N-word used before the jury, but no mistrial

"How much money did the nigger make on the sale of the RV?"

Trial judge withdrew declaration of mistrial after use of N-word in violation of in limine order, and continued jury trial, but only after parties agreed to forgo right to appeal based on the mistrial issue. Court of Appeals holds that error was thus waived, that trial court did not lose jurisdiction by declaring a mistrial, and thus retained the power to undo the mistrial.

Jack v. Holiday World of Houston
(Tex.App.- Houston [1st Dist.] June 19, 2008) (Taft) (Texas DTPA, motor home purchase, mistrial, racism, improper comments to jury, Batson challenge)
Opinion by Justice Tim Taft
Before Justices Taft, Keyes and Alcala
01-06-00816-CV
Appeal from 281st District Court of Harris County
Trial Court Judge: Hon. David J. Bernal
Disposition: Trial Court's Judgment affirmed

EXCERPT FROM THE OPINION

Reconstituting the Jury after a Mistrial Was Declared

In his first issue, Jack contends that the trial court erred in reconstituting the jury after having declared a mistrial, despite his having acquiesced in continuing the trial and his agreement that no appeal would be taken from the decision to continue the trial. The trial court’s actions of which Jack complains occurred after Jack had violated a standing motion in limine. During Holiday World’s examination of him, Jack asked Holiday World’s counsel, “Could I ask you a quick question? Who asked you this question: ‘How much money did the nigger make on the sale of the RV?’”

Jack complains of what followed:

The Court:All right. Ladies and gentlemen of the jury—I’ve had enough. Okay? Ladies and gentlemen of the jury, I am at this time declaring a mistrial in this case. You guys are free to go home. I apologize for the time that you have wasted in this case. Please go back into the jury room, and I am going to come visit with you in a second.

(Jury not present)

I am assuming the defendants were going to move for a mistrial.

[Counsel]:I don’t know, Your Honor. Could we have a minute?

The Court:Yes.

[Counsel]:I would like to talk to my client.

(off the record)

The Court:I don’t know if the defendants have decided whether or not they indeed want to move for a mistrial or not. Let me tell you that I am comfortable that if I have the agreement of all parties, that I can instruct the jury that my remark was being taken back by the Court and that no appellate point will arise from my stating to the jury both that I was declaring a mistrial, and following that up with a declaration that my remark is taken back by me and should not enter into their deliberations. If I have an agreement by all that those two things will not constitute an appellate point by anyone and that everyone agrees to proceed with this trial within the parameters as just stated by me, I will continue with the trial of this cause.

If, however, there is no agreement or for whatever reason a defendant wants to move for a mistrial, I am undecided whether or not to carry that motion or to grant it at this point. I just haven’t thought that one through. But I wanted to let y’all think about my other point.

Lastly, if a mistrial is granted, I will take up after the jury is excused—not necessarily today, but at a later date—a motion for costs and allow the defendants the opportunity to brief the issue and whether or not they are indeed entitled and, if so, to what extent, and obviously allow the plaintiffs a chance to respond to that.

Those are the three parameters I have thought out. I don’t know if y’all have had a chance to think about where we go from here, but I want y’all to know what my thoughts were.
. . .

[Counsel]:Your Honor, may I go on the record for Mr. Jack a moment?

The Court:Yes.

[Counsel]:All right. Mr. Jack, you have been instructed not to do that, correct?

[Jack]:Instructed not to do what?

[Counsel]:Not to—you were aware of the motion in limine, correct, on racial epithets?

[Jack]:No, sir.

. . .

The Court:Were you informed by your counsel not to go into any racial epithets, dispersions, buzz words in front of the jury?

[Jack]:I did not see a motion in limine.

The Court:That is not the question I asked you, sir.

[Jack]:No.

The Court:Did your counsel tell you that you could not say the word you said in front of the jury?

[Jack]:They didn’t tell me that I could not say it. They didn’t coach me to say it.

[Counsel]:Mr. Jack, if the Court is seeking agreement of the parties, what would be your instructions to counsel after—

[Jack]:We’re not going to discuss this here, Counsel. My instruction to you would be between me and you, and not now.

[Counsel]:I understand. I don’t know what to tell the Court, Mr. Jack.

[Jack]:I can tell him. Why don’t the Court ask me?

The Court:Are you in agreement that this case can proceed notwithstanding that I told the jury that I was declaring a mistrial if I instruct the jury when they come back that there was no mistrial, that I misspoke, and that they are to disregard not only my comments but also your comment? Are you in agreement that the case can proceed under those parameters?

[Jack]:Yes.

. . .

[Counsel]:. . . I would like to know if Mr. Jack is going to waive any right to appeal the outcome of this trial based upon any comments you made regarding mistrial.

[Jack]:No, sir, I’m not giving up any of my rights in no shape, form, or fashion.

The Court:The only specific right, Mr. Jack, was the right to appeal the continuation of this trial notwithstanding my remark regarding the mistrial. That is the only issue we’re addressing.

[Jack]:Yes. I just want it understood, sir. Any right that the statutes of the state of Texas or the United States give me as a plaintiff in this case, I am not waiving.

The Court:With the exception of a right that you may or may not have regarding the mistrial comment; is that correct?

[Jack]:I don’t know if I understand what you’re saying.

The Court:I think—and I don’t know the answer to it, Mr. Jack. I’m telling you I don’t know the answer to it. But if I have the agreement of everyone to proceed with this trial notwithstanding the remark you made, my remark of the mistrial, what I don’t want—and what no one else wants—to be an appellate point is the continuation of the trial notwithstanding my remark on a mistrial. And no one’s asking you to waive any other rights you may have. What I want to make sure, though, is that everyone is in agreement that they will not appeal that single issue.

[Jack]:Tell me if I’m understanding you correctly. What you are stating is that the fact that you stated there would be a mistrial—that anyone would appeal the fact that you stated that there would be a mistrial? Is that correct? Is that what you said? That’s the way I’m interpreting what you [sic] saying.

The Court:Close. That if we agree to go forward and I bring the jury back in and I tell them there is no mistrial, disregard my remark on the mistrial, that you, the bank, Holiday World, and Forest River will not appeal that single issue.

[Jack]:That single issue of a mistrial.

The Court:Correct.

[Jack]:Okay.

The Court:You agree to that?

[Jack]:Yes.

Jack contends that the “trial court action in using its ‘leverage’ violates the mandate and spirit” of the Code of Judicial Conduct and asserts that the trial court “was without authority to reconstitute the jury and proceed with trial” without any discussion of his agreement and what effect it would have on this appellate issue. It is clear from the record that neither the trial court nor appellees would have agreed to resume the trial had everyone not expressly agreed to continue and to waive the issue for appeal. Jack expressly agreed to continue the trial and to waive appeal of the issue. Jack nonetheless contends that, at the point at which the trial court discharged the jury, it lost subject-matter jurisdiction over the case. He contends that, because that subject-matter jurisdiction cannot be created by agreement or waiver, he cannot be held to his express agreement and waiver of the issue.

Jack cites no authority for his contention that the trial court’s ordering of a mistrial deprives it of subject-matter jurisdiction. Although there are no precedential civil cases concerning whether a trial court has the authority to rescind a mistrial order, in criminal cases, courts have held that a trial court does not lose subject-matter jurisdiction after entering a mistrial to rescind its mistrial order. See Rodriguez v. State, 852 S.W.2d 516, 520 (Tex. Crim. App. 1993) (“[A]t least as a matter of jurisdiction, the trial court does not lack authority to withdraw or rescind its order of mistrial. . . . That an order granting a mistrial that is not subsequently withdrawn does indeed have the effect of nullifying all proceedings to that point does not mean the trial court may not rescind that order, and continue with the trial, so long as that remains a viable option under the circumstances.”); Montemayor v. State, 55 S.W.3d 78, 87 n.2 (Tex. App.—Austin 2001, no pet.) (“By failing to discharge the jury and by ordering the jury to resume deliberation, the court implicitly withdrew its decision to grant a mistrial.”); cf. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993) (holding that trial court had authority, during 75-day period in which it had plenary power to rule on motion for new trial, to vacate its previous order granting new trial).

See also Willie v. Donovan & Watkins, Inc., No. 01-00-01039-CV, 2002 WL537682, at *2 (Tex. App.—Houston [1st Dist.] Apr. 11, 2002, no pet.) (notdesignated for publication).

We hold that the trial court did not lose jurisdiction to withdraw the order of mistrial and to resume trial.

Because the trial court retained jurisdiction to rescind its mistrial order, Jack cannot now complain of the trial court’s action to which he explicitly agreed. In Salinas v. State, the trial court granted a mistrial when a witness made a prejudicial statement on the stand, much as what occurred here. See Salinas v. State, 625 S.W.2d 397, 400 (Tex. App.—San Antonio 1981, no pet.). The defendant then asked the court to rescind the mistrial and to allow the trial to proceed. See id. On appeal, the court held that “[a]n election to proceed to trial after withdrawing a motion for mistrial amounts to a waiver by appellant of any claim of prejudice from the incident thereafter, either on appeal, on motion for new trial, or otherwise.” Id.

The same rationale applies here. Jack waived appeal of the court’s declaring a mistrial and then rescinding that order. See Kelly v. Cunningham, 848 S.W.2d 370, 371 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“A party may not lead a trial court into error and then complain about it on appeal.”); see also Doucet v. Owens–Corning Fiberglas Corp., 966 S.W.2d 161, 165 (Tex. App.—Beaumont 1998, pet. denied) (holding that plaintiff could not complain on appeal about juror misconduct when plaintiff had opposed motion for mistrial on same ground).

We overrule issue one.