Ex parte Falk

449 S.W.3d 500

Ex parte John Ray FALK, Jr.

No. 10–13–00233–CR.

Court of Appeals of Texas, Waco.

July 24, 2014.

Discretionary Review Refused Oct. 13, 2014.

Lane D. Thibodeaux, Law Office of Lane D. Thibodeaux, Bryan, for Appellant/Relator.

Joseph P. Corcoran, Leslie K. Kuykendall, Jane Starnes, Asst. Atty. Gen., Austin, David P. Weeks, Dist. Atty., Huntsville, for Appellees/Respondents.

Before Justice DAVIS, Justice LANG,^* and Justice SCOGGINS.

OPINION

REX D. DAVIS, Justice.

John Ray Falk, Jr., asserting five issues, appeals the trial court's denial of relief on his pretrial application for writ of habeas corpus and plea in bar brought to avoid retrial for capital murder. We will affirm.

Background

Falk is under indictment and awaiting retrial for the prison-escape-related capital murder of Susan Canfield, a correctional officer. The factual background of the alleged offense is set forth in our and the Court of Criminal Appeals' mandamus opinions. In re State ex rel. Weeks, 392 S.W.3d 280, 283 (Tex.App.-Waco 2012, orig. proceeding) (Weeks I ); In re State ex rel. Weeks, 391 S.W.3d 117, 119–20 (Tex.Crim.App.2013) (orig. proceeding) (Weeks II ).

On December 3, 2012, the State sought a stay of Falk's first trial at the jury-charge portion of the trial's guilt-innocence phase, and on December 4, we ordered a stay of the trial. Weeks I, 392 S.W.3d at 283. On December 12, in an opinion ultimately denying mandamus relief for the State, we addressed the State's complaints about the trial judge's proposed charge. Id. at 287, 289. The State then sought mandamus relief on the charge issues in the Court of Criminal Appeals, which conditionally granted relief and ordered us to grant mandamus relief for the State in an opinion dated January 16, 2013. Weeks II, 391 S.W.3d at 126. We complied by issuing a January 18 order. In re State ex rel. Weeks, 392 S.W.3d 339 (Tex.App.-Waco 2012, orig. proceeding) (order) (Weeks III ).

On January 28, fifty-five days after our stay, the trial judge reconvened the jury and sua sponte ordered a mistrial on the ground of manifest necessity. The trial judge read his prepared and signed order to the jury and then expressed to the jury his personal views about some aspects of the case. After he finished his comments and reiterated the mistrial, the State objected to the mistrial and suggested that the trial judge recuse himself. Falk did not object to the mistrial¹ or make any response to the trial judge's actions.

The trial judge subsequently recused himself, and the Honorable John Delaney was assigned to preside over the case. Falk then filed his habeas application to bar retrial. He alleged two Double Jeopardy grounds: (1) the sua sponte mistrial was ordered without manifest necessity; and (2) the original trial judge's decision that insufficient evidence existed to warrant the submission of a law-of-parties instruction was an acquittal. Falk also alleged that the two mandamus proceedings initiated by the State violated Falk's due-process rights and that the exercise of mandamus jurisdiction by the Court of Criminal Appeals violated the separation of powers of the Texas Constitution and also violated state and federal guarantees of due process, equal protection, and open courts. The habeas trial court denied Falk's request for habeas relief, and this appeal followed.

Standard of Review

We review the trial court's denial of a habeas corpus application for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006).... We review “the record evidence in the light most favorable to the trial court's ruling and [we] must uphold that ruling absent an abuse of discretion.” Id.

Ex parte Rodriguez, 378 S.W.3d 486, 489 (Tex.App.-San Antonio 2012, pet. ref'd) ; see also Ex parte Graves, 271 S.W.3d 801, 803 (Tex.App.-Waco 2008, pet. ref'd), cert. denied , 558 U.S. 902, 130 S.Ct. 261, 175 L.Ed.2d 176 (2009).

[I]n reviewing the trial judge's decision to grant or deny double jeopardy relief by way of habeas corpus, the standard of review is not static and it must vary depending on the cause of the mistrial. See Arizona v. Washington, 434 U.S. 497, 507–508, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) ; Cherry v. Dir., State Bd. of Corr., 635 F.2d 414, 418–19 n. 6 (5th Cir.1981) (recognizing that the standard of review can vary from the “highest degree of respect” to the “strictest scrutiny” depending on the reason for the mistrial). At one end of the spectrum, broad deference is appropriate because the trial judge is in the best position to assess the relevant considerations. Washington, 434 U.S. at 513–14, 98 S.Ct. 824 (broad discretion appropriate where mistrial necessitated by a need to prevent jury-bias); Ex parte McMillian, No. 05–11–00642–CR, 2011 WL 3795727, at *2–3, 2011 Tex.App. LEXIS 6912, at *6 (Tex.App.-Dallas Aug. 29, 2011, pet. ref'd) (broad discretion appropriate where mistrial involved potentially deadlocked jury). At the other end of the spectrum, strict scrutiny is appropriate when the basis of the mistrial is the unavailability of critical prosecution evidence. Washington, 434 U.S. at 508, 98 S.Ct. 824. Therefore, part of our task is to determine the correct standard of review by identifying the cause of the mistrial. United States v. Fisher, 624 F.3d 713, 719 (5th Cir.2010).

Ex parte Rodriguez, 366 S.W.3d 291, 296 (Tex.App.-Amarillo 2012, pet. ref'd).

Findings and Conclusions

We begin with Falk's fifth issue, which argues that the habeas trial court committed reversible error by refusing to make requested findings of fact and conclusions of law on the denial of Falk's habeas application. Before submission, Falk made the same argument by motion, which we denied.

While a trial court's findings and conclusions are helpful in a habeas proceeding, they are “not legally required.” Ex parte Peterson, 117 S.W.3d 804, 818 (Tex.Crim.App.2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007). Because no error was committed, we overrule issue five.

Manifest Necessity

In his first issue, Falk contends that manifest necessity did not exist to allow the sua sponte mistrial and that he did not give implied consent to the mistrial.

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 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. Ex parte Garza, 337 S.W.3d 903, 909 (Tex.Crim.App.2011) ; see Washington, 434 U.S. at 505–06, 98 S.Ct. 824. 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[.]” 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.” Washington, 434 U.S. at 505, 98 S.Ct. 824.

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.

Pierson v. State, 426 S.W.3d 763, 769–70 (Tex.Crim.App.2014).

In evaluating manifest necessity, a reviewing court must consider the nature of the case, its procedural posture, the cause of the mistrial, the interests of the parties, the availability of less drastic alternatives, and the ends of public justice. The classic formulation of the test for manifest necessity was penned by United States Supreme Court Justice Joseph Story in United States v. Perez, 22 U.S. 579, 580, 6 L.Ed. 165, 9 Wheat. 579 (1824) as follows:

[w]e think, that in all cases of this nature, the law has invested Courts of justice with authority to discharge a jury for giving any verdict, whenever, in their opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest of caution, under urgent

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