Brown v. State

MANSFIELD, Judge,

dissenting.

The court of appeals found that the judge presiding over appellant’s first trial did not abuse his discretion by sua sponte granting a mistrial and, therefore, that appellant’s retrial did not violate his double jeopardy rights. Ex parte Brown, 839 S.W.2d 164 (Tex.App.—Fort Worth 1992). I believe that this holding is “a conclusion adequately supported by the law and the evidence.” Arcila v. State, 834 S.W.2d 357, 361 (Tex.Crim.App.1992). Therefore, the proper action for this Court to take is to dismiss appellant’s ground for review as improvidently granted. Because the majority insists on substituting its own judgment for one that is supported by the facts of this case and settled rules of law, I respectfully dissent.

In addressing appellant’s claim below, the court of appeals carefully laid out the applicable case law from the United States Supreme Court and from the Texas appellate courts. This analysis included a review of all of the proper legal standards necessary for an appellate court to determine whether a trial judge abused his discretion by granting a mistrial based upon manifest necessity. Most importantly, the court of appeals properly recognized the following: first, the propriety of granting a mistrial will turn on the facts of each particular ease; second, there exists no “mechanical formula by which to judge the propriety of declaring a mistrial”; and third, in reaching his decision, the trial judge must exercise sound discretion, which necessitates that he consider both the defendant’s double jeopardy rights and whether there are less drastic alternatives to declaring a mistrial. 1 Ex Parte Brown, 839 S.W.2d at 166 .

The majority’s sole complaint about the legal standards applied by the court of appeals is that they did not include this Court’s decisions in Harrison v. State, 788 S.W.2d 18 (Tex.Crim.App.1990), Ex Parte Hubbard, 798 S.W.2d 798 (Tex.Crim.App.1990), and Ex parte Little, 887 S.W.2d 62 (Tex.Crim.App.1994). The facts in those cases, however, are clearly distinguishable from those in the instant case. Specifically, in all three cases, we found the trial court abused its discretion because there was no evidence that the trial court considered any less drastic alternatives to declaring a mistrial. In contrast, the judge presiding over appellant’s trial clearly enumerated and considered less drastic alternatives before deciding to declare a mistrial. Because of this critical distinction, the cases cited by the majority are not on point, and the court of appeals based its decision upon the proper legal precedent. 2

The conclusion reached by the court of appeals is also adequately supported by the evidence in the case. Specifically, the record shows that the trial judge did expressly consider the alternatives of requiring the State to proceed without its witness or of granting a continuance of nearly four weeks. The trial judge also expressly noted his concern *845 for appellant’s double jeopardy rights. This evidence provided the court of appeals an adequate basis for finding the trial judge did not abuse his discretion in finding manifest necessity to grant a mistrial.

The only complaint raised by the majority here is that, had they been sitting on the court of appeals, they would have held that the trial judge abused his discretion by not expressly considering additional alternatives to a mistrial. And yet, the threshold issue for this court to consider in deciding whether to exercise its discretionary review power is not whether we would have reached the same decision as the court of appeals. Rather, our role is to determine whether the opinion of the court of appeals “fairly addresses the issues raised on appeal, evaluates those issues according to settled rules of law, accounts for all evidence relevant to the questions presented, and reaches a conclusion adequately supported by the law and the evidence.” Arcila v. State, 834 S.W.2d at 361 . Because the opinion by the court of appeals meets all of these requirements, appellant’s petition should be dismissed as improvidently granted. For that reason, and because the majority is ignoring its own dictates in Arcila so that it may substitute its judgment for that of the court of appeals, I dissent.

KELLER, J., joins.

. The majority notes:

... as a general rule, manifest necessity exists where the circumstances render it impossible to arrive at a fair verdict, where it is impossible to continue on with trial, or where the verdict would be automatically reversed on appeal because of trial error.

Maj. op. at 839 (emphasis added). Although this is an accurate statement, I believe the majority should clarify that these extreme situations are not the only times manifest necessity exists. For instance, there are clearly situations in which, although it is not impossible to continue a trial, difficulties arise such that a trial judge may properly decide that there exists a manifest necessity to declare a mistrial.

. Indeed, the court of appeals under no circumstances could have relied upon our holding in Ex parte Little, as that case was decided after the court below disposed of appellant’s case.