                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00072-CR



        CHARLES CLYDE INGRAM, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 173rd District Court
              Henderson County, Texas
           Trial Court No. CR16-0711-173




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                    MEMORANDUM OPINION
        A Henderson County jury convicted Charles Clyde Ingram of indecency with a child by

sexual contact. See TEX. PENAL CODE ANN. § 21.11. Ingram was sentenced to seven years’

imprisonment and was ordered to pay $8,156.25 in attorney fees. On appeal, Ingram argues that

(1) double jeopardy barred his post-mistrial re-trial and (2) the trial court erred in assessing

$8,156.25 in court-appointed attorney fees against him. 1

        Because a double-jeopardy violation is not apparent on the face of this record, we find that

Ingram has failed to preserve his first issue for our review. We sustain Ingram’s second point of

error and modify the trial court’s judgment by deleting the assessment of attorney fees. As

modified, we affirm the trial court’s judgment.

I.      Ingram’s Double-Jeopardy Complaint Is Unpreserved

        A.       Factual Background

        The State’s charge alleging that Ingram committed indecency with O.C., a child, was

consolidated for trial with a charge of aggravated sexual assault of a different child victim. At

trial, O.C. testified about the details of Ingram’s sexual contact with him.                     During cross-

examination, Ingram asked, “And this isn’t the first time that you’ve accused somebody of sexually

assaulting you, correct?” The State objected under Rule 412, which generally prohibits evidence

of specific instances of a victim’s prior sexual conduct in sexual assault or aggravated assault




1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
                                                        2
cases. See TEX. R. EVID. 412(a). It also argued that the response would be irrelevant and “highly

prejudicial” and that it constituted “inappropriate impeachment.”

         When asked to explain how the prior allegation was relevant, Ingram responded that O.C.

made an allegation of sexual abuse against his babysitter during the forensic interview that seemed

outlandish and must have been false because it was not prosecuted. The State argued,

         If [Ingram’s] going to impeach him down this line, then I think we have a right to
         reestablish him by talking about all the sexual assaults that this defendant has done
         to this child because they’re going to make it look like he’s just making false
         accusations just because someone didn’t prosecute him . . . . And I don’t think
         [Ingram] can have it both ways, go down the road that way and not let us talk about
         all of the acts this defendant’s done.

As a result of this discussion, Ingram agreed to withdraw the unanswered question. Even so, the

State moved for a mistrial because the question had prejudiced the jury.

         Ingram argued that a mistrial was unnecessary because any error would be cured if the trial

court instructed the jury to disregard the question. The trial court found that Rule 412 did not

apply and denied the State’s motion for a mistrial. 2 The court noted, however, that “just because

somebody has been a victim of a previous sexual assault doesn’t mean that they’re not a victim of

this sexual assault” and ruled that the State could play O.C.’s forensic interview, which was

authenticated by Sheila Davis, program director of the local Children’s Advocacy Center (CAC).

Ingram argued that the CAC interview was hearsay that should not be played for the jury,

prompting the following discussion:



2
 Ingram also argued that the “motive or bias” exception to Rule 412, which generally prohibits evidence of specific
instances of a victim’s prior sexual conduct in sexual assault or aggravated assault cases, applied. The trial court
correctly ruled that Rule 412 does not apply to trials of charges of indecency with a child. Reyna v. State, 168 S.W.3d
173, 176 (Tex. Crim. App. 2005).
                                                          3
              [BY THE STATE]: . . . [T]he whole reason why this is coming in is for
       completion of questions that the defense has opened the door to. . . . That’s why it’s
       coming in. It’s either -- in my opinion, it’s either declare the mistrial or let this tape
       in based on the defendant’s errors.

               THE COURT: Well, . . . [m]y idea about it is, is to me it’s just basically if
       somebody asks -- cherry-picks questions from an interview or cherry-picks things
       from an interview and asks questions about them in front of the jury, then the fair
       thing to do is to play the interview. In other words, it’s the old -- age-old principle
       of opening the door.

               ....

               . . . [T]he Court believes that the most -- the most fair thing to do at this
       point -- it’s more fair to allow [the CAC interview] to come in and be published to
       the jury than it is either to instruct the jury to disregard the question or to give the
       jury no instruction and let the witness answer it with no further regard to the
       interview itself. In other words, I don’t think it’s fair to instruct the jury to disregard
       the question and not play the interview, and I don’t think it’s fair to let the witness
       answer the question and not play the interview. So I guess what I’m saying is, I
       think the most fair thing to do at this point under these circumstances is to just let
       you cross-examine [O.C.] all you want to about that interview and anything else,
       and then we’ll play the interview. And so that’s my ruling.

During the discussion, Ingram learned that Davis would be out of town during trial and was going

to be excused by the trial court. Ingram argued that, if the video was to be played, Davis’ presence

was required for purposes of cross-examination and objected to Davis being excused. After

another argument about whether the State should be permitted to play the CAC interview and

Ingram’s need for Davis’ presence at trial, the trial court decided to have a meeting in chambers.

       The record does not indicate the length of the in-chambers meeting. After it was over, the

trial court said it would grant a mistrial. There was no objection on the record to the mistrial. The

next day, the trial court asked the parties if there was “anything else to put on the record.” While




                                                   4
Ingram indicated that he had filed a motion to obtain a transcription of O.C.’s testimony, he stated

that there was nothing to put on the record “with respect to the mistrial.”

       Ingram was later tried and convicted for the charge against O.C. For the first time on

appeal, he argues that the re-trial violated double-jeopardy principles.

       B.      Preservation of Error

       The State argues that Ingram did not preserve this point of error for our review. “Failure

to present a timely and specific objection, request, or motion to the trial court for a ruling results

in waiver or forfeiture of the right to present the claim on appeal.” Stinecipher v. State, 438 S.W.3d

155, 159 (Tex. App.—Tyler 2014, no pet.) (citing TEX. R. APP. P. 33.1; Mendez v. State, 138

S.W.3d 334, 341–42 (Tex. Crim. App. 2004)). The preservation requirement

       (1) ensures that the trial court will have an opportunity to prevent or correct errors,
       thereby eliminating the need for a costly and time-consuming appeal and retrial;
       (2) guarantees that opposing counsel will have a fair opportunity to respond to
       complaints; and (3) promotes the orderly and effective presentation of the case to
       the trier of fact.

Id. (citing Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006)).

       “A defendant has the burden to ‘preserve, in some fashion’ a double jeopardy objection at

the trial court level.” Id. (quoting Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000)).

“But a double jeopardy claim may be raised for the first time on appeal when (1) the double

jeopardy violation is clearly apparent on the face of the record, and (2) when enforcement of the

usual rules of procedural default serves no legitimate state interests.” Id. (citing Garfias v. State,




                                                  5
424 S.W.3d 54, 58 (Tex. Crim. App. 2014) (citing Gonzalez, 8 S.W.3d at 643)). 3 Because Ingram

did not raise the issue of double jeopardy with the trial court, “we must therefore first determine

whether the undisputed facts show that a double jeopardy violation is clearly apparent in this case.”

Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014); see Stinecipher, 438 S.W.3d at 160.

        C.       When Double Jeopardy Bars Re-Trial After a Mistrial

        “Generally a criminal defendant may not be put in jeopardy by the State twice for the same

offense.” Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014) (citing U.S. CONST.

amend. V; Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002)). “The prohibition on double

jeopardy was extended to the states by the United States Supreme Court through the Fourteenth

Amendment.” Id. “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.”’” Id. (quoting Arizona v. Washington, 434 U.S. 497, 504 (1978) (quoting

Wade v. Hunter, 336 U.S. 684, 689 (1949))).

        “[T]here 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.” Id. at 769–70 (citing Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011);



3
 The continued viability of the error preservation rule espoused in Gonazalez has been questioned in concurring and
dissenting opinions in Ex parte Marascio, but has not been overruled. Ex parte Marascio, 471 S.W.3d 832, 837, 840,
850–51 (Tex. Crim. App. 2015) (per curiam) (Keasler, J., concurring, Hervey and Yeary, JJ., joining) (Richardson, J.,
concurring, Newell, J., joining) (Yeary, J., concurring, Keasler, J., joining) (Meyers, J., dissenting) (Johnson, J.,
dissenting).
                                                         6
Washington, 434 U.S. at 505–06). “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[.]’” Id. at 770 (alteration in original). “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.’” Id. (quoting Washington, 434 U.S. at 505).

       “The initial burden is on the defendant ‘to [g]o forth with evidence in support of [an]

allegation of former jeopardy.’” Ex parte Garrels, 559 S.W.3d 517, 524 (Tex. Crim. App. 2018)

(first alteration in original) (quoting McClendon v. State, 583 S.W.2d 777, 780 (Tex. Crim. App.

[Panel Op.] 1979)). “[I]n order to satisfy this prima facie burden, the defendant need only establish

‘that []he was tried for the same offense after a mistrial.’” Id. (quoting Hill, 90 S.W.3d at 313).

Once that burden is met, as it is in Ingram’s case, “the burden shifts to the State ‘to [either] prove

that appellant consented to’ the order terminating her first trial,” Id. (quoting McClendon, 583

S.W.2d at 780–81), or that there was “a ‘manifest necessity’ (also referred to as a ‘high degree’ of

necessity) for the mistrial.” Pierson, 426 S.W.3d at 770.

       D.      The Consent Exception

       The first exception permitting retrial after mistrial without violating double-jeopardy

principles occurs when the defendant consents to a retrial. The State argues that Ingram consented

to the mistrial. “Where a defendant consents to a mistrial . . . , the ‘manifest necessity’ doctrine

does not come into play.” Harrison v. State, 767 S.W.2d 803, 806 (Tex. Crim. App. 1989). When

the issue of consent is raised, it must be decided before the issue of manifest necessity. Id.

                                                  7
        “[C]onsent need not be expressed, but may be implied from the totality of circumstances

attendant to a declaration of mistrial.” Garrels, 559 S.W.3d at 523 (quoting Torres v. State, 614

S.W.2d 436, 441 (Tex. Crim. App. [Panel Op.] 1981)). Consent may not be implied unless the

record shows that the defendant “was ‘given an adequate opportunity to object,’” but a finding of

implied consent may not be “based solely on the lack of an objection.” Id. (quoting Torres, 614

S.W.2d at 441–42); but see Ex parte Montano, 451 S.W.3d 874, 878–80 (Tex. App.—Houston

[1st Dist.] 2014, pet. ref’d) (“A defendant who does not object to a declaration of mistrial, despite

an adequate opportunity to do so, has impliedly consented to the mistrial.”) (citing Torres, 614

S.W.2d at 441; Ledesma v. State, 993 S.W.2d 361, 365 (Tex. App.—Fort Worth 1999, pet. ref’d)).

        A review of the record shows that Ingram at first objected to the mistrial, withdrew his

question, and asked the trial court to instruct the jury to disregard the question as a lesser alternative

to granting a mistrial. The trial court agreed with Ingram that a mistrial was not required but

concluded that it would allow the State to play the CAC interview to cure any impression made on

the jury by the tone of Ingram’s question that O.C.’s prior allegation was false. The State argues

that, at that point, Ingram consented to the mistrial because he did not want the CAC interview

played in front of the jury. The record supports this argument.

        Ingram argued vehemently that he had not opened the door to the admission of the CAC

interview. After much argument between Ingram and the State, the trial court held a meeting in

chambers with both parties. After the meeting, without objection, the trial court announced on the

record that it would declare a mistrial the following morning. After that hearing, but before the

declaration of a mistrial, Ingram filed a motion asking for a transcription of O.C.’s testimony but

                                                    8
filed no objection to the mistrial. On the following morning, the trial court said it “intend[ed] to

order a mistrial” and asked the parties if there was “anything else to put on the record.” Ingram

stated, “Not with respect to the mistrial.”

       After reviewing the totality of the circumstances, we find that a double-jeopardy violation

is not apparent on the face of the record because it also shows that Ingram implicitly consented to

the mistral. Ingram had many opportunities to object in open court, in chambers, and by written

motion, but failed to do so. He also had a strategic incentive to consent to the mistrial—preventing

the jury from seeing the CAC interview. Under these facts, the record supports the State’s

argument that Ingram’s consent was implied. See Montano, 451 S.W.3d at 879–80; Ledesma v.

State, 993 S.W.2d 361, 365 (Tex. App.—Fort Worth 1999, pet. ref’d); Garner v. State, 858 S.W.2d

656, 659 (Tex. App.—Fort Worth 1993, pet. ref’d). As a result, the undisputed facts related to the

issue of consent do not show that a double-jeopardy violation is clearly apparent here. See Garfias,

424 S.W.3d at 58.

       We also find that enforcement of the usual rules of procedural default serve legitimate state

interests here. Had Ingram raised a double-jeopardy violation, he would have been required to

challenge the evidence showing his consent. This would have provided the parties and the trial

court with the opportunity to develop a record of what was discussed in chambers and whether

Ingram had expressly consented to the mistrial. Since the issue of consent is disputed and the




                                                 9
record supports a finding of implied consent, we find that Ingram needed to preserve any alleged

error by raising the double-jeopardy issue with the trial court. See id. 4

        E.       Manifest Necessity

        As for the second exception permitting post-mistrial retrial without violating double-

jeopardy principles, “[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.” Pierson, 426 S.W.3d at 770 (citing Garza,

337 S.W.3d at 909). “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. (quoting Washington,

434 U.S. at 514). And “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. (alteration in original)

(quoting Garza, 337 S.W.3d at 909).

        The State moved for mistrial after Ingram asked O.C., “And this isn’t the first time that

you’ve accused somebody of sexually assaulting you, correct?” The trial court granted a mistrial

because it determined that Ingram’s question was improper and may have influenced the jury.

“[T]he 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.’” Id. (quoting Washington, 434 U.S. at 511). For this reason, “when a trial judge’s



4
Out of an abundance of caution, and as result of the language in the concurring and dissenting opinions of Marascio,
we will also analyze the issue of manifest necessity.
                                                        10
decision to grant a mistrial is based on the risk of juror bias, that ruling is entitled to ‘great

deference,’ regardless of whether the complained of conduct took place during opening arguments

or took the form of a question on cross-examination.” Id. at 774.

       In examining whether Ingram’s question caused a manifest need to declare a mistrial, we

are guided by the Texas Court of Criminal Appeals’ decision in Pierson. As in this case, Pierson

was tried for indecency with a child and aggravated sexual assault of a child. Id. at 765. After the

victim’s direct examination, the defense’s first question “on cross-examination was, ‘Did you also

make an allegation that [Appellant] did these same things to his own daughter?’” Id. The State

objected to the question before it was answered, and the trial court granted the State’s request for

a mistrial after a hearing. Id. at 765–66. This Court affirmed the trial court’s decision of manifest

necessity. Pierson v. State, 398 S.W.3d 406, 417 (Tex. App.—Texarkana 2013), aff’d, 426 S.W.3d

763.

       In affirming our decision, the Texas Court of Criminal Appeals rejected Pierson’s

arguments that (1) “there was just simply a question asked, did you make this allegation. There

was no inference o[f] whether it was true or not true” and (2) that, as a result, (a) “there was no

manifest necessity to grant the State’s request for mistrial because the State was not harmed by the

question” and (b) “there were less drastic means to remedy the problem than granting a mistrial.”

Pierson, 426 S.W.3d at 768 (alteration in original). The court reasoned that it was Pierson’s burden

to prove the admissibility of the evidence he sought to introduce by his question, but that he failed

to do so under Rule 608(b), which discusses when a witness’s character for truthfulness may be

impeached. Id. at 770, 772.

                                                 11
        As relevant, Rule 608(b) provides that “a party may not inquire into or offer extrinsic

evidence to prove specific instances of the witness’s conduct in order to attack or support the

witness’s character for truthfulness.” TEX. R. EVID. 608(b). Ingram argues that Rule 613 provided

an exception to Rule 608(b) because he planned on using the evidence solicited to impeach O.C.’s

bias or motive. See Pierson, 398 S.W.3d at 415 (discussing Rule 613’s exception to Rule 608(b)).

Yet Ingram’s substantive explanation to the court showed he merely wished to establish that the

accusation was allegedly false. We previously found that “evidence of [an] allegedly false

allegation was not admissible to prove the child’s propensity to lie,” because “evidence of prior

false allegations of molestation are normally not admissible to prove” such a propensity. Id.

        Here, just as in Pierson, Ingram’s question insinuated that the child victim made a false

allegation. See Pierson, 426 S.W.3d at 768–69. The explanation provided by Ingram about the

admissibility of the evidence he sought to establish mirrors the explanation provided by Pierson.

Just as the Texas Court of Criminal Appeals concluded in Pierson, we likewise find that,

        [u]nder these circumstances, the trial court was free to conclude that Appellant
        failed to carry his burden, as proponent of the evidence, to show that the question
        was anything more than a prelude to impeachment on a collateral matter and an
        impermissible attempt to attack the complaining witness’s general credibility with
        evidence of specific instances of conduct. . . . [T]he trial court did not abuse its
        discretion when it excluded Appellant’s cross-examination question as
        impermissible.

Id. at 772.

        The record also shows that the trial court ruled out less drastic alternatives than a mistrial.

Id. at 775. Finding that an instruction to disregard would be insufficient given the impression left

on the jury as a result of the question, the trial court proposed allowing the State to play the CAC

                                                  12
interview. The record shows that that proposal was not accepted by Ingram. After considering

the arguments about its proposed cure, the trial court determined that its only choice was to declare

a mistrial. Because the question in Pierson was much like the question Ingram asked here, we

adopt the Texas Court of Criminal Appeals’ reasoning and conclude “that the trial court exercised

sound discretion in determining” that the proposed lesser alternatives were not “viable

alternative[s] to the granting of a mistrial.” Id. As a result, we find error is not apparent on the

face of the record because “the trial court was within its discretion to declare a mistrial based on

manifest necessity due to the actions of defense counsel.” Id.

       F.      Conclusion

       We conclude that a double-jeopardy violation is not clearly apparent from the face of this

record but cannot conclude that the usual rules of preservation would serve no legitimate interest

in this appeal. See Garfias, 424 S.W.3d at 64; Gonzalez, 8 S.W.3d at 643; Stinecipher, 438 S.W.3d

at 162. As a result, the rules of error preservation should not be suspended, and we conclude that

Ingram forfeited his double-jeopardy complaint by failing to raise an objection with the trial court.

See Garfias, 424 S.W.3d at 64; Gonzalez, 8 S.W.3d at 643.

II.    We Delete the Assessment of Attorney Fees Because Ingram Is Indigent

       Because the trial court found Ingram indigent, he was presumed to remain indigent absent

proof of a material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p),

26.05(g) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet. ref’d).

Even so, the trial court, which also found Ingram indigent after trial for purposes of appeal,

assessed $8,156.25 in attorney fees against him.

                                                 13
       Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the

authority to order the reimbursement of court-appointed attorney fees only if “the judge determines

that a defendant has financial resources that enable the defendant to offset in part or in whole the

costs of the legal services provided . . . including any expenses and costs.” TEX. CODE CRIM. PROC.

ANN. art. 26.05(g). “[T]he defendant’s financial resources and ability to pay are explicit critical

elements in the trial court’s determination of the propriety of ordering reimbursement of costs and

fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App.

2011) (alteration in original) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.

2010)). Since there is no finding of the ability of Ingram to pay them, the assessment of the

attorney fees was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013);

see also Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d

944, 946–47 (Tex. App.—Texarkana 2013, no pet.).

       “Appellate courts ‘have the authority to reform judgments and affirm as modified in cases

where there is non reversible error.’” Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435

S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (“comprehensively discussing appellate

cases that have modified judgments”)). We sustain Ingram’s second point of error and modify the

trial court’s judgment by deleting the assessment of $8,156.25 for attorney fees.




                                                14
III.   Conclusion

       We modify the trial court’s judgment by deleting the assessment of $8,156.25 for attorney

fees. As modified, we affirm the trial court’s judgment.




                                             Scott E. Stevens
                                             Justice

Date Submitted:       November 26, 2019
Date Decided:         December 12, 2019

Do Not Publish




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