Ex Parte: John W. Borland--Appeal from County Court at Law No. 2 of Williamson County

Ex Parte Borland IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-479-CR
EX PARTE: JOHN W. BORLAND,

APPELLANT

 
FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
NO. 35,580-2, HONORABLE ROBERT F. B. MORSE, JUDGE PRESIDING

John W. Borland appeals from an order of the trial court denying relief on his pretrial writ of habeas corpus. Borland is charged by information with driving while intoxicated by alcohol, controlled substance, drug, or combination of two or more of these substances. See Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1993). Borland alleges that the constitutional principle of double jeopardy (1) prohibits the State of Texas from trying him after his first trial ended in a mistrial due to a deadlocked or "hung" jury. We will affirm the trial court's order.

 
BACKGROUND

The information against Borland in his first trial charged him with driving while intoxicated under the influence of alcohol alone. On the date of trial, before jury selection, Borland's counsel informed the State's counsel that he intended to use the defense that Borland had not been intoxicated through the consumption of alcohol and had used prescription drugs on the day of his arrest. The State did not attempt to amend the information or ask for a continuance. Borland presented evidence at trial that supported his prescription-drug defense. (2) The State requested and the trial court gave a jury charge, over Borland's objection, that contained the two paragraphs at issue in this appeal:

 

You are instructed that if a defendant indulges in the use of drugs to such an extent that he thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been and by reason thereof becomes intoxicated by the recent introduction of alcohol into his body, he would be in the same position as though his intoxication was produced by the use of alcohol alone.

 

Now, if you believe from the evidence beyond a reasonable doubt that . . . John W. Borland, Jr., did then and there, while intoxicated by alcohol alone or by alcohol in combination with a drug or drugs, drive or operate a motor vehicle in a public place within said county, as alleged in the information, you will find the defendant guilty as charged . . . .

 

These instructions are substantially identical to language approved by the Court of Criminal Appeals in Heard v. State, 665 S.W.2d 488, 489 (Tex. Crim. App. 1984).

The jury deliberated for eight hours. During this time, it sent several notes to the trial court complaining that it was deadlocked. The presiding juror testified in this proceeding that the jury voted five-to-one in favor of acquittal during its deliberations. The trial court considered issuing a "dynamite charge" (3) to encourage the jury to reach a decision if possible, but instead declared a mistrial, over Borland's objection.

The State then filed the information in this case alleging intoxication by the use of alcohol and drugs alone or in combination. Borland challenges the trial court's denial of relief by three points of error. His first two points allege the Heard instructions given the jury acted as an amendment of the information and that their submission constituted gross negligence and intentional prosecutorial misconduct, thereby barring his retrial under the prohibition against double jeopardy for the same offense found in the Fifth Amendment to the United States Constitution and Article I, Section 14 of the Texas Constitution. His third point alleges his retrial is barred because this intentional misconduct deprived him of his right to due course of law guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the Texas Constitution.

 
DOUBLE JEOPARDY

Jeopardy attached in Borland's first trial when the jury was sworn and impanelled. Crist v. Bretz, 437 U.S. 28 (1978). Ordinarily, once jeopardy attaches, a defendant possesses a valued right to have his guilt or innocence determined before the trier of fact. United States v. Scott, 437 U.S. 82 (1978); Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App. 1981). If a mistrial is declared without the defendant's request or consent, there must be a manifest necessity for the mistrial, or it must serve the ends of public justice. Illinois v. Somerville, 410 U.S. 458 (1973); United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824) (classic exposition of this rule by Justice Story); Chvojka v. State, 582 S.W.2d 828, 830 (Tex. Crim. App. 1979). When the mistrial is declared at the defendant's request, however, retrial is barred only if prosecutorial or judicial overreaching provokes the defendant's request. Prosecutorial overreaching will be found when the State, through gross negligence or intentional misconduct, causes aggravated circumstances to develop that seriously prejudice a defendant, causing him to reasonably conclude that a continuation of the tainted proceedings would result in a conviction. Chvojka, 582 S.W.2d at 830-31 (relying on United States v. Dinitz, 424 U.S. 600 (1976)).

The State correctly points out that Borland's complaint on appeal raises the issue of prosecutorial overreaching, normally a consideration only when the defendant requests a mistrial, rather than where, as here, the trial court declares a mistrial sua sponte. However, because the burden is on the State to show manifest necessity in such a case, if Borland can demonstrate intentional misconduct by the prosecution, it may be difficult for the State to prove such necessity existed.

Borland presents an unusual argument. He claims the State's misconduct in the first trial was calculated to "hang" the jury because the State realized Borland's prescription-drug defense would probably result in his acquittal. In fact, the jury was unable to reach a verdict. Borland attempts to bar his retrial following the trial court's dismissal of a "hung" jury in his first trial, a formidable task:

 

[T]he trial judge's belief that the jury is unable to reach a verdict [has] long been the classic basis for a proper mistrial. The argument that a jury's inability to agree . . . requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition in giving the prosecution one complete opportunity to convict those who have violated its laws.

 

The trial judge's decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.

 

Arizona v. Washington, 434 U.S. 497, 509-10 (1978). Nevertheless, the Supreme Court recognized certain instances where this deference is inappropriate: "If the record reveals that the trial judge has failed to exercise the `sound discretion' entrusted to him . . . [or] acts for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling, close appellate scrutiny is appropriate." Id. at 510 n.28. One Texas court of appeals has stated that bad faith prosecutorial or judicial overreaching could create a valid double jeopardy claim even in the case of a "hung" jury. Knight v. State, 642 S.W.2d 180, 181 (Tex. App.--Houston [14th Dist.] 1984, no pet.). If, as Borland alleges, the State submitted a jury charge it knew to be erroneous in order to create confusion among the jurors and force the trial court to declare a mistrial in order to salvage a case that otherwise appeared lost, we would be forced to determine whether manifest necessity required a mistrial.

 
THE HEARD CHARGE

In Kessler v. State, 125 S.W.2d 308 (Tex. Crim. App. 1938), the defendant was convicted of driving while intoxicated by alcohol. On appeal, she claimed the court erred in declining to submit her proffered instruction that if the jury found her intoxicated from the combined effect of alcohol and the drug amytal, she must be acquitted. The Court of Criminal Appeals noted the charge correctly informed the jury that it was to acquit the defendant if it found her intoxicated from drug use alone, but then held,

 

"If she indulged in the use of amytal to such an extent that she thereby made herself more susceptible to the influence of intoxicating liquor than she otherwise would have been and by reason thereof became intoxicated from the recent use of ardent spirits, she would be in the same position as though her intoxication was produced by the use of [alcohol] alone.

 

Id. at 309. At the time, driving under the influence of drugs or the combined influence of alcohol and drugs was not a specific offense under Texas law. The Kessler court merely held that "a person who gets himself in the condition whereby he may get intoxicated from a lesser quantity of [alcohol] than it would ordinarily take to produce intoxication, is nevertheless intoxicated from the use of [alcohol]." Miller v. State, 341 S.W.2d 440, 442 (Tex. Crim. App. 1960).

In Heard, the trial court used the language in Kessler, which had rejected a defensive instruction that combined drug and alcohol use required acquittal, and submitted a jury instruction that such combined use required conviction. The Court of Criminal Appeals held that the charge was a correct statement of Texas law. Heard, 665 S.W.2d at 489-90.

Borland argues the State in effect amended the information when it submitted the two paragraphs from the Heard charge. The Court of Criminal Appeals specifically rejected such an argument in Heard: "Thus, the trial court's charge did not expand on the allegations of the information but merely applied the facts of this particular case to the law." Id. at 490; see also Booher v. State, 668 S.W.2d 882, 884 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd) ("synergistic charge" of combined drug and alcohol use does not charge defendant with new crime).

Borland, however, contends the holding in Heard is no longer valid. He correctly notes that Heard involved conduct occurring in 1980 and that the driving while intoxicated statute was substantially altered, effective January 1, 1984. The statute now encompasses the use of drugs as well as the combined use of alcohol and drugs. See Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1993). Borland contends the changes to the statute nullified the holding in Heard and required the State to charge a defendant with the combined use of drugs and alcohol rather than relying upon the jury instructions upheld in Heard.

Borland cites no authority stating that Heard's holding has been overruled by the amended driving while intoxicated statute. (4) We do not decide the continuing validity of Heard in this opinion, but will assume that Heard is no longer good law under the amended statute.

 
THE STATE'S CONDUCT IN THE FIRST TRIAL

The State originally charged Borland with the use of alcohol alone because it was unaware he had used any other intoxicating substances. Borland informed the State's counsel on the day of trial, before jury selection, that he would be using a prescription-drug defense. The State was faced with several options at this point. First, as jeopardy had not yet attached, it could dismiss the information and file a new charging instrument alleging the use of alcohol, drugs, or a combination thereof. Second, it could ask for a continuance. Both actions would have delayed the start of trial and wasted state resources. Third, it could amend the information to include the additional allegations. However, the Court of Criminal Appeals has held that if the defendant objects, it is reversible error for the trial court to allow such an amendment on the day of trial before proceedings have begun. State v. Murk, 815 S.W.2d 556, 558 (Tex. Crim. App. 1991); Sodipo v. State, 815 S.W.2d 551, 556 (Tex. Crim. App. 1991). Finally, it could rely upon the instructions in Heard to respond to the prescription-drug defense if in fact Borland developed this defense during trial.

Prosecutors in this State are entitled to rely on the opinions of the Court of Criminal Appeals. If the 1984 amendment of article 6701l-1 overruled Heard, it did so only indirectly. We do not believe that Heard's incompatibility with the amended driving-while-intoxicated statute is so obvious that, as a matter of law, further reliance on the opinion constitutes intentional misconduct or gross negligence. Borland had failed to demonstrate that the prosecutor was acting in bad faith by relying on Heard at the first trial, or that the prosecutor's request for the Heard instruction was calculated to produce a hung jury. Borland has also failed to establish that the prosecutor should have known that a hung jury was likely if the Heard instruction was given. We decline to hold that the prosecutor's actions at Borland's first trial amounted to deliberate misconduct or gross negligence. (5) Therefore, the "hung" jury created a manifest necessity that supports the trial court's declaration of a mistrial. See Woodson v. State, 777 S.W.2d 525 (Tex. App.--Corpus Christi 1989, pet. ref'd) (affirming trial court's declaration of mistrial due to "hung" jury after eight hours of deliberation). The State has not placed Borland in double jeopardy by retrying him when such necessity existed in the first trial. We overrule his first two points of error.

Borland's third point argues that the State's intentional misconduct bars his retrial because it violated his right to due course of law. As we have found the State's conduct was not intentionally designed to provoke a "hung" jury, we overrule this point.

The order of the trial court is affirmed.

 

Marilyn Aboussie, Justice

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: May 12, 1993

[Do Not Publish]

1. A pretrial writ of habeas corpus is the correct procedure for raising and appealing a claim of double jeopardy based on a previous trial. Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982) (relying on Abney v. United States, 431 U.S. 651 (1977)); see also Ex parte Loffland, 670 S.W.2d 390, 392 (Tex. App.--Fort Worth 1984, pet. ref'd). This Court has jurisdiction to hear an appeal from denial of a writ of habeas corpus. See Tex. R. App. P. 44.

2. The exact nature of this defense is difficult to ascertain, as the record on appeal does not contain a complete statement of facts from the first trial. However, in Borland's proposed findings of fact that he submitted to the trial court in this habeas corpus proceeding, one finding states that he admitted he consumed two beers prior to his arrest, but also testified he used prescription pain medicine due to oral surgery. The State does not dispute this account of Borland's testimony.

3. See Allen v. United States, 164 U.S. 492 (1896).

4. State v. Carter, 810 S.W.2d 197, 200 (Tex. Crim. App. 1991) requires the State, on the defendant's motion to quash, to allege in the charging instrument whether the defendant was intoxicated by loss of his physical and mental faculties or by having an alcohol concentration of 0.10 or more in his blood, breath, or urine. Garcia v. State, 747 S.W.2d 379, 381 (Tex. Crim. App. 1988) requires the State to specify what type of intoxicant the defendant allegedly used. Here, the State met these requirements in the first trial by alleging Borland lost the use of his faculties by the use of alcohol.

5. Borland argues that judicial overreaching also bars his retrial. He claims the trial court committed gross negligence by submitting the Heard charge to the jury. We reject this argument. Borland does not assert this complaint by point of error. Further, even if the holding in Heard is no longer viable law, no court has so held, and we do not reach this issue today.