Ex Parte: Roel Contreras A/K/A Dody Contreras ( 2000 )

NUMBER 13-00-329-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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EX PARTE: ROEL CONTRERAS A/K/A DODY CONTRERAS

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On appeal from the 36th District Court of Aransas County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Chief Justice Seerden

This is an appeal from the trial court's denial of Roel Contreras's application for writ of habeas corpus. Applicant was tried for murder in the 156th District Court of Aransas County, Texas. During the course of that trial, the State's attorney sought to introduce the previously undisclosed testimony of a witness regarding inculpatory statements made by applicant, notwithstanding applicant's request for discovery of such testimony. Applicant objected to the testimony and subsequently moved for and was granted a mistrial. The State then re-indicted applicant for the same charge. Applicant filed a pre-trial application for the writ of habeas corpus, contending that the second prosecution should be jeopardy barred. The trial court denied the application on February 7, 2000. By a single issue, appellant contests this ruling.

Prior to the original trial in this matter, applicant filed a motion for discovery, requesting the disclosure of all witnesses, and specifically those who would testify to any statement or statements made by him. The State at least partially complied with the order, supplying applicant with the names, addresses, and statements of numerous witnesses. Among the listed witnesses was Benita Wolfgang. However, at the time the State complied with the discovery order, it had not obtained a written statement from Wolfgang. Nevertheless, the State became aware of Wolfgang's expected testimony sometime before trial. The State asserts that it verbally informed applicant that Wolfgang would testify to alleged statements made by applicant prior to the time the murder was committed. The statements evidenced a motive for applicant to harm the victim.⁽¹⁾

Applicant objected to the admission of Wolfgang's testimony on the basis that the State had not disclosed the statements in discovery. After the trial court sustained applicant's objection to the testimony, applicant moved for and received a mistrial.

We review a trial court's decision to grant or deny a writ of habeas corpus under an abuse of discretion standard. State v. Patrick, 990 S.W.2d 450, 451 (Tex. App.--Corpus Christi 1999, no pet.); Ex parte Zavala, 900 S.W.2d 867, 870 (Tex. App.--Corpus Christi 1995, no pet.). The evidence demonstrates a clear abuse of discretion where the record indicates that the trial court acted without reference to any guiding principles or rules, such that it's decision is arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In the absence of an abuse of discretion, we will not disturb the trial court's ruling. Brashear v. State, 985 S.W.2d 474, 476 (Tex. App.--Houston [1st Dist.] 1998, pet ref'd).

The issue immediately before us is whether the double jeopardy clause of the Texas Constitution bars the subsequent prosecution of a defendant who moves for and is granted a mistrial when the prosecutor commits a reversible, harmful error. See Tex. Const. art. I, §14; see also Tex. Code Crim. Proc. Ann. art. 1.10 (Vernon 1999) (statutory codification tracking language of article 1 section 14).

The long-established general rule in Texas is that a mistrial granted at the defendant's request poses no double jeopardy limitation upon a re-trial of the defendant. See Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996) (Bauder I); DeYoung v. State, 160 Tex. Crim. 628, 274 S.W.2d 406 (1954). Thus, "ordinarily, when a defendant obtains a mistrial at his own request, a second trial is not jeopardy barred because the defendant's motion for mistrial is considered 'a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact.'" Bauder, 921 S.W.2d at 698 (quoting United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187, 2195, 57 L. Ed. 2d 65 (1978)). However, the court of criminal appeals has recognized an exception to this general rule, holding that:

a subsequent prosecution will be jeopardy barred 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, 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.

Bauder, 921 S.W.2d at 699. The court of criminal appeals has recently further clarified this standard, noting that two critical questions must be answered:

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 a jury unfair to such a degree that no judicial admonishment could have cured it?

See State v. Lee, 15 S.W.3d 921, 923 (Tex. Crim. App. 2000) (quoting Ex parte Bauder, 974 S.W.2d 729, 732 (Tex. Crim. App. 1998) (Bauder II)). This standard imports a mens rea requirement into the double jeopardy context. When the prosecutor's conduct is either intentional or reckless as described above, subsequent prosecutions are barred by the double jeopardy protection. Bauder, 921 S.W.2d at 699. 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.

Lee, 15 S.W.3d at 925.

In the instant case, the trial court held a hearing on the application for writ of habeas corpus. At the hearing, the State's attorney, George Morrill, testified that Wolfgang's name had been provided to the defense prior to the initial trial in a written witness list. He stated that at the time the State announced ready, it had not procured a written statement from Wolfgang. He did state, however, that he provided the defense with oral notice of the State's intent to question Wolfgang about the applicant's statements to her. Morrill testified that two of his assistants could verify this oral notice. Morrill further noted that he did not do anything to intentionally cause an end of the trial and acknowledged that the State does not intend to present any different evidence in any subsequent prosecution for this offense. Morrill advised the court that Wolfgang's statement had subsequently been reduced to writing since the mistrial was granted.

Defense counsel also testified and stated that they did not receive any notice whatsoever of the State's intent to question Wolfgang about the applicant's statements.

After hearing this evidence, the court denied the application.

The evidence adduced at the hearing on the application is conflicting. However, there was some evidence to show that the State provided the defense with notice of its intention to question Wolfgang about applicant's statements. In light of the State's testimony that it provided the defense with this notice, the trial court did not abuse its discretion in concluding that the State did not intentionally or recklessly introduce Wolfgang's testimony in an effort to secure a mistrial.

Applicant asserts that the State feared an acquittal in this case because without Wolfgang's testimony, it lacked any non-accomplice witness testimony to corroborate the allegedly-inculpatory statements attributed to applicant. However, at the hearing, Morrill stated that the State had several additional witnesses it intended to call who would corroborate those assertions. Applicant's counsel suggested that those witnesses could not corroborate the statements attributed to applicant. In the face of such a conflict, the trial court is in the best position to assess the testimony and evidence. Here, the court chose to conclude that the State did not intentionally or recklessly seek the admission of Wolfgang's testimony in derogation of the trial court's discovery order.

Accordingly, we hold that the trial court did not abuse its discretion in concluding that the State's attorney: (1) articulated a reasonable belief that he had previously disclosed the nature of Wolfgang's testimony to the defense, such that the admission of her testimony would not result in incurable error; and (2) because he had such a belief, and acknowledged an intent to introduce other corroborating evidence, did not consciously disregard the likelihood that the introduction of Wolfgang's testimony would result in a mistrial. Therefore, we hold that the trial court did not abuse its discretion in denying the application for writ of habeas corpus.

The judgment of the trial court is AFFIRMED.

ROBERT J. SEERDEN, Chief Justice

Do not publish

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Tex. R. App. P. 47.3.

Opinion delivered and filed

this 9th day of November, 2000.

1. Wolfgang is the mother of applicant's now-deceased girlfriend. She was to testify regarding statements applicant made evidencing a belief that the victim of this murder was responsible for the break-up of the relationship between applicant and Wolfgang's daughter.