NO. 07-00-0427 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D MAY 30, 2002

______________________________ TIMOTHY LEW IS HUSEMA N, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 64 TH DISTRICT COURT OF HALE COUNTY; NO. A12869-9712; H ONORAB LE WILLIAM R. SHA VER, J UDGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. Appellant Timothy Lewis Husem an challenges his conviction of a ggr ava ted ass ault with a deadly weapon and the resulti ng punishment of 20 years c o nfinement in the Institutional Division of the Departm ent of Crim inal Justice and a $10,000 fine. In seven points of error, he asserts th e tria l cou rt r eve rsib lyerred in 1) & 2) refusing his attem pt to preventa furth er retrial of this matter in violation of the double jeopardy prohibitions2

contained in both the federal and state constitutions; 3) not allowing h im to a ppr

opr iate ly address the issue of j uror misconduc t; 4) refusing t o reveal the nam e of the j uror who provided information as to juror m isconduct; 5) faili ng to find he was depri ved of effective assistance of counsel wh en trial counsel 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 toset his punishm ent, which m ade himliabl e for a sentence gr eater than would oth erwise have been per miss ib le; and 7) allowing the prosecutor to m ake improper rem arks intended to inflame t he passions and prejudices of the j ury. Disagreeing that reversible error has been s hown, w e affirm the judgm ent of the trial court.
A proper d iscussion of the first tw o points r

equire s us to recount the involved procedural history

of this case. A ppellant was charged w ith comm itting aggravated ass ault with a de adly

w eap on o n hisform er wife. On M ay5, 1998, a j ury was selected and seated to try the ca se. The next day , before the j ury was returned to the courtroom , appellant announced that he w ished to withdraw his plea of notguilty and proceed upon a plea of guilty with the j ury setting his punishme nt. Afte r admon ishments by the trial court, the guilty plea was accepted. The j ury was then brought in, sworn, appellant entered his plea, evidence was s tipulated and the punishment hearing comm enced. The victim w as in the process of testifying when the cour t r ecessed for the noon hour. As the w itness was stepping down from

the witness box

at the tim e of the noon recess, she asked a j uror what
wasw ritten o n th e j uro r’sbad ge. Be cau se t he d egr ee o f th e im pair m ent

of t he v ic t im’s3

eyesightby thealleg ed a ssa ult w as m ate rial, app ell an t sought, and w as granted, a
m istr ial.
After t he g ran tin g of the m istrial, the trial was res cheduled for May 19, 1 998, but because of the death of the victim’s m other, it was continued until June 16, 19 98. The
case was called for trial on June 16, 199 8, a t w hich tim e ap pella nt m ove d tow ithd raw his guilty plea and waiver of j ury trial. Outside the j ury’s presence, th e trial court t hen hear d argument

on the m otion, including a representation by the State that, having expec ted the trial to continue on punishm ent alone, it could not be ready for a guilt/innocence trial because of the absen ce of a crucial witness. Reasoning thatit was untim ely presented, the trial court denied appellant’s m otion to withdraw

his guilty plea and, without appellant ent erin g a plea to the indictment , proceeded to conduct a puni shment hearing which resulted in a jury-asses sed punishm ent of 15 years confinem ent in the Institutional Division of the Department of Criminal Justi ce and a $1,000 fine. On direct appeal, this court reversed the conv iction and remanded th e mat ter to the trial court for retrial. In doing so, we determ ined the trial court could not grant
a mistrial limited to the punishment phase alo ne. The mistrial must apply to the w hole trial and becaus e of

tha t, a ny a ctiv itiesin the trial preceding the mistrial were a nullity and a retrial wa s requ ired. See Huseman v. State , 17S. W.3d 70 4, 7 06 ( Tex .A pp. --A m arillo 1999, pe t. ref’ d).4

Subsequent

to our reversal, appellant applied for habeas corpus relief from the trial court, which w

as denied. On February 21, 2001, w e affirmed the trial court’s denial of that relief. See Huseman v. State, No. 07- 00- 039 4-C R (T ex .A pp. --A m arilloFeb. 21, 2001, no pet.) (not designated for publ ication), 200 1 WL 170 411 . A ppe llant now arg uestha t his application for writ of habeascor pusw as “ im pro vide ntly” de nied by thiscourt and “must be rev iewed .

. . by thiscourt with respec t to the egregious conduct of thetrial court at the second prosecution att e mpt .” In pursuing this argum ent, appellant posits that the prosecuti on’s failure to have witnesses pres ent and ready to proceed at the tim e he sought to w ithdraw his plea “adversely affected its ability to prove Appellant guilty beyond a rea son abledoubt and as such they would have certain ly riske d a not guil ty verdict by a jury and an absolute bar against further attem pts at prosecution on the ac tions asserted.” Thus, appellant continues, retrial should be barred on the basis that the governm ent sho uld not be allowed, through “the com bined process of prosecutorial failings and egr egio usly improper j udicial rul ings to prevent the perceived travest y of the possibility of the pro sec utio n no t be ing a ble to m eet the ir burden of proof based on the unavailabili ty of witnesses. . . .” He conc ludes that the federal constituti on “does not gi ve the j udiciary the privilege of m aking determ inations w hich under m ine one co nstitution al ri g ht of a person so as to protect another portion of the g ov er nme nt [which] des ires to subject a person to prosecution on m ultiple occasions for the sameoffense.” Appellant’s argum ent requires a discussion of the w hole double jeopardy concept

.5

The risk as so ci at ed wi th do ub l e je op ar dy , a s t he na me implies, is that of a second prosecution fo r t he sa me off ens e af ter an a cqu itta l, c onv icti on o r m ultip le punishments for the sam e offense. Ex pa rte Broxt on , 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 pr oceedings , w hich are “es sen tially

criminal” in nature. See Breed v. Jones , 421 U.S. 519, 527-28, 95 S.Ct . 1779, 44 L.Ed. 2d 346 (1 995). There are t hre e po ssi ble e ven ts t hat w ould m akethedou ble jeopardy doctrine applicable due to termination of t he o rigin al j eop ard y: 1) a n acquit tal; 2) a trial cou rt’s directed acquitta l becauseof the insufficienc y of th e evidence; or 3) a determ ination upon direct appeal that the eviden ce w as insufficient to sustain the conviction. Vanderbilt

v. Collins, 994 F.2d 189, 19 5 (5 th Cir. 1993); State v. Vanderbilt , 973 S.W.2d 460, 46 2 (Tex .App. --Beaum ont 1998 , pet. ref’d).
In Bauder v. St

ate , 921 S.W.2d 696 (Tex.Crim .App. 1996), the court explained the general rule that a m istrial granted at the defendant’s request poses no inhibition to retrial under either thefederal or

state constitu tions. Th e reason ing underlying the rule, t he court noted, was t hat a defenda nt’s m otion for m istrial is cons idered “a delib era te e lect ion o n his part to forego hi s valued ri ght to have his g uilt or i nnocence deter mined before the fi rst trierof fac

t.” Id. at 698 (quoting United States v. Scott , 437 U.S. 82 , 93, 98 S.Ct . 2187, 57 L.Ed.2d 65 (1978 )). How ever, a s the court

explicated, there is an exception to th at general rule, under both federal and state provisions, in instances in w hich the governm ent, acting through its representatives, purposefully forces the term ination of a trial in order to repeat6

itunder m ore favorable circums tances. In suc h instances, e ven in the event of a defendant’s succes sfu l m otio n fo r m istr ial, t he d oub le jeopardy p rovisions are violated. Id. at698-99. The cou rtwent on to observe that under our s tate double jeopardy provisi ons, “a successive prosecution is j eopardy barred after declaration of a m istri al at the defendant’s re qu es t, no t o nl y wh en the objec tionable conduct of the prosecutor w as intended to inducea m otion for m istri al, but also when th e prosecutor was aware bu t
con sci ous lydisregar ded the risk th at an objectionabl e event for which he w as r esp ons ible
wou ld require a m istrial at thedefenda nt’s r equest .” Id. at 699.
In Ex pa rt e Da vis , 957 S.W.2d 9 (Tex .Crim .App. 1997), cert. deni ed , 523 U.S. 10 23, 118 S.Ct. 1307, 140 L.Ed.2d 472 (1998), the Court had occasion to consider the question whether the dou ble je opardy p rosecutorial m isconduc t ru le a lso a pplie d in i nstanc es in which the trial proceeded to a verdict, but w as reversed on app e al because of prosecutorial miscondu ct. En route to deciding that the rule was not applicable, and even though itdescribed the conduct of the prosecutor in the trial court as “reprehensible,” the high court

determ ined that the Bauder rationale was not dispositive because of what the Court described as “a m ost significant differen ce,” na mely, tha t the conviction was reversed on appe al. Id

. at 13. The logical reason for the distinction is that the type of prosecutorial miscondu ct with w hich the Bauder court w as concerned w

as of s uch a na ture
as to depri ve appellant of his due process right to trial before an im partial jury and the possibility that without such misconduct an acquittal might result. Id. at 13-14. See also Ex parte C ooks, 979 S. W .2d 53, 56 (Tex .App. --Am arillo 1998, pet . ref’d ).7

In arg uing t hat double jeopardy is applicable, appellant relies on, and quotes
ex ten siv ely fr om, a plurality decision by the United States S upreme Court in United States
v. Jorn , 400 U.S. 47 0, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). In t hat cas e, t he p lura lity

held thata trial judge abused his discretion when, on his own m otion, he declared a m istrial in order to enable potential government witnessesto con sult w ith their ow n attorn eys bef ore giving testimony that might tend to incriminate them

. In doing so, the plurality noted the reprosecution after a m istrial has unnec ess arily been declared “obviously subjec ts the defendant

to t he s am e pe rso nal s tra in an d ins ecu rity reg ard lessof t he m otivati on underlying the trial judge’s action.” Id. at 483. How ever, as relevant here, the JornCourt expressly noted:
Cer tain lyit is clear beyond question that the Double Jeopardy Clause does notguarantee a defendant that the Governm ent will be pr epared , in all circumstances, to vindicate the social interest in law enforcem ent through the vehicle of a single proceeding for a given offense. Thus, for ex ample, reprosecution for the sam e of fen se is perm itted where the def endant wins a reversal on appeal of a conviction. [citations omitted] The determ ination to allowreprosecution in these circum stances reflects the j udgme ntthat the defendant’s double jeopardy interests, ho wever defined, do no t go so far as to com pel society to so m obilize its decisi on-mak ing resources that it will be prepared to a ssu re t he d efe nda nt asin gle pro ceeding free from harmf ul governm ental or j udicial error.
Id. at 483-84. Indeed, in Montana v. Hall , 481 U.S. 400, 107 S. Ct. 18 25, 95 L .Ed.2 d 354 (19 87), the Court ex plicated:8

Itis a “venerable principl[e] of do uble jeopardy j urisprudence” that [t]he successful appeal of a judgm ent of conviction, on any ground other than t he insufficiency of the evidence to support theverdict [citation omitted] po ses no bar to further prosecutio n on the same charge . . . . [ci ta ti on omi tted] “Co rresponding to the right of an accused to be given a fair trial is th e societal interest in punishing one whos e guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were e ver y accused granted imm unityfrom punishment because of any

defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a d efen dant, it is at least doubtful that appellate courts w ould be as z ealous 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 th e r each of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.”
Id

. at 402-03 (citi

ng Unit ed States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 158 7, 12 L.Ed.2d 448 (1964)).
The rule against imposition of double jeopa rdy after app e al an d re ver sal i s par ticu larly applicable in a case such as this one, in which the trial court made aruling that
an appellate court found to be erroneous. If the act of m aking a ruling during the harried atm osphereof a trial, which is later determ ined to be erroneous, const itutes an “egregi ous” action by a j udge sufficientto p rev ent ret rial, the re a re v ery

few j udg es in dee d w ho w

ould notbe subjectto that attack. Suffice it to say, th e trial judge’s conduct was not egregious, double jeopardy is not applicable, and appellant’s first tw o points are overruled.
The impetus of

appellant’s third-point contention arises from a new spaper sto ry in which the reporter wrote that after the verdi ct in thi s c as e, one juror comm ented, “[r]egardl ess of the crim e, we s truggled with t he fact that w e were deciding the life of9

another hum an being. But

there wasno problem with the sentence itself. W e had pretty
m uch determ ined that it wou ld be the m axim um .” Appellant argues this statem ent from an anonym ous juror m ade it very “clear” that
an imperm issible decision had been reached by the jurors a s to the sentence to be imposed prior to the com mencement of their del iberati ons. Be cau se h e ha d be en u nab le to obtain information fromthe jurors aboutthis ques tion, appe llant subpoe naed thejur ors to app ear

at h is new

tria l hea ring . H e ar

gue d th at h e did not intend to invade the thought processes of the j urors, but wanted to interrogate each of them independently about the
source of the info rm atio n m ent ione d in t he a rtic le. The tria l j udg e re fus ed to allow himto do so and discharged the subpoe naed jurors. Hence, this issue.
Texas Rule of Evidence 606(b) provides, “[u]pon an inquiry int o th e va lid ity of a verdict or indictment, a juror m ay not testify as toany m atter or statem ent occurring during the jury’s

delibe rat io ns, or to the effec t of anything on any j uror’s m ind or emotions or mental processes, as influencing any j uror’s assent to or d issent from the verdict or indictment.” The only exception to t hat broad prohibition is that a juror m ay testify as to whether any

outside influence was im properly broughtto bear upon any juror o r to rebut
a claim that the juror w as not qualified to serve. The limitation upon post-trial juror testimony

is intended to encourage open discussion am ong jurors during deliberations, to promote the finality of j udgm ents, a nd to pro tect jurors from harassm ent by unhappy10

litigants seeking grounds for a new t rial. Sanders v. State , 1 S. W .3d 885, 888 (Tex .App.
-- Austin 1999, nopet.).
In order to be enti tled to a factua l heari ng on instan ces of all eged jury misconduct thatmight

not be w ithin the bar of Rule 606(b), those allegations must be supported by

an aff idav itshowing reasonable grounds f or a factua l inquiry. See Jordan v. State , 883 S.W.2d 664, 665 (Tex.C rim.App. 1994); Reyes v. State , 8 49 S. W .2 d 8 12 , 8 16 (T ex .C ri m. Ap p. 1 993 ). A ppe llant

w as u nab le to obtain such an affidavit. Richard Orr, the reporter whotook the statem ent from the unidentified juror, testified a t the ne w trial hearing and averred that he did not understand it to m ean that the j ur ors had a lrea dy m adeup t heir minds as to the sentence tobe assessed prior to thebeginning of their deliberati ons. In thisstate of the record, the trial judge did not abuse his discretion in refusing to permit the
exam ination of t he j uro rs. To h avedon e sow ould me rely hav e perm itted appellant to engage i n a “fishi ng expeditio n” without any of the pr escribed a nd defined limitati ons. Appellant’s third point is overruled.
In his fourth poi nt, appellant complains that the trial judge com mitted revers ible error by failing to require the newspaper reporter to reveal the nam e of the jur or. By failing to do so, appellant argues, he was dep rived of the last m eans available to h im to show jur y misconduc

t. Perusal of the record revea ls that counsel asked the reporter if he knew who the juror was and received an affi rmative answ er. He the n as ked therep ort er if he w ould be willing to divulge the name of the juror to the court and the reply w as that he w

ould not11

be willing to do so. How ever, counsel never asked t he trial court to order the reporter to
reve al the name and continued hi s exam inati on by asking ano ther unrel ated quest ion

. Even ass u min g a rg ue nd o t ha t a pp el la nt was e nt it le d t o t he an swe r, a h ol di ng we spe cifi cally

do not m ake, by failing to request the trial court to order the answ er and obtain
a ruling on the request, appellant waived any appellate com plaint. 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 beca use he failed to address his com petency to stand t rial, be held accoun tab le fo r hisact ionsand pro per ly investigate “all facts and witnessesnecessary toprovide effective representation.” The criteria by which the required effectiveness of counsel under both t h e state an d federal constitu tions are jud ged are those articulated in Stric kland v. Washi

ngton , 466 U.S. 668, 104 S.Ct . 2052, 80 L.E d.2d 674(1984); see also Hernandez v. State , 726 S.W.2d 53, 56- 57 (Tex.Crim .App. 1986). In Stric kland, th e Co ur t a do pt ed a two prong test to determ ine ineffecti veness of counsel. Under the f irst prong, a defendant m ust show 1) counsel’s performance was s o deficient that counsel failed to function as the “counsel” guaranteed bythe sixth am endme nt to the federal constitut i on, and 2) that counsel’s deficient performance prejudiced the def ense. Stric

kland, 46 6 U.S. at 687. To show prejudice under the second prong, the defendant m ust show there is a reasonable probability that, butfor his counse l’s unprofe ssional errors, theres ult of th e pr oce edin g would have been different. A r

eas ona ble p rob abilit

y, t he C our

t ex plain ed, is o ne s uff ic ient to u ndermine confidence in the outcom e. Id. at 694.12

Additionally, under the Stric kland test, the defendant bears theburden of proving ineffecti ve assistance. W hen revi ew in g a claim of ineffective as sistance, the appellate court must indulge a strong presumption that counsel ’s conduct falls within the wide range of reasonable professional assistan ce, thatis, the defendant m ust overcom e the presum ption that under the ci rcu ms tanc es the challenged action m ight be considered sound trial strategy. Id . at 689.
The record reveals appellant’s trial counsel averred he had consulted w ith psycholog i sts Dr. Mark C unningham and D r. Randall Price, assertedly with the expectation of using oneof them

as an e xpe rt w itness. However, after the consultation, neither of them
wascall ed to te stif

y. It a lso r

eve als a ppe llant ’s cou nse l had filed his m otio n fo r ps ych iatr ic
exam ination and appointm ent of a m ental health expert to ex amine appellant. This motion
waslater w ithdraw n by app ellant at a p re tr ia l h ea ri ng . Vi ewe d i n t he li gh t b y whi ch we must vie w them , it is a reasonable conclusion that counsel determ ined that this type of tes tim ony

w ould not

be h elpf ul toapp ellan t. Ap pella nt a sse rtsin hi s br ief t hat his fam ily procured funds for the purpose of sec uring psychological testimony and it w as only at t rial, and against his wishes, that he was inform ed no such testim ony would be utilized. However, nothing in the record before us supports such statem ents, and we are bound by the record. Additiona lly, an d parentheti cally, in his post-trial pro se “Motion for Order to Show Cause W hy Van Wil liamson Should Not be Rem oved as Appellate Counsel,” appellant does not include thefailu re to ob tain and usepsycho logical te stim ony in hi s list of rea son s w hy t ria l coun sel should b e rem oved. Becau se the record d oes not support13

appel lant’s clai m of i nef fec tiveass ista nceof coun sel i n th is re gar d, h is fifth poin t i s overruled.
The thrust of

appell ant’s sixth point asse rtion of i neffective assi stance of counsel is thatbyadvisin g him to elect to have the jury assess hi s punishment, he became subject to a heavier sentence than w ould have been perm issible had the judge assess ed the punishm ent. In support, and w ithout 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 impos e a sentence greater than the one previou sl y asses sed while a jury

is not limited in that respect. That being so, he conc ludes, b y advising him to elect j ury sentencing, trial counsel was ineffect ive.
In espousing this theory, apparently appellant relies upon the holding of North Carolin a v. Pearce , 395 U.S . 711, 89 S.C t. 2072, 23 L.Ed. 2d 656 (1969), overruled on ot h er grounds by Al

abama v. Smi

th, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), and its progeny w hich stand for the proposition that if, after a reversal and rem and,
a trial judge imposes a sentence more severe than that ori ginal ly asse ssed, t o prevent judicial vindict iveness, the reasons for his doing so m ust affirm atively appear. Id. at 726. However, in an instance such as this one in w hich the second trial was bef ore a different judge, the Pearce presum ption of vindictiveness is not applicable. Jackson v. State , 766 S.W.2d 518 , 521 (Tex.C rim.App. 1988). That being true, w hether or not trial counsel advised appellant to elect to have the j ury set his sentence, and the record does not show14

anysuch advice, the fact that appe llant did so with a bad result is not sufficient to
ov er co me the pre s umpt ion that counsel’s action was within the acceptable range of
rea son abletrial performance. We also note that at t he time thetrial judge allowed trial counsel to withdraw, he comm ented that counsel had been effecti ve and “did an excellent job.” A ppellant’s sixth point is overruled.
In his seventh point, appellant argues that t he trial cour treversibly erred by allowing the prosecutor

to present an argum ent unconstitutionally intended to inflame the passions and prejudices of t he jury. This is directed at thepor tion of t he p ros ecu tor’s arg um ent in which he to ld th e ju ry, “[ a]nd if you can roll all of that anger and that hatred and that vic iousness in that ham mer an d those six blow s into probation, then he can ride the elevator down w ith you . . . .” There w as no trial objection to this argum ent.
Itis the general rule that a defendant’s failure to tim ely object toa j uryargum ent or, in the event of a tim ely objection, the failure to pursue an ad verse ruling, forfeits the defendant’s right to com plain about the argument

. Lopez v. State , 860 S.W.2d 938, 943 (Tex.App.--S an Antonio 1993, no pet.) (citing Briddl e v. State , 74 2 S. W .2 d 3 79 , 3 89 (T ex. Crim.A pp. 1987)); see also Te x. R. App. P

. 33. 1(a ). T he e xcept ion to th at g ene ral r ule is if the argum ent is so prejudicial that an instruction to disregard would not be suf ficient to
r emove the harm

. Briddle , 742 S.W.2d at 389. This argument does not fall withi n tha t category.15

Moreo ver, even if the question had been preserved for appellate review, the argument

w ould not

req uire reve rsa l. I t is ax iom atic tha t pr ope r j ury arg um ent

m ust fall
w ithin one of f

our c ategori es; nam ely, 1) asum m ary of t he e vide nce , 2)a re aso nab le deduction from the evidence, 3) an answer to opposing counsel’s argum ent, and 4) a plea for law enforcem ent. Felder v. State , 848 S.W.2d 85, 94-95 (Tex .Crim .App. 1992), cert. denied , 510 U.S. 829, 1 14 S.Ct. 95, 1 26 L.E d.2d 62 (1993). Even so, an impr oper j ury argument

is o nly reversible if it is extreme o r m anifestly im proper, it violates a m andatory statute, or if it injects new fact s that are harm ful to the defendant. Id. In that regard, the portion of the pros ecutor’s argum ent in which he states , “if you can roll all of that anger and tha t ha tre d an d th at v icio usness in that ham mer . . .” is reasonably related to the testimony

concerni ng a ppe lla nt’s conduct at the time of the assault both by t he other witnessesand the victim . The portion of t he a rgu m ent tha t if appellant is given probation, “he can ridetheelevato r dow n w ith you, ” is s im ilar to ar gum ents he ld to be proper pleas for law enforcem entin Martinez v. State , 715 S.W.2d 725, 727 (Tex.App. --Houston [14 th Dist.] 1986 , pet. ref ’d) and Lopez v. State , 860 S.W.2d at 942-43. Appellant’s seventh point is overruled.
In sum mary , all of appellant’s points are overruled and the jud gm ent of t he trial cour t is affirmed. John T. Boyd Chief Justi ce Publish.