Ex Parte Darrell Lee Shields ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00421-CR
EX PARTE DARRNELL LEE SHIELDS,
From the 19th District Court
McLennan County, Texas
Trial Court No. 2008-1918-C1
MEMORANDUM OPINION
Appellant Darrnell Lee Shields’s first trial on three felony charges ended in a
mistrial, and he sought habeas corpus relief in the trial court against retrial based on
double jeopardy. The trial court held a hearing but denied relief, and Shields appeals.
We will affirm.
Shields is charged with the following third-degree felonies: injury to a child,
assault—family violence (enhanced), and attempted sexual assault. Late on the first full
day of testimony in the first trial, an extensive hearing was held outside the jury’s
presence about the defense’s desire to impeach the alleged victim on a number of
matters. The trial court sustained the State’s objections to evidence of the victim’s prior
relationships and fights with other women but permitted the defense to inquire into her
prior inconsistent statement to police. The next day, the defense attempted to recall the
victim’s mother to impeach the victim. The trial court sustained the State’s objection,
noting that the matters had previously been covered the day before on cross-
examination.
Defense counsel then moved for a mistrial, noting that Shields’s rights to a fair
trial, cross-examination, and confrontation were violated and also re-urging a complaint
about testimony of an extraneous threat made by Shields that was elicited the previous
afternoon. The trial court denied the mistrial motion.
The State and the defense then argued to the trial court their disagreement over a
limiting instruction for evidence of bad acts committed by the victim, and the State
withdrew its request for a limiting instruction based on an agreement with the defense
that the instruction be addressed in the jury charge. But later, in the charge conference,
the defense did not agree to the limiting instruction proposed by the trial court, and the
State agreed to have the instruction taken out. At this point, the trial court reflected on
the trial as a whole and suggested that a mistrial might be appropriate:
THE COURT: I’m concerned that there is so much potential err[or] in this
matter already, not through anybody’s intention. I’m not too sure a
mistrial is not in order.
[STATE]: Well, I mean, I would urge a mistrial at this point. I mean, I
think that out of real misunderstanding for what was agreed to - - I don’t
think it’s fair for them to be able to consider that fight for any reason
whatsoever and for anything to be deduced from it. We had this whole
hearing to try and figure out what it was being introduced for, and now,
apparently, it was for everything. I mean, I didn’t understand that.
[DEFENSE]: It was as to Ashley Ross’ testimony
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THE COURT: Well, the defense had also previously moved for a mistrial
on the record. I think in the interest of justice and fairness to both sides,
that’s what I’m going to do. I’m going to declare a mistrial. Let’s bring
the jury in.
In denying Shields habeas corpus relief on his double-jeopardy claim against
retrial, the trial court issued findings of fact and conclusions of law and concluded that
Shields impliedly consented to the mistrial. In this appeal, Shields’s sole issue is that
the trial court erred in refusing to grant Shields relief on his double-jeopardy claim.
In reviewing a trial court’s ruling on a habeas claim, we review the record
evidence in the light most favorable to the trial court’s ruling and must uphold that
ruling absent an abuse of discretion. Ex parte Graves, 271 S.W.3d 801, 803 (Tex. App.—
Waco 2008, pet. ref’d), cert. denied, 130 S. Ct. 261 (2009).
In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Moreno
v. State, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009). Once jeopardy attaches, as a
general rule, a defendant has the right to have his guilt or innocence determined by the
first trier of fact. Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App. [Panel Op.] 1981).
“The constitutional prohibition against ‘double jeopardy’ was designed to
protect an individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.” United States
v. DiFrancesco, 449 U.S. 117, 127 (1980) (quoting Green v. United States, 355
U.S. 184, 187 (1957)); see Stephens, 806 S.W.2d at 816.
[T]he State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even though
innocent he may be found guilty.
DiFrancesco at 127-28 (quoting Green at 187-88) (alteration added). “[T]he
Ex parte Shields Page 3
constitutional protection also embraces the defendant’s ‘valued right to
have his trial completed by a particular tribunal.’” Id. at 128 (quoting
Arizona v. Washington, 434 U.S. 497, 503 (1978)); accord Wade v. Hunter, 336
U.S. 684, 689 (1949); see Kennedy, 456 U.S. at 682 n.6; Peterson, 117 S.W.3d at
810.
Graves, 271 S.W.3d at 804.
“If that right to go to a particular tribunal is valued, it is because … the
defendant has a significant interest in the decision whether or not to take the case from
the jury when circumstances occur which might be thought to warrant a declaration of
mistrial.” United States v. Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 1079, 47 L. Ed. 2d 267
(1976). “The important consideration, for purposes of the Double Jeopardy Clause, is
that the defendant retain primary control over the course to be followed in the event of
such error.” Id. at 609, 96 S.Ct. at 1080.
But if the defendant consents to a mistrial or the mistrial is mandated by manifest
necessity, the second prosecution (retrial) is not barred by double jeopardy. Ex parte
Fife, 49 S.W.3d 35, 39 (Tex. App.—Fort Worth 2001, pet. ref’d) (citing Torres, 614 S.W.2d
at 441); see Garner v. State, 848 S.W.2d 656, 658 (Tex. App.—Fort Worth 1993, pet. ref’d).
The initial inquiry on appeal is whether the defendant consented to
mistrial. Harrison v. State, 767 S.W.2d 803, 806 (Tex. Crim. App. 1989). If
there is evidence of consent, the issue of manifest necessity is immaterial.
Id. Consent need not be express, but may be implied from the totality of
the circumstances attendant to the declaration of mistrial. Gori v. United
States, 367 U.S. 364, 366, 81 S. Ct. 1523, 1524-25, 6 L. Ed. 2d 901, 903 (1961);
Little v. State, 853 S.W.2d 767, 767 (Tex. App.—Houston [14th Dist.] 1993,
no pet. h.); Torres, 614 S.W.2d at 441.
Before failure to object constitutes an implied consent to a mistrial,
a defendant must be given an adequate opportunity to object to the court’s
motion. Gori, 367 U.S. at 366, 81 S.Ct. at 1524-25, 6 L. Ed. 2d at 903; Little,
853 S.W.2d at 767-68; Torres, 614 S.W.2d at 441-42. Moreover, consent will
Ex parte Shields Page 4
not be inferred from a silent record. Allen v. State, 656 S.W.2d 592, 595
(Tex. App.—Austin 1983, no pet.).
Garner, 858 S.W.2d at 658-59.
We find that the trial court did not abuse its discretion in concluding that Shields
impliedly consented to the mistrial. As the above-quoted colloquy reveals, Shields’s
two attorneys were present and had an adequate opportunity to respond and object to
the trial court’s suggestion of a mistrial, the State’s mistrial motion, and their reasons
therefor. See id. at 659. By not responding or objecting, Shields impliedly consented to
the mistrial, and thus to retrial. See id. A second prosecution is not barred by double
jeopardy. We overrule Shields’s sole issue and affirm the trial court’s order.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
trial court’s order. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed April 14, 2010
Do not publish
[CR25]
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