HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, PRICE, KEASLER, COCHRAN, and ALCALA, JJ., joined.
Appellant, Leonard Pierson, Jr., was charged with indecency with a child and aggravated sexual assault of a child. After the victim completed her direct-examination testimony, 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?" After a hearing, the trial court granted the State's request for a mistrial. Appellant then filed a pretrial habeas-corpus application seeking to prevent a second trial on the basis of double jeopardy. The court denied that application because it again found (as it did at trial) that the mistrial was the fault of the defense and that there was no other appropriate remedy under the circumstances; thus there was a manifest necessity to retry Appellant, and his second trial was not precluded by double-jeopardy principles.
Appellant was convicted at his second trial of one count of indecency with a child and seven counts of aggravated sexual assault of a child. He was sentenced to life imprisonment. On appeal, Appellant argued that his second trial violated double-jeopardy principles, but the Texarkana Court of Appeals held that the trial court properly granted the State's request for a mistrial. See Pierson v. State, 398 S.W.3d 406, 420 (Tex.App.-Texarkana 2013). We granted Appellant's sole ground for review:
We will affirm the judgment of the court of appeals.
The State called the victim as its fifth witness in its case in chief. The first question the defense asked on cross-examination was, "Did you also make an allegation that [Appellant] did these same things to his own daughter?" The State objected to the question before it was answered, and the trial court excused the jury. During the hearing outside the presence of the jury, the following exchange took place:
After a twenty-four-minute recess, the trial court resumed the hearing and asked the defense to "flesh out [their] argument a little bit more about the basis for the admissibility of [the] cross examination." The defense explained that the victim stated at the end of her CAC interview that Appellant did "the same sorts of things, same — made the same allegations, that he
At this point, the court stated that
The judge then cited and discussed a number of cases that he felt led to the conclusion that the defense's question was improper because the answer would not lead to admissible evidence. See Lopez v. State, 86 S.W.3d 228 (Tex.Crim.App.2002); Garcia v. State, 228 S.W.3d 703 (Tex.App.-Houston [14th Dist.] 2005); Hughes v. State, 850 S.W.2d 260 (Tex.App.-Forth Worth 1993); Thomas v. State, 669 S.W.2d 420 (Tex.App.-Houston [1st Dist.] 1984). Returning to the case at hand, the judge concluded,
After the judge granted the State's motion for a mistrial, Appellant filed a pretrial habeas-corpus application
After hearing the arguments of the parties, the court concluded that "it stretches credulity just a bit to say that the question did not imply that it was true or not true[,]" and that, out of the two possible intentions in asking that question on cross-examination, only one possibility made sense: "the only reasonable interpretation of the purpose for the question was that the answer would be yes, and then the defense would litigate the truth of that allegation, in essence interjecting that the child victim had made a false allegation of sexual abuse by the defendant against his own daughter, and since that allegation was false, ... she's a liar, and since she's a liar, ... this allegation's false."
Appellant was convicted at his second trial of one count of indecency with a child and seven counts of aggravated sexual assault of a child. Relevant to this case, Appellant appealed his convictions on double-jeopardy grounds. The Texarkana Court of Appeals held that the trial court did not abuse its discretion in granting the State's request for a mistrial because "[t]he trial court explicitly considered and rejected the alternative of giving an instruction to disregard, and the record provides some support for the trial court's conclusion that the intent of the question was to prejudice the jury, rather than a realistic attempt to solicit admissible evidence." Pierson, 398 S.W.3d at 419-20. We granted review to determine whether the court of appeals misapplied or misinterpreted existing precedent when it held that the trial court was within its discretion to find that there was a manifest necessity to grant a mistrial.
Generally a criminal defendant may not be put in jeopardy by the State twice for the same offense. U.S. CONST. amend. V; see 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. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), overruling, Palko v. Conneticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). 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.'" Arizona v. Washington, 434 U.S. 497, 504, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)); see Hill, 90 S.W.3d at 314. Despite the general prohibition against jeopardy-barred trials, there are two exceptions when a criminal defendant may be tried a
To prevail in a double-jeopardy claim, a criminal defendant must first show that he or she is being tried for the same offense for which the mistrial was declared over the defendant's objection. The burden then shifts to the State to demonstrate a "manifest necessity" (also referred to as a "high degree" of necessity) for the mistrial. 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. See Garza, 337 S.W.3d at 909. We have stated that 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. And the 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." Washington, 434 U.S. at 511, 98 S.Ct. 824. 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. at 514, 98 S.Ct. 824.
The court of appeals stated in its opinion that "[t]he State concedes that [Appellant] opposed the State's request for a mistrial, and the record supports that position." Pierson, 398 S.W.3d at 412 n. 4. The State has not challenged the conclusion of the court of appeals in its petition for discretionary review or in its brief on the merits, and after reviewing the record, we agree with the court of appeals that Appellant did not consent to the granting of a mistrial at his first trial.
With respect to the trial judge's decision to exclude the propounded question as improper, the court of appeals relied on this Court's opinion in Vinson v. State, 252 S.W.3d 336, 340 (Tex.Crim.App.2008), to conclude that Appellant failed to carry his burden under Rule 104(a) of the Texas Rules of Evidence to prove the admissibility of the evidence he sought to introduce and, therefore, that the cross-examination question was proper. We agree with the conclusion of the court of appeals.
In Vinson, we stated that "[i]n our criminal justice system, the proponent of evidence ordinarily has the burden of establishing the admissibility of the proffered evidence." Vinson, 252 S.W.3d at 340; see TEX.R. EVID. 104(a) ("Preliminary
Pierson, 398 S.W.3d at 416-17 (emphasis added). In short, the parties and the court were not sure what the content of the victim's allegation actually was, only that an allegation of some kind was made.
Despite not knowing exactly what the victim had alleged, the record indicates that Appellant's theory of admissibility at trial was that the question asked was intended to impeach the victim's veracity because Appellant would call his biological daughter to the stand to deny the victim's allegation. In addition, at a hearing on Appellant's pretrial application for a writ of habeas corpus, Appellant argued for the first time that "trial counsel... made the trial court aware of the possibility that the bad relationship between [Appellant] and [the victim]'s mother was a motive for the mother to coach [the victim] to make false accusations." Because this new theory of admissibility was presented only at the pretrial conference at the second trial, and the trial court had no opportunity to consider it at the first trial, we will not consider it. See TEX.R.APP. P. 33.1. We note, however, Appellant's continuation of the argument attempting to prove that the victim was a liar.
In Flannery v. State, 676 S.W.2d 369, 370 (Tex.Crim.App.1984) (per curiam), this Court explained the general rule that impeachment on a collateral matter is impermissible. Id. Although exceptions to the general rule exist, and sometimes the rules of evidence must give way to a defendant's Sixth Amendment right to confront his or her accuser,
The court of appeals held that it was required "to grant the trial court's evaluation of potential juror bias `great deference.'" See Pierson, 398 S.W.3d at 419 (citing Ross v. Petro, 515 F.3d 653, 661 (6th Cir.2008)).
The seminal case on this issue is Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). In Washington, the respondent was found guilty of murdering a hotel clerk. Id. at 498, 98 S.Ct. 824. Later, he was granted a new trial when it was discovered that the State had withheld exculpatory evidence. Id. During the voir dire at the respondent's second trial, the State alluded to testimony of a witness from a previous trial. Then, during defense counsel's voir dire, he stated "that there was evidence hidden from [respondent] at the last trial." Id. at 499, 98 S.Ct. 824. Later in the defense's opening arguments, counsel explained in greater detail that the jury would hear about how the State had withheld exculpatory evidence, and that the Arizona Supreme Court ordered that the respondent should receive a new trial in light of the State's Brady violation. Id. After opening arguments, the State requested a mistrial based on defense counsel's comments, which the court denied. Id. at 499-500, 98 S.Ct. 824. The following morning, the State renewed its request for a mistrial based on additional research that it argued showed that "there was no theory on which the basis for the new trial ruling could be brought to the attention of the jury, that the prejudice to the jury could not be repaired by any cautionary instructions, and that a mistrial was a `manifest necessity.'" Id. at 500, 98 S.Ct. 824. This time the trial court granted the State's motion. Id. at 501, 98 S.Ct. 824.
Our precedent and a review of Washington do not support Appellant's alleged distinction between opening arguments and questioning on cross-examination. See Harrison v. State, 788 S.W.2d 18, 22 (Tex.Crim.App.1990) ("[Washington] emphasizes that in the context of a declaration of mistrial involving an assessment of the prejudicial impact upon the jury of some impropriety, the trial judge's decision is entitled to great deference...."). Instead, in Washington, the Supreme Court's discussion of when great deference should be accorded to the ruling of a court granting a mistrial turned on the trial judge's unique ability to evaluate whether the complained of action biased the jury and, if so, to determine if that bias can be remedied by an instruction to disregard. See Washington, 434 U.S. at 512-13, 98 S.Ct. 824. For example, the Supreme Court stated that an improper opening statement creates a risk that "the entire [jury] panel may be tainted[,]" and that an instruction to disregard "will not necessarily remove the risk of bias that may be created by improper argument." Id. Again referring to potential bias, the Supreme Court stated that
Id. (footnote omitted) (emphasis added). Finally, the Supreme Court also contrasted the situation it was presented with in Washington — opening arguments during which an entire jury could be biased — with a situation in which only one juror on a jury is biased and could be replaced with an alternate juror instead of granting a mistrial. See id. at 512 n. 31, 98 S.Ct. 824 ("[I]f there is a suggestion of individual juror bias, it may be possible to replace that juror with an alternate."). Thus, it does not appear that the Supreme Court considered when the improper comments came to be as important as when a trial judge uses his or her unique ability to evaluate any potential bias created by an improper comment. See Harrison, 788 S.W.2d at 22. As a result, the reasoning explicated by the Supreme Court in Washington with respect to bias created by improper argument carries the same force on cross-examination because the potential for biasing the jury remains, and the trial judge is still in the best position to gauge whether the jury has been biased because the judge listened to the tone of the question as it was delivered and observed the apparent reaction of jurors. See Washington, 434 U.S. at 512-13, 98 S.Ct. 824. We hold that when a trial judge's 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.
Appellant argues that the court of appeals and trial court incorrectly concluded that an instruction to disregard defense counsel's question would not have cured the error, if any. Appellant goes on to assert that, "[j]ust as the court of appeals dodged the issue of the trial court's erroneous evidentiary ruling, the court of appeals dodged this issue by creating a tenuous factual distinction instead of reaching the proper conclusion." Appellant supports his argument by citing Justice Moseley's dissenting opinion from the court of appeals that argues that "a jury instruction should have sufficiently saved the trial, rendering a mistrial unnecessary." Pierson, 398 S.W.3d at 426 (Moseley, J., dissenting) (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003); Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000); Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000) (per curiam)).
With respect to the argument of what deference applies to the judge's "manifest necessity" ruling, the court of appeals properly held such a ruling should be accorded great deference when the trial court exercised "sound discretion." Pierson, 398 S.W.3d at 418 (citing Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)). This deference also applies to a trial judge's determination that an instruction to disregard would be insufficient to remediate any juror bias because, just as a trial court is in the best position to hear the tenor of the question asked and to see the apparent reactions of jurors and determine if they have been biased, the trial judge is also in the best position to determine whether an instruction
At the hearing following Appellant's question on cross-examination, the following relevant exchange took place with respect to an instruction to disregard,
Later, when the trial judge made his ruling granting the State's request for a mistrial, he stated again, "I don't know how [the bias] can be cured with an instruction to the jury."
Based on these comments, we agree with the court of appeals that "[t]he trial court's actions demonstrate deliberate consideration, rather than a precipitous ruling[,]" and that the trial court considered and ruled out "less drastic alternatives" than a mistrial, including if an instruction to disregard would have been sufficient under the circumstances. Pierson, 398 S.W.3d at 418-19. Furthermore, we are mindful of the Supreme Court's statement in Washington that
Washington, 434 U.S. at 513, 98 S.Ct. 824 (quoting United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)).
The court of appeals correctly concluded that the trial court was within its discretion to declare a mistrial based on manifest necessity due to the actions of defense counsel. Therefore, Appellant's second trial was not barred by double jeopardy. We affirm the judgment of the court of appeals.
PRICE, J., filed a concurring opinion.
I join the Court's opinion. I write separately for two reasons. First, while I agree that the appellant did not satisfy the predicate for impeachment by proof of a prior false accusation, that does not necessarily mean that the question he posed would invariably be deemed inappropriate had the proper predicate been laid. Notwithstanding language in this Court's opinions in Flannery v. State and Hammer v. State,
The appellant's first question upon cross-examining the complaining witness in this case was: "Did you also make an allegation that [the appellant] did these same things to his own daughter?" If, in fact, the complaining witness ever claimed to have had personal knowledge that the appellant sexually abused his own daughter, and in fact that claim was false, asking such a question as a predicate to impeachment might have been a permissible exercise of his Sixth Amendment rights under the Confrontation Clause, notwithstanding any contrary rule of evidence that the State might have interposed against its admissibility.
I also agree that it cannot be said, based upon the record in this case, that the trial judge acted "irrationally[,]" "irresponsibly," or "precipitately in response to the prosecutor's request for a mistrial."
In the further interest of the evenhanded administration of justice, however, I feel compelled to remind the bench and bar of our appellate presumption of the efficacy of jury instructions. When defendants request mistrials on account of prosecutorial indiscretions, we have been quick to recognize the ameliorative impact of judicial instructions to disregard:
Every case must be considered on its own facts, of course, but we have observed that reversal of a conviction for the failure of the trial court to declare a mistrial following an instruction to disregard an improper question is "rare."
Moreover, we have typically relied upon the efficacy of instructions to disregard in the context of resolving issues of procedural default. A defendant who requests a mistrial without first seeking an instruction that the jury disregard some objectionable and potentially incendiary matter that has made its way into evidence has only preserved error for appeal if the appellate court can say that the instruction to disregard would not, in any event, have had the desired effect on the facts of the particular case.
In Garza, we recently observed:
The appellant's question in this case, however erroneous or inflammatory, did not make it impossible to continue the trial, nor did it inject something into the record that would result in automatic reversal on appeal. So the only basis for manifest necessity presented here is that the question so contaminated the jury as to render it impossible for the initial tribunal to arrive at a fair verdict. Could the appellant's jury have arrived at a fair verdict had it been instructed, in no uncertain terms, consciously to recognize the potential for prejudice and consciously to put the appellant's question (and any prejudicial implications they may or may not have drawn from it) out of its collective mind while deliberating?
I am personally inclined to think that a fair trial was not impossible had the trial court given such an instruction to disregard. But I am willing to concede that reasonable minds could disagree on the efficacy of such an instruction in this case. Under these circumstances, the court of appeals did not err to defer to the trial court's judgment on that question, consistent with the dictates of Arizona v. Washington. I would only urge that, in order to justify that "highest degree of respect" that the Supreme Court has accorded to the trial court's discretion in this regard, trial judges take great care not to "act precipitately in response to the prosecutor's request for a mistrial."
With these additional remarks, I join the Court's opinion.