Ex parte Garrels

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Appellant Elizabeth Garrels was charged by information with the misdemeanor offense of driving while intoxicated (DWI). She was tried by jury. The State’s first witness was Trooper Christopher Lucchese with the Texas Department of Public Safety, who performed the traffic stop and roadside investigation that eventually led to Garrels’ DWI arrest. Garrels objected that her statutory discovery rights had been violated by the State’s failure to timely designate the trooper as a potential “expert” witness. Although the State had formally designated Lucchese as a potential expert witness prior to jury selection, that designation occurred less than a week before jury selection. As a result of this untimely designation, Garrels asked that the witness not be allowed to testify in any expert capacity. Although the trial judge was not inclined to grant Garrels’s request to “strike” the officer’s testimony, he was also averse to the State’s request for a two-week continuance so that the terms of the discovery statute might be satisfied. Faced with two unappealing options, the judge sua sponte declared a mistrial. A defendant has a constitutional right to have her fate determined “before the first trier of fact.” A trial judge may violate this right by ordering a mistrial over her objection; but if she consented to it, double jeopardy will not prevent her re-prosecution. The Texas Court of Criminal Appeals reiterated that, although consent may be “implied” from the totality of the circumstances, it must nevertheless be supported by record-based evidence. Because the court of appeals found otherwise, the Court reversed. View "Ex parte Garrels" on Justia Law