Arthur Lee Jackson v. State ( 2013 )

Opinion issued June 20, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00656-CR
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ARTHUR LEE JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1331423
MEMORANDUM OPINION
In 2009, a jury convicted Arthur Lee Jackson of murder and assessed
punishment at twenty years’ confinement. After the verdict, Jackson learned that
the State had withheld potentially exculpatory evidence—photographs and video of
a bloodspot at the scene of the murder that the State had linked to Jackson with
DNA evidence. He moved for a new trial based on Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194 (1963). The trial court granted Jackson’s motion for new trial.
Jackson subsequently filed a pretrial writ of habeas corpus, contending that a
second trial for the same offense violates his rights under the United States and
Texas Constitutions. The trial court denied relief. Jackson appeals, contending that
a second trial is barred by double jeopardy and violates his right to effective
assistance of counsel, due process, and due course of law. Finding no error, we
affirm.
Discussion
Standard of Review
We review the denial of a writ of habeas corpus for an abuse of discretion,
viewing the facts in the light most favorable to the trial court’s ruling. Ex parte
Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
Double Jeopardy
The Double Jeopardy Clauses of the United States and Texas Constitutions
prohibit subsequent prosecution for the same offense after acquittal or final
conviction. See State v. Lee, 15 S.W.3d 921, 928 (Tex. Crim. App. 2000); see also
U.S. CONST. amend. V; TEX. CONST. art. I, § 14. Double jeopardy does not bar the
State from seeking a retrial of an accused whose conviction for the same offense
has been set aside, unless the conviction was set aside due to insufficient evidence.
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Ex parte Queen, 877 S.W.2d 752, 755 (Tex. Crim. App. 1994). By granting a
motion for new trial, setting aside the verdict, and vacating its judgment, a trial
court restores the case to its position before the earlier trial, and the initial jeopardy
continues. See Lofton v. State, 777 S.W.2d 96, 97 (Tex. Crim. App. 1989).
The trial court granted Jackson’s motion for new trial, because the
prosecutor had failed to disclose Brady evidence, and not due to insufficient
evidence. See Queen, 877 S.W.2d at 755. Because the trial court has restored the
case to its position before the former trial, jeopardy continues. See Lofton, 777
S.W.2d at 97.
Jackson responds that setting aside the verdict due to prosecutorial
misconduct post-trial is comparable to a prosecutor inducing a mistrial before the
verdict to avoid acquittal of the defendant. See Oregon v. Kennedy, 456 U.S. 667,
102 S. Ct. 2083 (1982). Double jeopardy bars a retrial if the prosecutor, through
his intentional or reckless misconduct, induces the defense to move for a mistrial to
avoid an acquittal. Kennedy, 456 U.S. at 676, 102 S. Ct. 2083; Ex parte Mitchell,
977 S.W.2d 575, 580 (Tex. Crim. App. 1997); Bauder v. State, 921 S.W.2d 696
(Tex. Crim. App. 1996).
We reject Jackson’s comparison to cases in which the prosecution engaged
in conduct intended to draw a mistrial to avoid an acquittal. Double jeopardy does
not bar a retrial if a trial proceeds to conclusion, resulting in a conviction, and the
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conviction is later set aside due to procedural error and not a lack of evidence—
whether on appeal or by the trial court’s granting of a new trial. Ex parte Davis,
957 S.W.2d 9, 15 (Tex. Crim. App. 1997) (holding that jeopardy does not apply to
bar a retrial where defendant’s conviction is reversed on appeal due to
prosecutorial misconduct); Ex parte Legrand, 291 S.W.3d 31, 40–41 (Tex. App.—
Houston [14th Dist.] 2009, pet ref’d) (holding that jeopardy does not apply to bar
retrial where defendant’s motion for new trial is granted due to prosecutorial
misconduct).
In Legrand, the Fourteenth Court of Appeals held that the concerns
expressed in Kennedy about mistrials induced by the prosecution to avoid
acquittal—deprivation of the option to go to the first jury and potentially end the
dispute with an acquittal—are not present when the case is brought to conclusion
and the jury renders a verdict. Legrand, 291 S.W.3d at 40–41.
Similarly, in this case, the State’s misconduct in failing to disclose Brady
evidence caused the trial court to set aside the verdict. See Legrand, 291 S.W.3d at
40–41. The State did not induce a mistrial to avoid an acquittal. See Davis, 957
S.W.2d at 14–15. Instead, Jackson’s trial proceeded to a jury verdict, which could
have ended the dispute with an acquittal. See Legrand, 291 S.W.3d at 41.
Following Davis and Legrand, we hold that double jeopardy does not bar a retrial.
See Davis, 957 S.W.2d at 15; Legrand, 291 S.W.3d at 41.
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Due Process, Due Course of Law, and Right to Counsel
The state’s failure to disclose evidence material to Jackson’s guilt or
punishment is a due process violation under Brady, 373 U.S. at 87, 83 S. Ct. at
1196–97. If the defendant’s due process rights have been violated, we examine the
record to identify any prejudice caused by the violation or adverse effect upon the
effectiveness of counsel’s representation; courts must tailor relief to appropriately
neutralize it. United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667–68
(1981); Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1996). A new trial
generally remedies the State’s withholding of Brady evidence in a prior trial,
because the defendant may investigate and develop other potential defenses based
on the excluded evidence in the second trial. See Mitchell, 977 S.W.2d at 578;
Cook, 940 S.W.2d at 627–28.
Jackson was unable to examine the Brady evidence that the prosecution
withheld before the first trial, or to consult with an expert about its impact on his
defensive strategy. But Jackson may now hire an expert and examine the
previously excluded evidence, eliminating any prejudice caused by its previous
unavailability. See Cook, 940 S.W.2d at 628. Jackson also notes that he testified
during the trial in reliance on the then-existing state of the evidence. During a
second trial, Jackson may refuse to testify, and the trial court must fashion a
remedy limiting harm relating to the defendant’s decision to waive his Fifth
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Amendment right and testify in the first trial. See Sweeten v. State, 693 S.W.2d
454, 457 (Tex. Crim. App. 1985) (en banc) (quoting Harrison v. United States, 392
U.S. 219, 223, 88 S. Ct. 2008 (1968)) (holding that to admit defendant’s testimony
in previous trial for same offense in which defendant’s rights were violated, State
must show that its illegal action did not impel that testimony).
Relying on State v. Frye, Jackson further contends that the State’s
knowledge of his defenses, gained through its misconduct, violates his right to due
process and due course of law, and precludes his counsel from providing effective
assistance in a subsequent trial. 897 S.W.2d 324 (Tex. Crim. App. 1995). In Frye,
the prosecution violated the defendant’s right to counsel by contacting the
defendant directly, even though the prosecution knew the defendant was
represented by counsel. See id. at 326. The prosecutor then questioned the
defendant about the case against him. See id. During the defendant’s conversations
with the prosecution, the defendant revealed his defensive evidence and strategies.
Id. at 331. The Court of Criminal Appeals held that the prosecutor had violated the
defendant’s Sixth Amendment right to counsel by contacting him without his
counsel present. Id. The Court further concluded that dismissal of the indictment
was the only remedy that would “insure the reverence of [the defendant’s] Sixth
Amendment right to counsel,” given the nature and extent of the information the
defendant had conveyed to the prosecutor. Id.
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In contrast, Jackson presented his case in the first trial with the advice of
counsel. His defensive strategy was not revealed through a violation of his Sixth
Amendment right to counsel, as in Frye, but in open court. See Frye, 897 S.W.2d
at 326. In every case for which a new trial is granted, whether after reversal on
appeal or the granting of a motion for new trial, the prosecution is aware of the
defendant’s strategy and evidence in the earlier trial. See, e.g., Mitchell, 977
S.W.2d at 578. Jackson points to no specific harm that will occur in his retrial due
to the disclosure of strategy in the first trial, and the trial court is in the best
position to ameliorate any specific harm that occurs due to that disclosure. We
thus conclude that the State’s knowledge gained in the previous trial, in which
counsel represented Jackson, does not unduly prejudice him so as to prevent a new
trial from going forward.
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Conclusion
We hold that the trial court properly concluded pre-trial that a second trial is
not barred by double jeopardy, and that the defendant has shown no harm
irreparable by a new trial. Accordingly, we affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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