The STATE of Texas v. David Allen LEE, Appellee, 15 S.W.3d 921

OPINION MEYERS, J., delivered the opinion of the Court, joined by MANSFIELD, PRICE, WOMACK and JOHNSON. Appellee was charged with the offense of indecency with a child. He pled not guilty and a jury was empaneled and sworn. During her opening statement to the jury, the prosecutor made the following assertions: The evidence will be that early on in the investigation, Detective Raleeh, before any charges were filed, while the case was still being investigated, called [appellee] and said, I have- — there are some charges, a complaint has been filed against you, and I’m interested in talking to you about it.

And [appellee] said that he wasn’t interested in talking about it and to call his attorney, Craig Jett, and gave him the phone number. Appellee objected to the statements on the grounds that they were improper comments on appellee’s invocation of his right to counsel and his right to remain silent. The trial court sustained appellee’s objections and granted his motion for a mistrial. The State attempted to retry appellee pursuant to the same indictment. Appellee filed a pretrial application for writ of habe-as corpus, claiming double jeopardy prevented the State from retrying him.

The trial court held a hearing on the application and ultimately granted relief pursuant to Bander v. State, 921 S.W.2d 696 (Tex.Crim.App.1996) (“Bander /”), dismissing the indictment with prejudice. The State appealed, arguing the trial court erred in barring retrial based on double jeopardy. The Court of Appeals affirmed. State v. Lee, 971 S.W.2d 553 (Tex.App.- — Dallas 1997). The State argues Bander I was not correctly applied by the Court of Appeals.

The State maintains that the Court of Appeals applied the ■wrong law in determining whether the prosecutor’s comments were error, that the prosecutor’s statements were not error, and even if they were error, any error could have been cured by an instruction to disregard, and finally, that the statements were not made deliberately or recklessly.

In Bander I, we held that ... a successive prosecution is jeopardy barred [under the Texas Constitution] after declaration of a mistrial at the defendant’s request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial[, the Fifth Amendment standard under Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982),] but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request. Bander, 921 S.W.2d at 699.

We subsequently clarified that the critical questions to be addressed in this context are: ... on the one hand, whether the appellant’s motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed “the line between legitimate adversarial gamesmanship and manifestly improper methods” ... that rendered trial before the jury unfair to such a degree” that no judicial admonishment could have cured it?

Ex parte Bander, 974 S.W.2d 729, 732 (Tex.Crim.App.1998) (“Bander II ”). The Court of Appeals held the prosecutor’s statements amounted to error: [T]he prosecutor’s statement was clearly improper because it constituted a comment on appellee’s invocation on his right to counsel. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991) (holding evidence of accused’s invocation of right to counsel inadmissible as evidence of guilt); Rezac v.

State, 722 S.W.2d 32, 33 (Tex.App. — Dallas 1986) (holding that invocation of constitutional right to counsel may not be relied on as evidence of guilt), rev’d on other grounds, 782 S.W.2d 869 (Tex.Crim.App. 1990); see also Tex.Code CRiM. PROC. Ann. art. 38.38 (Vernon Pamph.1998) (noting that prosecutor in criminal case may not comment on fact that defendant has retained attorney). Lee, 971 S.W.2d at 556. The court further concluded the error was so prejudicial it could not have been cured by an instruction to disregard. Id.

Finally, the court upheld the trial court’s conclusion that the prosecutor “was aware [of] but consciously disregarded the risk that an objectionable event for which [she] was responsible would require [the] mistrial.” Id. While the Court of Appeals held that the prosecutor’s statement was an improper comment on appellee’s invocation of his right to counsel, a closer look reveals that it was not an effort by appellee to invoke his right to counsel: ... [appellee] said that he wasn’t interested in talking about it and to call his attorney, Craig Jett, and gave him the phone number.

Appellee was not asking for his attorney; rather, appellee was expressing his desire not to talk to Raleeh and dismissed Raleeh by referring him to his attorney.

The statement is most accurately viewed as an attempt by appellee to convey his desire to remain silent, The question under Bauder II, then, is whether, on the one hand, admission, as substantive evidence of guilt, of a defendant’s prearrest and pre-Miranda silence, in the face of questioning by police during the investigation of a crime in which the defendant is a suspect, is “ordinary reversible error.” Or, on the other hand, in commenting on such evidence, did “the prosecutor deliberately or recklessly cross[ ] ‘the line between legitimate adversarial gamesmanship and manifestly improper methods’ ... that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?” See Bauder, 974 S.W.2d at 732.

The Court of Appeals held the prosecutor acted recklessly in making the comments. But the Court of Appeals failed to take into account the appropriate substantive law when assessing the prosecutor’s mental state. The question of a defendant’s prearrest, pre-Miranda silence is one of first impression for this Court and one on which the federal courts of appeals are split. In view of this state of the law, the prosecutor’s actions could not have been intentional or reckless. We have explained what is meant by intentional and reckless conduct in this context.

A prosecutor acts intentionally when: ... believing that he cannot obtain a conviction under the circumstances with which he is confronted, and given the admissible evidence then at his disposal, deliberately offers objectionable evidence which he believes will materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury[,] or when: ... the objectionable conduct of the prosecutor was intended to induce a motion for mistrial.... Bauder, 921 S.W.2d at 699.

A prosecutor acts recklessly when: ... the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request!,] [when] ... he is aware [his conduct] is reasonably certain to result in a mistrial!,] [or when he is] ... aware that his conduct creates a risk that a mistrial is reasonably certain to occur, [but] consciously disregards that risk ... Id.

Thus, in order for a prosecutor’s offer of evidence to be viewed as an intentional or reckless act within this context, he must have either (1) “believe[d the evidence would] materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury[;]” or (2) been “aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request” or have been aware but consciously disregarded the risk that a mistrial would be “reasonably certain” to occur as a result of his conduct.

The prosecutor in this case believed that because appellee was not under custodial interrogation, the evidence was admissible. This was a legitimate view of the law as interpreted by some federal courts, including the Fifth Circuit.

Oplinger, 150 F.3d at 1067 (“[p]rior to custody or indictment here, the government made no effort to compel [the defendant] to speak [and therefore] the constitutional privilege against compelled self-incrimination did not come into play”); Zanabria, 74 F.3d at 593 (holding prosecutor’s comment on defendant’s prearrest silence did not violate 5 th amendment); Rivera, 944 F.2d at 1568 (“government may comment on a defendant’s silence if it occurred prior to the túne that he is arrested and given his Miranda warnings”).

Given that the law on this constitutional issue had not been addressed by the United States Supreme Court or by this Court, and in view of the split among the federal courts of appeals, the prosecutor did not disregard a “risk” that a mistrial would be “required” or even that a mistrial would be “reasonably certain” to occur. Neither could the prosecutor have intended to induce a mistrial, given the fact that such evidence has not been held inadmissible by this Court, and has indeed been held admissible by the Fifth Circuit and some of the other federal courts.

Because the prosecutor’s statement concerning appellee’s prearrest, preMiranda silence was not clearly erroneous, it cannot be said that there was any intent to induce a mistrial or reckless disregard that a mistrial would be reasonably certain to occur. The Court of Appeals erred in holding a retrial is jeopardy barred. The judgment of the Court of Appeals is reversed and the trial court’s order dismissing the indictment in this cause is set aside. KEASLER, J., delivered a concurring opinion, joined by McCORMICK, P.J. and KELLER, J. HOLLAND, J., not participating. .

Petitions for discretionary review were filed by the District Attorney (hereinafter "DA”) and the State Prosecuting Attorney (hereinafter "SPA”). We granted both petitions. The SPA urges the overruling of Bauder I. Because the DA’s grounds are dispositive, we do not reach the SPA’s arguments. The SPA's grounds for review are dismissed. Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Crim.App.1996); Lemell v. State, 915 S.W.2d 486, 490 n. 2 (Tex.Crim.App.1995); Connor v. State, 877 S.W.2d 325, 328 n. 1 (Tex.Crim.App.1994). . In Combs v.

Coyle, 205 F.3d 269, 279 (6th Cir.2000), when questioned by a police investigator, the accused told the investigator to "talk to my lawyer.” The federal court explained that this statement was best viewed as communicating a desire to remain silent, rather than communicating a desire for the assistance of counsel: Although [the petitioner’s] statement referred not to silence but to his right to an attorney, the admissibility of the statement is properly analyzed as a comment on pre-arrest silence. See Wainwright v.

Greenfield, 474 U.S. 284, 295 n. 13, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) ("With respect to post-Miranda warnings ‘silence,’ we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent as well as of a desire to remain silent until an attorney has been consulted.”). [The petitioner’s] statement is best understood as communicating a desire to remain silent outside the presence of an attorney. Id. . We assume without deciding that a comment made by the prosecutor in opening statement amounts to substantive evidence. We note that in Griffin v.

California, 380 U.S. 609, 613, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court considered the prosecutor’s comments in closing arguments, and the trial court's acquiescence in such comments, to amount to evidence: "No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance.” . We note that the Court of Appeals viewed Bauder I as involving a two-step approach, but this approach was disapproved of in Bau-der II. Bauder, 974 S.W.2d at 731.

That portion of the Court of Appeals’ opinion, however, does not affect our review of the Court of Appeals’ conclusion as to the prosecutor’s mental state, a question which is central to an inquiry under Bauder II. .The First, Sixth, Seventh and Tenth Circuits hold that prearrest, pr e-Miranda silence is not admissible as substantive evidence of guilt. Combs, at 283; United States v. Burson, 952 F.2d 1196, 1200-1201 (10th Cir.1991), cert. denied 503 U.S. 997, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992); Coppola v.

Powell, 878 F.2d 1562, 1568 (1 st Cir.), cert. denied 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017-18 (7th Cir.1987). The Fifth, Ninth and Eleventh Circuits have held that prearrest, pr e-Miranda silence is admissible as substantive evidence of guilt. United States v. Oplinger, 150 F.3d 1061, 1066-67 (9 th Cir.1998); United States v. Zanabria, 74 F.3d 590 (5 th Cir. 1996); United States v. Rivera, 944 F.2d 1563, 1568 (11 th Cir.1991).

For a general discussion of the split among the federal courts, the underlying rationale for their holdings, and a historical analysis of the Fifth Amendment, see Maria Noelle Berger, Note, Defining the Scope of the Privilege Against Self-Incrimination: Should Prearrest Silence be Admissible as Substantive Evidence of Guilt? 1999 U. Ill. L Rev. 1015 (1999). State courts are also split on the issue, with some courts holding that prearrest, pre-Mi-randa silence is not admissible as substantive evidence of guilt, State v. Moore, 131 Idaho 814, 965 P.2d 174, 180 (1998); State v.

Dunkel, 466 N.W.2d 425, 428-29 (Minn.Ct.App. 1991); State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990); People v. DeGeorge, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11, 13 (1989); Hartigan v. Commonwealth, 31 Va.App. 243, 522 S.E.2d 406, 410 (1999), reh’g granted; State v. Easter, 130 Wash.2d 228, 922 P.2d 1285, 1291-92 (1996); Tortolito v. State, 901 P.2d 387, 390 (Wyo.1995), and other courts holding that prearrest, pre-Mi-randa silence does not implicate the Fifth Amendment, State v. Leecan, 198 Conn. 517, 504 A.2d 480, 484 (1986); Key-El v.

State, 349 Md. 811, 709 A.2d 1305, 1310-11(Md.), cert. denied 525 U.S. 917, 119 S.Ct. 267, 142 L.Ed.2d 220 (1998); State v. Masslon, 746 S.W.2d 618, 626 (Mo.Ct.App.1988); State v. Dreher, 302 N J.Super. 408, 695 A.2d 672, 705 (App.Div.1997) cert. denied 152 N.J. 10, 702 A.2d 349 (1997) and cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 723 (1998); State v. Helgeson, 303 N.W.2d 342, 348-49 (N.D.1981). .

During the hearing outside of the presence of the jury at trial, the prosecutor argued that a mistrial should not be granted because the investigator wasn’t questioning appellee "in custodial interrogation,” but was simply "investigating the case.” At a subsequent hearing on the matter, the prosecutor testified that she did not believe her statements amounted to a comment on appellee’s invocation of his rights. The State emphasized that appellee's statement was made “in the context of a pre-arrest phone call” with the investigator. .

Although this Court has never rendered a holding on the issue, we have stated, in dicta, that "[p]rearrest silence is a constitutionally permissible area of inquiry.” Waldo v. State, 746 S.W.2d 750, 755 (Tex.Crim.App.1988)(is-sue before Court was comment on postarrest, post-Miranda silence). . Judge Keasler believes the prosecutor’s comment constituted "an objectionable event for which [the prosecutor] was responsible under Bauder” due to the fact that the comment violated Code of Criminal Procedure

article 38.38. Conewring opinion at 927. We do not agree that the prosecutor’s statement violated

article 38.38. See pp. 927-28, supra. But assuming it did,

article 38.38 is evidentiary in nature. Violations of evidentia-ry rules and provisions are generally curable with an instruction to disregard. Waldo, 746 S.W.2d at 752 ("It has long been the general rule and ‘well settled since [1916] that error in admitting improper evidence may be generally corrected by a withdrawal and an instruction to disregard ...' ”). Bauder did not change this rule. Bauder, 921 S.W.2d at 698 (emphasizing presumption that judicial admonishments are efficacious, citing Waldo).

It would be extremely rare that admission of evidence in violation of a statute would be "so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant,” in the absence of a constitutional violation. Thus, a violation of

article 38.38, in circumstances that do not implicate what has been established as a constitutional violation as well, simply does not present a "risk” that a mistrial would "be reasonably certain to occur.” Judge Keasler also says Bauder compels upholding the mistrial in this case because Bauder involved a violation of an evidentiary rule, as he alleges this case involves. Concurring opinion at 927. Judge Keasler incorrectly assumes the defendant in Bauder got relief on his claim. The defendant in Bauder did not get relief; the mistrial was not upheld in that case.

Ex parte Bauder, 2 S.W.3d 376 (Tex.App. — San Antonio 1999) (denying relief on merits under standard set forth in Bauder II); Ex parte Bauder, 974 S.W.2d 729 (Tex.Crim.App.1998) (clarifying analysis of Bauder I on appeal); Bauder v. State, 936 S.W.2d 19 (Tex.App. — San Antonio 1996)(holding mistrial need not have been granted so no jeopardy bar); Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996)(setting forth new standard for analyzing prosecutorial misconduct under Texas Constitution); Bauder v.

State, 880 S.W.2d 502 (Tex.App. — San Antonio 1994)(applying Kennedy and rejecting appellant’s plea for less strenuous state standard). . Generally, whether the error was such that it could not have been cured by an instruction and whether the prosecutor acted in reckless disregard of such error are "essentially factual question[s].” Bauder, 921 S.W.2d at 700. In the instant case, however, the answers to these questions turn on the state of the law. As such, we need not give deference to the trial court's ruling. Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Crim.App.1997). .

As appellee’s motion for mistrial was not precipitated by reckless or intentional conduct on the part of the prosecutor, under the Bauder II test, appellee's motion for mistrial was therefore "a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial.” We note, however, that it is not even clear in this case, given the unsettled state of the law, whether the prosecutor's statement amounted to error at all.