            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-0613-13

                           LEONARD PIERSON, JR., Appellant

                                              v.

                                  THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SIXTH COURT OF APPEALS
                              BOWIE COUNTY

       P RICE, J., filed a concurring opinion.

                                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,1 we have yet to disclaim the

       1

       See Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984) (prohibiting the
impeachment of a witness on a collateral matter); Hammer v. State, 296 S.W.3d 555, 564-65 (Tex.
                                                                                          Pierson — 2


admissibility of evidence of prior false accusations to impeach the testimony of complaining

witnesses in sex offense cases by attacking their general credibility. In this context, the Sixth

Amendment right to confrontation may yet be held to trump the general prohibition against

impeachment on collateral matters and the prohibition in Rule 608(b) of the Rules of

Evidence against impeachment by specific conduct.2 Second, while I agree with the Court

that a reviewing court owes great deference to the trial court’s judgment whether an

instruction to disregard an inappropriate question obviates the need for a mistrial, I think it

worthwhile to acknowledge the appellate presumption of the efficacy of such instructions to

disregard, which we entertain whenever the defendant argues that only the radical remedy

of a mistrial can save him from what he regards as indelible prosecutorial prejudice.

Considering the risk that a precipitous mistrial poses to the defendant’s “valued right to have

his trial completed by a particular tribunal[,]”3 trial judges should not lightly dismiss the

possibility that a stout instruction to disregard will serve to ameliorate any potential for jury




Crim. App. 2009) (suggesting that evidence of prior false accusations by a sexual assault victim should
be deemed inadmissible as impeachment, even in the face of the Confrontation Clause, if it is offered
simply to impugn her general credibility, because such evidence calls for nothing more than
“prohibited propensity” inferences, which violate T EX. R. E VID. 608(b)).
        2

        See T EX. R. E VID. 608(b) (“Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609,
may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.”).
        3

       Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011) (quoting Wade v. Hunter, 336
U.S. 684, 689 (1949)).
                                                                                       Pierson — 3


contamination—especially from what, as here, amounts to an unanswered question of

ambiguous import on defense counsel’s part.

                                                 I.

       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.4 Even

so, as the court of appeals essentially pointed out,5 the real problem in this case is that the

       4

         Lopez v. State, 18 S.W.3d 220, 225-26 (Tex. Crim. App. 2000); id. at 227 (Keller, J.,
concurring). See also Billodeau v. State, 277 S.W.3d 34, 40 (Tex. Crim. App. 2009) (citing Lopez for
the proposition that evidence of prior false accusations may be admissible to impeach the complaining
witness in a sex offense case because “this Court has acknowledged that the Confrontation Clause of
the Sixth Amendment may require admission of evidence that [T EX. R. E VID.] 608(b) would otherwise
bar”); Palmer v. State, 222 S.W.3d 92, 95 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)
(evidence of prior false accusations of sexual abuse may be admissible to impeach complaining witness
so long as actual falsity is adequately established); Thomas v. State, 669 S.W.2d 420, 423 (Tex.
App.—Houston [1st Dist.] 1984, pet. ref’d) (Sixth Amendment Confrontation Clause error to exclude
evidence of the complaining witness’s false prior accusations of rape in a prosecution for aggravated
sexual assault of a child).
       5

         Pierson v. State, 398 S.W.3d 406, 413-17 (Tex. App.—Texarkana 2013). The court of
appeals in this case believed evidence that the complaining witness lied about the appellant having
molested his own daughter could be admissible if it showed bias on the complaining witness’s part,
but could never be admissible merely as a general attack upon her credibility, Lopez and the
Confrontation Clause notwithstanding. Id. Although our unanimous opinion in Hammer v. State, 296
                                                                                      Pierson — 4


appellant was unable to establish the predicate facts by which he could assert admissibility

under such a theory, as required by Rule 104(a) of the Rules of Evidence.6 The Court today

seems to confirm this aspect of the court of appeals’s opinion when it concludes that the

appellant has “failed to carry his burden as the proponent of the evidence that the victim’s

answer was admissible.”7 I agree with this. But I wish to emphasize that we have not yet

altogether ruled out the possibility that the Confrontation Clause requires that a defendant

be permitted to develop evidence of prior false accusations by the complaining witness, at

least in sex offense prosecutions, as general evidence of the complaining witness’s lack of

credibility, notwithstanding Rule 608(b) of the Rules of Evidence.8

                                                 II.

       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.”9 It is certainly true “that the extent of the possible bias” that may have



S.W.3d at 564-66, might suggest such a conclusion, and we did cite several federal cases in Hammer
for that proposition, id. at 565 n.26, we did not formally so hold in Hammer. Nor does the Court
expressly so hold today.
       6

        T EX. R. E VID. 104(a).
       7

        Majority Opinion at 15 (citing Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008)).
       8

        See notes 4 & 5, ante; T EX. R. E VID. 608(b).
       9

        Arizona v. Washington, 434 U.S. 497, 514-15 (1978).
                                                                                        Pierson — 5


been engendered by the inappropriate question in this case “cannot be measured,” and “that

some trial judges might have proceeded with the trial after giving the jury appropriate

cautionary instructions.”10 I am inclined to think that an instruction to disregard in this case

would have sufficed to remove the potential for juror bias. Indeed, I do not think there was

a grave potential for actual juror bias here, since the motive behind the question would not

have been immediately apparent to the jury and, in any event, there was no reply.11

“Nevertheless, the overriding interest in the evenhanded administration of justice requires

that [a reviewing court] 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” question.12

       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,


       10

        Id. at 511.
       11

         It is not altogether apparent to me that the jury would have realized that the appellant’s
question was meant as a predicate to impeaching the complaining witness. While that may be “the
only reasonable interpretation” that a discerning judge or lawyer might place on the question, see
Majority Opinion at 14 (quoting the trial court), the jury more likely found itself simply puzzled that
the appellant’s lawyer would ask such a seemingly self-immolating question. In that event, the
potential for burning the State would have been purely theoretical; an instruction to disregard should
have been more than sufficient to extinguish the flame.
       12

        Washington, 434 U.S. at 511.
                                                                                   Pierson — 6


we have been quick to recognize the ameliorative impact of judicial instructions to disregard:

               In the vast majority of cases in which argument is made or testimony
       comes in, deliberately or inadvertently, which has no relevance to any material
       issue in the case and carries with it some definite potential for prejudice to the
       accused, this Court has relied upon what amounts to an appellate presumption
       that an instruction to disregard the evidence will be obeyed by the jury. In
       essence this [C]ourt puts its faith in the jury’s ability, upon instruction,
       consciously to disregard the potential for prejudice, and then consciously to
       discount the prejudice, if any, in its deliberations.13

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.”14 Sauce for the defendant’s goose ought to be

sauce for the prosecutor’s gander.

       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.15 In that context, too, we have


       13

       Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988) (quoting Gardner v. State, 730
S.W.2d 675, 696 (Tex. Crim. App. 1987)) (citations and internal quotation marks omitted).
       14

       Swallow v. State, 829 S.W.2d 223, 227 (Tex. Crim. App. 1992), overruled on other grounds
by Randolph v. State, 353 S.W.3d 887, 895 (Tex. Crim. App. 2011).
       15

        See Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (“[T]he request for an
                                                                                            Pierson — 7


essentially applied an appellate presumption of efficacy.16

        In Garza, we recently observed:

        Once the defendant shows he is being tried for the same offense after
        declaration of a mistrial to which he objected, a heavy burden shifts to the
        State to justify the trial court’s declaration of the mistrial. The State must
        demonstrate a “manifest necessity” for a mistrial, which is to say a “high
        degree” of necessity, and the trial court’s discretion to declare a mistrial based
        on manifest necessity is limited to, and must be justified by, extraordinary
        circumstances. That discretion is abused, we have said, whenever the trial
        court declares a mistrial without first considering the availability of less drastic
        alternatives and reasonably ruling them out. But the trial court appropriately
        exercises its discretion to declare a mistrial—that is to say, manifest necessity
        for the mistrial exists—when the particular circumstances giving rise to the
        declaration render it impossible to arrive at a fair verdict before the initial
        tribunal, when it is simply impossible to continue with trial, or when any
        verdict that the original tribunal might return would automatically be subject
        to reversal on appeal because of trial error.17

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


instruction that the jury disregard an objectionable occurrence is essential only when . . . such an
instruction could have had the desired effect, which is to enable the continuation of the trial by a[n]
impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate
review of that class of events that could have been ‘cured’ by such an instruction. But if an instruction
could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial
is the only essential prerequisite to presenting the complaint on appeal.”).
        16

        See id. at 70, 72 (reversing the court of appeals’s holding that the instruction to disregard could
not have cured the “objectionable occurrence” in that case).
        17

        Garza, 337 S.W.3d at 909.
                                                                                   Pierson — 8


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.”18 What that means to me is that, when

making determinations of manifest necessity vel non—that is to say, when balancing the

State’s right to a fair trial designed to end in just judgments against the defendant’s valued

right to have his trial completed by a particular tribunal19 —trial judges must give the same

consideration to the remedial potential of an instruction to disregard that they would almost

routinely give such an instruction any time it is the defendant who seeks a mistrial.



       18

       Washington, 434 U.S. at 511, 515.
       19

       Garza, 337 S.W.3d at 909 (citing Wade, 336 U.S. at 689).
                                                                 Pierson — 9


    With these additional remarks, I join the Court’s opinion.




FILED:     April 9, 2014
PUBLISH
