DocketNumber： 11-04-00279-CR
Filed Date： 12/1/2005
Status： Precedential
Modified Date： 9/10/2015
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Opinion filed December 1, 2005
In The
Eleventh Court of Appeals
__________
No. 11-04-00279-CR
__________
RITA DENISE BOCKHOLT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 14,454-B
O P I N I O N
Rita Denise Bockholt was indicted for the offenses of manslaughter and criminally negligent homicide after being involved in an automobile accident. The trial held on August 9 and 10, 2004, ended in a mistrial. Appellant filed a petition for writ of habeas corpus on October 13, 2004. After a hearing on appellant=s writ of habeas corpus, the trial court entered an order denying the writ of habeas corpus. We affirm.
In her first issue on appeal, appellant argues that the trial court erred in denying her petition for writ of habeas corpus because reckless prosecutorial misconduct caused the trial court to declare the mistrial and, therefore, that double jeopardy should have attached. In her second issue on appeal, appellant contends that the trial court could have cured any prejudice by instructing the jury to disregard the demonstrative evidence.
During the trial, Trooper Adam Kinslow testified on direct examination that he was the officer in charge of investigating the automobile accident which led to appellant=s indictment. Appellant=s attorney questioned Trooper Kinslow during cross-examination about a photograph that was taken of the victim=s car at the scene of the accident. After several questions, Trooper Kinslow stated that he did not see anything Aof interest@ in the photograph. The State asked for a hearing outside the presence of the jury after appellant=s attorney brought out an exhibit.
Outside the presence of the jury, the State argued that appellant=s attorney had displayed a bottle of beer to the jury without laying a proper foundation. After much discussion, the trial court denied the State=s motion for mistrial. At that time, the bailiff informed the trial court that a juror had made a gesture as if to take a drink and that the juror had mouthed the word Adrunk.@ The bailiff stated that the juror=s demeanor and actions indicated to him that she had Aformulated an opinion of some sort.@ The trial court questioned the juror about the incident, and she acknowledged that she did make a gesture as if she were Araising a beverage.@ Upon questioning by the State, the juror stated that she did make the gesture but that she did not mouth the word Adrunk.@ The juror stated that the gesture was not in response to appellant=s attorney producing a bottle of beer in court.
The State sought a mistrial based upon the display of the beer bottle and the actions of the juror. Appellant agreed that a mistrial should be granted because the jury had been Apoisoned@ by the State=s questioning of the juror about the beer bottle. The trial court granted a mistrial and rescheduled the trial.
Both the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, section 14 of the Texas Constitution protect a criminal defendant from repeated prosecutions for the same offense. U.S. CONST. amend. V; TEX. CONST. art. I, ' 14; Oregon v. Kennedy, 456 U.S. 667, 671 (1982); Ex parte Peterson, 117 S.W.3d 804, 810 (Tex.Cr.App.2003). Double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that was justified under the manifest necessity doctrine or was requested or consented to by the defense absent prosecutorial misconduct which forced the mistrial. Ex parte Peterson, supra at 810‑11.
In Ex parte Peterson, supra, the court attempted to clarify the standards from Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App.1996), under which the Texas constitutional double jeopardy provision prohibits a retrial after the defense successfully requests a mistrial. Appellate courts analyzing a double jeopardy mistrial claim are to make the following three‑part analysis:
(1) Did manifestly improper prosecutorial misconduct provoke the mistrial?
(2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard?
(3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial[1] or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial?[2]
In reviewing the trial court=s decision to grant or deny habeas relief, we review the facts in the light most favorable to the trial court=s ruling and will uphold the decision absent an abuse of discretion. Ex parte Peterson, supra 819. We afford almost total deference to a trial court=s determination of the historical facts that the record supports especially when the trial court=s fact findings are based on an evaluation of credibility and demeanor. Ex parte Peterson, supra. Appellant must present sufficient evidence to prove her double jeopardy claim by a preponderance of the evidence. Ex parte Peterson, supra at 818.
The trial court entered findings of fact and conclusions of law in its order denying appellant=s writ of habeas corpus. The trial court found that appellant=s attorney displayed a beer bottle in the courtroom that was likely seen by several members of the jury, that appellant=s attorney intimated in front of the jury that the beer bottle was from the victim=s car, and that appellant=s attorney did not lay a foundation or predicate for offering the beer bottle into evidence prior to displaying the bottle in the courtroom. The trial court further found that the State=s questioning of the juror about her actions was not intended to induce a mistrial, that the State=s questions were reasonable, and that the State did not provoke a mistrial or intentionally or recklessly cause a mistrial. The trial court additionally found that the displaying of the beer bottle was so inflammatory that a curative instruction was unlikely to prevent juror bias, that there was no less drastic alternative other than mistrial, and that the granting of a mistrial was manifestly necessary.
We cannot say from the record that appellant proved that manifestly improper prosecutorial misconduct provoked the mistrial. We further find that the trial court did not err in finding that an instruction to disregard would not have cured the problem caused by the displaying of a beer bottle in the courtroom. Appellant=s first and second issues on appeal are overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
December 1, 2005
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]The standard set forth in Oregon v. Kennedy, supra.
[2]The standard set forth in Bauder v. State, supra.