1. “Did the Second Court of Appeals’ Majority Err in Using the Mosley Factors to Determine Whether the Trial Court Abused its Discretion in Denying Appellant’s Motion for Mistrial?”
2. “The Dissent Correctly Concludes that Under Either Rule 44.2(b) or the Mosley Factors, the Judgments of Conviction Should be Affirmed.”
Hallman was on trial for sex offenses against his daughters. His ex-wife Kim testified that she reported her suspicions about sexual abuse to an officer investigating a separate domestic dispute. The defense impeached this testimony by calling the officer; he denied Kim said anything about sexual abuse. At the punishment phase, the State disclosed Kim’s handwritten police statement regarding the domestic dispute, which also failed to mention her suspicions. Based on the State’s discovery violation, Hallman requested a mistrial, arguing that his cross-examination of Kim would have gone “far different” if he had her statement during the guilt phase. The trial court, who had not presided over that phase of trial, denied the motion for mistrial.
After judgment, Hallman appealed the denial. A divided court of appeals, on remand in light of Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021), reversed. The majority determined it was an abuse of discretion not to grant a mistrial based on the factors set out in Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)—(1) severity of the misconduct, (2) curative measures, and (3) certainty of the conviction absent the misconduct. The majority found the trial judge’s failure to familiarize herself with the guilt-innocence proceedings weighed heavily in favor of mistrial. It also characterized the case as a “classic swearing match.” The concurrence believed the better analysis would have been to (1) determine that disclosure of Kim’s statement was required under both Tex. Code Crim. Proc. art. 39.14(a) as well as (h), (2) apply the Tex. R. App. P. 44.2(b) harm analysis, and (3) find harm under that standard. The dissent likewise doubted the applicability of the Mosely factors, which it noted are primarily applied to mistrial requests based on improper argument. It found the second factor inapplicable in the instant case since the guilt phase had already concluded by the time of the disclosure. In its 44.2(b) analysis, however, the dissent argued the delayed disclosure was harmless.
The State reiterates the concurrence and dissent’s observations about the limited use of the Mosely factors outside the context of improper argument and that a 44.2(b) analysis would “cut to the heart of the issue”—the impact of the State’s tardy disclosure. It also argues that the judgment should be affirmed under either standard. It points to substantial evidence of guilt based on the daughter’s detailed, sensory accounts of multiple sexual assaults and that disclosure of Kim’s statement would have had no more than slight effect given the defense’s impeachment of Kim on the very same issue through the responding officer.