes that he or she is being tried for the same offense after a
mistrial, the State has the burden to prove that there was manifest necessity for the mistrial. Hill
v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). Manifest necessity exists in three
situations: (1) “when the particular circumstances giving rise to the declaration render it
impossible to arrive at a fair verdict before the initial tribunal,” (2) “when it is simply impossible
to continue with trial,” or (3) “when any verdict that the original tribunal might return would
automatically be subject to reversal on appeal because of trial error.” Garza, 337 S.W.3d at 909.
The State confines its arguments to the first situation—whether a fair trial was impossible. The
State argues that, in simply posing the initial question it did, even without an answer to it, the
defense committed an egregious error that biased the jury against the State’s case, preventing a
fair trial.
Different standards apply to our review if Pierson consented to the mistrial. See Oregon
v. Kennedy, 456 U.S. 667, 670 (1982); United States v. Dinitz, 424 U.S. 600, 606 (1976);
Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007); Lewis, 219 S.W.3d at 371. If
there was consent by Pierson, the State is not required to demonstrate manifest necessity.
Harrison v. State, 767 S.W.2d 803, 806 (Tex. Crim. App. 1989). The State concedes that
4
Pierson opposed the State’s request for a mistrial, and the record supports that position. 4 Pierson
did not consent to the mistrial.
(2) The Evidentiary Ruling Was Not Shown to Be Incorrect
Pierson argues that the trial court erred in finding the question improper and that such
error requires a finding that manifest necessity did not exist. In Washington, the United States
Supreme Court started with the assumption that the statements by defense counsel were error.
Washington, 434 U.S. at 505. The Texas Court of Criminal Appeals, however, has permitted
questions similar to the question in this case.
The record does not contain the substance of the allegedly false allegation Pierson’s
counsel sought to get before the jury with his question. The parties could not agree, at the first
4
At oral argument before this Court, the following exchange occurred:
Justice Carter: Do you agree that the defense does not have to make an objection to a mistrial?
[The State]: The State will concede there is not a need for an objection. I think, in this case, the defense
made it known that they did not agree with the mistrial. So I don’t think that necessarily comes into issue . . . .
....
Justice Carter: You are saying that it is not required to object -- you’re agreeing with that.
[The State]: Correct, Your Honor.
The words “I object” are not necessary when an objection is apparent from context. Ex parte Little, 887 S.W.2d 62,
66 (Tex. Crim. App. 1994) (context did not establish consent to mistrial). In determining whether a defendant has
consented to the mistrial, we must consider the totality of the circumstances. Harrison, 767 S.W.2d at 806; Torres
v. State, 614 S.W.2d 436, 441–42 (Tex. Crim. App. 1981). Consent, though, will not be inferred from a silent
record. Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, pet. ref’d).
Although Pierson’s attorney did not utter the phrase “I object” or “objection,” the record suggests that
Pierson opposed the mistrial. Pierson argued that the question was permissible and, alternatively, asked, “There’s
not any way an instruction would cure that?” While Pierson could have made his opposition more clear, the totality
of the circumstances fails to establish Pierson consented to the mistrial. Once the trial court announced its intention
to declare a mistrial, it was reasonable trial strategy to not further antagonize the trial court by challenging its
decision. We will not infer consent from a silent record.
5
trial, concerning what collateral claim had been alleged. The following excerpts contain the
entirety of the details presented to the trial court before it declared a mistrial:
[Defense Counsel 1]: The other daughter was questioned by the CAC
based on the allegation.
[The State]: That’s not admissible here.
THE COURT: Okay, what’s the nature of the --?
[Defense Counsel 2]: (Inaudible, whispering)
[The State]: Under 412, no way.
THE COURT: Hold on. We’ve got to have a hearing on the -- is the
nature of the question that she has made a false outcry against somebody else or
that she’s made a true outcry against some other person?
[The State]: He can’t prove that it’s false, but she -- in the end of her CAC
interview she said that he did it to his daughter too. That’s it. She didn’t say what
he did, how he did -- I mean, there was nothing. That was the extent of it.
[Defense Counsel 1]: And there was an investigation in that CAC
interview and -- a full investigation, and nothing came of it.
THE COURT: Well, to introduce evidence that a child has made a false
outcry, there has to be evidence that the outcry is actually false. The only
reported case that’s ever found that to be the case is Thompson vs. State, 669
S.W.2d 420, and that was a case where both the child victim and her mother
admitted they were false. Absent an admission from the victim or the victim’s
mother that the other outcry against another person was actually false, you can’t
get into that they’ve made allegations against other people that were false.
....
THE COURT: Mr. McFarland, let me get you to flesh out your argument
a little bit more about the basis for the admissibility of this cross examination.
[Defense Counsel 1]: Your Honor, . . . Bianca, at the end of her interview
with Karrah at the CAC, . . . stated that Mr. Pierson had done the same sorts of
things . . . against his own daughter, who’s now sixteen years old. So she made
6
an allegation that the alleged perpetrator in her case had done the same types of
things to his own biological child.
THE COURT: Okay.
[Defense Counsel 1]: Karrah subsequently interviewed, there was a
forensic examination done, of Mr. Pierson’s biological daughter, there at the
CAC, where his biological daughter denied any allegations, denied any abuse, and
did not make an outcry.
[The State]: The evidence of that is what, his word?
[Defense Counsel 1]: No, the evidence is Karrah’s word when I cross
examine her as to that also. And also, we plan to call his biological daughter who
is now sixteen to testify that she was never abused by Mr. Pierson.
....
[Defense Counsel 2]: No, sir, Judge, that wasn’t the -- my understanding
of it was she claimed that this happened in DeKalb in her presence when he
abused his daughter, I believe is my understanding.
[The State]: No, that was her cousin.
....
[The State]: She merely said -- and Karrah can come and tell you -- she
merely said that either she thought or she said he even did it to his own daughter.
That was the extent of the statement. There was no details, there was no --
[Defense Counsel 2]: He didn’t tell her that.
[Defense Counsel 1]: She just, it just came up in the CAC interview.
THE COURT: So we don’t even really know what the basis for her
statement was.
7
[Defense Counsel 1]: We don’t know the basis of the statement, just that
she made the allegation and that it was subsequently investigated and went
nowhere.
There is still uncertainty as to what the allegation was. 5
5
In response to our question at oral argument concerning where the record contains details of the alleged false
allegation, Pierson claimed the statement could be found on the video recording of the interview by the sexual
assault nurse examiner (SANE) Kathy Lach. The SANE video in this case, though, was not introduced as an
exhibit. Immediately before cross-examination of Pamela Freeman, a registered nurse, at the second trial, the
following interchange occurred:
THE COURT: Okay. I just wanted to -- Ms. Freeman, there’s a part of that record that
you were reading from –
....
THE COURT: And so, before we -- before it inadvertently comes out, I wanted to
have the opportunity to tell you, not in front of the jury, that the part where she apparently says --
and I don’t have the statement, but apparently she says something about her stepdad had done this
to his daughter or something to that effect.
[Defense Counsel 2]: It’s the very last sentence of the report, where it said her --.
[The Witness]: Yeah, it does. It says something about her cousin.
THE COURT: Okay. Well, that’s what we’re not going to talk about, is --
We also do not have a copy of Freeman’s report in the appellate record.
8
Though the State’s original objection was based on Rule 412 of the Texas Rules of
Evidence, 6 the trial court, at the first trial, referred to the question as a “collateral issue” which
suggests its decision also may have been based on Texas Rule of Evidence 608. At the second
trial, the trial court explicitly referenced Rule 608. Rule 608 forbids inquiry into specific
instances of a witness’ conduct for the purpose of attacking or impeaching that witness’
credibility. TEX. R. EVID. 608(b). Exceptions to Rule 608 exist, however. The Texas Court of
Criminal Appeals has recognized Rule 613, which permits the use of “extrinsic evidence to show
bias or interest[,]” as an exception to Rule 608. Billodeau v. State, 277 S.W.3d 34, 40 (Tex.
Crim. App. 2009) (child’s threat to accuse different person of molestation should have been
admitted in defendant’s trial); see Hammer v. State, 296 S.W.3d 555, 566 (Tex. Crim. App.
2009) (Billodeau analysis also applies to Rule 412). The court has also recognized an exception
when the Texas Rules of Evidence would violate the Confrontation Clause. 7
6
The State’s objection was based on Rule 412. See TEX. R. EVID. 412. Rule 412, though, does not prohibit all
impeachment of an alleged sexual assault victim, but only impeachment with reputation or specific instances of past
sexual behavior by the alleged victim. By its plain language, Rule 412 only applies to “the alleged victim’s past
sexual behavior.” TEX. R. EVID. 412. While Rule 412 is applicable to some alleged false accusations, it is not
applicable when the alleged false accusation concerns the sexual behavior of someone other than the alleged victim.
The alleged false accusations in this case concerned Pierson’s alleged molestation of his biological daughter, not the
alleged victim. Rule 412 is not applicable.
7
The United States Constitution provides, in part, “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI, XIV. The Texas Court of Criminal
Appeals has observed:
Generally, the right to present evidence and to cross-examine witnesses under the Sixth
Amendment does not conflict with the corresponding rights under state evidentiary rules. Thus,
most questions concerning cross-examination may be resolved by looking to the Texas Rules of
Evidence. In those rare situations in which the applicable rule of evidence conflicts with a federal
constitutional right, Rule 101(c) requires that the Constitution of the United States controls over
the evidentiary rule.
9
Under the Texas Rules of Evidence, evidence of prior false allegations of molestation are
normally not admissible to prove the propensity of the child to lie, but are normally admissible
for another purpose such as motive or bias. See id. at 565–66; Billodeau, 277 S.W.3d at 40; see
also Duke v. State, 365 S.W.3d 722, 725 (Tex. App.—Texarkana 2012, pet. ref’d). “[T]he
exposure of a witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316
(1974). The trial court correctly held that the evidence of the allegedly false allegation was not
admissible to prove the child’s propensity to lie. The case for admitting the allegedly false
accusation, though, would have been made stronger to the extent that the evidence tended to
demonstrate bias. 8
It was Pierson’s burden, as the proponent of the evidence, to establish that the question
would result in admissible evidence. Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App.
2008). Certainly, some causal connection or logical relationship would be required. 9 While
Texas caselaw is unclear concerning what quantum of proof is required to establish that
allegations of such abuse are false, 10 we need not decide that issue.
Hammer, 296 S.W.3d at 561 (footnote omitted); see Leza v. State, 351 S.W.3d 344, 360 n.65 (Tex. Crim. App.
2011); cf. Crawford v. Washington, 541 U.S. 36, 40 (2004) (rejecting “firmly rooted hearsay exception” to
Confrontation Clause recognized in Ohio v. Roberts, 448 U.S. 56 (1980)).
8
Evidence can still be excluded if its prejudice substantially outweighs its probative value. TEX. R. EVID. 403; see
Hammer, 296 S.W.3d at 565–66 (trial court abused its discretion in finding unfair prejudice substantially
outweighed probative value).
9
See Gilmore v. State, 323 S.W.3d 250, 266 (Tex. App.—Texarkana 2010, pet. ref’d) (requiring some causal
connection between pending charges and testimony for State).
10
In general, preliminary questions of admissibility must be established by a preponderance of the evidence. Vinson,
252 S.W.3d at 340 n.14. The Texas courts, though, have not addressed this issue in the specific context presented
10
The record in this case is not sufficiently developed for us to determine whether evidence
of the false allegation at issue was admissible. Although the defense announced an intent to call
Pierson’s biological daughter to testify to the falsity of the allegation, the record is unclear
concerning what the prior false allegation was. The attorneys disagreed concerning whether
Bianca claimed to have personally observed some abuse or to have heard a report of abuse. As
summarized by the trial court, “So we don’t even really know what the basis for her statement
was.”
here. The trial court concluded a defendant could cross-examine a victim about a prior false allegation only if the
victim had admitted the allegation was false. The trial court stated, “It’s not proof by a preponderance of the
evidence or proof beyond a reasonable doubt; it’s that it’s actually false. That’s the standard.” The record, though,
is not clear concerning the authority on which the trial court relied. Although the victim admitted making false
allegations in most cases, the cases do not discuss what quantum of proof is required. Hammer, 296 S.W.3d at 565;
Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d). None of the cases hold
that recantation is a requirement. In Karnes v. State, No. 05-92-02719-CR, 1994 Tex. App. LEXIS 3553 (Tex.
App.—Dallas Mar. 4, 1994, pet. ref’d) (not designated for publication), the Dallas court noted that the child
admitted lying in all the cases which found false accusations admissible. The Dallas court, however, did not claim
that a recantation was required and cited Hughes v. State, 850 S.W.2d 260, 262 (Tex. App.—Fort Worth 1993, pet.
ref’d), which suggested false accusations are admissible when there is “some evidence” the allegations were false.
In Garcia v. State, 228 S.W.3d 703, 705–06 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d), the Houston court
stated a dismissal of the charges and a denial of the allegations was insufficient to show falsity. However, the
Fourteenth District did not hold that a recantation was required. Id. Our own research has discovered no Texas
cases discussing the quantum of proof required. While Texas courts have stated that the allegations must be shown
to be false, they have not announced a requisite quantum of evidence. Lopez v. State, 18 S.W.3d 220, 225 (Tex.
Crim. App. 2000) (“the prior accusation was never shown to be false”); Garcia, 228 S.W.3d at 705–06 (self-serving
denial and dismissal of charges insufficient); Lape v. State, 893 S.W.2d 949, 956 (Tex. App.—Houston [14th Dist.]
1994, pet. ref’d) (no evidence allegations were false). Missouri, Alaska, and Nevada have required a threshold
determination based on proof by a preponderance of the evidence. See, e.g., Morgan v. State, 54 P.3d 332, 339
(Alaska Ct. App. 2002) (preponderance); State v. Long, 140 S.W.3d 27, 32 (Mo. 2004) (preponderance); Miller v.
State, 779 P.2d 87, 90 (Nev. 1989) (preponderance). Virginia has adopted a requirement of a “reasonable basis” to
conclude the allegations were false. Clinebell v. Commonwealth, 235 Va. 319, 325 (Va. 1988). New Mexico and
New Hampshire have adopted a standard requiring the allegations be shown to be “demonstrably false.” State v.
White, 765 A.2d 156, 159 (N.H. 2000) (“demonstrably false”) vacated by White v. Coplan, 399 F.3d 18, 26 (1st Cir.
N.H. 2005) (concluding “demonstrably false” requirement unconstitutional as applied); State v. Johnson, 692 P.2d
35, 43 (N.M. Ct. App. 1984) (“demonstrably false”). At least one academic commentator has suggested the
appropriate standard would be a “good faith basis.” See Jules Epstein, True Lies: The Constitutional and
Evidentiary Bases for Admitting Prior False Accusation Evidence in Sexual Assault Prosecutions, 24 Quinnipiac L.
Rev. 609, 648 (2006). Although it is not necessary for us to decide which approach should be applicable in Texas,
we are dubious of the trial court’s requirement of a recantation. We believe a prior allegation can be proven false
without a recantation.
11
The record, further, does not contain any explanation of how these allegedly false
allegations are evidence of bias. We note the defense previously alleged the allegations were the
result of a bad relationship between Pierson and the child’s mother and argued the false
allegations were evidence of a motive to fabricate. An unsupported conclusory allegation of bias
is insufficient. The record, however, does not contain any explanation of why the questions were
admissible as evidence of bias.
Pierson has failed to meet his burden to prove that the trial court’s evidentiary ruling was
incorrect. The record fails to establish what the child victim alleged that was false and also fails
to establish that her allegation would demonstrate bias. Pierson has failed to show the trial court
abused its discretion in finding the question was improper.
(3) The Finding of Manifest Necessity Was Not an Abuse of Discretion
Pierson argues that, even if the trial court’s evidentiary ruling was correct, manifest
necessity did not exist because an instruction to disregard would have been sufficient.
According to Pierson, the trial court failed to conduct careful deliberation and weighing of
alternatives.
A mistrial should be declared only “with the greatest caution, under urgent
circumstances, and for very plain and obvious causes.” United States v. Perez, 22 U.S. (9
Wheat.) 579, 580 (1824). “The burden of proof is on the State to demonstrate manifest
necessity, and it is ‘a heavy one.’” Garza, 337 S.W.3d at 916 (quoting Washington, 434 U.S. at
505). In the words of the Texas Court of Criminal Appeals, manifest necessity is “limited to
very extraordinary and striking circumstances.” Little, 887 S.W.2d at 65. “There must be a
12
‘high degree’ of necessity that the trial come to an end.” Ex parte Fierro, 79 S.W.3d 54, 56
(Tex. Crim. App. 2002); see Garza, 337 S.W.3d at 909. The Texas Court of Criminal Appeals
has instructed:
The judge is required to consider and rule out “less drastic alternatives” before
granting a mistrial. The judge must review the alternatives and choose the one
which best preserves the defendant’s “right to have his trial completed before a
particular tribunal.” The judge need not expressly state his reasons in the record
as long as the basis for his ruling is adequately disclosed by the record.
Hill, 90 S.W.3d at 313 (citations omitted); see Harrison v. State, 788 S.W.2d 18, 22 (Tex. Crim.
App. 1990); see also Washington, 434 U.S. at 517 (“The state trial judge’s mistrial declaration is
not subject to collateral attack in a federal court simply because he failed to find ‘manifest
necessity’ in those words or to articulate on the record all the factors which informed the
deliberate exercise of his discretion.”).
While a trial court’s decision to declare a mistrial is always entitled to deference, the
amount of deference depends on the reasons for the mistrial. In Washington, the United States
Supreme Court adopted a sliding scale of deference. One extreme of this sliding scale is jury
deadlock, which is granted “great deference,” while at the other extreme are “cases in which a
prosecutor requests a mistrial in order to buttress weaknesses in his evidence.” Washington, 434
U.S. at 510. In Washington, the United States Supreme Court determined that the “great
deference” end of the scale is appropriate for improper comments that might cause jury bias. Id.;
cf. Colvin v. Sheets, 598 F.3d 242, 246 (6th Cir. 2010) (great deference granted to mistrial based
on comment referring to prior hung jury). Similarly, we owe the trial court “great deference” in
this case. This is not to say that we grant absolute deference to trial courts. Renico v. Lett, 559
13
U.S. 766 (2010). The trial court must exercise “sound” discretion, which requires at a minimum
that the court’s reasons be related to the basis of the mistrial ruling and that its decision be
rational and responsible. Id.
As Pierson argues, an instruction to disregard will usually cure error associated with an
improper question. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); Wesbrook v.
State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Ovalle v. State, 13 S.W.3d 774, 783 (Tex.
Crim. App. 2000) (“In most instances, an instruction to disregard the remarks will cure the
error.”). In such cases, though, a mistrial was declared at defendant’s request, not without his or
her consent.
Most Texas cases on manifest necessity do not concern evidentiary issues. 11 The facts of
this case, though, are similar to the facts considered about ten years ago by Texas’ Second Court
of Appeals in Fort Worth. See Ex parte Bruce, 112 S.W.3d 635 (Tex. App.—Fort Worth 2003,
pet. dism’d, untimely filed). That court found manifest necessity when the defense counsel
violated a motion in limine—in suggesting the victim had admitted to making false allegations—
after being told several times by the trial court that the allegation was inadmissible. Id.
Although the differences in the language of the questions makes this case a closer call than
11
See, e.g., Garza, 337 S.W.3d 903 (when juror had heart attack, manifest necessity did not exist because defense
offered to waive right to six jurors); Hill, 90 S.W.3d at 310 (no manifest necessity when trial court could have
continued with eleven jurors); Fierro, 79 S.W.3d at 55 (no manifest necessity when trial court could have continued
with eleven jurors); Ex parte Brown, 907 S.W.2d 835, 843 (Tex. Crim. App. 1995) (no manifest necessity because
State’s chemist, who was unavailable after first day of trial, could have testified out of order or supervisor could
have testified); Ex parte Hunter, 256 S.W.3d 900, 902 (Tex. App.—Texarkana 2008), pet. dism’d, 297 S.W.3d 292
(Tex. Crim. App. 2009) (no manifest necessity because trial court failed to consider retaining juror who served on
grand jury); Ex parte Alexander, 141 S.W.3d 798, 799 (Tex. App.—Beaumont 2004, pet. ref’d) (no manifest
necessity when trial court could have granted continuance).
14
Bruce, 12 we, like the Fort Worth Court of Appeals, come down on the side of trial court
discretion and find manifest necessity.
We conclude that the trial court exercised sound discretion in (a) granting the parties an
opportunity to argue their positions on declaration of a mistrial, (b) considering alternatives to a
mistrial, and (c) using its discretion to conclude the defense lacked a legitimate basis for the
question.
Before declaring a mistrial, the trial court granted the parties ample opportunity to state
their positions on the record as well as ample opportunity to provide authority for those
positions. While the trial court may have erred in opining that a recantation was required before
evidence of a false allegation was admissible, Pierson did not direct the trial court to relevant
contrary authority. The record contains a lengthy discussion between the trial court and the
parties, in the midst of which the trial court took a twenty-four-minute recess to research and
consider the issue. The trial court’s actions demonstrate deliberate consideration, rather than a
precipitous ruling.
We also disagree with Pierson’s argument that the trial court failed to consider an
instruction to disregard. The Texas Court of Criminal Appeals and the United States Supreme
Court have held that explicit consideration is not required, as long as the record supports a
finding of manifest necessity. See Washington, 434 U.S. at 517 (rejecting requirement to
“articulate on the record all the factors which informed the deliberate exercise of [trial court’s]
12
As in Bruce, the witness did not answer the question. The question in Bruce, though, explicitly referenced a false
allegation. Bruce, 112 S.W.3d at 638. Bruce’s attorney, in his opening statement, alleged witnesses “will tell you
that this summer [D.H.] admitted making a false --” Id. In this case, the language of the question sounded neutral.
15
discretion”); Hill, 90 S.W.3d at 313. Further, the record indicates explicit consideration.
Although most of the discussion concerned the admissibility of the evidence, the trial court
explicitly rejected a suggestion that an instruction to disregard would be sufficient. The trial
court ruled:
So I find that the evidence is not admissible. It is unduly prejudicial -- it’s not
relevant, first of all, it’s unduly prejudicial. It serves only to interject issues that
are collateral which would potentially confuse the jury, and I don’t know how it
can be cured with an instruction to the jury. So with that said, I’m going to grant
the state’s motion for a mistrial. Since I find that this was done because of actions
of the defendant and not because of the actions of the state, then there’s no
jeopardy that attaches.
Thus, the trial court did consider an instruction to disregard, but concluded that an instruction to
disregard would not be sufficient to purge the taint from the question. Other than the instruction
to disregard, Pierson does not specify what alternatives the trial court failed to consider.
Also, the trial court did not abuse its discretion in determining that Pierson lacked a
legitimate basis for the question. Although false allegations may be admissible under the
appropriate circumstances, reasonable persons could disagree concerning what Pierson’s intent
was in this case. Earlier in the trial, Pierson had sought to introduce evidence of a bad
relationship between Pierson and the victim’s mother as a motive for the mother to coach the
child to make false accusations. The trial court ruled this information improper. Although the
question did not violate a previous evidentiary ruling prohibiting such inquiry or even violate a
motion in limine, Pierson had notice that such evidence would likely be opposed by the State and
disfavored by the trial court. Despite this advance notice, Pierson was unprepared to cite
caselaw or other authority that the question would lead to admissible evidence. In fact, counsel
16
was not even sure what the false statement was. Under interrogation by the trial court, defense
counsel’s contention that the question was proper folded rather quickly.
Reasonable persons can disagree concerning whether Pierson realistically intended to get
relevant evidence by posing the question or, instead, simply intended to prejudice the jury.
Defendants have a right to challenge a witness’ credibility by cross-examination. Pierson was
given the opportunity to justify the pursuit of this question, but failed to put up more than a
short-lived argument that faltered under questioning by the trial court. It was within the trial
court’s discretion to consider the question an improper comment by counsel intended merely to
improperly create an impression of untrustworthiness.
We are required to grant the trial court’s evaluation of potential juror bias “great
deference.” Ross v. Petro, 515 F.3d 653, 661 (6th Cir. 2008). The trial court was able to observe
the tone of the question and the body language of witness and defense counsel, which cannot be
determined from an appellate record.
While we may not have reached the same decision, we cannot say that the trial court
acted irresponsibly or irrationally. The trial court acted deliberately—not precipitously. The
trial court explicitly considered and rejected the alternative of giving an instruction to disregard,
and the record provides some support for the trial court’s conclusion that the intent for the
question was to prejudice the jury, rather than a realistic attempt to solicit admissible evidence.
The trial court exercised sound discretion. Given that we must grant the trial court “great
deference,” we are reluctant to find an abuse of discretion under the facts of this case.
17
(4) Overruling Pierson’s Relevancy Objection Was Not an Abuse of Discretion
Pierson complains that the trial court erred in admitting the expert testimony of Kathy
Lach. Freeman, the nurse who performed the examination of the child, was attempting to obtain
her certification, but was not certified at the time and did not ultimately obtain her certification.
At trial, Pierson objected to Lach’s expert testimony and obtained a running objection, based on
“relevancy,” given that Lach had “never examined this child.” Lach testified that only five to ten
percent of child abuse victims have trauma and later speculated that the abuse alleged in this case
could have occurred without causing trauma. On appeal, Pierson argues that Lach’s testimony
was not sufficiently tied to the facts of the case to be relevant and violated the “fit” requirement.
Pierson claims that the fit requirement requires the expert witness to have personally
examined the victim. The Texas Court of Criminal Appeals has explained the fit requirement as
follows:
Relevance is by nature a looser notion than reliability. Whether evidence “will
assist the trier of fact” and is sufficiently tied to the facts of the case is a simpler,
more straight-forward matter to establish than whether the evidence is sufficiently
grounded in science to be reliable. This is not to say that the relevancy inquiry
will always be satisfied. See Pierce, 777 S.W.2d at 414–16 (expert could not say
which scientific principles he discussed were applicable to facts in case and had
no knowledge of witnesses’ testimony); Rousseau, 855 S.W.2d at 868 (expert
referred to “studies” and did not discuss whether any factors he planned to discuss
would apply to facts of case); Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim.
App. 1994) (expert failed to connect “generic testimony” to specific facts of case).
The expert must make an effort to tie pertinent facts of the case to the scientific
principles which are the subject of his testimony. Establishing this connection is
not so much a matter of proof, however, as a matter of application.
Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996) (emphasis added); see Vela v.
State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Morales v. State, 32 S.W.3d 862, 865 (Tex.
18
Crim. App. 2000). As noted by the Texas Court of Criminal Appeals in Morales, relevancy
“lends itself to a liberal policy of admission of evidence for the jury’s consideration.” Morales,
32 S.W.3d at 865.
An expert may testify through the use of hypothetical questions. Tillman v. State, 354
S.W.3d 425, 429 (Tex. Crim. App. 2011). Hypothetical questions satisfy the fit requirement
whenever the facts of the hypothetical match the facts of the case being tried. Id. The
hypothetical question presented to Lach was “if a thirty year old man inserted his penis in a
seven year old child, there would not necessarily be trauma?” Because the facts of this
hypothetical arguably match the facts of this case, the relevancy fit requirement has been met. 13
(5) The Evidence Is Legally Sufficient
Pierson also argues that the evidence of the seven sexual assault convictions is legally
insufficient because there is insufficient evidence of penetration. 14 Given the inconsistencies in
the child’s testimony and Doctor Erik Jacobson’s testimony that the described events should
have resulted in trauma, Pierson argues a rational juror could not have concluded beyond a
reasonable doubt that the offenses occurred.
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305
13
Pierson has restricted his argument to the fit requirement. We are not expressing any opinion concerning the
various other requirements for the admission of scientific expert testimony.
14
Pierson states in his brief, “Appellant does not challenge the legal sufficiency of the sexual indecency conviction.”
19
S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal sufficiency under
the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to
fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007).
The child’s testimony is sufficient, by itself, to establish penetration and sexual contact.
The child testified as follows:
Q Did he touch your privates -- your private?
A Yes.
Q Did he touch your private with his private?
A Yes.
Q Did he touch your private with his hands?
A Yes.
Q Did he touch your butt with his private?
A Yes.
Q Did he put his private inside your butt?
A Yes.
Q Did it hurt?
A Yes.
Q Did that happen more than once?
20
A Yes.
....
Q Did it happen more than six times?
A Yes.
Pierson argues this testimony is inconsistent given that the child had testified seconds earlier that
Pierson did not touch her butt with any part of his body other than his hands. Reconciliation of
evidentiary conflicts is solely a function of the trier of fact. Mosley v. State, 983 S.W.2d 249,
254 (Tex. Crim. App. 1998). A rational juror could have believed the child’s testimony that
penetration occurred.
As discussed above, Lach testified a thirty-year-old man can insert his penis in a seven-
year-old child without causing trauma. Dr. Jacobson, the emergency room physician who
assisted Freeman in her examination of Bianca, testified that, in his professional opinion, signs of
sexual activity would have been present “if a seven year old girl was having repeated sex with a
thirty year old man or a twenty-five year old man, both anally and vaginally.” When asked
whether he believed, “based on reasonable medical certainty,” that vaginal or anal sexual activity
had occurred immediately before the examination, Dr. Jacobson replied that there did not appear
to be. Dr. Jacobson testified he had conducted “hundreds” of such examinations.
Although it appears the jury believed Dr. Jacobson’s testimony concerning the alleged
assault immediately before the examination, the jury appears to have rejected Dr. Jacobson’s
testimony concerning the repeated penetration. Pierson argues that, in order to find him guilty of
six counts of sexual assault, the jury would have to believe Lach’s testimony over Dr. Jacobson’s
21
opinion. A rational person could believe a nurse who specializes in sexual assault examinations
over an emergency room doctor. Both Lach and Dr. Jacobson testified to extensive experience. 15
While a doctor clearly receives more extensive education, Lach specialized in sexual assault
examinations. Dr. Jacobson was an emergency room physician. A rational person could
conclude the specialization compensated for the educational disparity.
Further, a rational person would not necessarily have to believe a nurse over a doctor.
Dr. Jacobson testified he generally only reviews the nurse’s examination and did not use a
culpascope, “basically a microscope,” in his examination of the child. The nurse who conducted
the examination of the child was in the process of obtaining SANE certification, but was not
certified at the time of the examination. A rational juror could have concluded that the nurse
who conducted the examination may have missed trauma.
A rational person could have concluded, beyond a reasonable doubt, that penetration
occurred. The evidence is legally sufficient.
For the reasons stated, we affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
15
Dr. Jacobson has been licensed for eleven years. Lach has been a registered nurse since 1995 and a SANE since
2003.
22
DISSENTING OPINION
I must respectfully dissent from the majority in this case because I believe that Leonard
Pierson, Jr., has been subjected to double jeopardy that is prohibited by the Fifth Amendment to
the United States Constitution. This is something done with a certain reluctance because I
strongly respect my colleagues and do not perceive myself as being blessed with any more
percipience than they possess.
In Pierson’s first trial on these charges, immediately after uttering a salutary greeting to
her, the first question posed by defense counsel to the alleged victim was, “Did you also make an
allegation that [Pierson] did these same things to his own daughter?” The posing of this singular
question precipitated the trial court’s decision to grant the State’s motion for a mistrial.
As soon as this question was asked, the State objected and the trial court cleared the jury
from the courtroom. During the ensuing discussion, the trial judge made what I believe was an
incorrect statement, the belief in which appears to have borne substantial responsibility for its
decision to declare a mistrial: “Absent an omission from the victim or the victim’s mother that
the outcry against another person was actually false, you can’t get into that they’ve made
allegations against other people that were false.” The State complained that the question posed
was “way not allowed in cross. I mean, I think that’s grounds for a mistrial.” The State later
urged, “I’m asking for a mistrial.” The trial court did not act precipitously but, rather, took time
to discuss and argue the issue with the attorneys for both sides. During this discussion, the trial
judge observed, “I don’t see how there’s any possible way that a jury could disregard this kind of
23
testimony.” 16 On resuming (still outside the presence of the jury), the trial court gave Pierson
another opportunity to defend his right to pursue that line of questioning. Being apparently
unconvinced by the arguments given, the trial judge then announced,
It serves only to interject issues that are collateral which would potentially
confuse the jury, and I don’t know how it can be cured with an instruction to the
jury. So with that said, I’m going to grant the state’s motion for a mistrial. Since
I find that this was done because of actions of the defendant and not because of
the actions of the state, then there’s no jeopardy that attaches.
The majority seems to take the position that in situations wherein the State was not
blameworthy in creating the situation giving rise to the grant of a mistrial (i.e., when there is no
one to whom fault can be attributed or if the fault lay at the feet of the defendant), the reviewing
court must give “great deference” to a trial court’s decision to declare a mistrial. This is a
position also argued by the State in this case, resting its argument to a great degree on Arizona v.
Washington, 434 U.S. 497, 508 (1978). It should be noted that the United States Supreme Court
in that case recognized that there should be a sliding scale or a spectrum of differing degrees of
deference accorded to that decision based on the type of alleged error on the part of the trial
court. Id. at 510. “[T]he strictest scrutiny is appropriate when the basis for the mistrial is the
unavailability of critical prosecution evidence, or when there is reason to believe that the
prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage
over the accused.” Id. at 508 (footnotes omitted). A deadlocked jury, however, is at an extreme
other end of the spectrum and is entitled to “great deference.” Id. at 510. In applying a sliding
scale of increased deference, it would seem that the trial court’s decision in this matter would not
16
It does not appear to be picking at straws to observe here that there was no testimony or even a statement that such
testimony was expected. There was merely a question.
24
be entitled to the “great deference” afforded to a sua sponte decision to declare a mistrial due to a
hung jury, but, rather, to only ordinary deference.
The majority is correct in stating that the record in this case is not sufficiently developed
to determine whether evidence of a false allegation at issue was admissible. 17 However, it was
the State (and not the defendant) urging the trial court to declare a mistrial in this matter, despite
the fact that the case for a false allegation claim had yet to be made. This premature urging by
the State would seem to somewhat blunt the need to grant the degree of deference accorded to
the trial court’s decision.
The closest circumstance in Texas caselaw to the current matter appears to be Ex parte
Bruce, 112 S.W.3d 635 (Tex. App.—Fort Worth 2003, pet. dism’d, untimely filed), wherein the
defense, during opening arguments, said, “[D.H.] then will be—should be able to remember and
will tell you that this summer—and Donna [H.] and Ricky [H.], her parents, will tell you that this
summer [D.H.] admitted making a false—.” Id. at 638. The Fort Worth Court of Appeals
applied the general rule, for a habeas corpus proceeding, that the applicant bears the burden to
show entitlement to relief. Id. at 639. This statement was made purposely and in direct violation
of an order prohibiting such statements which had been entered in response to a motion in limine
filed by the State. 18 Id. The declaration of a mistrial was made sua sponte in that case, whereas
the declaration of a mistrial in this case came only after the repeated requests of the State. The
17
In fact, the record is unclear concerning what the prior false allegation was. The attorneys disagreed concerning
whether the child claimed to have personally observed the abuse or whether she claimed her cousin had observed
Pierson abusing his biological daughter. As stated by the trial judge, “So we don’t even really know what the basis
for her statement was.”
18
The trial court considered this so egregious that defense counsel was held in contempt and fined; the trial court
took the further extraordinary steps of recusing itself and testifying concerning the matter.
25
statement made on voir dire by defense counsel in Bruce was given as a statement of fact which
the defendant intended to prove, not (as here) as a question posed to a witness. Bruce is also
distinguishable from this case because it was a proceeding seeking habeas corpus relief whereas
this is a direct appeal. In a habeas corpus proceeding, the applicant bears the burden to show
entitlement to relief. Id. In contrast, in a direct appeal (such as this case), once the defendant
shows that he is being tried once again for the same offense after a mistrial, it is the burden of the
State to show the existence of manifest necessity in the declaration of a mistrial. Hill v. State, 90
S.W.3d 308, 313 (Tex. Crim. App. 2002). 19
A trial court’s decision to declare a mistrial is reviewed for an abuse of discretion, but
“the trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and
must be justified by, extraordinary circumstances.” Garza, 337 S.W.3d at 909. The Texas Court
of Criminal Appeals has outlined three situations in which manifest necessity for the declaration
of a mistrial arises: (1) “when the particular circumstances giving rise to the declaration render it
impossible to arrive at a fair verdict before the initial tribunal,” (2) “when it is simply impossible
to continue with trial,” or (3) “when any verdict that the original tribunal might return would
automatically be subject to reversal on appeal because of trial error.” Id. The State confines its
arguments here to the first situation—whether a fair trial was impossible. The State argues that
the defense committed an egregious error that so biased the jury against the State’s case that it
prevented the State from receiving a fair trial. The majority is correct in finding that Pierson did
19
See Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011) (In a pretrial habeas, “[o]nce the defendant
shows he is being tried for the same offense after declaration of a mistrial to which he objected, a heavy burden
shifts to the State to justify the trial court’s declaration of the mistrial.”).
26
not agree with the State’s request for a mistrial. Under this circumstance (i.e., since there is no
evidence that Pierson agreed to the mistrial), the duty is on the State to demonstrate the existence
of the manifest necessity for the grant of a mistrial. See Harrison v. State, 767 S.W.2d 803, 806
(Tex. Crim. App. 1989).
Because it was the State’s burden to prove manifest necessity, it was also the State’s
burden to ensure that the record was sufficient to show the question was inadmissible and
resulted in extreme prejudice. Unlike the applicant for relief in Bruce, Pierson does not have the
burden to prove the trial court’s ruling was incorrect; rather, the State has the burden to prove
that the ruling of a manifest necessity for the declaration of a mistrial was correct. The
insufficient record prevents the State from meeting this burden. Thus, the State has failed to
establish it suffered any unfair prejudice—much less, that sufficiently extreme unfair prejudice
existed to constitute manifest necessity.
The State argued to the trial court that manifest necessity is shown by merely
demonstrating that some harm has resulted to a party (here, the State). That is not the yardstick
by which manifest necessity is measured; it requires an extreme degree of harm so severe that a
fair trial cannot occur. In the words of the Texas Court of Criminal Appeals, manifest necessity
is “limited to ‘very extraordinary and striking circumstances.’” Ex parte Little, 887 S.W.2d 62,
65 (Tex. Crim. App. 1994).
Although the trial court is not required to explain its reasoning on the record, its
reasoning must be supported by the record. The existence of alternatives is highly relevant.
“When a trial judge grants a mistrial despite the availability of a less drastic alternative, there is
27
no manifest necessity and he abuses his discretion.” Hill, 90 S.W.3d at 313. As noted by the
United States Supreme Court,
in the final analysis, the judge must always temper the decision whether or not to
abort the trial by considering the importance to the defendant of being able, once
and for all, to conclude his confrontation with society through the verdict of a
tribunal he might believe to be favorably disposed to his fate.
United States v. Jorn, 400 U.S. 470, 486 (1971).
The decision by the trial court here falls very close to the line between the exercise of the
“trial court’s broad discretion” in finding the manifest necessity to declare a mistrial (see
Ex parte Rodriguez, 366 S.W.3d 291, 297 (Tex. App.—Amarillo 2012, pet. ref’d)), and the
obligation of the trial court to “always temper the decision whether or not to abort the trial by
considering the importance to the defendant of being able, once and for all, to conclude his
confrontation with society through the verdict of a tribunal he might believe to be favorably
disposed to his fate.” Jorn, 400 U.S. at 486. The United States Supreme Court was correct when
it uttered the often-repeated statement regarding the declaration of a mistrial that “[t]o be sure,
the power ought to be used with the greatest caution, under urgent circumstances, and for very
plain and obvious causes . . . .” United States v. Perez, 22 U.S. 579, 580 (1824).
It does not appear that the record in this case supports a finding that alternatives less
drastic than a declaration of a mistrial did not exist. Manifest necessity requires what does not
exist here: extreme error. Although it is true that the State may be prejudiced in some fashion
because it may not have a right to appeal an acquittal, 20 such a fact does not mean that just any
prejudice justifies a mistrial. The fact remains that other alternatives were available. Texas
20
The trial court relied, at least in part, on the reasoning that the State cannot appeal if the trial results in an acquittal.
28
courts have routinely expressed confidence that an instruction to disregard will cure error
associated with an improper question. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.
2003); Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (“In most instances, an
instruction to disregard the remarks will cure the error.”); Ovalle v. State, 13 S.W.3d 774, 783
(Tex. Crim. App. 2000) (per curiam).
Here, a jury instruction should have sufficiently saved the trial, rendering a mistrial
unnecessary. That should have been done. Because it was not done, Pierson has been subjected
to prohibited double jeopardy.
I respectfully dissent.
Bailey C. Moseley
Justice
Date Submitted: November 20, 2012
Date Decided: April 19, 2013
Publish
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