Charles Clyde Ingram v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00072-CR
CHARLES CLYDE INGRAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 173rd District Court
Henderson County, Texas
Trial Court No. CR16-0711-173
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
A Henderson County jury convicted Charles Clyde Ingram of indecency with a child by
sexual contact. See TEX. PENAL CODE ANN. § 21.11. Ingram was sentenced to seven years’
imprisonment and was ordered to pay $8,156.25 in attorney fees. On appeal, Ingram argues that
(1) double jeopardy barred his post-mistrial re-trial and (2) the trial court erred in assessing
$8,156.25 in court-appointed attorney fees against him. 1
Because a double-jeopardy violation is not apparent on the face of this record, we find that
Ingram has failed to preserve his first issue for our review. We sustain Ingram’s second point of
error and modify the trial court’s judgment by deleting the assessment of attorney fees. As
modified, we affirm the trial court’s judgment.
I. Ingram’s Double-Jeopardy Complaint Is Unpreserved
A. Factual Background
The State’s charge alleging that Ingram committed indecency with O.C., a child, was
consolidated for trial with a charge of aggravated sexual assault of a different child victim. At
trial, O.C. testified about the details of Ingram’s sexual contact with him. During cross-
examination, Ingram asked, “And this isn’t the first time that you’ve accused somebody of sexually
assaulting you, correct?” The State objected under Rule 412, which generally prohibits evidence
of specific instances of a victim’s prior sexual conduct in sexual assault or aggravated assault
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
cases. See TEX. R. EVID. 412(a). It also argued that the response would be irrelevant and “highly
prejudicial” and that it constituted “inappropriate impeachment.”
When asked to explain how the prior allegation was relevant, Ingram responded that O.C.
made an allegation of sexual abuse against his babysitter during the forensic interview that seemed
outlandish and must have been false because it was not prosecuted. The State argued,
If [Ingram’s] going to impeach him down this line, then I think we have a right to
reestablish him by talking about all the sexual assaults that this defendant has done
to this child because they’re going to make it look like he’s just making false
accusations just because someone didn’t prosecute him . . . . And I don’t think
[Ingram] can have it both ways, go down the road that way and not let us talk about
all of the acts this defendant’s done.
As a result of this discussion, Ingram agreed to withdraw the unanswered question. Even so, the
State moved for a mistrial because the question had prejudiced the jury.
Ingram argued that a mistrial was unnecessary because any error would be cured if the trial
court instructed the jury to disregard the question. The trial court found that Rule 412 did not
apply and denied the State’s motion for a mistrial. 2 The court noted, however, that “just because
somebody has been a victim of a previous sexual assault doesn’t mean that they’re not a victim of
this sexual assault” and ruled that the State could play O.C.’s forensic interview, which was
authenticated by Sheila Davis, program director of the local Children’s Advocacy Center (CAC).
Ingram argued that the CAC interview was hearsay that should not be played for the jury,
prompting the following discussion:
2
Ingram also argued that the “motive or bias” exception to Rule 412, which generally prohibits evidence of specific
instances of a victim’s prior sexual conduct in sexual assault or aggravated assault cases, applied. The trial court
correctly ruled that Rule 412 does not apply to trials of charges of indecency with a child. Reyna v. State, 168 S.W.3d
173, 176 (Tex. Crim. App. 2005).
3
[BY THE STATE]: . . . [T]he whole reason why this is coming in is for
completion of questions that the defense has opened the door to. . . . That’s why it’s
coming in. It’s either -- in my opinion, it’s either declare the mistrial or let this tape
in based on the defendant’s errors.
THE COURT: Well, . . . [m]y idea about it is, is to me it’s just basically if
somebody asks -- cherry-picks questions from an interview or cherry-picks things
from an interview and asks questions about them in front of the jury, then the fair
thing to do is to play the interview. In other words, it’s the old -- age-old principle
of opening the door.
....
. . . [T]he Court believes that the most -- the most fair thing to do at this
point -- it’s more fair to allow [the CAC interview] to come in and be published to
the jury than it is either to instruct the jury to disregard the question or to give the
jury no instruction and let the witness answer it with no further regard to the
interview itself. In other words, I don’t think it’s fair to instruct the jury to disregard
the question and not play the interview, and I don’t think it’s fair to let the witness
answer the question and not play the interview. So I guess what I’m saying is, I
think the most fair thing to do at this point under these circumstances is to just let
you cross-examine [O.C.] all you want to about that interview and anything else,
and then we’ll play the interview. And so that’s my ruling.
During the discussion, Ingram learned that Davis would be out of town during trial and was going
to be excused by the trial court. Ingram argued that, if the video was to be played, Davis’ presence
was required for purposes of cross-examination and objected to Davis being excused. After
another argument about whether the State should be permitted to play the CAC interview and
Ingram’s need for Davis’ presence at trial, the trial court decided to have a meeting in chambers.
The record does not indicate the length of the in-chambers meeting. After it was over, the
trial court said it would grant a mistrial. There was no objection on the record to the mistrial. The
next day, the trial court asked the parties if there was “anything else to put on the record.” While
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Ingram indicated that he had filed a motion to obtain a transcription of O.C.’s testimony, he stated
that there was nothing to put on the record “with respect to the mistrial.”
Ingram was later tried and convicted for the charge against O.C. For the first time on
appeal, he argues that the re-trial violated double-jeopardy principles.
B. Preservation of Error
The State argues that Ingram did not preserve this point of error for our review. “Failure
to present a timely and specific objection, request, or motion to the trial court for a ruling results
in waiver or forfeiture of the right to present the claim on appeal.” Stinecipher v. State, 438 S.W.3d
155, 159 (Tex. App.—Tyler 2014, no pet.) (citing TEX. R. APP. P. 33.1; Mendez v. State, 138
S.W.3d 334, 341–42 (Tex. Crim. App. 2004)). The preservation requirement
(1) ensures that the trial court will have an opportunity to prevent or correct errors,
thereby eliminating the need for a costly and time-consuming appeal and retrial;
(2) guarantees that opposing counsel will have a fair opportunity to respond to
complaints; and (3) promotes the orderly and effective presentation of the case to
the trier of fact.
Id. (citing Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006)).
“A defendant has the burden to ‘preserve, in some fashion’ a double jeopardy objection at
the trial court level.” Id. (quoting Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000)).
“But a double jeopardy claim may be raised for the first time on appeal when (1) the double
jeopardy violation is clearly apparent on the face of the record, and (2) when enforcement of the
usual rules of procedural default serves no legitimate state interests.” Id. (citing Garfias v. State,
5
424 S.W.3d 54, 58 (Tex. Crim. App. 2014) (citing Gonzalez, 8 S.W.3d at 643)). 3 Because Ingram
did not raise the issue of double jeopardy with the trial court, “we must therefore first determine
whether the undisputed facts show that a double jeopardy violation is clearly apparent in this case.”
Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014); see Stinecipher, 438 S.W.3d at 160.
C. When Double Jeopardy Bars Re-Trial After a Mistrial
“Generally a criminal defendant may not be put in jeopardy by the State twice for the same
offense.” Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014) (citing U.S. CONST.
amend. V; Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002)). “The prohibition on double
jeopardy was extended to the states by the United States Supreme Court through the Fourteenth
Amendment.” Id. “In cases tried before a jury, a defendant is placed in jeopardy when the jury is
empaneled and sworn, and ‘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.”’” Id. (quoting Arizona v. Washington, 434 U.S. 497, 504 (1978) (quoting
Wade v. Hunter, 336 U.S. 684, 689 (1949))).
“[T]here are two exceptions when a criminal defendant may be tried a second time without
violating double-jeopardy principles if the prosecution ends prematurely as the result of a mistrial:
(1) if the criminal defendant consents to retrial or (2) there was a manifest necessity to grant a
mistrial.” Id. at 769–70 (citing Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011);
3
The continued viability of the error preservation rule espoused in Gonazalez has been questioned in concurring and
dissenting opinions in Ex parte Marascio, but has not been overruled. Ex parte Marascio, 471 S.W.3d 832, 837, 840,
850–51 (Tex. Crim. App. 2015) (per curiam) (Keasler, J., concurring, Hervey and Yeary, JJ., joining) (Richardson, J.,
concurring, Newell, J., joining) (Yeary, J., concurring, Keasler, J., joining) (Meyers, J., dissenting) (Johnson, J.,
dissenting).
6
Washington, 434 U.S. at 505–06). “These exceptions are recognized because valid reasons exist
for a jury to be discharged before the conclusion of a trial and not all of those reasons ‘invariably
create unfairness to the accused[.]’” Id. at 770 (alteration in original). “Thus, a defendant’s right
to have his trial conducted by a particular tribunal ‘is sometimes subordinate to the public interest
in affording the prosecutor one full and fair opportunity to present his evidence to an impartial
jury.’” Id. (quoting Washington, 434 U.S. at 505).
“The initial burden is on the defendant ‘to [g]o forth with evidence in support of [an]
allegation of former jeopardy.’” Ex parte Garrels, 559 S.W.3d 517, 524 (Tex. Crim. App. 2018)
(first alteration in original) (quoting McClendon v. State, 583 S.W.2d 777, 780 (Tex. Crim. App.
[Panel Op.] 1979)). “[I]n order to satisfy this prima facie burden, the defendant need only establish
‘that []he was tried for the same offense after a mistrial.’” Id. (quoting Hill, 90 S.W.3d at 313).
Once that burden is met, as it is in Ingram’s case, “the burden shifts to the State ‘to [either] prove
that appellant consented to’ the order terminating her first trial,” Id. (quoting McClendon, 583
S.W.2d at 780–81), or that there was “a ‘manifest necessity’ (also referred to as a ‘high degree’ of
necessity) for the mistrial.” Pierson, 426 S.W.3d at 770.
D. The Consent Exception
The first exception permitting retrial after mistrial without violating double-jeopardy
principles occurs when the defendant consents to a retrial. The State argues that Ingram consented
to the mistrial. “Where a defendant consents to a mistrial . . . , the ‘manifest necessity’ doctrine
does not come into play.” Harrison v. State, 767 S.W.2d 803, 806 (Tex. Crim. App. 1989). When
the issue of consent is raised, it must be decided before the issue of manifest necessity. Id.
7
“[C]onsent need not be expressed, but may be implied from the totality of circumstances
attendant to a declaration of mistrial.” Garrels, 559 S.W.3d at 523 (quoting Torres v. State, 614
S.W.2d 436, 441 (Tex. Crim. App. [Panel Op.] 1981)). Consent may not be implied unless the
record shows that the defendant “was ‘given an adequate opportunity to object,’” but a finding of
implied consent may not be “based solely on the lack of an objection.” Id. (quoting Torres, 614
S.W.2d at 441–42); but see Ex parte Montano, 451 S.W.3d 874, 878–80 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d) (“A defendant who does not object to a declaration of mistrial, despite
an adequate opportunity to do so, has impliedly consented to the mistrial.”) (citing Torres, 614
S.W.2d at 441; Ledesma v. State, 993 S.W.2d 361, 365 (Tex. App.—Fort Worth 1999, pet. ref’d)).
A review of the record shows that Ingram at first objected to the mistrial, withdrew his
question, and asked the trial court to instruct the jury to disregard the question as a lesser alternative
to granting a mistrial. The trial court agreed with Ingram that a mistrial was not required but
concluded that it would allow the State to play the CAC interview to cure any impression made on
the jury by the tone of Ingram’s question that O.C.’s prior allegation was false. The State argues
that, at that point, Ingram consented to the mistrial because he did not want the CAC interview
played in front of the jury. The record supports this argument.
Ingram argued vehemently that he had not opened the door to the admission of the CAC
interview. After much argument between Ingram and the State, the trial court held a meeting in
chambers with both parties. After the meeting, without objection, the trial court announced on the
record that it would declare a mistrial the following morning. After that hearing, but before the
declaration of a mistrial, Ingram filed a motion asking for a transcription of O.C.’s testimony but
8
filed no objection to the mistrial. On the following morning, the trial court said it “intend[ed] to
order a mistrial” and asked the parties if there was “anything else to put on the record.” Ingram
stated, “Not with respect to the mistrial.”
After reviewing the totality of the circumstances, we find that a double-jeopardy violation
is not apparent on the face of the record because it also shows that Ingram implicitly consented to
the mistral. Ingram had many opportunities to object in open court, in chambers, and by written
motion, but failed to do so. He also had a strategic incentive to consent to the mistrial—preventing
the jury from seeing the CAC interview. Under these facts, the record supports the State’s
argument that Ingram’s consent was implied. See Montano, 451 S.W.3d at 879–80; Ledesma v.
State, 993 S.W.2d 361, 365 (Tex. App.—Fort Worth 1999, pet. ref’d); Garner v. State, 858 S.W.2d
656, 659 (Tex. App.—Fort Worth 1993, pet. ref’d). As a result, the undisputed facts related to the
issue of consent do not show that a double-jeopardy violation is clearly apparent here. See Garfias,
424 S.W.3d at 58.
We also find that enforcement of the usual rules of procedural default serve legitimate state
interests here. Had Ingram raised a double-jeopardy violation, he would have been required to
challenge the evidence showing his consent. This would have provided the parties and the trial
court with the opportunity to develop a record of what was discussed in chambers and whether
Ingram had expressly consented to the mistrial. Since the issue of consent is disputed and the
9
record supports a finding of implied consent, we find that Ingram needed to preserve any alleged
error by raising the double-jeopardy issue with the trial court. See id. 4
E. Manifest Necessity
As for the second exception permitting post-mistrial retrial without violating double-
jeopardy principles, “[a] trial court’s decision to declare a mistrial is limited to the inquiry of if
there was a ‘manifest necessity’ to grant a mistrial.” Pierson, 426 S.W.3d at 770 (citing Garza,
337 S.W.3d at 909). “As an appellate court, it is our function to review the record and determine
if the trial judge exercised ‘sound discretion’ when granting a mistrial.” Id. (quoting Washington,
434 U.S. at 514). And “a trial court abuses its discretion if it declares a mistrial ‘without first
considering the availability of less drastic alternatives and reasonably ruling them out[,]’ although
the basis for the mistrial need not be expressly articulated in the record.” Id. (alteration in original)
(quoting Garza, 337 S.W.3d at 909).
The State moved for mistrial after Ingram asked O.C., “And this isn’t the first time that
you’ve accused somebody of sexually assaulting you, correct?” The trial court granted a mistrial
because it determined that Ingram’s question was improper and may have influenced the jury.
“[T]he Supreme Court has stated that ‘the overriding interest in the evenhanded administration of
justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the
likelihood that the impartiality of one or more jurors may have been affected by the improper
comment.’” Id. (quoting Washington, 434 U.S. at 511). For this reason, “when a trial judge’s
4
Out of an abundance of caution, and as result of the language in the concurring and dissenting opinions of Marascio,
we will also analyze the issue of manifest necessity.
10
decision to grant a mistrial is based on the risk of juror bias, that ruling is entitled to ‘great
deference,’ regardless of whether the complained of conduct took place during opening arguments
or took the form of a question on cross-examination.” Id. at 774.
In examining whether Ingram’s question caused a manifest need to declare a mistrial, we
are guided by the Texas Court of Criminal Appeals’ decision in Pierson. As in this case, Pierson
was tried for indecency with a child and aggravated sexual assault of a child. Id. at 765. After the
victim’s direct examination, the defense’s first question “on cross-examination was, ‘Did you also
make an allegation that [Appellant] did these same things to his own daughter?’” Id. The State
objected to the question before it was answered, and the trial court granted the State’s request for
a mistrial after a hearing. Id. at 765–66. This Court affirmed the trial court’s decision of manifest
necessity. Pierson v. State, 398 S.W.3d 406, 417 (Tex. App.—Texarkana 2013), aff’d, 426 S.W.3d
763.
In affirming our decision, the Texas Court of Criminal Appeals rejected Pierson’s
arguments that (1) “there was just simply a question asked, did you make this allegation. There
was no inference o[f] whether it was true or not true” and (2) that, as a result, (a) “there was no
manifest necessity to grant the State’s request for mistrial because the State was not harmed by the
question” and (b) “there were less drastic means to remedy the problem than granting a mistrial.”
Pierson, 426 S.W.3d at 768 (alteration in original). The court reasoned that it was Pierson’s burden
to prove the admissibility of the evidence he sought to introduce by his question, but that he failed
to do so under Rule 608(b), which discusses when a witness’s character for truthfulness may be
impeached. Id. at 770, 772.
11
As relevant, Rule 608(b) provides that “a party may not inquire into or offer extrinsic
evidence to prove specific instances of the witness’s conduct in order to attack or support the
witness’s character for truthfulness.” TEX. R. EVID. 608(b). Ingram argues that Rule 613 provided
an exception to Rule 608(b) because he planned on using the evidence solicited to impeach O.C.’s
bias or motive. See Pierson, 398 S.W.3d at 415 (discussing Rule 613’s exception to Rule 608(b)).
Yet Ingram’s substantive explanation to the court showed he merely wished to establish that the
accusation was allegedly false. We previously found that “evidence of [an] allegedly false
allegation was not admissible to prove the child’s propensity to lie,” because “evidence of prior
false allegations of molestation are normally not admissible to prove” such a propensity. Id.
Here, just as in Pierson, Ingram’s question insinuated that the child victim made a false
allegation. See Pierson, 426 S.W.3d at 768–69. The explanation provided by Ingram about the
admissibility of the evidence he sought to establish mirrors the explanation provided by Pierson.
Just as the Texas Court of Criminal Appeals concluded in Pierson, we likewise find that,
[u]nder these circumstances, the trial court was free to conclude that Appellant
failed to carry his burden, as proponent of the evidence, to show that the question
was anything more than a prelude to impeachment on a collateral matter and an
impermissible attempt to attack the complaining witness’s general credibility with
evidence of specific instances of conduct. . . . [T]he trial court did not abuse its
discretion when it excluded Appellant’s cross-examination question as
impermissible.
Id. at 772.
The record also shows that the trial court ruled out less drastic alternatives than a mistrial.
Id. at 775. Finding that an instruction to disregard would be insufficient given the impression left
on the jury as a result of the question, the trial court proposed allowing the State to play the CAC
12
interview. The record shows that that proposal was not accepted by Ingram. After considering
the arguments about its proposed cure, the trial court determined that its only choice was to declare
a mistrial. Because the question in Pierson was much like the question Ingram asked here, we
adopt the Texas Court of Criminal Appeals’ reasoning and conclude “that the trial court exercised
sound discretion in determining” that the proposed lesser alternatives were not “viable
alternative[s] to the granting of a mistrial.” Id. As a result, we find error is not apparent on the
face of the record because “the trial court was within its discretion to declare a mistrial based on
manifest necessity due to the actions of defense counsel.” Id.
F. Conclusion
We conclude that a double-jeopardy violation is not clearly apparent from the face of this
record but cannot conclude that the usual rules of preservation would serve no legitimate interest
in this appeal. See Garfias, 424 S.W.3d at 64; Gonzalez, 8 S.W.3d at 643; Stinecipher, 438 S.W.3d
at 162. As a result, the rules of error preservation should not be suspended, and we conclude that
Ingram forfeited his double-jeopardy complaint by failing to raise an objection with the trial court.
See Garfias, 424 S.W.3d at 64; Gonzalez, 8 S.W.3d at 643.
II. We Delete the Assessment of Attorney Fees Because Ingram Is Indigent
Because the trial court found Ingram indigent, he was presumed to remain indigent absent
proof of a material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p),
26.05(g) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet. ref’d).
Even so, the trial court, which also found Ingram indigent after trial for purposes of appeal,
assessed $8,156.25 in attorney fees against him.
13
Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the
authority to order the reimbursement of court-appointed attorney fees only if “the judge determines
that a defendant has financial resources that enable the defendant to offset in part or in whole the
costs of the legal services provided . . . including any expenses and costs.” TEX. CODE CRIM. PROC.
ANN. art. 26.05(g). “[T]he defendant’s financial resources and ability to pay are explicit critical
elements in the trial court’s determination of the propriety of ordering reimbursement of costs and
fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App.
2011) (alteration in original) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.
2010)). Since there is no finding of the ability of Ingram to pay them, the assessment of the
attorney fees was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013);
see also Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d
944, 946–47 (Tex. App.—Texarkana 2013, no pet.).
“Appellate courts ‘have the authority to reform judgments and affirm as modified in cases
where there is non reversible error.’” Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435
S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (“comprehensively discussing appellate
cases that have modified judgments”)). We sustain Ingram’s second point of error and modify the
trial court’s judgment by deleting the assessment of $8,156.25 for attorney fees.
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III. Conclusion
We modify the trial court’s judgment by deleting the assessment of $8,156.25 for attorney
fees. As modified, we affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: November 26, 2019
Date Decided: December 12, 2019
Do Not Publish
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