
NO. 07-04-0583-CR


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL B


FEBRUARY 16, 2005

______________________________



THE STATE OF TEXAS, APPELLANT


V.


MARY FRANCIS APPIO, APPELLEE


_________________________________


FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;


NO. 48,994-A; HONORABLE H. BRYAN POFF, JUDGE

_______________________________


Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION

	Appellant, The State of Texas, filed a Motion to Dismiss Appeal on February 9, 2005.   
	Without passing on the merits of the case, appellant's motion for voluntary dismissal is
granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.2.   Having dismissed the appeal
at appellant's personal request, no motion for rehearing will be entertained and our mandate will
issue forthwith.  

							Phil Johnson
						    	Chief Justice


Do not publish.

nsel failed to address and investigate the issue of
competency and capacity; 6) failing to find he was deprived of effective assistance of
counsel when trial counsel advised him to elect the jury to set his punishment, which made
him liable for a sentence greater than would otherwise have been permissible; and 7)
allowing the prosecutor to make improper remarks intended to inflame the passions and
prejudices of the jury.  Disagreeing that reversible error has been shown, we affirm the
judgment of the trial court.
	A proper discussion of the first two points requires us to recount the involved
procedural history of this case.  Appellant was charged with committing aggravated assault
with a deadly weapon on his former wife.  On May 5, 1998, a jury was selected and seated
to try the case.  The next day, before the jury was returned to the courtroom, appellant
announced that he wished to withdraw his plea of not guilty and proceed upon a plea of
guilty with the jury setting his punishment.  After admonishments by the trial court, the
guilty plea was accepted.  The jury was then brought in, sworn, appellant entered his plea,
evidence was stipulated and the punishment hearing commenced.  The victim was in the
process of testifying when the court recessed for the noon hour.  As the witness was
stepping down from the witness box at the time of the noon recess, she asked a juror what
was written on the juror's badge.  Because the degree of the impairment of the victim's
eyesight by the alleged assault was material, appellant sought, and was granted, a
mistrial.
	After the granting of the mistrial, the trial was rescheduled for May 19, 1998, but
because of the death of the victim's mother, it was continued until June 16, 1998.  The
case was called for trial on June 16, 1998, at which time appellant moved to withdraw his
guilty plea and waiver of jury trial.  Outside the jury's presence, the trial court then heard
argument on the motion, including a representation by the State that, having expected the
trial to continue on punishment alone, it could not be ready for a guilt/innocence trial
because of the absence of a crucial witness.
	Reasoning that it was untimely presented, the trial court denied appellant's motion
to withdraw his guilty plea and, without appellant entering a plea to the indictment,
proceeded to conduct a punishment hearing which resulted in a jury-assessed punishment
of 15 years confinement in the Institutional Division of the Department of Criminal Justice
and a $1,000 fine.  On direct appeal, this court reversed the conviction and remanded the
matter to the trial court for retrial.  In doing so, we determined the trial court could not grant
a mistrial limited to the punishment phase alone.  The mistrial must apply to the whole trial
and because of that, any activities in the trial preceding the mistrial were a nullity and a
retrial was required.  See Huseman v. State, 17 S.W.3d 704, 706 (Tex.App.--Amarillo
1999, pet. ref'd).	
	Subsequent to our reversal, appellant applied for habeas corpus relief from the trial
court, which was denied.  On February 21, 2001, we affirmed the trial court's denial of that
relief.  See Huseman v. State, No. 07-00-0394-CR (Tex.App.--Amarillo Feb. 21, 2001, no
pet.) (not designated for publication), 2001 WL 170411.  Appellant now argues that his
application for writ of habeas corpus was "improvidently" denied by this court and "must
be reviewed . . . by this court with respect to the egregious conduct of the trial court at the
second prosecution attempt."  In pursuing this argument, appellant posits that the
prosecution's failure to have witnesses present and ready to proceed at the time he sought
to withdraw his plea "adversely affected its ability to prove Appellant guilty beyond a
reasonable doubt and as such they would have certainly risked a not guilty verdict by a
jury and an absolute bar against further attempts at prosecution on the actions asserted." 
Thus, appellant continues, retrial should be barred on the basis that the government
should not be allowed, through "the combined process of prosecutorial failings and
egregiously improper judicial rulings to prevent the perceived travesty of the possibility of
the prosecution not being able to meet their burden of proof based on the unavailability
of witnesses. . . ."  He concludes that the federal constitution "does not give the judiciary
the privilege of making determinations which undermine one constitutional right of a
person so as to protect another portion of the government [which] desires to subject a
person to prosecution on multiple occasions for the same offense."  Appellant's argument
requires a discussion of the whole double jeopardy concept.
	The risk associated with double jeopardy, as the name implies, is that of a second
prosecution for the same offense after an acquittal, conviction or multiple punishments for
the same offense.  Ex parte Broxton, 888 S.W.2d 23, 25 (Tex.Crim.App. 1994), cert.
denied, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995).  Thus, inherent within the
concept of double jeopardy lies the need for two distinct proceedings, which are
"essentially criminal" in nature.  See Breed v. Jones, 421 U.S. 519, 527-28, 95 S.Ct. 1779,
44 L.Ed.2d 346 (1995).  There are three possible events that would make the double
jeopardy doctrine applicable due to termination of the original jeopardy:  1) an acquittal;
2) a trial court's directed acquittal because of the insufficiency of the evidence; or 3) a
determination upon direct appeal that the evidence was insufficient to sustain the
conviction.  Vanderbilt v. Collins, 994 F.2d 189, 195 (5th Cir. 1993); State v. Vanderbilt, 973
S.W.2d 460, 462 (Tex.App.--Beaumont 1998, pet. ref'd).
	In Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996), the court explained the
general rule that a mistrial granted at the defendant's request poses no inhibition to retrial
under either the federal or state constitutions.  The reasoning underlying the rule, the court
noted, was that a defendant's motion for mistrial is considered "a deliberate election on his
part to forego his valued right to have his guilt or innocence determined before the first
trier of fact."  Id. at 698 (quoting United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 57
L.Ed.2d 65 (1978)).  However, as the court explicated, there is an exception to that general
rule, under both federal and state provisions, in instances in which the government, acting
through its representatives, purposefully forces the termination of a trial in order to repeat
it under more favorable circumstances.  In such instances, even in the event of a
defendant's successful motion for mistrial, the double jeopardy provisions are violated.  Id.
at 698-99.  The court went on to observe that under our state double jeopardy provisions,
"a successive prosecution is jeopardy barred after declaration of a mistrial at the
defendant's request, not only when the objectionable conduct of the prosecutor was
intended to induce a motion for mistrial, but also when the prosecutor was aware but
consciously disregarded the risk that an objectionable event for which he was responsible
would require a mistrial at the defendant's request."  Id. at 699.
	In Ex parte Davis, 957 S.W.2d 9 (Tex.Crim.App. 1997), cert. denied, 523 U.S. 1023,
118 S.Ct. 1307, 140 L.Ed.2d 472 (1998), the Court had occasion to consider the question
whether the double jeopardy prosecutorial misconduct rule also applied in instances in
which the trial proceeded to a verdict, but was reversed on appeal because of
prosecutorial misconduct.  En route to deciding that the rule was not applicable, and even
though it described the conduct of the prosecutor in the trial court as "reprehensible," the
high court determined that the Bauder rationale was not dispositive because of what the
Court described as "a most significant difference," namely, that the conviction was
reversed on appeal.  Id. at 13.  The logical reason for the distinction is that the type of
prosecutorial misconduct with which the Bauder court was concerned was of such a nature
as to deprive appellant of his due process right to trial before an impartial jury and the
possibility that without such misconduct an acquittal might result.  Id. at 13-14.  See also
Ex parte Cooks, 979 S.W.2d 53, 56 (Tex.App.--Amarillo 1998, pet. ref'd).
	In arguing that double jeopardy is applicable, appellant relies on, and quotes
extensively from, a plurality decision by the United States Supreme Court in United States
v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).  In that case, the plurality held
that a trial judge abused his discretion when, on his own motion, he declared a mistrial in
order to enable potential government witnesses to consult with their own attorneys before
giving testimony that might tend to incriminate them.  In doing so, the plurality noted the
reprosecution after a mistrial has unnecessarily been declared "obviously subjects the
defendant to the same personal strain and insecurity regardless of the motivation
underlying the trial judge's action."  Id. at 483.  However, as relevant here, the Jorn Court
expressly noted:
	Certainly it is clear beyond question that the Double Jeopardy Clause does
not guarantee a defendant that the Government will be prepared, in all
circumstances, to vindicate the social interest in law enforcement through
the vehicle of a single proceeding for a given offense.  Thus, for example,
reprosecution for the same offense is permitted where the defendant wins
a reversal on appeal of a conviction. [citations omitted]  The determination
to allow reprosecution in these circumstances reflects the judgment that the
defendant's double jeopardy interests, however defined, do not go so far as
to compel society to so mobilize its decision-making resources that it will be
prepared to assure the defendant a single proceeding free from harmful
governmental or judicial error.

Id. at 483-84.  
	Indeed, in Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987),
the Court explicated:
	It is a "venerable principl[e] of double jeopardy jurisprudence" that [t]he
successful appeal of a judgment of conviction, on any ground other than the
insufficiency of the evidence to support the verdict [citation omitted] poses
no bar to further prosecution on the same charge . . . . [citation omitted]
"Corresponding to the right of an accused to be given a fair trial is the
societal interest in punishing one whose guilt is clear after he has obtained
such a trial.  It would be a high price indeed for society to pay were every
accused granted immunity from punishment because of any defect sufficient
to constitute reversible error in the proceedings leading to conviction.  From
the standpoint of a defendant, it is at least doubtful that appellate courts
would be as zealous as they are now in protecting against the effects of
improprieties at the trial or pretrial stage if they knew that reversal of a
conviction would put the accused irrevocably beyond the reach of further
prosecution.  In reality, therefore, the practice of retrial serves defendants' 
rights as well as society's interest."

Id. at 402-03 (citing United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d
448 (1964)).  
	The rule against imposition of double jeopardy after appeal and reversal is
particularly applicable in a case such as this one, in which the trial court made a ruling that
an appellate court found to be erroneous.  If the act of making a ruling during the harried
atmosphere of a trial, which is later determined to be erroneous, constitutes an "egregious"
action by a judge sufficient to prevent retrial, there are very few judges indeed who would
not be subject to that attack.  Suffice it to say, the trial judge's conduct was not egregious,
double jeopardy is not applicable, and appellant's first two points are overruled.
	The impetus of appellant's third-point contention arises from a newspaper story in
which the reporter wrote that after the verdict in this case, one juror commented,
"[r]egardless of the crime, we struggled with the fact that we were deciding the life of
another human being.  But there was no problem with the sentence itself.  We had pretty
much determined that it would be the maximum." 
	 Appellant argues this statement from an anonymous juror made it very "clear" that
an impermissible decision had been reached by the jurors as to the sentence to be
imposed prior to the commencement of their deliberations.  Because he had been unable
to obtain information from the jurors about this question, appellant subpoenaed the jurors
to appear at his new trial hearing.  He argued that he did not intend to invade the thought
processes of the jurors, but wanted to interrogate each of them independently about the
source of the information mentioned in the article.  The trial judge refused to allow him to
do so and discharged the subpoenaed jurors.  Hence, this issue.
	Texas Rule of Evidence 606(b) provides, "[u]pon an inquiry into the validity of a
verdict or indictment, a juror may not testify as to any matter or statement occurring during
the jury's deliberations, or to the effect of anything on any juror's mind or emotions or
mental processes, as influencing any juror's assent to or dissent from the verdict or
indictment."  The only exception to that broad prohibition is that a juror may testify as to
whether any outside influence was improperly brought to bear upon any juror or to rebut
a claim that the juror was not qualified to serve.  The limitation upon post-trial juror
testimony is intended to encourage open discussion among jurors during deliberations, to
promote the finality of judgments, and to protect jurors from harassment by unhappy
litigants seeking grounds for a new trial.  Sanders v. State, 1 S.W.3d 885, 888 (Tex.App.--Austin 1999, no pet.).
	In order to be entitled to a factual hearing on instances of alleged jury misconduct
that might not be within the bar of Rule 606(b), those allegations must be supported by an
affidavit showing reasonable grounds for a factual inquiry.  See Jordan v. State, 883
S.W.2d 664, 665 (Tex.Crim.App. 1994); Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.
App. 1993).  Appellant was unable to obtain such an affidavit.  Richard Orr, the reporter
who took the statement from the unidentified juror, testified at the new trial hearing and
averred that he did not understand it to mean that the jurors had already made up their
minds as to the sentence to be assessed prior to the beginning of their deliberations.  In
this state of the record, the trial judge did not abuse his discretion in refusing to permit the
examination of the jurors.  To have done so would merely have permitted appellant to
engage in a "fishing expedition" without any of the prescribed and defined limitations. 
Appellant's third point is overruled.
	In his fourth point, appellant complains that the trial judge committed reversible error
by failing to require the newspaper reporter to reveal the name of the juror.  By failing to
do so, appellant argues, he was deprived of the last means available to him to show jury
misconduct.  Perusal of the record reveals that counsel asked the reporter if he knew who
the juror was and received an affirmative answer.  He then asked the reporter if he would
be willing to divulge the name of the juror to the court and the reply was that he would not
be willing to do so.  However, counsel never asked the trial court to order the reporter to
reveal the name and continued his examination by asking another unrelated question. 
Even assuming arguendo that appellant was entitled to the answer, a holding we
specifically do not make, by failing to request the trial court to order the answer and obtain
a ruling on the request, appellant waived any appellate complaint.  See Tex. R. App. P.
33.1(a).  Appellant's fourth point is overruled.
	In his fifth point, appellant asserts that his counsel was ineffective because he failed
to address his competency to stand trial, be held accountable for his actions and properly
investigate "all facts and witnesses necessary to provide effective representation."  The
criteria by which the required effectiveness of counsel under both the state and federal
constitutions are judged are those articulated in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986).  In Strickland, the Court adopted a two prong test to determine
ineffectiveness of counsel.  Under the first prong, a defendant must show 1) counsel's
performance was so deficient that counsel failed to function as the "counsel" guaranteed
by the sixth amendment to the federal constitution, and 2) that counsel's deficient
performance prejudiced the defense.  Strickland, 466 U.S. at 687.  To show prejudice
under the second prong, the defendant must show there is a reasonable probability that,
but for his counsel's unprofessional errors, the result of the proceeding would have been
different.  A reasonable probability, the Court explained, is one sufficient to undermine
confidence in the outcome.  Id. at 694.
	Additionally, under the Strickland test, the defendant bears the burden of proving
ineffective assistance.  When reviewing a claim of ineffective assistance, the appellate
court must indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance, that is, the defendant must overcome the
presumption that under the circumstances the challenged action might be considered
sound trial strategy.  Id. at 689.
	The record reveals appellant's trial counsel averred he had consulted with
psychologists Dr. Mark Cunningham and Dr. Randall Price, assertedly with the expectation
of using one of them as an expert witness.  However, after the consultation, neither of them
was called to testify.  It also reveals appellant's counsel had filed his motion for psychiatric
examination and appointment of a mental health expert to examine appellant.  This motion
was later withdrawn by appellant at a pretrial hearing.  Viewed in the light by which we
must view them, it is a reasonable conclusion that counsel determined that this type of
testimony would not be helpful to appellant.  Appellant asserts in his brief that his family
procured funds for the purpose of securing psychological testimony and it was only at trial,
and against his wishes, that he was informed no such testimony would be utilized. 
However, nothing in the record before us supports such statements, and we are bound by
the record.  Additionally, and parenthetically, in his post-trial pro se "Motion for Order to
Show Cause Why Van Williamson Should Not be Removed as Appellate Counsel,"
appellant does not include the failure to obtain and use psychological testimony in his list
of reasons why trial counsel should be removed.  Because the record does not support
appellant's claim of ineffective assistance of counsel in this regard, his fifth point is
overruled.
	The thrust of appellant's sixth point assertion of ineffective assistance of counsel
is that by advising him to elect to have the jury assess his punishment, he became subject
to a heavier sentence than would have been permissible had the judge assessed the
punishment.  In support, and without citation of relevant authority, appellant posits that
when a defendant has been convicted and the conviction has been reversed, upon a
second conviction, a judge may not impose a sentence greater than the one previously
assessed while a jury is not limited in that respect.  That being so, he concludes, by
advising him to elect jury sentencing, trial counsel was ineffective.
	In espousing this theory, apparently appellant relies upon the holding of North
Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on
other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865
(1989), and its progeny which stand for the proposition that if, after a reversal and remand,
a trial judge imposes a sentence more severe than that originally assessed, to prevent
judicial vindictiveness, the reasons for his doing so must affirmatively appear.  Id. at 726.
However, in an instance such as this one in which the second trial was before a different
judge, the Pearce presumption of vindictiveness is not applicable.  Jackson v. State, 766
S.W.2d 518, 521 (Tex.Crim.App. 1988).  That being true, whether or not trial counsel
advised appellant to elect to have the jury set his sentence, and the record does not show
any such advice, the fact that appellant did so with a bad result is not sufficient to
overcome the presumption that counsel's action was within the acceptable range of
reasonable trial performance.  We also note that at the time the trial judge allowed trial
counsel to withdraw, he commented that counsel had been effective and "did an excellent
job."  Appellant's sixth point is overruled.
	In his seventh point, appellant argues that the trial court reversibly erred by allowing
the prosecutor to present an argument unconstitutionally intended to inflame the passions
and prejudices of the jury.  This is directed at the portion of the prosecutor's argument in
which he told the jury, "[a]nd if you can roll all of that anger and that hatred and that
viciousness in that hammer and those six blows into probation, then he can ride the
elevator down with you . . . ."  There was no trial objection to this argument.  
	It is the general rule that a defendant's failure to timely object to a jury argument or,
in the event of a timely objection, the failure to pursue an adverse ruling, forfeits the
defendant's right to complain about the argument.  Lopez v. State, 860 S.W.2d 938, 943
(Tex.App.--San Antonio 1993, no pet.) (citing Briddle v. State, 742 S.W.2d 379, 389 (Tex.
Crim.App. 1987)); see also Tex. R. App. P. 33.1(a).  The exception to that general rule is
if the argument is so prejudicial that an instruction to disregard would not be sufficient to
remove the harm.  Briddle, 742 S.W.2d at 389.  This argument does not fall within that
category.
	Moreover, even if the question had been preserved for appellate review, the
argument would not require reversal.  It is axiomatic that proper jury argument must fall
within one of four categories; namely, 1) a summary of the evidence, 2) a reasonable
deduction from the evidence, 3) an answer to opposing counsel's argument, and 4) a plea
for law enforcement.  Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992), cert.
denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993).  Even so, an improper jury
argument is only reversible if it is extreme or manifestly improper, it violates a mandatory
statute, or if it injects new facts that are harmful to the defendant.  Id.  In that regard, the
portion of the prosecutor's argument in which he states, "if you can roll all of that anger
and that hatred and that viciousness in that hammer . . ." is reasonably related to the
testimony concerning appellant's conduct at the time of the assault both by the other
witnesses and the victim.  The portion of the argument that if appellant is given probation, 
"he can ride the elevator down with you," is similar to arguments held to be proper pleas
for law enforcement in Martinez v. State, 715 S.W.2d 725, 727 (Tex.App.--Houston [14th
Dist.] 1986, pet. ref'd) and Lopez v. State, 860 S.W.2d at 942-43.  Appellant's seventh
point is overruled.
	In summary, all of appellant's points are overruled and the judgment of the trial court
is affirmed. 
							John T. Boyd
							 Chief Justice

Publish.  
