Opinion
01-20-00827-CR
08-30-2022
PHILIP MBIANDA AWEH, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. TEX. R. APP. P. 47.2(b).
On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 14-DCR-067793
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
JULIE COUNTISS, JUSTICE
A jury found appellant, Philip Mbianda Aweh, guilty of the misdemeanor offense of deadly conduct and assessed his punishment at confinement for 365 days and a fine of $4,000. In three issues, appellant contends that the trial court erred in granting his motion for mistrial or a new trial, denying his motion to dismiss, and proceeding with a second trial.
See Tex. Penal Code Ann. § 22.05(a), (e).
We affirm.
Background
A Fort Bend County Grand Jury issued a true bill of indictment alleging that appellant, on or about October 23, 2014, "intentionally or knowingly threatened Clementine Johnny[, the complainant,] with imminent bodily injury" and "use[d] or exhibit[ed] a deadly weapon, to-wit: a motor vehicle during the commission of [the] assault."
See id. § 22.02(a)(2), (b) ("Aggravated Assault").
During the guilt phase of appellant's first trial, the complainant testified that she was previously married to appellant, and the complainant had filed for divorce. "[D]uring the course of the[ir] divorce," the complainant and appellant did not have "a good relationship," and their divorce was contentious. According to the complainant, on October 23, 2014, appellant came to the complainant's home. Appellant entered the garage and started banging on the door. When the complainant did not open the door, appellant went to the front door and started banging on that door and ringing the doorbell repeatedly. The children inside the home were crying.
The complainant explained that when she finally opened the front door to find out what appellant wanted, appellant went back to his car. The complainant approached appellant's car, and appellant "thr[ew] insults at [her]." He told her that she and the children should leave "his house" and "his property." and that between appellant and the complainant that "one person was dying." When the complainant told appellant that they both owned the home, appellant put his car in reverse and "turned the [car]" like he was "exiting the subdivision." As the complainant stood in the front yard of her home, appellant "made a quick U-turn [in his car] and came at [the complainant driving] full speed to run over [her]." Appellant "tried to run [the complainant] over" while she was near the sidewalk. The complainant fell in the grass, and appellant "ma[d]e another U-turn and came around" to "attempt[] to run [her over] again." At the conclusion of the guilt phase of trial, a jury found appellant guilty of the felony offense of aggravated assault.
See id.
Before the punishment phase of appellant's first trial, appellant moved for a mistrial or a new trial, asserting that the State had violated its affirmative duty to disclose evidence favorable and material to appellant's guilt or punishment.According to appellant, the purported violation involved an audio recording "of [the complainant] threatening to use the legal system to further her divorce." Appellant had given a microcassette tape containing the audio recording to Rosenberg Police Department ("RPD") Detective C. Crocker. Despite the audio recording being "crucial evidence for [appellant's] innocence," Crocker had supposedly lost the microcassette tape. Crocker had also prepared original and supplemental reports about the incident "which he refused to provide to [appellant]." Appellant had subpoenaed Crocker to appear at trial, but Crocker had not appeared, and Crocker had not answered calls to his cellular telephone.
See Brady v. Maryland, 373 U.S. 83, 87-88 (1963); see also U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art 39.14. Appellant filed a written motion for mistrial shortly after the trial court began proceedings that same day.
The State responded that appellant had subpoenaed Detective Crocker and Crocker had appeared for the initial trial setting, but the trial was reset to a later date. And appellant did not call Crocker or request a writ of attachment for him to testify at the reset trial. Further, the State had provided appellant's trial counsel with copies of Crocker's reports through its electronic discovery database on April 18, 2018, well before the August 2018 trial date. But appellant's trial counsel did not access the reports on the database until November 18, 2018.
At the hearing on appellant's motion for mistrial or a new trial, Detective Crocker testified that in September 2014, he was a detective with the RPD and was assigned to investigate an incident related to a misdemeanor offense of criminal mischief (the "criminal mischief case"). The complainant had reported to the RPD that appellant had "poured sugar into" the gas tank of her car. During his investigation, Crocker met with appellant, who provided Crocker with a microcassette tape. Crocker "listened to" the microcassette tape, which was "very, very poor quality" and "was very scratchy with static sounds." He heard "[t]wo people" on the audio recording, a man and a woman, who were "yelling back and forth at each other" in "very loud tones with very thick accents." Crocker "couldn't understand what was being said," and he did not hear any threats from either person.
Detective Crocker explained that when a law enforcement officer receives evidence, it is usually "entered into the case file as either property or evidence." And "[o]nce it get[s] into the evidence room," an "evidence technician[] assign[s] it an evidence number for tracking purposes." Although Crocker considered the microcassette tape to be evidence, it "remained on [his] desk," "with some other files." And later, at some point, "[i]t was lost." The evidence record for the investigation in the criminal mischief case contained a DVD with a recording of Crocker's interview with the complainant as well as photographs of the complainant's car. This evidence was stored digitally, and a copy of the DVD also was placed in the evidence room.
Detective Crocker further testified that he was aware that appellant's trial counsel had subpoenaed him to appear for the August 2018 trial setting. He spoke with appellant's trial counsel, who told him to "stand by until" he contacted Crocker because he was not sure whether the trial would proceed. Crocker did not recall an instance when appellant's trial counsel called and Crocker did not answer the call. And after being told to "stand by," Crocker never received a voicemail or email from appellant's trial counsel or notification from anyone else that he needed to appear in court for appellant's trial.
Detective Crocker also stated that if he had been called as a witness, he would have testified that he spoke with appellant, who had given him the microcassette tape; he had listened to the microcassette tape, but he could not testify to its contents because he did not understand it; and the microcassette tape was evidence, he took ownership of it, and he had lost it. Crocker had gone through two different office moves within the RPD station, and "[a]t some point during those moves," the microcassette tape "was misplaced." Crocker did not know that the RPD had denied appellant's trial counsel's Freedom of Information Act request for the records in the criminal mischief case. And he denied having directed anyone at the RPD not to give appellant's counsel the records that were sought.
Appellant testified that the microcassette tape contained a recorded conversation between him and the complainant. In the conversation, they tried "to establish some limits" on how they would proceed with their divorce. And the discussion escalated into an argument. When speaking to each other, appellant and the complainant would use "broken English," and that had happened during the recorded conversation. Appellant gave the microcassette tape to Detective Crocker because he felt threatened; the complainant had "threaten[ed] [him] about taking further steps on the divorce." Appellant's complaint about the threat was assigned the same case number by the RPD as the criminal mischief case.
After hearing the evidence and argument on appellant's motion, the trial court told the parties that it did not "in any way think that the [State] was remiss in failing to give over information [it] had." On the contrary, the trial court found that the State "didn't have" the audio recording or Detective Crocker's reports in the criminal mischief case. And it did not appear that the State knew that the audio recording or reports existed or could have deduced that they existed. In its oral ruling on the motion, the trial court observed that because the audio recording and Crocker's reports constituted "a statement" that could cause a reasonable person "to believe that the defendant did not commit the crime," evidence of them "need[ed] to go before a jury." Thus, the trial court determined that "the right thing to do in this circumstance [was] to grant the motion for mistrial or in the alternative the motion for new trial in order for this information to be passed before a jury." The trial court continued:
So I'm going to grant the motion for mistrial or in the alternative a motion for new trial because I believe that should be done. I think there is every reason to do that. I'm not at a point where I would grant any motion for it not to be retried, and I want that to be clear on the record.
The trial court's written order declared that appellant's "[m]otion for mistrial or in the alternative motion for new trial [was] . . . [g]ranted."
Before his second trial, appellant filed a motion to dismiss the indictment in which he argued that double jeopardy barred retrial because the State had intentionally failed to disclose certain exculpatory evidence to him before his first trial, namely, the audio recording that appellant had given to Detective Crocker, which purportedly "contain[ed] statements by [the complainant] that she w[ould] use the legal system to her advantage in the divorce between her and [appellant] by alleging false criminal conduct by [appellant]."
In its response, the State argued that its failure to disclose the audio recording was not intentional because it "was never in possession" of the audio recording and "had no way of knowing" that it existed, "as it was evidence in another separate case," i.e., the criminal mischief case, "that was never even prosecuted." Further, appellant had actual knowledge of the audio recording's existence because he had given the microcassette tape to Detective Crocker, and Crocker had taken responsibility for losing it.
At the hearing on appellant's motion to dismiss, Detective Crocker testified that in the fall of 2014, he interviewed appellant in an investigation in the criminal mischief case. That investigation arose from one of several offense reports that had been filed with the RPD involving appellant and the complainant. The interview that Crocker conducted with appellant was in connection with a report to the RPD made by the complainant that she "had been the victim of a criminal mischief where someone" "had flattened her tires on her car" and "had poured sugar in the gas tank" of her car. The complainant came to the RPD station for an interview with Crocker and told him that she suspected that appellant had done the damage to her car. She played the audio recording of conversations between her and appellant that she had recorded on her cellular telephone for Crocker. Crocker thought the audio recordings sounded like arguments between the complainant and appellant that were not related to the damage to the complainant's car.
After Detective Crocker attempted "several times" to set up an interview with appellant about "his side of the events," appellant met with Crocker at the RPD station sometime in late September or early October 2014. When appellant went in for the interview, he brought Crocker "a microcassette [tape] of an audio recording that he said contained conversations between [appellant] and [the complainant]" in which the complainant "was threatening [appellant's] life." Crocker "tried to listen" to the audio recording. But he could not say what was "said or meant" on the microcassette tape. It "was very, very poor quality," "very scratchy," and "hard to hear." "Both individuals on the audio recording were yelling at each other at very high tones and pitches," and they had "had extremely thick accents." Crocker could hear the voices of a man and a woman. Crocker had previously spoken with both appellant and the complainant, but he "couldn't confirm one way or the other specifically whose voices" were on the audio recording. And he "had no idea what was being said." Appellant told him that the microcassette tape showed that the complainant "was threatening [his] life," but Crocker could not verify in any way that such a threat had been made. Crocker kept the microcassette tape. By October 15, 2014, the criminal mischief case was "inactivated" because Crocker decided that there was not enough evidence to prosecute it. It was never forwarded to the Fort Bend County District Attorney's Office.
Detective Crocker's report and supplemental reports related to the criminal mischief case were stored digitally in the RPD's records management system. His interview with the complainant was recorded on a DVD and placed in storage in the evidence room. But the microcassette tape that appellant had given Crocker "never made it into evidence." It "was left on [Crocker's] desk." At some point after that, Crocker received a promotion and moved desks in the RPD station. He then received a second promotion and moved desks again. "And sometime during" the "multiple moves in that process, [Crocker] misplaced the microcassette" tape that appellant had given him. Crocker did not intentionally tamper with, destroy, or hide the microcassette tape and to his knowledge, no one else had either.
Detective Crocker's next contact with appellant was when he was subpoenaed before appellant's first trial in this case. He was subpoenaed because appellant had informed his trial counsel about the microcassette tape that he had given to Crocker. Crocker spoke to appellant's trial counsel about the microcassette tape. At that point, Crocker "didn't realize" that he "had lost [the microcassette tape]." He "originally asked" an RPD evidence technician to pull the microcassette tape from the evidence room and was told that it was not there. Crocker then "rehashed all of the events leading up to [the subpoena] and that's when [he] realized" that the microcassette tape had been on his desk and had gone missing.
In its oral ruling denying appellant's motion to dismiss, the trial court observed that testimony about the complainant's threat to appellant, which was the subject of the audio recording on the microcassette tape, had been admitted into evidence during appellant's first trial. And although the audio recording itself had not been admitted into evidence, the State had never argued that such a recording "didn't exist." "[T]he only thing that the jury [in appellant's first trial] was not given a chance to hear was the exact verbiage of the [audio recording]." The trial court also found "no intentional act on the part of the State" to secrete the audio recording. Rather, the audio recording had evidently "sat on a [law enforcement] officer's desk for quite a long time and he changed offices two or three times and somewhere in there it just got lost."
In its written findings of fact and conclusions of law supporting its denial of appellant's motion to dismiss, the trial court found that:
• "On November 17, 2014, [appellant] was indicted for the felony offense of [a]ggravated [a]ssault for allegedly attempting to run over [the complainant] with a deadly weapon, to wit, an automobile."
• "On August 7, 2018, a jury was sworn and the jury trial commenced against [appellant] which culminated in a [j]ury [v]erdict of [g]uilty against [appellant]."
• After the guilt phase of trial, "which resulted in the guilty verdict against [appellant], but before the sentencing hearing in the case, [appellant] . . . discovered that certain exculpatory evidence, pursuant to Brady . . . and Texas Code of Criminal Procedure[] [a]rticle 39.14, was in possession of and under the control of the [RPD] and that evidence had not been disclosed to [appellant] prior to or during the trial of the . . . case."
• On November 27, 2018, appellant "filed a [m]otion for a mistrial based upon the undisclosed evidence."
• On November 27, 2018, "after a hearing on [appellant's] [m]otion for [m]istrial, the [trial] [c]ourt [g]ranted [appellant's] motion as a '[m]istrial' as requested 'or in the alternative as a [n]ew [t]rial' as indicated in the [c]ourt's order."
• On July 24, 2020 and July 30, 2020, the trial court heard testimony from Detective Crocker "concerning the existence and the loss of the" audio recording.
• "[T]he audio [recording] in question" had been collected in "a different case from" the one in which appellant was then being tried.
• The audio recording had been "collected in" connection with the "[c]riminal [m]ischief case" in which the complainant had allegedly accused appellant of "pouring sugar in her [gas] tank and flattening her tires . . . on or about September 8, 2014" "before the alleged offense of October 23, 2014 which is the . . . case . . . on trial [currently]."
• Sometime between "the end of September 2014" and the first two weeks of October 2014, appellant "spoke with [Detective Crocker] about the incident and provided the [audio recording] to [Crocker] in an attempt to show" that the complainant "was making threats against him."
• Detective Crocker "couldn't discern or understand anything from the [audio recording]." Later, "the [criminal mischief] case was inactivated" because
there was not "enough evidence to prosecute" it, and it "was never submitted to the [Fort Bend County District Attorney's Office] for review."
• "Over the next [three] years," Detective Crocker received two promotions and moved to a different desk each time. Sometime during those moves, the audio recording that appellant had given him "was accidently misplaced."
• Detective Crocker "was very credible" and the "[audio recording] was NOT misplaced intentionally."
• Detective Crocker "spoke with [appellant's trial counsel] about the misplaced" audio recording on July 7, 2017, when he appeared in the trial court after having been "subpoenaed" about "the issue." So, "when [appellant] went to trial" a year later, in August 2018, he "was not deprived" of any evidence "because he already knew about the [audio recording]'s contents and the fact that [the audio recording] had been misplaced."
• Appellant testified at the hearing on his motion to dismiss that he had "the information" about the audio recording since "September of 2014" and he "could have testified in his trial to everything" that was on the audio recording "for the jury to evaluate and hear it."
The trial court also made the following conclusion of law:
. . . [N]o testimony or evidence exist[ed] or was produced from any source to suggest the [State] knew anything about the complained of [audio recording] that was produced by [appellant] in an unrelated case that was never presented to the [State], and [appellant] himself admit[ted] in his sworn testimony that he and his attorney had full knowledge of [the audio recording] and its contents since its inception from [appellant] and for at least a year before [appellant's first] trial from [appellant's] [a]ttorney's knowledge. Lastly, the [trial] [c]ourt ruled that both [appellant] and [Detective] Crocker could testify about it all so that no one is prejudiced by the missing [audio recording].
The trial court concluded that appellant was not entitled to dismissal, and thus, denied appellant's motion to dismiss.
Appellant's second trial began on November 10, 2020. On that date, appellant personally appeared with his trial counsel in the trial court and the State was present. The trial court heard the parties' pre-trial motions, and it explained to the parties the precautions that were being taken in response to the COVID-19 pandemic for the trial, including the wearing of masks and social distancing. After ruling on the parties' pre-trial motions, the trial court explained that they would go to a larger room where the potential jurors were waiting for jury selection. Appellant initially expressed some reluctance about attending jury selection, citing his health and his doctor's recommendation that he not be in "group[s] of people," but he ultimately did attend.
See Kim v. Ramos, 623 S.W.3d 258, 261 n.5, 266 & n.13 (Tex. App.-Houston [1st Dist.] 2021, no pet.) (explaining "COVID-19 is a disease caused by a novel coronavirus" and noting "the country is in the middle of a pandemic due to the virus known as COVID-19" (internal quotations omitted)); see also In re Landstar Ranger, Inc., No. 06-20-00047-CV, 2020 WL 5521136, at *4 (Tex. App.- Texarkana Sept. 15, 2020, orig. proceeding) (mem. op.) (noting "[a]s a result of the onset of the COVID-19 pandemic, on March 13, 2020, Texas Governor Greg Abbott issued a disaster proclamation certifying that COVID-19 posed an imminent threat of disaster for all counties in the state of Texas[,] [and] . . . Governor Abbott instituted health protocols, such as minimizing in-person contact, maintaining six feet between individuals, and suggesting that people wear masks when in the presence of other individuals" (internal footnotes omitted)).
The record indicates that after jury selection was completed, appellant's second trial resumed on December 10, 2020. In the interim, appellant stated that he was unwilling to continue to attend trial in person and asked to appear remotely. The trial court gave appellant the option to appear and participate in the trial by remote electronic access. But appellant did not appear either in person or electronically for the rest of the trial and did not appear in the trial court for the reading of the jury's verdict.
Mistrial
In his first issue, Aweh argues that the trial court erred in signing an order, in his first trial, granting a "mistrial or in [the] alternative motion for new trial" because the trial court could not have timely granted a motion for new trial when it signed the order.
At the conclusion of the guilt phase of appellant's first trial, a jury found him guilty of the felony offense of aggravated assault. Before the punishment phase of appellant's first trial, appellant moved for a mistrial or a new trial, asserting that the State had violated its affirmative duty to disclose evidence favorable and material to appellant's guilt or punishment. In his written motion, titled "[m]otion for [m]istrial," appellant "pray[ed] that the [trial] [c]ourt set aside the judgment of conviction entered in th[e] cause and order a new trial on the merits." And during the hearing on appellant's motion, appellant's trial counsel stated that "[a] motion for new trial and motion for mistrial are basically the same."
When, as here, the order granting a mistrial is granted after the guilt-innocence verdict and before the punishment verdict, the order is functionally indistinguishable from an order granting a new trial because it returns the case to the posture it was in before trial. State v. Gallien, 631 S.W.3d 885, 890, 891 (Tex. App.-Houston [1st Dist.] 2021, pet. ref'd); see also Tex. Code Crim. Proc. Ann. art. 40.001 ("A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial."). "[W]hen an order is functionally indistinguishable from or the functional equivalent of an order granting a new trial, a reviewing court can look past the label assigned to the order by the trial court." State v. Boyd, 202 S.W.3d 393, 400 (Tex. App.-Dallas 2006, pet. denied); see also State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996); State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992).
We note that, here, the trial court granted appellant the relief that he requested in his motion for mistrial or a new trial. According to the invited-error doctrine, a party cannot take advantage of an error that he invited or caused. Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011); see also Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App. 2007) (party that affirmatively seeks action by the trial court is estopped from later contending that action was error); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ("It is a well-settled principle of law that a criminal defendant cannot invite error and then complain of it on appeal."). Thus, appellant is estopped from complaining on appeal that the trial court erred in granting a "mistrial or in [the] alternative motion for new trial" in appellant's first trial.
To the extent that appellant questions our jurisdiction by asserting that the trial court's order on the motion for mistrial or a new trial was untimely, that question is unfounded. Specifically, appellant asserts that his motion for mistrial or a new trial was untimely under Texas Rule of Appellate Procedure 21.4, which provides that a "defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court." Tex.R.App.P. 21.4(a). Here, although more than thirty days had passed since the jury had found appellant guilty, the punishment phase of his first trial had not yet begun. Because the trial court had not yet "impose[d] or suspend[ed] a sentence," the thirty-day period under Texas Rule of Appellate Procedure 21.4(a) had not yet begun to run. See id. Thus, we cannot say that the trial court's ruling on appellant's motion for mistrial or a new trial was untimely under rule 21.4.
Motion to Dismiss
In his second issue, appellant argues that the trial court erred in denying his motion to dismiss the indictment because doing so violated his right against double jeopardy as the basis of his motion for mistrial was the State's violation of its affirmative duty to disclose evidence favorable and material to appellant's guilt or punishment. See U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art 39.14; Brady v. Maryland, 373 U.S. 83, 87-88 (1963).
The United States and Texas Constitutions prohibit a defendant from twice being put in jeopardy for the same offense. U.S. Const. amend. V; Tex. Const. art. I, § 14. Jeopardy attaches when a jury is impaneled and sworn. Ex parte Montano, 451 S.W.3d 874, 878 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd). Once jeopardy attaches, the defendant has the right to have his guilt or innocence determined by the first trier of fact. Id.
When a trial court grants a mistrial at a defendant's request, though, double jeopardy generally does not bar retrial. Oregon v. Kennedy, 456 U.S. 667, 672-73 (1982). Double jeopardy bars retrial after a defendant successfully moves for mistrial only where it is shown that the State engaged in conduct that was intended to provoke the defendant into moving for a mistrial. Id. at 679; Ex parte Masonheimer, 220 S.W.3d 494, 507-08 (Tex. Crim. App. 2007); see also Ex parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006) (setting out non-exclusive factors to assist trial court in evaluating prosecutor's state of mind).
In reviewing a plea of double jeopardy based on allegations of prosecutorial misconduct, we defer to the trial court's assessment of the facts, including its evaluation of the prosecutor's state of mind. Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006). We determine if the evidence, viewed in the light most favorable to the trial court's ruling, shows whether intentional prosecutorial misconduct provoked appellant to move for a mistrial. See Masonheimer, 220 S.W.3d at 506; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); State v. Yetman, 516 S.W.3d 33, 36 (Tex. App.-Houston [14th Dist.] 2016, no pet.). We recognize that the trial court, as fact finder, is the sole judge of witness credibility. See Dixon v. State, 595 S.W.3d 216, 224 n.24 (Tex. Crim. App. 2020). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112.
Here, in asserting that the State's conduct came within the exception barring retrial after a successful motion for mistrial or new trial, appellant alludes to evidence of "misconduct in the face of actual knowledge of the undisclosed evidence by the [State]" and characterizes Detective Crocker's loss of the audio recording as "unreasonable." But the record supports, and appellant does not challenge, the trial court's finding that the prosecutor had no knowledge of the audio recording's existence because the RPD had collected the audio recording in another case-the criminal mischief case-which was closed without referral to the Fort Bend District Attorney's Office for prosecution. And appellant does not challenge the trial court's finding that Crocker's loss of the audio recording was not intentional. The evidence shows that Crocker had the audio recording, on a microcassette tape, on his desk, but it was misplaced later when he went through two "different moves within [his] office." Those findings are anchored in the trial court's implicit and explicit finding that the testimony of Crocker was credible, and we defer to that credibility finding. See Dixon, 595 S.W.3d at 224 n.24.
We also note that appellant, having given the microcassette tape containing the audio recording to Detective Crocker, knew about the existence of the audio recording long before the State did.
To the extent that appellant complains that the trial court erred in holding an evidentiary hearing on his motion to dismiss, the invited-error doctrine bars his complaint because he submitted that motion to the trial court. See Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011); see also Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App. 2007) (party that affirmatively seeks action by the trial court is estopped from later contending that action was error); Martinez v. State, No. 01-21-00241-CV, 2022 WL 710069, at * (Tex. App.-Houston Mar. 10, 2022, no pet.) (under invited-error doctrine, appellant was estopped from arguing that he was entitled to hearing on motion for new trial because he joined in motion to reset hearing for date after which trial court could no longer rule on motion).
The evidence supports the trial court's finding that no intentional misconduct by the State provoked appellant into requesting a mistrial. See Washington, 326 S.W.3d at 706. We thus hold that the trial court did not err in denying appellant's motion to dismiss.
We overrule appellant's second issue.
Absence from Trial
In his third issue, appellant argues that the trial court erred in proceeding with his second trial, in his absence and over his objection, during the COVID-19 pandemic because the Texas Supreme Court's Emergency Orders Regarding the COVID-19 State of Disaster that was in effect at the time of his trial prohibited the trial court from proceeding with trial.
See Supreme Court of Texas, Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9135, 629 S.W.3d 863 (Tex. 2020); Supreme Court of Texas, Twenty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9112, 609 S.W.3d 135 (Tex. 2020); see generally Kim, 632 S.W.3d at 266-68 (providing history of Texas Supreme Court's emergency orders regarding COVID-19 following issuance of initial disaster declaration by Texas Governor Abbott in March 2020).
Appellant cites the portion of the Texas Supreme Court's emergency orders providing that "[i]n criminal cases where confinement in jail or prison is a potential punishment, remote jury proceedings must not be conducted without appropriate waivers and consent obtained on the record from the defendant and prosecutor." See Supreme Court of Texas, Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9135, 629 S.W.3d 863, 867 (Tex. 2020); Supreme Court of Texas, Twenty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9112, 609 S.W.3d 135, 137 (Tex. 2020). That provision prevents a trial court from holding a remote jury trial without a defendant's consent, but it does not restrict a trial court's ability to conduct an in-person jury trial, as the trial court did here. See Broussard v. State, No. 09-20-00259-CR, 2022 WL 2056388, at *3 n.2 (Tex. App.-Beaumont June 8, 2022, no pet.) (mem. op.) (noting under Texas Supreme Court's Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster "[o]nly remote jury proceedings in criminal cases required appropriate waivers and consent obtained on the record from the defendant and the [State]" (emphasis added)). Nothing in the applicable emergency orders requires the trial court to either obtain a defendant's waiver or consent before conducting an in-person jury trial. And we note that here, the trial court exercised broader discretion than the emergency orders required by providing appellant with the option of attending his in-person trial remotely.
Texas Code of Criminal Procedure article 33.03 addresses the need for a defendant's presence at his in-person jury trial on felony charges. It provides:
In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion.Tex. Code Crim. Proc. Ann. art. 33.03. In addition, the Texas Code of Criminal Procedure requires a defendant in a felony case to "be present when the verdict is read unless his absence is willful or voluntary." Id. art. 37.06.
Here, appellant was present at his second trial until after the jury was selected. The record shows that appellant's trial counsel made multiple efforts to contact appellant over the course of the trial and informed appellant by text message that the trial court had ordered his appearance. Appellant did not respond to those efforts and failed to provide any explanation for his absence, either during trial or in a post-verdict motion. Under those circumstances, we hold that the trial court did not err in presuming that appellant's absence was voluntary and proceeding with appellant's second jury trial to its conclusion.
We overrule appellant's third issue.
Conclusion
We affirm the judgment of the trial court.