Opinion by Justice Burgess.
In early September 2015, the State tried Lyle D. Huddlestun, Jr., on two indictments, each of which alleged one count of sexual assault of a child. On the second day of the State's case-in-chief, the trial court granted the State's request for a mistrial. When the State made known its intent to re-try Huddlestun, Huddlestun filed an application for writ of habeas corpus, claiming any subsequent prosecution of the same indictments was barred by double jeopardy. The trial court denied this application, and Huddlestun appeals. After applying the great deference standard required by Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), we find that the trial court did not abuse its discretion in deciding that a mistrial was manifestly necessary and that no less drastic alternatives to mistrial existed. Accordingly, we affirm the trial court's ruling.
I. Factual Background
A. The Relationship of the Parties and the Origin of the Allegations Against Huddlestun
From 2007 to 2009, Huddlestun was the youth pastor for the Boyd Baptist Church of Bonham, Texas. As youth pastor, Huddlestun worked with a group of several young men, whom he frequently had over to his home for sleepovers. During the sleepovers, Huddlestun's wife was usually present, and the boys slept in an upstairs bedroom. The boys played video games, participated in Bible studies, and worked on educational business projects. David,
The charges in this case arose in October 2013 when David, then eighteen, alleged that Huddlestun had forced him to engage in anal and oral sex multiple times during Huddlestun's time in Bohnam when David was fourteen years old. According to the testimony, David first made the allegations after he began dating Kendall Smith during college. At one point, Smith observed images of male homosexual activity on David's telephone and asked David about them. Smith testified that David became emotional and cried for hours, expressing difficulty reconciling his interests with his Christianity. Smith said David was ashamed and embarrassed by what had happened between him and Huddlestun and that he continued to be affected by those events.
On cross-examination, Smith testified about her statement to law enforcement officers. In her statement, Smith discussed David's sexuality and the homosexual pornography she found on his telephone. She also indicated that David may have been molested by someone in addition to Huddlestun. When asked who this other person was, Smith testified, "He never said the other person, but he insinuated that it took place with [Huddlestun] and other people." On redirect examination, Smith testified that David only insinuated that others were involved, but that he directly stated Huddlestun was involved. She also testified that David said the pornography on his telephone was partly due to what happened between him and Huddlestun, that David was affected by it, and that it still affected him as of the date of trial.
B. The Procedural History
1. The State's Pretrial Motion in Limine
The case went to trial on July 13, 2015, but ended in a mistrial after voir dire at Huddlestun's request. In September 2015, the case went to trial again. Before trial, the State filed a motion in limine to require the parties to approach the bench prior to mentioning "[e]xtraneous offenses or bad acts allegedly committed by any witnesses, including the victim," and the "criminal history of the Defendant or any witness testifying on behalf of the Defendant." At a pretrial conference, the defense announced that it had no opposition to the State's in limine motion. Specifically, Huddlestun said, "Pay rates, yeah, we're not going to be cross-examining any officers about what they get paid. We don't have any objection to their motion in limine whatsoever. It's all standard stuff... based on the rules of evidence."
2. Huddlestun's Counsel Violated the Pretrial Limine Order During Opening Statements, and the Trial Court Granted a Second Order In Limine During Trial
Nevertheless, in opening statements later that same day, Huddlestun's attorney told the jury, "[O]h, one other huge important fact. The facts are going to show that one of the children that were [sic] in that room, [James,
3. Huddlestun Violated the Second Limine Order During Cross-Examination of State's Witness Jacob Barker
Later that day, Huddlestun cross-examined Fannin County Deputy Sheriff Jacob Barker, who had been the supervisor of the Fannin County Sheriff's Office's Criminal Investigations Division at the time of the Huddlestun investigation. Continuing with a theme that he had pursued through three other law enforcement witnesses, Huddlestun challenged the thoroughness of the State's investigation. Barker testified that he had driven with David around neighborhoods in Bonham until David identified the house in which Huddlestun had lived and hosted the youth group sleepovers. However, Barker admitted that no law enforcement officer had visited the house where the assaults allegedly happened, that no attempt had been made to obtain a search warrant to search the premises, and that no officer had even asked the current property owner for permission to view the site. Barker and the
Huddlestun then asked Barker if he knew that James, who was one of the other boys who had been present during some of the sleepovers, had given a statement to someone in law enforcement. Barker said he was not aware of this statement. Counsel then asked, "In a sexual-assault investigation, if one of the witnesses that was in the room at the time of the alleged offense was a sex offender, that's something that you would want to investigate." The State objected to that question, and the trial court conducted a hearing outside the jury's presence to decide the admissibility of that evidence, which was covered by the trial court's pretrial order granting the State's motion in limine and the trial court's second limine order issued during opening statements.
4. The Evidentiary Hearing and the State's First Motion for Mistrial
At the evidentiary hearing, the State told the trial court that James, one of the youth group members, had been "convicted after this report, after 2013, for sexually assaulting his sister as a juvenile" and argued that the conviction was irrelevant to the allegations against Huddlestun. Huddlestun argued that evidence that one of the witnesses to the alleged assault against David was a "confessed sex offender" would be relevant to the officer's investigation and proposed limiting any questions related to James' conviction to the role it played in law enforcement's investigation of David's accusations against Huddlestun. The trial court sustained the State's objection, finding that "the prejudicial effect [of James' prior bad act] would outweigh the probative value."
Huddlestun then argued an alternate theory of admissibility, namely, that, because Smith testified that David had insinuated that other people might have been involved in the sexual assault, the evidence of James' sex-offender status was relevant. The trial court responded, "Well, that's what worries me, there's no evidence of anything in this case." When Huddlestun responded, "Well, now there is. It's right here," the trial court responded, "Well, not really. Just `others,' so I'm going to sustain the objection." At that point, the State remarked:
Huddlestun responded that a mistrial would be "an extraordinary remedy" and that the proper remedy would be an instruction to the jury to disregard any improper question. A brief argument followed concerning whether James was required to register as a sex offender,
5. Huddlestun's Third Violation of the Trial Court's Previous Limine Orders and the State's Second Motion for a Mistrial
Later that day, Huddlestun asked Bonham Police Lieutenant Terry Bee, "Okay. If one of these witnesses had been in trouble before, that's something you would take into account. Right?" Bee answered, "No, sir," and Huddlestun's counsel continued, "Especially if it was a sexual offense. Correct?" The State objected, and the trial court stated, "You know, I think it was understood a while ago when I sustained the objection that there was an order in place." Huddlestun stated that he did not plan to inquire further, but was "just talking about general investigative techniques" and would not ask about any specific instances of conduct or use any witness' name. The State again moved for a mistrial on the basis that Huddlestun had once again violated the trial court's limine rulings. The court responded, "Don't go there," and asked Huddlestun if he wanted a mistrial. Huddlestun said he did not, and the trial court denied the State's motion for a mistrial. The State then asked for an instruction to disregard, and the trial court overruled the State's objection and denied its request for an instruction to disregard the question.
6. Huddlestun's Interjection of Polygraph-Examination Information
The next day of trial, the State called Department of Public Safety Texas Ranger Tod Reed as a witness. Reed was stationed in Ozona, Texas, where Huddlestun was living at the time of the investigation. Reed testified that, after talking to Lieutenant Bee about the investigation, he contacted Huddlestun and asked him to give a statement. Huddlestun voluntarily met with Reed, and Reed conducted an hour-long, audio/video-recorded interview with Huddlestun. The next day, Reed obtained a warrant for Huddlestun's arrest. During cross-examination of Reed, Huddlestun's counsel pursued the following line of questioning:
Reed then stated that he had "extensive" training in interviewing people. The questioning continued:
On redirect examination, the State asked Reed to explain why he did not request a polygraph examination from Huddlestun. Reed said that, if he were "the primary investigator assisting the law-enforcement agency in [his] area, then [he] would have decide[d] whether or not to, you know, use a polygraph or not." Because polygraph results are inadmissible in court, Reed said he seldom used such tests.
On recross examination, Huddlestun's counsel asked Reed the basis for his opinion that Huddlestun had been deceptive in their interview. Reed said he found suspicious Huddlestun's answer to whether he had ever touched David inappropriately, and Huddlestun said, "No, sir, not intentionally if I did, but I did not." When Reed asked Huddlestun, "Well, did it happen," Huddlestun answered, "Not that I can think of." Reed then testified that he was suspicious when he told Huddlestun, "Now's the time to tell the truth of what happened," and Huddlestun responded, "I cannot tell you anything beyond what I told you. There's a story somewhere that's being missed." When asked to explain why he thought this was suspicious, Reed answered, "As far as, `I cannot tell you anything beyond what I told you,' he wanted to tell the truth, but he was not telling the truth."
Huddlestun's counsel asked what else Reed was suspicious of, and Reed identified Huddlestun's statement, "I thought we had a good relationship.... A friendship. Why would they say something like
The State objected, stating, "The polygraph, that stuff is inadmissible." The court denied the State's request for an instruction to disregard, telling the State, "I'm not going to do that because you brought it up."
7. The Trial Court Granted the State's Third Motion for a Mistrial
During the course of lengthy arguments and some confusion about whether the State opened the door to the subject of polygraph examinations or merely responded to the defense's questions when the trial court overruled the State's objections,
The trial court followed up its ruling with its findings of fact and conclusions of law. After citing the procedural history of the case, the trial court concluded:
When the case was set for trial a third time, Huddlestun filed an application for writ of habeas corpus, claiming the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred retrial. The trial court denied that application, and Huddlestun has appealed that ruling.
II. Legal Authorities
A. Burden of Proof
Texas and Federal Constitutional law is clear that, "[g]enerally, 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). Yet,
Id. at 769-70. These exceptions exist because of "the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused...." Washington, 434 U.S. at 505, 98 S.Ct. 824.
To establish a right to relief under the Double Jeopardy Clause, "a criminal defendant must first show that he or she is being tried for the same offense for which the mistrial was declared over the defendant's objection. The burden then shifts to the State to demonstrate a `manifest necessity' (also referred to as a `high degree' of necessity) for the mistrial." Pierson, 426 S.W.3d at 770. In deciding whether the State has met its burden, the reviewing court must also decide whether the trial court declared 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. (quoting Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011)). If not, then the trial court abused its discretion in granting the mistrial, and retrial is barred by the Double Jeopardy Clause. Id.
B. The Double Jeopardy Clause's Prohibition Against Retrial After Mistrial Is Not Absolute; Deciding Whether to Allow Retrial Requires a Balance of Competing Interests
In deciding whether retrial after mistrial falls within the manifest necessity exception, the courts must balance two competing interests. On the one hand, the defendant has a "valued right to have his trial completed by a particular tribunal." Washington, 434 U.S. at 504, 98 S.Ct. 824
On the other hand, a prosecutor is entitled to that "one full and fair opportunity to present his evidence to an impartial jury." Id. at 505, 98 S.Ct. 824. As the Supreme Court noted, "Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases."
C. The Standard of Review Varies Depending Upon the Circumstances Giving Rise to the Mistrial
Moreover, the fact that mistrials can occur in a variety of circumstances not only permits retrial in some cases, it also mandates that different standards of review be used in evaluating the trial court's decision to grant the mistrial. In Washington, the defendant's original conviction was reversed on appeal because the State had withheld exculpatory evidence from the defense, and during jury selection on retrial, defense counsel told the prospective jurors "that there was evidence hidden from [respondent] at the last trial." Washington, 434 U.S. at 499, 98 S.Ct. 824. After discussing the considerations involved in deciding a double-jeopardy issue, the Supreme Court held that "the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused." Id. at 508, 98 S.Ct. 824 (footnote omitted). The Supreme Court also held that, "[a]t the other extreme is the
The Court of Criminal Appeals has identified three instances in which manifest necessity exists for mistrial:
Ex parte Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011). In Garza, the defendant was being prosecuted for a misdemeanor offense, and after trial began, one of the jurors became unavailable due to illness. Rather than continue with a five-person jury or delay the trial to see if the sick juror would recover quickly enough to continue the trial in a timely fashion, the trial court granted a mistrial citing manifest necessity. Id. at 907. In explaining its ruling, the trial court said that "it is this Court's experience that when the trial takes considerably longer than what the Court had anticipated, that could create problems with the jury's attitude and the jury's willingness to process information and so forth, in my experience as a judge and as a lawyer for 20 years." Id. The Court of Criminal Appeals affirmed the court of appeals' decision barring retrial under the Double Jeopardy Clause, noting, "So long as the appellant may waive his constitutional right to a six-member jury, it cannot be said that it was impossible to arrive at a fair verdict, impossible as a practical matter to continue with the trial, or that reversal on appeal would automatically ensue." Id. at 911.
By contrast, in Pierson, the Court of Criminal Appeals applied "great deference" to the trial judge's decision to grant a mistrial after defense counsel questioned the complaining witness whether she had "also [made] an allegation that [Appellant] did these same things to his own daughter?" Pierson, 426 S.W.3d at 766. The Court of Criminal Appeals noted that, in Washington,
Pierson, 426 S.W.3d at 773 (citing Washington, 434 U.S. at 512-13, 98 S.Ct. 824). Accordingly, the Court of Criminal Appeals rejected appellant's argument that different scrutiny should apply depending upon whether the basis for mistrial occurred in opening statement or during cross-examination, concluding, "[I]t does not appear that the Supreme Court considered when the improper comments came to be as important as when a trial judge uses his or her unique ability to evaluate any potential bias created by an improper comment." Id. at 774.
Although the Court of Criminal Appeals did not identify the level of scrutiny
III. Application of the Great Deference Standard of Review to the Case
The trial court's stated basis for granting the mistrial in this case was "[t]he impact of the unfair bias against the State caused by the polygraph questions," "further enhanced by defense counsel's continued disregard of the Court's order not to mention evidence of other bad acts of potential witnesses and past sexual behavior of the victim prior to a hearing."
The first issue is a question concerning the admissibility of evidence, which we review under the abuse of discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004); Montgomery v. State, 810 S.W.2d 372
B. Were Huddlestun's Unsupported Allegations that James Was a Registered Sex Offender and that he Was Present During the Alleged Assault Admissible?
After Huddlestun's counsel violated the trial court's second limine order and interjected the unsupported allegations that James was in the room at the time David was allegedly assaulted by Huddleston and that James was a registered sex offender, the trial court heard arguments outside the jury's presence. The transcript of that hearing covers thirty pages of the reporter's record. The trial court asked Huddlestun to identify the basis of the information's admissibility, and the following discussion took place:
Therefore, Huddlestun sought to introduce the unsupported allegations that James was a registered sex offender and that he was present when the alleged assault occurred in order to establish that James was an alternative perpetrator to Huddleston. There are several problems with Huddlestun's alternative perpetrator theory in this case.
First, even assuming that the evidence would show that James was in fact a registered sex offender as alleged by Huddlestun,
But even if the defense were applicable, Huddlestun failed to demonstrate a foundation sufficient to support the defense. The Court of Criminal Appeals has held that
Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002). Furthermore, "[i]t is not sufficient for a defendant merely to offer up unsupported speculation that another person may have done the crime. Such speculative blaming intensifies the grave risk of jury confusion, and it invites the jury to render its findings based on emotion or prejudice." Martinez v. State, 212 S.W.3d 411, 424 (Tex. App.-Austin 2006, pet. ref'd) (quoting Michaelwicz v. State, 186 S.W.3d 601, 617 (Tex. App.-Austin 2006, pet. ref'd) (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir. 1998))).
Thus, in Martinez, for example, the defendant was charged with sexually assaulting his wife's eight-year-old cousin. Id. at 414. The child told her mother about the alleged assault, and her mother contacted the police. Id. The court of appeals noted that, "[i]n addition to denying the allegations, Martinez's trial strategy apparently included suggesting that the complainant's brother may have been the actual perpetrator." Id. at 416. The trial court sustained the State's objection to this evidence, and Martinez appealed. Id. The trial court found that there was no evidence that the child's brother had ever assaulted her. The court of appeals ruled, "We conclude that excluding this evidence did not violate Martinez's right to present a complete defense. The proffered evidence fails to establish a connection between [the child's] brother and the abuse [the child alleged]. Any suggestion that [the child's] brother was an alternative perpetrator is both `meager and speculative.'"
Moreover, Huddlestun failed to present any testimony or evidence or make any offer of proof establishing that he had evidence to establish that James had ever assaulted David.
C. Was Evidence of Ranger Reed's Failure to Obtain a Polygraph Examination From Huddlestun Admissible?
As mentioned, Huddlestun's counsel cross-examined Ranger Reed about when and how polygraph examinations are used to rule out suspects in criminal investigations. The Court of Criminal Appeals has made it clear that the results of polygraph examinations are inadmissible "for all purposes." Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985). Moreover, "[e]ven if the State and the defendant agree and stipulate to use the results of a polygraph at trial, [the Court of Criminal Appeals has] held the testimony to be inadmissible." Id. (citing Crawford v. State, 617 S.W.2d 925 (Tex. Crim. App. 1980)). Yet, trial courts sometimes err in admitting inadmissible evidence, and sometimes inadmissible evidence is erroneously presented to the jury despite the trial court's rulings. In such cases, the question becomes whether the error was harmful.
No bright line exists as to when the erroneous introduction of polygraph examination results constitutes reversible error or manifest necessity for a mistrial and when it does not.
Id. at 240.
Likewise, in Nichols v. State, the State asked the complaining witness, "Without telling me any results, did you take a lie detector test about this?" Nichols v. State, 378 S.W.2d 335, 336 (Tex. Crim. App. 1964). The witness answered yes over the defendant's objection, and the trial court sustained the defendant's objection, instructed the jury to disregard the question and answer, and denied a mistrial. Id. On appeal, the Court of Criminal Appeals held,
Id. at 337. The Court of Criminal Appeals further explained,
Id. The Court of Criminal Appeals concluded,
Id. at 338.
Of course, in Wright and Nichols, the defendant or witness took a polygraph examination, results were obtained, and the
This Court has not been able to find any cases directly on point. Two courts have considered whether the nonperformance of a polygraph examinations is admissible. In Kugler, the State's witness "gave nonresponsive answers to the prosecutor's questions that revealed that appellant was offered, but refused to take, a polygraph examination." Kugler, 902 S.W.2d at 595. The Houston First Court of Appeals held that such comments were inadmissible and overly prejudicial because, "[u]nder these circumstances, appellant's refusal to take a polygraph test could lead the jury to improperly infer that he had something to hide." Id. at 597. And in Bradley v. State, the appellant sought to introduce the fact that the State's key witness, who had changed his statement to favor the State after flunking the first polygraph examination, was never asked to undergo a second polygraph examination after changing his story. Bradley v. State, 48 S.W.3d 437, 443 (Tex. App.-Waco 2001, pet. ref'd). The Waco Court of Appeals affirmed the trial court's refusal to admit the evidence, holding that "[t]he Court of Criminal Appeals has held that a court commits error by admitting testimony regarding a polygraph examination which `lend[s a witness's] testimony more credibility.'" Id. (quoting Tennard v. State, 802 S.W.2d 678, 684 (Tex. Crim. App. 1990) (per curiam)).
However, regardless of whether the case involves an actual polygraph test or the nonperformance of a polygraph test, the potential harm is the same: namely, the jury will speculate about the results (or non-results) or a witness (or a defendant's) testimony (or position) will be bolstered. Accordingly, we see no reason to create a separate standard depending upon whether the aggrieved party is the defendant or the State. Considering the competing issues that must be balanced in resolving a double-jeopardy claim, it seems clear that the same standard should be applied regardless of which party is aggrieved. Consequently, regardless of whether the case involves an actual polygraph test or the nonperformance of a polygraph test, the reviewing court looks to whether the information could cause the jury to speculate about the results (or non-results) or improperly bolsters a witness's (or defendant's) testimony (or position) in deciding whether the erroneous admission was harmful.
In the present case, Huddlestun's questions suggest that, if Reed had offered him a polygraph examination, he would have taken and passed that examination, that the State's officers knew he would pass it, and that, therefore, they did not ask him to take one. Not only do these questions invite the jury to speculate about the results of a non-performed polygraph examination, they also put the State in the position of the defense in Nichols, where "[t]he jurors, being lay person, no doubt felt that the evidence of a lie detector test would reveal the truth and that [the State] was attempting to suppress the truth from them by objecting to the question and keeping the testimony from them." Nichols,
D. Was the Introduction of Huddlestun's Unsupported Allegations about James, as Well as his Reference to Ranger Reed's Failure to Obtain a Polygraph Examination from Huddlestun, so Prejudicial that it Became Impossible to Arrive at a Fair Verdict Before the Initial Tribunal?
As noted earlier, if the evidence in question was admissible, or if its admission was harmless, then no manifest necessity for a mistrial could have existed. On the other hand, the fact that the evidence was inadmissible or harmful does not establish that manifest necessity existed, either. Rather, we must decide whether the introduction of the inadmissible evidence was so prejudicial that it became impossible to arrive at a fair verdict before the initial tribunal.
Yet, we do not substitute our opinion for the trial judge's opinion. Ledesma, 993 S.W.2d at 365 ("[I]f the record shows that the trial judge exercised sound discretion in finding a manifest necessity for a retrial, the judge's sua sponte declaration of a mistrial is not incorrect just because the reviewing court might have ruled differently."); Pierson, 398 S.W.3d at 419 ("While we may not have reached the same decision, we cannot say that the trial court acted irresponsibly or irrationally."). Instead, we give "great deference" to the trial court's decision. Washington, 434 U.S. at 510, 98 S.Ct. 824. Accordingly, unless "the trial judge act[ed] for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling" or "if [the] trial judge act[ed] irrationally or irresponsibly," Renico v. Lett, 559 U.S. 766, 775, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (quoting Washington, 434 U.S. at 514, 98 S.Ct. 824), or if the trial court "declare[d] a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out," Garza, 337 S.W.3d at 909, then we defer to the trial court's determination.
In Pierson, we found, and the Court of Criminal Appeals agreed, that "the trial court exercised sound discretion in (a) granting the parties an opportunity to argue their positions on declaration of a mistrial, (b) considering alternatives to a mistrial, and (c) using its discretion to conclude the defense lacked a legitimate basis for the question." Pierson, 426 S.W.3d at 775 n.14 (quoting Pierson, 398 S.W.3d at 418). Several of those factors are present in this case. First, not only did the trial court entertain arguments regarding the necessity of a mistrial, the trial court also gave the parties several opportunities to argue their positions on the evidentiary questions leading to the mistrial. When Huddlestun violated the pretrial ruling on the State's motion in limine, the trial court granted a second limine order, telling Huddlestun's counsel, "Don't talk about it. We'll have a hearing outside the presence of the jury, because I can't hardly hear you, and I'm not really sure how that fits in. So just don't go into it anymore." The trial court denied a limiting instruction at that time, and Huddlestun finished his opening statement.
Later, when Huddlestun's counsel violated the second limine order, the trial court excused the jury for an early lunch and listened to arguments from counsel regarding the admissibility of the disputed evidence. The subsequent discussion between the trial court and counsel covers
In Ex parte Bruce, the Fort Worth Court of Appeals found manifest necessity for a retrial based on the defendant's violation of the trial court's ruling on a motion in limine during opening statements. Ex parte Bruce, 112 S.W.3d 635, 638 (Tex. App. — Fort Worth 2003, pet. denied). In that case,
Id. (citation omitted). After "admonishing defense counsel," the trial court granted a mistrial on its own motion, finding that manifest necessity existed because "the statements were so outside the record and so unable of being supported by evidence in the presence of the jury that an instruction to disregard could not remove the cloud from the minds of the jury." Id. Prior to retrial, the defendant sought a writ of habeas corpus on the basis retrial would constitute double jeopardy. Id. The trial court denied the writ application, and the defendant appealed. Id. at 639. The Fort Worth Court of Appeals affirmed, holding,
Id. at 641-42 (citations omitted).
Bruce involved a single violation of the trial court's motion in limine after receiving several rulings and warnings. Here, Huddlestun violated the trial court's pretrial and trial limine orders on three separate occasions after several warnings and then ventured into a fourth examination regarding a topic that was inadmissible "for all purposes." Nethery, 692 S.W.2d at 700 (citing Crawford, 617 S.W.2d at 925). Accordingly, in deciding whether the trial court abused its discretion in finding manifest necessity to grant the mistrial, we review not just the prejudicial effect of each violation in isolation, but the cumulative prejudicial effect of all of them.
Initially, the trial court took a measured approach to Huddlestun's actions by granting orders in limine rather than simply excluding the evidence. This measured approach was appropriate because, at that time, evidence of James's presence was potentially admissible.
E. Did the Trial Court Consider Less Drastic Alternatives to Granting a Mistrial?
As previously noted, we must also consider whether the trial court granted the mistrial "without first considering ... less drastic alternatives and reasonably ruling them out." Pierson, 426 S.W.3d at 770 (quoting Garza, 337 S.W.3d at 909). If it did, then we must find that the trial court abused its discretion. Id. In Bruce, the court of appeals noted that the trial court
In the present case, the trial court did not articulate a consideration of less drastic alternatives to mistrial on the record before declaring the trial over. Yet, the record reflects that, not only did the trial court consider less drastic alternatives, it attempted less drastic alternatives to mistrial on several occasions.
Applying the great deference standard of review to the trial court's decision, it is conceivable that, by the time Huddlestun interjected Reed's failure to administer a polygraph examination, the trial court concluded that there was no basis for introduction of the alternative perpetrator evidence and that its efforts to restrain the introduction of polygraph examination information were just as unlikely to succeed as its prior efforts to constrain Huddlestun's allegations that James was a registered sex offender and was present when the alleged assault occurred.
Consequently, and notwithstanding the trial court's failure to articulate its specific reasons for granting the mistrial, we find that the record demonstrates the consideration (and utilization) of less drastic alternatives prior to granting the State's motion.
Accordingly, for the foregoing reasons, we affirm the trial court's order denying Huddlestun's application for writ of habeas corpus.
Judge Laurine Blake, the elected judge of the 336th Judicial District Court, presided over most of the pretrial hearings including the one held the day before jury selection. However, retired Judge Scott McDowell presided at trial. The record does not indicate why Judge McDowell rather than Judge Blake heard this case.