Ex Parte Peterson

117 S.W.3d 804

Ex Parte James Michael PETERSON, Appellee.

No. 0201-02.

Court of Criminal Appeals of Texas.

October 8, 2003.

Deric King Walpole, McKinney, for Appellant.

John A. Stride, Asst. DA, McKinney, Matthew Paul, State's Attorney, Austin, for State.

OPINION

PER CURIAM.

In this case we clarify the standards under which the Texas constitutional double jeopardy provision, as explained in Bauder v. State,¹ prohibits a retrial after the defense successfully requests a mistrial. Here, the trial judge granted defendant's motion for mistrial when the prosecutor asked a question of her first witness that appellant claimed was improper. The defense then filed a pretrial double jeopardy motion to bar any retrial which, after a hearing, the trial judge also granted in part. Both the State and the defendant appealed and the court of appeals affirmed the trial court's ruling.² We granted the State's petition for discretionary review to address two issues: 1) Should the Bauder line of cases be abandoned? and 2) Did the court of appeals properly apply Bauder to this case? Because we conclude that the courts below were mistaken in their application of Bauder to this situation, we need not today address the broader question of whether Bauder and its progeny should be overruled.³ We therefore dismiss the State's first ground for review as improvidently granted. Instead, we clarify the three-pronged analysis by which trial and appellate courts review Bauder claims, as well as set out a non-exhaustive list of objective factors for courts to consider when evaluating them.

I.

James Michael Peterson was charged with two offenses: possession of cocaine with intent to deliver and possession of cocaine. His attorney filed a discovery motion, requesting notice of any statements that Peterson made to law enforcement agents and copies of any recordings. The State agreed to provide both. The prosecutor gave defense counsel a copy of the written arrest summary which was all that she had at the time of the discovery request. That summary stated, in part:

On 02/17/20 [sic], Det. Speaks and other members of the Plano Narcotics Unit had conducted surveillance on a suspect identified as James M. Peterson WM 11/13/76. Det. Spears had spoken to Peterson who had informed her that he had 3.0 grams of cocaine in his possession. Narcotics officers set up surveillance on Peterson's residence and followed him when he left his residence in route to Plano.

According to the summary, when those officers saw Peterson commit traffic violations, they requested other, uniformed, officers to stop him, and "[t]he traffic stop and conversation with Peterson were video tape[d] and recorded." Peterson consented to a search of the car, during which the officers found a marijuana pipe, a baggie of marijuana, and a small suede pouch containing approximately 3 grams of crack cocaine.

According to the prosecutor's testimony at the habeas corpus hearing, she thought that there was a video tape of the traffic stop because of the statements in the arrest summary. She also thought there might be an audio tape of the original conversation between Officer Spears and Peterson, so she asked her investigator to check "several places" for tapes. The investigator was told that the videotape had been recycled and no longer existed.

The prosecutor met with Officer Spears a week before the trial and asked about the existence of any tapes. Officer Spears told her that "she [Officer Spears] could not recall any such [video] tape, only audiotapes of her conversations." Officer Spears agreed to check and, on the day of trial, she arrived with audiotapes of the telephone conversations she had with Mr. Peterson as well as the videotape of the traffic stop. Officer Spears told the prosecutor that she had kept them in her personal files when she left the narcotics department about a year and a half earlier.

The prosecutor testified that she became aware of the tapes only about half an hour before the trial started. She immediately told the defense attorney of their existence and offered to let him view them.⁴ He did not want to, nor did he want to say anything to the trial judge. The prosecutor said:

I asked him if he wanted to approach the judge and ask the judge to give us maybe half an hour before the trial commenced to look at them to see if that would change his position in any way.... and he said that no, at that time he didn't choose to do that, that we would just go ahead and go through with the trial and deal with it later.

The prosecutor then told the defense attorney that she would not use the audio or video tapes at trial because she had not produced them during discovery. The trial began and, during her opening statement, the prosecutor told the jury:

You are going to hear that on February 17th of the year 2000 Rose Spears, undercover narcotics officer—well, in a time period before this—was in contact with the defendant, James Michael Peterson. She had been put on him through a third party, and she had called him to set up a buy of cocaine. They had several conversations with regard to its availability, when she needed it, how much she needed, could he get it for her, and he said that he could, and they set up a buy.

The defense did not object.

The State called Officer Spears as its first witness. She testified that she had been given appellant's name "and [was] basically introduced over the phone to him by a confidential informant." The prosecutor then asked: "Did you ever have occasion to discuss with the defendant an opportunity to purchase cocaine?" At that point, defense counsel objected, citing his pretrial motion in limine and motion for discovery, and said that the trial court had ordered the State to turn over any of Peterson's statements. The prosecutor responded that she did not ask about the content of any statement made by appellant: "I asked her if she had any opportunity to talk with him about the purchase of cocaine." The trial court overruled the defense objection, but instructed the prosecutor to limit her questions to the material in the arrest report summary.⁵

The prosecutor then continued:

Q: Had you had conversations with the defendant with regard to the purchase of cocaine?

A: Yes, I did.

Q: And who was—who was to purchase the cocaine?

A: I was to purchase it from him.

Q: Okay. And how did you go about asking him for that?

A: I just asked him if he could get me, I believe it was an eight ball of powdered cocaine.

Q: And did he agree that he could do that?

A: Yes. He stated he could.

The defense objected: "Violation of the discovery order." The trial court sustained the objection, instructed the jury to disregard, and then granted the defendant's request for a mistrial,⁶ telling the prosecutor:

Well, the Court is going to grant the mistrial, give you another opportunity to give discovery to the defendant so we can have a full disclosure to the defense about what you intend to present.

Mr. Peterson filed a pretrial habeas corpus application that same day and asserted that any retrial was barred by the Double Jeopardy Clause of the United States and Texas Constitutions and article 1.10 of the Code of Criminal Procedure.

The trial court held a hearing on this motion in which the prosecutor was the only witness. She outlined her actions and the rationale for them as set out above. She also agreed with defense counsel that the audio and video tapes significantly added to the strength of her case and were, when coupled with the other evidence, "pretty damaging." She disagreed with defense counsel that the arrest summary did not contain any statements by Mr. Peterson offering to sell cocaine, although she agreed that this is how the trial court interpreted that summary. She stated, on cross-examination, that she was not aware that she was taking any risk that would require a mistrial nor did she think that she had done anything that was objectionable. Under oath, she denied that she had been aware of, but consciously disregarded, the risk that an objectionable event for which she was responsible would require a mistrial at the defendant's request. She testified that she was not attempting to secure a mistrial and she had no belief that her questions to Officer Spears would cause a mistrial, especially since the defense had not objected to her opening statement nor to some of her questions to Officer Spears. She stated that she was perfectly willing to go forward with the original trial without the video and audiotapes; indeed that had been her own suggestion to defense counsel, made before jeopardy attached.

Without explanation, the trial court granted habeas relief on the possession with intent to deliver count, but denied relief on the simple possession count. Both the defense and the State appealed.⁷ The court of appeals relied upon this Court's decision in Ex parte Bauder, 974 S.W.2d 729 (Tex.Crim.App.1998)(Bauder II), and concluded that:

From this record the trial judge could have concluded appellant's motion [for mistrial] was not a choice made in response to ordinary reversible error to avoid conviction, appeal, reversal, and retrial, but was precipitated by the prosecutor deliberately or recklessly crossing the line between legitimate adversarial conduct and manifestly improper methods. Furthermore, the trial judge could have concluded the prosecutor's conduct rendered the trial so unfair that no judicial admonishment could have cured it. Under these facts and circumstances, we cannot conclude the trial court erred in granting appellant habeas relief.⁸

I.

Both the Double Jeopardy Clauses of the Fifth Amendment and of Art. 1, section 14 of the Texas Constitution "protect a criminal defendant from repeated prosecutions for the same offense."⁹ Although a defendant has a "valued right to have his trial completed by a particular tribunal,"¹⁰ neither constitutional provision guarantees that the State "will vindicate...