Although N ichols cites both the fe dera l and state constitutions, he does not contend that 1 the Te xas C on sti tut ion ’s do ub le je op ard y c la us e c on fe rs any g re a te r pr ote c tio n than d oe s th e F if th Am e ndme nt. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 021 -CR

Ex pa r te Br ya n Al e xa nde r Ni c hol s

FR OM T HE C OU N T Y C OU R T A T L A W N O. 4 OF T R A V IS C OU N T Y NO. 7189 57 , HO NORAB LE MI KE DENTO N , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
A mistrial was dec lare d on the State’s motion after jeopar dy attache d at B ry an Alexander Nic hols’s trial for assaulting his former wife. Nichols subsequently applied for

a wr it of habea s corpus urg ing that further prosec ution of this cas e wo u ld constitute double jeopardy
. See U.S. Const. amend. V; Tex. C o n s t . art. I , § 14. The wr it issued, the trial court denie d relief , and 1 Ni c ho ls a pp e a le d to thi s Co ur

t. As a g ener al rule, double jeopar dy bars a retria l if , afte r beingimpaneled a

nd sworn, a trial jury

is discharg ed without rea ching a ver dict. Ex pa rteFi e rro , 7 9 S. W.3 d 5 4, 56 (T e x. Cr im. App. 2002). Double jeopa rdy does not apply , howeve r, if the mistrial was g rante d on the def endant’ s motion or with his consent or if the mistrial was re quired by manifest nec essity
. Id
. Both e x ceptionsWhe n n e c e ssa ry fo r c lari ty , we wi ll u se B ryan a nd Th e re sa Ni c ho ls’ s f

ir st n a me s. Al l 2 re fe re nc e s to “ Ni c ho ls” in t his op ini on

are to B ryan N ic ho ls. 2 are at is su e in t

his c a se . We c on c lud e that N ic ho ls c on se nte d to the mis tr ia l and that ma nif e st
nece ssity was pre sent. Acc ording ly , we a ffirm the tria l court’s orde r.
Backg ro und Br y an and T here sa Nichols we re divorc ed in J anuar y 2005 afte r seve ral y ear s of marria g e. I n Dec ember

2005, Br y an wa s living in Austin with their three yo u n ges t ch i ldren a nd 2 There sa wa s living in Houston with the oldest child, E.N.

There sa Nichols testified that on the e vening of De cembe r 1 3 , 2 0 0 5 , she and E.N
. drove to Austin, wher e she w as to beg in a new job and where she hoped to “wor k our family

back toge ther.” They

arr ived at B ry an’s r esidenc e at 12:30 a.m. on Dece mber 14. The resa put E.N. to bed
on the c ou c h in the liv ing ro om, the n sh e we nt to B ryan’ s ro om and g ot int o be d w ithhim . T he re sa testified that B ry an wa s ang ry with her be cause he had e x pecte d her to a rrive e arlier . They

beg an to argue, and T here sa told Br y an that she w as g oing to g o sleep on the couc h with E.N. When she sta rt e d to g e t out of

be d, B ry an “ g ra

bb e d me a

nd y ank e d me ba c k d ow n. ” Br y an th e n “ hit

me wi th an op e n h and .” Th e re sa te sti fi e d th a t B ryan “ pu sh e d me do wn on the be d s ide wa

y s and tol d me that si nc e thi s w a s g oin g to b e the la st t ime he e ve r g ot t o s e e me , h e wa s g oin g to m a ke it a g ood one.” Br y an ri p ped The resa ’s clothing and pushed he r ag ainst the wall. E.N. c ame into the room, and B ry an orde red he r to leave or “she would be next.” There sa said that she mana g ed to g et out of bed a

nd was try ing to g et dresse d when B ry an kicke d her, knoc ked her to the floor, and be g an to choke he r.3 Th e re sa te sti fi e d th a t sh e ma de he r wa y to t he liv ingro om. B ryan s e ize d h e r p ur se and took he r car key s and cell phone. He then w ent outside, saying he was g oing to c all the police. There sa closed the front door be hind him and locked it. By this time, all of t he childre n wer e aw ake and joined The resa

in the living room. The n, the front door bu rs t o p en an d Br

y an re enter ed the ho us e . H e wa lke d to the c ou c h, se ize d th e c ou ple ’s fi ve -y e ar- old

so n, and tur ne d to le a ve . T he re sa said that when she tried to stop him, he cursed he r and “ hit me so hard that I didn’t know what he hit me wi th. ” She te sti fi e d, “ I tho ug ht he tor e of f pa rt of my fa c e , be c a

us e I c ou ldn ’t se e ou t of

my ri g ht e y e . I t jus t hurt so ba d. An d the n I jus t fe lt the wa rm th a nd it k ind of we nt n umb .” She sa id that he r n e xt cl e ar m e mor y wa s a ft e r t

he arr iva l of

e me rg e nc y

me dic a l pe rs on ne l. Deputy L eonar d Shepperson wa s the first offic er on the scene . He testified that he found Ther esa slumped on the living room floor wi t h a six -inch puddle of blood under he r hea d. Shepperson sa id, “I

actua lly thought I had a g unshot victim, because that’s how much blood was on her f ace and her

hair.” Br y an Nichols testified that he and The resa had ar g ued dur i n g sever al telephone
conver sations on Dece mber 13 re gardingwho was to have custody of the c hildren during the holiday s. He said that dur ing the se ar g uments, There sa had thre atene d to come to Austin and take the children but he did not take the thre at seriously . Acc ording to Bry an, he a nd the childre n went to bed that nig ht at 9:00 p.m. He was a wake ned by someone sit ting on his chest, c hoking him. Not knowing who it was and f ear ing f or his safe ty , he seized the pe rson’s neck and, at the same time, pushed the pe rson “ve ry

hard, a lmost wit h ever

y thing Ihad.” T he per son fell to the floor, a nd Br y an saw that it was The resa . He g rabbe d his cell phone a nd walked outside to c all the police.The order was appar ently made orally and does not appea r in the re cord be fore us, which 3 contains only

a par tial reporte r’s re cord of

the trial. The exis tence of the order and its ter ms are not in dispute. 4

As he st ood outside talking on the phone, Bry an sawThere sa standing on the front porch wi t h the childre n. He sa w something in her ha

nd which he thoug ht might be a knife. He te sti fi e d th a t “ [s]he ha d n e ve r d on e any thi ng lik e thi s be fo re ” and he wa s c on c e rn e d f or the sa fe ty of the c hildren. B ry an testified that whe n he started walking back toward the house, Ther esa w ent back inside w ith the children a nd closed the f

ront door. When he trie d to open the door, he found that it was locked. H e “put my shoulder into it and hit it as hard as I could.” He testified that the door “kic ked wide ope n” and struc k There sa on the he ad.

Be fore testimony

beg an, the c ou rt o rd er ed both parties not to mention or offe r evidenc e of a

ny other a cts of violence or misconduct by either B ry an or The resa without first obtaining an admissibility ruling from the c ourt outside the jury ’s pre sence . Duri ngthe c ours e 3
o f t h e t r i a l , b o t h s i d e s v i o l a t e d t h e o r d e r t o t h e c o u rt ’ s o b v i o u s d i s p l e a s u r e . D u r i n g h e r t e s t i m o n y, There s a w a s a s k e d b y th e p r o s e c u to r w h a t w e n t thr o u g h h e r mi n d a s B r y an c h o k e d h er. She
ans we re d, “ Itho ug ht h e wa s a c tua lly g oin g to k ill me thi s ti me.” Th e c ourt su sta ine d th e de fe ns e objection and instructe d the jury to disreg ard the s t at em en t
. The c ourt war ned the State a

nd the w i t n e s s , “ I f

t h i s w e r e t o o c c u r

a g a i n , Iw o u l d

e n t e rt a i na

m o t i o nf o r m i s t r i a l
. ” D u r i n g c r os sexamination, defen s e co u n s el asked There sa if she ha d a re g istration for her car . The c ourt interrupted a

nd, out of the jury ’s hea ring , admonished counse l that the question was a “ blat ant viola t i o n o f m y

order about other thing s” and w arne d him that “[t ]he nex t time I will hold y ou in contempt.”5 After Br y an testified that The resa had attac ked him and that he ha d acte d in selfde fe ns e , the c ourt ru le d that th e State wo uld be a llo we d to c ro ss- e xami ne him a bo ut a n in c ide nt i n J uly 2 0 0 3 i n wh i ch he wa s arr ested for and admitted assa

ulting The resa . I n response to the p r o s e c u to r ’ s qu e s ti o n s , B r y an a c kn o w le d g e d th a t h e h a d b e e n ar r e s te d , b u t h e s a id that the
acc usation was fa lse. He e x plained that he g ave the inculpatory statement only

beca use Ther esa ha d promised him that she would not press cha rg es. Duringredire ct, defe nse counsel, ref err ing to the 2003 incident, aske d Br

y an if “she ever pulled this same thing on a ny other individuals.” The court sustained the State’s objec tion and ag ain admonished de fense counsel a bout violating the pr etrial order . L ater , the cour

t ag ain admonished de fense counsel a fter he asked B ry an i f T h er esa had “psy cholog ical disabilities.”
The Mistrial

During the sec ond day

of testimony , the cour

t rec onsidered its earlier

ruling and allowed the de fense to rec all Br y an to testify

that There sa had f

alsely acc used three other men of assaulting her. B ry an identified those me n as DougPolvo, Greg Wil son, and Stewar t Garc ia. B ry an testified that Ther esa ha d admitted to him that her ac cusation aga i n st Garc ia had be en fa lse. The pr os e c uto r’ s c ro ss- e xami natio n b e g an a s f oll ow s: Q. Iwant to talk to y ou first about Mr. Ga rcia . Do y ou know w h at y ear that wa s? A. That wa s ear ly

‘90s, ‘93 somewhe re. Q. All rig ht. Wasn’t Ms. Nichols about 18 y ear s old when that happe ned? A. No, she wa s a little older than that. She wa s working in a strip bar.6 The c ourt immediately

remove d the jury
. The State objected that the rema rk about There sa workingin a strip bar violate d the court’s order prohibiting evidence of ot her bad ac ts. The court sustained the objection and a nnounced that “we a

re g oing to take a sh o rt b re ak.” After the br e a k, and

wh ile the jur

y wa s st ill ou tsi de the c ourt ro om, the State a sk e d f

or a mis tr ia l: Yes, Your Honor. I would ask for a mi strial under these circumstances. The defe ndant was w ell awa

re of the Court’s re peate d order not to mention this ty pe of ir re le va nt i nf or ma tio n a bo ut t he vic tim . We th in k th at this ty pe of vio la tio n is something w e ca

n’t rec over f

rom. We believe it i s unfairly prejudicia l and has hurt the victim to the ext ent that a ve rdict in this case w ould n o t b e j u s t
. I ask that y ou g ra nt a mis tr ia l w ith ou t pr e

jud ic e , b a se d o n th e de fe nd ant’ s o wn mis c on du c t.
The court asked defe nse counsel if he ag ree d to the mistrial moti on, disag ree d, or “[stood] neutra l.” Counsel replied, “ Ife el v er y s t rongly both way s, which is another way of say ing ne utral, Your Ho n o r. ” T h e c o u rt t h en an n o u n ce d i t s ru l i n g: All rig ht. For

the re cord, the re ha

ve bee n numerous wa

rning s as the re cord ref lects, spec ifically about bring ing in outside ba d acts. The question and the a nswer just given, the re c an be no othe r conc lusion that thi s was a studied a nd i t was cer tainly a purpose ful statement. This was not a slip of the tongue
. Ido no t gra n t m i strials lightly . And in what, eig ht y ear s, there’ s only been one. B ut based upon a ll the warning s we have had t o d at e, an d this statement re c e ntl y , a

nd de sp ite my

re luc tan ce to tel l the jur y that th e y

c an g o h ome thi s a ft e rn oo n a ft e r w hat th e y ’v e be e n thro ug h, it i s o bv iou s th a t th is last state me nt i s g rounds for a

mistrial. And I am g oing to g rant the mistrial. And we ’ll set it back on the do c ke t.
Af te r t he c ourt ann ounc e d its ru lin g , d e fe ns e c ouns e l st a te d, “ Of fi c ia lly , I wo uld a sk th e Co u rt n o t t o g r an t a

mi s tr ia l. B u t I

u n d e r s ta n d th e Co u rt’ s ma d e it s d e c is io n . ” H e a d d e d , “ We do object to the mistrial.”7 The Hab e as Cor

pus Ruli ng Nichols ap p l i ed for a writ of habe as cor pus urg ing that the mistrial had not been justified by m an i fe s t n ecessity and that any

further prosec ution in thi s case would violate the
c on sti tut ion a l guar ante e a g a ins t do ub le je op ard y . T he wr it i ssu e d a

nd a ft e r h e ari ngthe argume nts
o f c o u n s el , t h e t ri al co u rtd en i edre l i ef
. T h e c o u rt gav e t h re e r ea s o n s fo r i t s ru l i n g. First, the c ourt found that Nichols’s c onduct had be en deliber ate:
Th e re sp on se “ She ’s wo rk ingin a str ip bar” wa s ce rt a inl y no t in re sp on se to the qu e sti on

a sk e d o n c ro ss- e xaminat io n b y the State . I t c e rt a inl y

wa s unf a ir ly prejudicia l to the complainant and the State. And I believe a s Ihave a lrea dy stated in the rec ord the stateme nt obviously was mea nt to have an a dverse impact on the jury , calc ulated to prejudice the jury in my opinion, a nd I do so find. Ido believe tha t d e f e n d an tkn o w i n g l y an d

p u r p o s e l y i n j e c t e d e r r o r i n t o t h e c a s e an d

t h a t ’ s w h y I g ra nte d th e mis tr ia l. Second, the c ourt pointed out that the mistrial was dec lare d only afte r ca ref ul consideration: A couple of

other thing s that Ithink I n ee d t o co m m en t on that wer e in the motion . . . I think y ou put in the writ that this .
. . ruling was made immediately
. I thi nk the re c or d r e fl e c ts th at in fa c t th e ru lin g wa s n ot m a de un til a ft e r t he re wa s a brea k of seve ral minutes , an d i n fact was made not only afte r the bre ak but af

ter counsel wa s asked f

or input into the ruli ng prior to the ruli ng being made. So it was not in my opinion, and in fac t Ifind that in fac t a break was taken and all sides wer e a sk e d f or inp ut.
F ina lly , th e c ourt

was of th e op in io n th a t N ic ho ls h a d c on se nte d to the mis tr ia l or ha d f a ile d to tim e ly ob je c t:
And that I t hink leads to my third point, I also think the rec ord re flec ts that the ob je c tio n fo r mis tr ia l wa s wa ive d and is un tim e ly
. I thi nk the record re fl ects clea rly that afte r the bre ak the State made its Motion for Mist rial, defense w as aske d8

for input, and . . . a s Irec all . . . defe nse counse l’s response was “ I s t and neutr al.” After that statement was made the Court g rante d the mistrial and then only afte r that was the obje ction to the mistrial made. So I do believe not only was it untim ely but also waive d by

that . . . .
Consent

to Mistr ial I n two poi nts of err or, Nichols conte nds that the trial cour t erre d by ruling that he waived a ny objection or c onsented to the mistri al
. He fu rt h er contends that, contra ry to the trial court’s r uling, his objec tion to the mis trial was ti mely . Nichols argues that a de fenda nt is not require d to object to a mistrial in or der to pr eser ve a former jeopar dy claim if the mistrial was not authorized by

law. Hi pp le v . S tat e , 191 S.W. 11 50 , 115 6 (T e x. Cr im. Ap p. 19 17 ) (o p. on re h’ g ); see als o Da v is v . S

tat e , 1 64 S.W. 2d

68 6, 68 9 ( Te x. Cr im. Ap p. 19 42 ) ( op . o n r e h’ g ). He fu rt he r a sse rt s that hi s atto rn e y ’s state me nt t hat he wa s “ ne utr a l” did no t c on sti tut e c on se nt to the mis tr ia l and that, in any case , counsel’s consent was not eff ective as to him. Se e Hi

pp le , 1 9 1 S
. W
. a t1 1 5 5
. F i n a l l y, Ni c h o ls u r g e s th a t h is a tt o r n e y w it h dr e w an y

c o n s e n t h e mi g h t h a v e g iv e nan d e xp r e s s ly

o b je c ted to the mistrial befor e the court dism issed the j ury . This, Nichols contends, wa s a timely objection to t he mis tr ia l, i f a

ny we re ne e de d to pr e se rv e his do ub le je op ard y c la im. I n a more rec ent opinion, the court of c riminal appea ls addresse d the questi on of whether double jeopar dy

barr ed re trial in a ca se in which a mistrial was dec lare d on the motion of defe nse counse l, but the trial court did not obtain the defendant’s personal ag ree ment. Ri os v . S tat e , 557 S.W .2d 87, 90 (Tex. Crim. App. 1977). Citing the pr inciple that a de fenda nt does not have the rig ht to be both repre sented by counsel a nd to r epre sent himself, the court held that a defe ndant nee d not be aske d by

the trial court if he persona lly approve s of his attorney ’s motion for mistrial. Id . at9

91. I f a de fenda

nt need not per sonally

concur in his attor n ey ’s m o t i o n for mistrial in order to be bound by the m otion, it would follow that he need not persona lly concur in his attorney ’s conse nt to a mistrial in order to be bound by that consent. The Rios court fur

ther he ld that i t was “e ntirely logic al” in that ca se to infer that the defe ndant had impliedly consente d to the waiver of his double jeopar dy claim, citing the Supreme Court’s stateme nt that the permissi bility of a r etrial followinga mistrial does not depe nd
on a knowing, volunt ary , and intellige nt waiver of a c onstitut ional rig ht. Id
. (q u o t i n g U. S. v . D ini tz , 42 4 U .S. 60 0, 60 9 n .1 1 ( 19 76 )) . B oth the c ourt of c ri min a l a

pp e a ls a nd thi s Cour t hav e he ld that a defe ndant’s conse nt to a mistrial may be infe rre d from the totality of the c ircumstance s. Torres

v . S tat e , 61 4 S.W. 2d

43 6, 44 1 ( Te x. Cr im. Ap p. 19 81 ); Al le n v . S tat e , 656 S.W .2d 592, 595 (T e x. Ap p. —A us tin

19 83 , n o p e t.) . Co ns e nt m ay be inf e rr e d fr om t

he de fe nd ant’ s f

a ilure to t ime ly ob je c t to th e mi str ia l, p ro vid e d th a t th e de fe nd ant w a s g ive n a n a de qu a te op po rt

un ity to o bje c t. Torres , 614 S.W .2d at 441-42.

The trial rec ord re flec ts that after sustaining the State’ s objection to Nichols’s re mark that There sa had w orked “ in a strip bar,” the cour t took a brea

k of seve ral mi nutes’ duration. I n light of what had happen ed, defense c ounsel could have anticipated that the State might move f or a mistrial after the brea

k. When the m istrial motion was in fac t made, c ounsel was e x pressly asked by the trial cour

t if he ag ree d or disag ree d with the mistrial moti o n , o r i f h e wa s neutra l on the question. Given this opportunity to speak a g ainst a mistrial, counsel re sponded t h at he wa s “neutr al.” I t is reasona

ble to infer f

rom this that Nichols consented to the mistrial. Se e id
.10 Nichols argues that i f h i s attorney initially consente d, that consent wa s revoke d when counsel later objected to the mistrial before the cour t discharg ed the jury . The State re sponds by po int ingto t

he g e ne ra l r

ule that an o bje c tio n, to b e ti mel y , mu st be ma de a t th e e a rl ie st opportunity afte r t he ground of objection becomes appar ent. Se e Lag ro ne v . S tat e , 942 S.W .2d 602, 61 8 ( Te x. Cr im. Ap p. 19 97 ); Po lk v . S tat e , 729 S.W .2d 749, 753 (Tex. Crim. App. 1987). I t is c lear f r o m t h e r e c o r d

t h a tN i c h o l s d i d

n o to b j e c tt o t h e S t a t e ’ s m i s t r i a l m o t i o na tt h e e ar l i e s to p p o rtu n i t y. To the c on tr ary , hi s att or ne y e xpre ssl y

de c lin e d th e op po rt

un ity to o bje c t and

ann ounc e d h is
ne utr a lity wi th re g ard to the mot ion
. I t wa s on ly a ft e r the c ourt g ra nte d th e mot ion

that th e de fe ns e voiced its pro forma objection to the mistrial. Under the c ircumstance s, the State corr ectly argues that the objection ca

me too late. Neve rt h el es s , Nichols did object to the mistrial befor e the jury was discha

rg ed. Al tho ug h th e c ourt

ha d a nn ounc e d its r

uli ngg ra nti ng the State ’s mot ion , it

sti ll h a d th e op po rt

un ity to rec onsider the r

uling in lig ht of the objec tion and continue the trial. B eca use the objec tion might be c on sid e re d ti me ly , w e wi ll a dd re ss t he me ri ts o f N ic ho ls’ s d ou ble je op ard

y argume nt.
Ma nif est N e c essi ty Th e c on sti tu ti on a l do ub le je op ard y pr ote c tio n e mbr a c e s th e de fe nd ant’ s r ig ht t o have his trial completed by a particular tribuna l. Arizona v. W ashington , 434 U.S. 497, 503 ( 1978). Thus , w he n a

mis tr ia l is de c lare d o ve r t he de fe nd ant’ s o bje c tio n a ft e r t he jur y is sw or n, a re tr ia l is barr ed by double jeopar dy unless there was a manifest necessity for the mistrial. Id . at 50 5; Fi e rro , 79 S.W. 3d

a t 56 . A s a

g e ne ra l r ule , ma nif e st n e c e ssi ty

e x is ts whe n th e ci rc ums tanc e s r e nd e r i t impossibl e to re ach a

fair ve rdict, whe n it is i mpossible to procee d with trial , or whe n the ver dict11

would be automatica lly

reve rsed on a

ppeal be cause of trial er

ror. Ex parte Bruc e , 112 S.W .3d 635, 640 (Tex. App.—For

t Worth 2003, p et. re f’d, untimely filed). B efor e g ranting a mistrial, a trial court must deter

mine whether

alternative course s of action are available and, if so, choose one that is le ss dr astic than a mistrial. Id
. We re vie w a tr ia l c ourt ’s de c isi on

to g ra nt a mis tr ia l f or an a bu se of discre tion. Id
.

Nichols argues that the trial c ourt g rante d the State’s motion for mist ri al wit hout consideringa less dra stic alternative. He points out that during jury selec tion, the prosecutor

asked the pane lists i f they

could ag ree that all crime vic tims are entitled to the prote ction of t he law. She asked if a ny members of

the pane l w o u l d “h o l d it ag ainst the victim” if he or she had “ an alc ohol problem, d ru g problem, they may have ha d aff

airs, they may have be en in a pr ofession that y o u c e rt a i n l y w o u l dn ’ t b e i n , s u c h a s a s t r i p p e r o r a p r o s t i tu t e o r a p i mp . ” A l l of the pa ne lis ts ind ic a te d th a t th e y

c ou ld p ut a sid e any

dis ta ste fo r the vic tim ’s pe rs on a l c ho ic e s and tr e a t th e vic tim fairly . Nichols urg es that under the circ umsta n ce s , an instruction to disreg ard the offe nding
com men t wou ld have be e n s uf fi c ie nt t o c ur e any

pr e jud ic e to t

he Sta te and that th e mis tr ia l w a s, there fore , an abuse of discre tion.

I n W ashington , the Court observe d that the “manifest nece ssity ” standa rd ca nnot be applied “me chanic ally

or without attention to the particular problem conf

ronting the trial judg e. I ndeed, it is manifest that the key word ‘nece ssity ’ cannot be interpr eted litera lly ; instead, contra ry t o t h e t ea ch i n g o f W eb s t er , w e a s s u m e t h at t h er e a re d egr ee s o f n ec es s i t y an d we re qu i re a ‘ h i gh deg ree ’ bef

ore c oncluding that a mistrial is appr opriate.” W ashington , 434 U.S. at 506 (footnotes12

omitted). I n that case , the trial court order ed a mistrial af ter the de fenda

nt’s lawy er ma de improper and pre judicial rema

rks during his opening statement to the jury
. Id . at 510. The Court wr ote:
We are persuad ed that, along the spec trum of trial problems whic h may war rant a mistrial and wh i ch vary in their amena

bility to appellate sc rutiny , the difficulty which led t o t h e m i s t ri al in this case . . . f alls in an are a whe re the trial jud g e ’s de te rm inatio n is e nti tle d to sp e c ia l r e sp e c t.

. . . We rec og nize that the extent of the possible bia s cannot be measure d, and that . . . some trial judg es mig ht have pr oceeded with the tria l after g iving the jur

y appropr iate ca

utionary instructions. I n a s t ri ct, literal sense , the mistrial was not “nec essar y .” Ne verthe less, the over riding interest in the evenha nded administration of justice re quires that we acc ord the hig hest deg ree of re spect t o the trial judg e’s evaluation of the likelihood that the impartiality of one or m ore jurors may have be en a ff e c te d b y the imp ro pe r c omm e nt.
Id . at 51 0- 11 . T he Court we nt o n to po int ou t th at th e “ tr ia l ju dg e did no t a c t pr e c ipi ta te ly

in
re s p o n s e to th e p r o s e c u to r ’ s r e qu e s t f o r a mi s tr ia l. O n th e c o n tr ar y , e v in c in g a c o ncer

n for the possible double jeopar dy

conseque nces of

an er roneous r uling, he g ave both de fense counsel a nd the prosec utor full opportunity to expl ain their positions on the propriety of a mistrial.” Id . at 515-16. The Court conc luded that the re cord suppor ted the conclusion that the trial court ha d exercised sound discretion in the matter
. Id . at 516.

Nichols primarily

relies on the opinion in Ma y do n v . S

tat e , 141 S.W .3d 851 (Tex. A p p . — C o rp u s C h risti 2004, no pet.). I n Maydon , th e tr ia l c ourt de c lare d a

mis tr ia l on

its own motion after sustainingthe State’s objections to a leading question and to an a lleg ed irre levant question. Id
. a t 85 4- 55
. Th e c ourt did no t g ive the pa rt ie s an op po rt

un ity to a dd

re ss t he pr op ri e ty of declaring a mistrial. Id at 855. The court of a ppeals found that the decision to g rant the mistrial13

“wa s sudden and una

nticipated” by either the State or the defe nse, that the trial court wa s confuse d as to the nature of the State’s objections that prec eded the mistrial, and that the trial cour t ga ve no
c o n s id e r a ti o n to an y le s s dr a s ti c a lternative. Id . at 857. The c ourt of appe als conc luded that no
manif e st n e c e ssi ty

fo r t he mis tr ia l w a s sh ow n b y the re c or d a

nd that th e tr ial c ourt

ha d a bu se d it s discretion. Id . at 858.

The c ase be fore us is much closer to W ashington than it is to Maydon . The re cord shows that the trial court clea rly and repe atedly instructed the parties that they wer e not to adduce extraneous misconduct test i m o n y wi t hout first obtaining a ruling on its admissi bility . Fa r fr om pr e c ipi ta te ly

de c la ri nga mis tr ia l, t

he tr ia l c ourt

re pe a te dly

su sta ine d o bje c tio ns to v iol a tio ns of its evidentiar y order , instructed the jury to disreg ard, and admonished counsel for both parties that they
we re c ourt inga

mis tr ia l. A ft e r t a kin g a br e a k in the pr oc e e din g s and be fo re de c lari ngthe mis tr ia l, the cour t gav e Nichols a

n opportunity

to argue ag ainst it. Nichols chose to rema in silent. The court’s state ments at trial and at the habe as cor pus hear ing r efle ct that the cour t car efully considere d its decision and g rante d the mistrial motion onl y as a la st resort. Unlike this Court, the trial court
was a ble to see a

nd hear Nichols’s statement a n d j udg e its potential impact on the jury . We are persua ded that the tria l court exerc i s ed s o u n d d iscretion in its handling of the problem c reated by Nichols’s pre

judicial rema

rk and that its m istrial order w as supported by the require d high de g ree of nec essity
. See B ruce , 112 S.W .3d at 641-42 (finding no abuse of discretion in dec laring mistrial afte r def ense c ounsel violated limine order and told jury in opening statement that complaina nt had made pr evious false acc usations of sexual mis conduct)
.14 The points of er

ror a re ove rruled, and the orde r deny ing r elief on N ichols’s writ of habea s corpus is af

firmed.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: Oc tober 11, 2007 Do No t Pu

bli sh