GEORGE WILLIAM BROOKS, JR., Appellant v. THE STATE OF TEXAS, Appellee
Annotate this CaseAffirmed and Opinion filed November 6, 1989
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00827-CR
No. 05-89-00828-CR
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GEORGE WILLIAM BROOKS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause Nos. 3-525-88 & 3-678-88
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OPINION PER CURIAM
Before Chief Justice Enoch and Justices Baker and Whittington
George William Brooks, Jr., appeals from the denial of his special pleas in bar on the grounds of double jeopardy to bar his retrial for the offenses of driving while intoxicated and evading arrest. His sole contention is that his retrial, after his motion for mistrial was granted, is barred by the federal constitutional prohibition against double jeopardy because prosecutorial misconduct was intended to goad him into moving for mistrial. For the reasons below, we affirm the trial court's orders denying the special pleas in bar.
When a defendant chooses to terminate the proceedings against him by requesting a mistrial, the double jeopardy clause generally will not prohibit his reprosecution. United States v. Jorn, 400 U.S. 470, 485 (1971); Crawford v. State, 703 S.W.2d 655, 662 (Tex. Crim. App. 1986). There is, however, a narrow exception to this rule. Where the prosecutor's actions giving rise to the motion for mistrial were done in order to goad the defendant into requesting a mistrial, the defendant may raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. Oregon v. Kennedy, 456 U.S. 667, 676 (1982); Crawford, 703 S.W.2d at 662.
The Kennedy court emphasized the intent of the prosecutor and analyzed the role of the trial court in making the intent determination:
[A] standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.
Kennedy, 456 U.S. at 675 (emphasis added). At the plea hearing, the trial court, as the trier of fact, was the sole judge of the credibility of the witness and the weight to be given their testimony and could accept or reject all or any part of the witnesses' testimony. See Anderson v. State, 635 S.W.2d 722, 726 (Tex. Crim. App. 1982).
By denying the special pleas in bar, the trial court implicitly found that the prosecutor did not intend to goad appellant into moving for mistrial. See Anderson, 635 S.W.2d at 723. That factual finding must be upheld unless clearly erroneous. Ex parte Kelly, 713 S.W.2d 399, 402 (Tex. App. -- Amarillo 1986, no pet.); see also United States v. Singleterry, 683 F.2d 122, 125 (5th Cir.), cert. denied, 459 U.S. 1021 (1982).
At the hearing on the plea in bar, appellant's attorney testified that his theory of defense in the driving while intoxicated case was that appellant was intoxicated because he ingested some pills rather than because of the introduction of alcohol into the body, as was alleged in the indictment. He was aware that the police had discovered pills on appellant's person while they were video-taping him after his arrest. He sought discovery of the pills and any analysis of the pills and, after a hearing, his motion for discovery of these items was granted. Nevertheless, when responding to the discovery request, the prosecutor stated there were no pills and no chemical analysis. In speaking to the officer who discovered the pills, appellant's attorney was told that there were, in fact, pills and a chemical analysis. The police officer confirmed that the pills were a controlled substance, but refused to disclose the nature of the substance. The attorney's voir dire of the jury venire was dedicated to committing jurors to return a not guilty verdict if the evidence showed that appellant was intoxicated by reason of something other than alcohol. He was satisfied with the jury that was seated and sworn.
The portion of the transcription of appellant's first trial included in the appellate record shows that during the State's case in chief, it elicited from its first witness that some pills were found on appellant after his arrest and that the pills had been sent off to be analyzed. When the prosecutor asked the nature of the pills, appellant's counsel objected and requested that the jury be excused. The trial court sustained the objection but did not excuse the jury, and the State's examination of the witness continued on a different line. On cross-examination, the witness confirmed that he discovered pills after appellant's arrest and that the pills had been analyzed. Appellant's attorney again asked that the jury be excused, and after the jury was removed the attorney moved for a mistrial because of the State's failure to comply with the discovery requests for any contraband seized and any scientific reports. The prosecutor responded that he first learned of the existence of the report that day when speaking to his witness. Although the arrest report mentioned the recovery of the pills, his file did not mention that the pills had been retained for use as evidence or that an analysis had been requested. The trial court asked appellant if he objected to the granting of a mistrial and appellant responded that he did not. The trial court then granted the motion for mistrial.
Appellant's attorney's testimony at the hearing on the plea in bar was that he felt he was winning the case, given the favorable jury selected and the existence of the pills, but that he would have considered it malpractice to have failed to request a mistrial when the discovery violation was revealed. Thus, he testified that the only reason he moved for a mistrial was that the State had failed to comply with the discovery order. He further testified that he considered the State's action in failing to comply intentional and purposeful.
The prosecutor testified that he learned about the scientific report the morning of trial. Prior to voir dire, he was not aware of appellant's attorney's discovery request for the pills and the report. He conceded that the report and pills were something he was probably obligated to disclose under the discovery order. He testified that he did not contemplate at the time that the failure to comply with a discovery order could prompt a mistrial. He also testified that at that time he did not view the evidence of the pills and the report material to appellant's defense. He felt that if appellant was intoxicated through drugs or alcohol or a combination thereof, he was guilty of driving while intoxicated. Although he recognized that the attorney had to object when the failure to comply with discovery was revealed, he did not perceive that the mistrial would result. The prosecutor testified that it was not his intention to withhold any evidence from the defense, nor was it his intention to goad the defense into moving for a mistrial.
Appellant argues that double jeopardy should bar his retrial because the prosecutor was negligent in failing to prepare for trial or to investigate its case, which resulted in the prosecutor's lack of knowledge and failure to comply with the discovery request. Negligence, of course, is not the standard enunciated by the Supreme Court. Prosecutorial conduct that might be viewed as harassment or overreaching, or prosecutorial error even of a degree sufficient to warrant a mistrial, will not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. Kennedy, 456 U.S. at 675-76.
Appellant further argues that failing to disclose exculpatory information constitutes reversible error under Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989), and thus prevents retrial. The focus of the double jeopardy inquiry is not whether the prosecutor intentionally withheld information he was required to disclose, but whether in so doing, the prosecutor intended to provoke the defendant into moving for mistrial. See Kelly, 713 S.W.2d at 400-02. In Kelly, the trial court found that the prosecutor's failure to disclose that an informant had added methamphetamine and "fill" to the quantity of methamphetamine the defendant gave him and which he gave to police, was motivated by a desire to secure a conviction. Nevertheless, the trial court concluded that the prosecution was not acting to goad the defendant into moving for mistrial. The Amarillo Court of Appeals held that the trial court's conclusion was not clearly erroneous and that the double jeopardy clause did not bar retrial. Kelly, 713 S.W.2d 400-02.
Based upon this record, we cannot conclude that the trial court's implied finding that the prosecutor did not act intentionally is clearly erroneous under the objective facts and circumstances. Accordingly, we overrule appellant's sole point of error and affirm the trial court's order.
PER CURIAM
Do Not Publish
Tex. R. App. P. 90
890827.U05
File Date[11-30-89]
File Name[890827]
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