Raul Constancio v. State ( 2015 )

ACCEPTED
07-14-00335-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
1/30/2015 11:57:02 PM
Vivian Long, Clerk
NO. 07-14-00335-CR
IN THE FILED IN
7th COURT OF APPEALS
COURT OF APPEALS AMARILLO, TEXAS
SEVENTH JUDICIAL DISTRICT 1/30/2015 11:57:02 PM
AMARILLO, TEXAS VIVIAN LONG
_________________________________ CLERK
RAUL CONSTANCIO
V.
THE STATE OF TEXAS
_________________________________
ON APPEAL FROM THE COUNTY COURT OF LAW NUMBER TWO
OF LUBBOCK COUNTY, TEXAS
CAUSE NO. 2013-475,785
_________________________________
BRIEF FOR THE STATE
_________________________________
MATTHEW D. POWELL
Criminal District Attorney
Lubbock County, Texas
JESSICA SCHNEIDER
AARON MONCIBAIZ
Assistant Criminal District Attorneys
(Trial Attorneys)
ORAL ARGUMENT REQUESTED JEFFREY S. FORD
(Only if Granted to Appellant) Assistant Criminal District Attorney
Lubbock County, Texas
State Bar No. 24047280
P.O. Box 10536, Lubbock, TX 79408
Phone (806)775-1166
FAX: (806)775-7930
E-mail: JFord@co.lubbock.tx.us
(On appeal)
ATTORNEY FOR THE STATE
Identity of Parties and Counsel
Appellant:
Raul Constancio
Appellant’s trial attorneys:
Sarah B. Johnson, Law Office of Sarah Johnson, 1213 Avenue K, Lubbock,
TX 79401; phone (806)771-3933; fax (806)771-3935
Russell “Rusty” Gunter, Law Office of Russell I. Gunter, II, 1213 Avenue
K, Lubbock, TX 79401; phone (806)771-3933; fax (806)771-3935
Appellant’s appellate counsel:
Allison Clayton, The Law Office of B. Allison Clayton, P.O. Box 64752,
Lubbock, TX 79464; phone (806)773-6889; fax (888)688-4515
State of Texas:
At trial:
Jessica Schneider and Aaron Moncibaiz, Assistant Criminal District
Attorneys, Lubbock County Criminal District Attorney’s Office, P.O. Box
10536, Lubbock, Texas 79408; phone (806)775-1100; fax (806)775-7930
On appeal:
Jeffrey S. Ford, Assistant Criminal District Attorney, Lubbock County
Criminal District Attorney’s Office, P.O. Box 10536, Lubbock, Texas
79408; phone (806)775-1166; fax (806)775-7930
Trial Judge:
Honorable Drue Farmer, Presiding Judge, County Court at Law No. 2 of
Lubbock County, Texas, Lubbock County Courthouse, 904 Broadway, Suite
402, Lubbock, TX 79401
i
Table of Contents
PAGE
Identity of Parties and Counsel ...................................................................................i
Table of Contents ...................................................................................................... ii
Table of Authorities ..................................................................................................iv
Statement of the Case.............................................................................................. vii
Statement of the Facts ................................................................................................ 1
Motions in Limine & Evidentiary Hearing………………………………….2
Statements at Issue …………………………………………………………..3
a) First Objectionable Statement………………………………………….3
b) Second Objectionable Statement……………………………………….4
c) Third Objectionable Statement…………………………………………5
Hearing on Motion for Mistrial……………………………………………..5
Hearing on Application for Writ of Habeas Corpus………………………...6
Summary of the Argument......................................................................................... 9
Argument and Authorities………………………………………………………...11
Sole Issue Presented: Appellant argues that the prosecution intentionally goaded
him into requesting a mistrial by “egregiously and knowingly violating trial court’s
ruling,” thereby rendering any retrial jeopardy-barred. Contrary to Appellant’s
contentions, the record reflects that the prosecutor’s actions were the result of
ii
accident or mistake rather than intentional misconduct designed to “goad” the
defense into moving for a mistrial. The trial court implicitly determined that the
prosecutors provided a reasonable explanation for their actions when it declined to
order that retrial is jeopardy barred, a ruling that was not an abuse of discretion in
light of the record evidence showing that the prosecutors had “good faith” reasons
for their actions. Did the trial court abuse its discretion in finding that the
prosecution did not intentionally provoke Appellant into requesting a mistrial?....11
Standard of Review…………………………………..……………………..11
Discussion………………………………………………………………….12
After viewing the trial court’s implied findings regarding the
prosecutors’ intent in the light most favorable to the trial court’s ruling,
did the trial court abuse its discretion in denying the application for
writ of habeas corpus?.....................................................................15
I. First Instance: Testimony by Apartment Manager........................17
II. Second Instance: Testimony Regarding Admitted Lease
Violation………………………………………………………….26
III. Third Instance: Police Officer’s Statement on Cross-
Examination……………………………………………………...37
Conclusion………………………………………………………………….47
Conclusion and Prayer ............................................................................................. 56
Certificate of Service ............................................................................................... 56
Certificate of Compliance…………………………………………………………57
iii
Table of Authorities
CONSTITUTIONAL PROVISIONS PAGE
TEX. CONST. Art. I, § 14……………………………………………………6, 12, 47
U.S. CONST. amend. V……………………………………………………...6, 12, 47
U.S. CONST. amend. XIV…………………………………………………………...6
U.S. SUPREME COURT CASE LAW
Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416
(1982)..............................................................................12, 13, 15-17, 34, 46-48, 55
TEXAS CASE LAW
Bowen v. State, 131 S.W.3d 505 (Tex. App.—Eastland 2004, pet. ref’d)..20, 21, 26
Ex parte Bauder, 2 S.W.3d 376 (Tex. App.—San Antonio 1999, pet. ref’d)…….24
Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005)……………………11
Ex parte Chavez, No. 02-13-00310-CR, 2014 WL 491813, 2014 Tex. App. LEXIS
1409 (Tex. App.—Fort Worth Feb. 6, 2014, no pet.) (not designated for
publication)………………………………………………………………………..52
Ex parte Cruz, 350 S.W.3d 166 (Tex. App.—San Antonio 2011, no pet.).21, 22, 24
Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)...............................passim
Ex parte Macias, No. 08-12-00192-CR, 2014 WL 5393042, 2014 Tex. App.
LEXIS 11622 (Tex. App.—El Paso Oct. 22, 2014, no pet.) (not designated for
publication)………………………………………………………………………..34
Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App.
2007)………………………………………………………………12, 14-17, 46-48,
iv
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003), overruled on other
grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).12, 36, 37, 52
Ex Parte Washington, 168 S.W.3d 227 (Tex. App.—Fort Worth 2005, no
pet.)..................................................................................................41, 42, 46, 47, 52
Ex parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006)……..12, 31, 32, 34, 49
State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013)……………………..11
Hill v. State, 79 S.W.3d 682 (Tex. App.—Amarillo 2002, pet. ref’d)………..12, 48
Sandifer v. State, 233 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2007, no pet.)...34
Washington v. State, 326 S.W.3d 701 (Tex. App.—Houston [1st Dist.] 2010, no
pet.)………………………………………………………………………………..47
TEXAS RULES AND STATUTES
TEX. CODE CRIM. PROC. ANN. art. 1.10…………………………………………….6
TEX. PEN. CODE ANN. § 12.43…………………………………………………….15
TEX. PEN. CODE ANN. § 12.43(b)(2)………………………………………………53
TEX. PEN. CODE ANN. § 30.05(a)(1)………………………………………………33
TEX. R. APP. P. 3.2…………………………………………………………………vi
TEX. R. EVID. 403…………………………………………………………………35
TEX. R. EVID. 404(b)………………………………………………………………35
OTHER STATES’ CASELAW
West v. State, 52 Md. App. 624, 451 A.2d 1228 (1982)………………………16, 17
v
NO. 07-14-00335-CR
IN THE
COURT OF APPEALS
SEVENTH JUDICIAL DISTRICT
AMARILLO, TEXAS
_________________________________
RAUL CONSTANCIO
V.
THE STATE OF TEXAS
_________________________________
BRIEF FOR THE STATE
_________________________________
To the Honorable Court of Appeals:
The State of Texas, the prosecuting authority in Cause No. 2013-475,785 in
the County Court of Law No. 2 of Lubbock County, and Appellee before the
Seventh Court of Appeals, respectfully submits this brief in reply to the brief filed
by Appellant appealing the trial court’s denial of his Application for Writ of
Habeas Corpus. The parties will be referred to as “Appellant” and “State.”1
1
TEX. R. APP. P. 3.2.
vi
Statement of the Case
Appellant was charged by information on September 5, 2013, with the
offense of criminal trespass of a habitation, which was later amended (on May 22,
2014) to allege the offense of criminal trespass of property. (Clerk’s Record (CR)
pp. 12, 67-68, 70). A one-day jury trial was held on July 21, 2014. Though both
sides rested that day, the Court’s Charge was not given to the jury. (Reporter’s
Record (RR) vol. 4, pp. 99-100). The following day, July 22, 2014, the trial court
granted a mistrial. (RR vol. 5, pp. 15-17).2 Appellant filed an Application for Writ
of Habeas Corpus Seeking Relief From Double Jeopardy (and a brief in support
and an amended brief), alleging that retrial was barred on double jeopardy grounds.
(CR pp. 93-142) (RR vol. 6, pp. 4-5). The trial court denied habeas relief
following a hearing on August 13, 2014. (CR p. 153) (RR vol. 6, p. 23). This
appeal followed. (CR pp. 144-45).
2
As noted in Appellant’s Brief, the volume of the Reporter’s Record titled “Hearing on Motion
for Mistrial,” which was improperly labeled as “Volume 7 of 7” in the Record (Appellant’s Br. at
vii), will be referred to as “Volume 5” for purposes of this brief.
vii
Statement of Facts
Appellant was living with his mother, Estella Ledesma (Ledesma), in the
Courtyards at Monterey apartment complex in August of 2012. (RR vol. 4, pp. 28,
32. 80). After receiving several complaints, the apartment complex management
issued a lease violation against Ledesma for letting Appellant live in her apartment
after complaints had been received against him. She was informed that he was not
supposed to be there since he was not on the lease and did not have permission to
be on the property. (RR vol. 4, pp. 32, 35, 37-38, 49, 51-52, 56-57, 61).
On August 13, 2012, James Blanda asked Officer Todd Overholser—who
was working off duty as a security officer at the apartment complex—to criminally
trespass Appellant from the apartment complex. Officer Overholser provided
Appellant notice that he was not allowed to return to the premises, with Blanda
also telling Appellant he could not return to the premises. (RR vol. 4, pp. 38-39,
57, 62, 66, 68-69, 93-94). Appellant expressed understanding that he was not to
return to the premises. (RR vol. 4, pp. 38-39, 62, 69). Ledesma drove Appellant
off of the property and reported back that he had moved out. (RR vol. 4, p. 69).
Just a little over a year after the criminal trespass notice was given, on
August 19, 2013, Overholser saw Appellant sitting in a truck on the apartment
complex premises. (RR vol. 4, pp. 70-71, 83-84). Overholser placed Appellant
under arrest for criminal trespass. (RR vol. 4, pp. 39, 71-72, 85).
1
Motions in Limine & Evidentiary Hearing
A few months prior to trial (on March 13, 2014), Appellant filed his first
motion in limine. (CR pp. 42-45). Among the other things mentioned in the
motion was that the State was not to elicit any oral or written statements allegedly
made by Appellant or any extraneous offenses or possible offenses without first
taking the matter up outside the jury’s presence. (CR p. 43). The motion in limine
was granted. (CR p. 46).
On the day of trial, Appellant bench-filed his second motion in limine. (CR
pp. 84-86) (RR vol. 3, p. 5). Appellant’s second motion in limine requested that
the State not mention, discuss, or allude to any statement that Appellant was
“attempting to lure small children into the apartment” or that he was “dangerous to
other residents.” (CR p. 84, Section I(A-B)). The State said that it had no
objection to the motion in limine being granted, but believed that some of the
statements and incidents that were enumerated in Sections A through D could be
relevant during the case-in-chief (but said that it would not go into the statements
and incidents in opening statement) to show why Appellant was previously
trespassed from the property. (RR vol. 3, pp. 5-6). The trial court granted the
motion in limine, stating that there would be a motion in limine in place regarding
why Appellant was trespassed from the property. (RR vol. 3, p. 6).
2
Immediately after the information was read, but before opening statements, a
brief hearing was held outside the jury’s presence with Officer Todd Overholser
testifying regarding complaints against Appellant that led to his being trespassed
from the property. (RR vol. 4, pp. 7-20). Following his testimony, the trial court
ruled that the specific nature of the complaints about why he was initially
trespassed from the property were inadmissible at that point, but that the State
could present testimony that complaints were made, which was the basis for
Appellant’s being excluded from the property. (RR vol. 4, p. 20).
Statements at Issue
During trial, there were three objectionable statements that formed the basis
for Appellant’s assertions in his application for writ of habeas corpus that retrial
was barred on double jeopardy grounds. Each statement at issue will be discussed
separately below.
a) First Objectionable Statement
James (Jim) Blanda was called as the first State’s witness at trial. He was
employed at the Courtyards at Monterey as the manager of the apartment complex.
(RR vol. 4, p. 28). He said that he was familiar with Appellant and identified him
in court. (RR vol. 4, p. 29). He was then asked how he initially became familiar
with Appellant and if he had ever had any complaints against Appellant, to which
he replied “[b]asically two little girls - - oh, not too much detail” and (after a few
3
more questions) “[a]bout Mr. Constancio trying to - - lure.” After the “lure”
statement, the jury was excused. (RR vol. 4, pp. 29-30). The trial court
acknowledged that the prosecutors had not had time to talk to Blanda about not
discussing the exact complaints against Appellant that led to the trespass and
admonished Blanda accordingly. (RR vol. 4, pp. 30-31). Appellant asked for a
curative instruction to the jury—which was given. Appellant then moved for a
mistrial, which was denied. (RR vol. 4, pp. 31-32).
b) Second Objectionable Statement
When questioning of Blanda resumed, he was asked by the State about the
lease violation given to Ledesma for allowing Appellant to be on the premises.
(RR vol. 4, pp. 32-33, 35). When the State sought to admit the Notice of Lease
Violation as State’s Exhibit 6, Appellant took Blanda up on voir dire. After a brief
voir dire, Appellant objected that the proper predicate had not been shown. The
trial court overruled the objection and allowed State’s Exhibit 6 to be admitted.
(RR vol. 4, pp. 33-35). After State’s Exhibit 6 was admitted, the State asked
Blanda about the lease violation, and in particular what the violation was. Blanda
replied that the violation was “[u]nauthorized drunk man and dangerous to other
residents.” (RR vol. 4, pp. 35-36). The trial court sustained the defense objection
to the last statement, ordering that the “dangerous to other residents” portion of the
Notice be redacted. (RR vol. 4, pp. 36, 54-55; vol. 7, State’s Exhibits 6, 6A).
4
Appellant then renewed his request for a mistrial. The trial court overruled
Appellant’s motion, but instructed the jury to disregard Blanda’s last statement.
(RR vol. 4, pp. 36-37).
c) Third Objectionable Statement
The third statement was elicited during Appellant’s cross-examination of
Officer Overholser. Appellant asked Overholser if he told him, following the
arrest, that he would be arrested if he returned to the property. Overholser,
expressing confusion at the question, was asked to look at his report to refresh his
recollection. While looking at his report, he stated, “Oh, I’m sorry. Oh, I see at
the end where he told me he’d beat my ass if he saw me again.” (RR vol. 4, pp.
85-86). Appellant then objected and asked for a mistrial, arguing that the last
statement was covered by the first motion in limine and was nonresponsive to the
question asked. (RR vol. 4, pp. 86-87, 90). After hearing argument from the
parties, the trial court denied the motion for mistrial and instructed the jury to
disregard the last answer given by the witness. (RR vol. 4, pp. 90-91).
Hearing on Motion for Mistrial
Following additional questioning of Officer Overholser by both parties, both
sides rested. (RR vol. 4, pp. 91-99). The following day, the trial court revisited
the matter of whether a mistrial should be granted. (RR vol. 5, p. 4). Appellant
made a “cumulative effects” argument, arguing that mistrial should be granted
5
based on the “four distinct answers” that were given “by two witnesses in direct
violation of two motions in limine” in “a span of less than two hours.” (RR vol. 5,
pp. 4-7, 14-15). The State argued that none of the statements warranted a mistrial
since the trial court gave instructions to the jury to disregard each statement. (RR
vol. 5, pp. 8-13). After hearing both sides, the trial court ordered a mistrial based
on the cumulative effect of the statements and because of the short length of
testimony (approximately two-and-a-half hours of testimony). (RR vol. 5, pp. 15-
19). The trial court clarified that mistrial was being granted based on the defense
motion for mistrial, and that the State would be allowed to retry Appellant. (RR
vol. 5, p. 17).
Hearing on Application for Writ of Habeas Corpus
Appellant filed an Application for Writ of Habeas Corpus Seeking Relief
from Double Jeopardy on August 11, 2014. (CR pp. 93-95). In the Application,
Appellant alleged that “[t]his restraint is unlawful because the trial of Mr.
Constancio for this offense is barred by the Double Jeopardy Clauses of the Fifth
and Fourteenth Amendments of the United States Constitution, Article 1, § 14 of
the Texas Constitution, and Article 1.10 of the Texas Code of Criminal
Procedure.” (CR p. 93). He requested that following a hearing, the trial court a
writ of habeas corpus ordering his release. (CR p. 94).
6
A hearing was held on August 13, 2014, before the Honorable Drue Farmer,
the same judge who presided over Appellant’s trial. Defense counsel argued that
the State “chose to break [the] rules” that were “clearly defined” by the trial court.
(RR vol. 6, p. 7). With regards to the first two statements, she argued that they
were “intentional statements, intentional misconduct by the [S]tate.” (RR vol. 6, p.
8). She argued that the third statement was due to the State’s failure to admonish
its witnesses. Id.
Defense counsel also made additional allegations as to why the prosecutor’s
conduct was intentional. First, she argued that because there was alleged error in
the State’s enhancement notice that the State was not made aware of until the day
that trial was set to begin, the State was not going to be able to enhance Appellant
with the prior conviction. (RR vol. 6, pp. 10-11). Second, she argued that “[t]rial
was just not going as they expected” because the State had intended to present the
prejudicial information before the jury, but was denied the ability to do that by the
“unexpected motion in limine” and the trial court’s “clear order.” (RR vol. 6, p.
11). Lastly, she argued that, although mistrial was requested by the defense, it was
not ultimately her decision to request a mistrial, but rather was one “intentionally
provoked by the State. (RR vol. 6, pp. 11-12).
The prosecutor responded to each individual statement. With regards to the
first statement, she acknowledged that they had not sufficiently admonished
7
Blanda, but it was because the second motion in limine was filed and ruled on right
before he took the stand. When she asked the question about what Blanda had
received complaints “about,” she was looking for him to say Appellant’s name, not
to get into the substantive nature of the complaints. (RR vol. 6, p. 13-14). With
regards to the second statement, she pointed out that the defense had been in
possession of the lease violation document for several months prior to trial and did
not object to the substance of the document, only to its predicate. (RR vol. 6, pp.
14-15). With regards to the third statement, she noted that Overholser had been
admonished about the motion in limine before he took the stand. (RR vol. 6, pp.
15-16). The State dispelled the last of Appellant’s arguments by urging that it was
not a calculated move on the part of the State to elicit any improper testimony, and
that the mistrial was ultimately Appellant’s decision, in that the State did not want
a mistrial. (RR vol. 6, p. 16).
The trial court denied the request for a writ of habeas corpus, but
acknowledged that Appellant was entitled to an interlocutory appeal. (CR pp. 153-
54) (RR vol. 6, p. 23).
8
Summary of the Argument
In his sole issue on appeal, Appellant argues that the prosecution
intentionally goaded Appellant into requesting a mistrial, thereby rendering a
retrial jeopardy-barred. Where a mistrial is declared at the request of the
defendant, retrial is barred by double jeopardy only in circumstances in which the
prosecution’s conduct was intended to provoke or “goad” the defendant into
requesting the mistrial.
Appellant’s support for his assertion that the State intended to provoke the
defense into requesting a mistrial is the admission of three statements that were
admitted at trial in violation of two separate motions in limine and the trial court’s
ruling following an evidentiary hearing. But, the record reflects that the admission
of the statements was the result of inadvertence or mistake—not deliberate
misconduct on the part of the prosecutors. The first statement was inadvertent in
that the State was expecting the answer to be Appellant’s name, not the nature of
the complaints involving Appellant. The second statement was given under the
mistaken belief that, because the document had been admitted in full, the
statements therein were admissible. Finally, the last statement was given in
response to a question by Appellant to one of the State’s witnesses, an answer that
cannot be considered attributable to the prosecutors since there is no evidence of
9
collusion between the prosecutors and the police officer witness to get him to give
the (arguably) non-responsive answer.
The record does not show that the prosecutors acted with intent to provoke
Appellant into moving for a mistrial—which is the standard as required by both the
U.S. Supreme Court and the Texas Court of Criminal Appeals before a retrial will
be jeopardy-barred (since Appellant is not arguing that the State’s actions were
done with the intent to avoid the possibility of an acquittal). The trial court did not
abuse its discretion in determining that the prosecutors did not intend to provoke or
goad the defense into requesting a mistrial. Therefore, the trial court did not err in
denying Appellant’s pretrial application for writ of habeas corpus.
10
Arguments and Authorities
Sole Issue Presented
Appellant argues that the prosecution intentionally goaded him into requesting a
mistrial by “egregiously and knowingly violating trial court’s ruling,” thereby
rendering any retrial jeopardy-barred. Contrary to Appellant’s contentions, the
record reflects that the prosecutor’s actions were the result of accident or mistake
rather than intentional misconduct designed to “goad” the defense into moving for
a mistrial. The trial court implicitly determined that the prosecutors provided a
reasonable explanation for their actions when it declined to order that retrial is
jeopardy barred, a ruling that was not an abuse of discretion in light of the record
evidence showing that the prosecutors had “good faith” reasons for their actions.
Did the trial court abuse its discretion in finding that the prosecution did not
intentionally provoke Appellant into requesting a mistrial?
Standard of Review
An applicant for habeas corpus relief must prove the claims by a
preponderance of the evidence. See State v. Guerrero, 400 S.W.3d 576, 583 (Tex.
Crim. App. 2013); Ex parte Chandler, 182 S.W.3d 350, 353 n. 2 (Tex. Crim. App.
2005). In reviewing the trial court's ruling on a writ of habeas corpus application
alleging double jeopardy, the reviewing court should consider the facts in the light
most favorable to the trial court's ruling and uphold such ruling absent an abuse of
11
discretion. See Ex parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App.
2007); Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
The reviewing court should defer to the trial court’s implied factual findings
that are supported by the record. Ex parte Wheeler, 203 S.W.3d at 325-26.
Almost total deference should be given to the trial judge’s determination of
historical facts that are supported by the record, particularly to those fact findings
that are based on the judge’s evaluation of credibility and demeanor. If the
resolution of the ultimate questions turns on an application of legal standards and
does not depend upon credibility and demeanor, the determination is reviewed de
novo. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003),
overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App.
2007); Hill v. State, 79 S.W.3d 682, 686 (Tex. App.—Amarillo 2002, pet. ref’d).
Discussion
The Fifth Amendment of the U.S. Constitution provides that no person shall
“be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.
CONST. amend. V.3 The Double Jeopardy Clause protects a criminal defendant
from repeated prosecutions for the same offense. Oregon v. Kennedy, 456 U.S.
667, 671, 102 S. Ct. 2083, 2087, 72 L. Ed. 2d 416 (1982). As a part of the protection
3
Similarly, the Texas constitutional double jeopardy provision states that “[n]o person, for the
same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put
upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.”
TEX. CONST. Art. 1, § 14.
12
against double jeopardy, “the Double Jeopardy Clause affords a criminal defendant
a ‘valued right to have his trial completed by a particular tribunal.’” Kennedy, 456
U.S. at 671-72, 102 S.Ct. at 2087.
When a mistrial is declared at the behest of the defendant, the “manifest
necessity” standard has no place in the application of the Double Jeopardy Clause.
Id. at 672, 102 S.Ct. at 2088. But, there is a “narrow exception” to the rule that the
Double Jeopardy Clause is no bar to retrial in the case of a defense-initiated
mistrial, i.e., when the prosecutor engaged in conduct intended to “goad” the
defendant into moving for a mistrial and thereby subvert the protections afforded
by the Double Jeopardy Clause. Id. at 673, 676, 102 S. Ct. at 2088, 2089. The
circumstances under which a defendant may invoke “the bar of double jeopardy in
a second effort to try him are limited to those cases in which the conduct giving
rise to the successful motion for a mistrial was intended to provoke the defendant
into moving for a mistrial.” Id. at 679, 102 S.Ct. at 2090. In examining the intent
of the prosecutor, the existence or nonexistence of intent can be inferred from
“objective facts and circumstances.” Id. at 675, 102 S.Ct. at 2089.
In Ex parte Lewis, the Court of Criminal Appeals adopted the standard
announced in Oregon v. Kennedy, supra, for determining when to grant double
jeopardy relief after a defense-requested mistrial. Ex parte Lewis, 219 S.W.3d 335,
336, 371 (Tex. Crim. App. 2007). A retrial following a defense-requested mistrial
13
is barred by double jeopardy only when it is shown that the prosecutor engaged in
conduct that was intended to provoke (or goad) the defendant into moving for a
mistrial or that the prosecutor acted with the intent to avoid the possibility of an
acquittal. See Ex parte Lewis, 219 S.W.3d at 336; Ex parte Masonheimer, 220
S.W.3d at 506-07.
In Ex parte Lewis, the Court of Criminal Appeals noted that “[t]he question,
for double jeopardy purposes, is not whether the defendant’s trial was ‘fair’ but
whether requesting a mistrial was ultimately his decision.” Id. at 358. The court
then noted that recklessness on the prosecutor’s part does not make a defendant’s
decision to seek a mistrial not his own:
The Bauder Court suggested that a defendant’s decision in a
‘recklessness’ situation would not be a ‘free’ decision, but the
question is not whether the decision was ‘free’ in the sense of being
unconstrained but whether the decision was his own, albeit in the face
of a dilemma. To say that the decision was not the defendant’s own is
to say that the decision was in reality made by someone else, e.g. the
prosecutor. But when a prosecutor is merely reckless, one cannot say
the prosecutor has made the decision to seek a mistrial. Only when
the prosecutor intends to provoke the defendant’s mistrial motion can
it be said that the prosecutor, rather than the defendant, has exercised
primary control over the decision to seek the trial termination.
Id. at 358-59. Whether the prosecutor intends to bring about a mistrial “is critical
to determining whether he, rather than the defendant, has exercised primary control
over whether a mistrial is sought.” Id. at 359. Trial courts are in the best position
14
to determine whether a prosecutor’s conduct evinces an intent to cause a mistrial.
Id. at 362.
The Ex parte Lewis court noted that “obtaining relief under the Oregon v.
Kennedy standard is rare. That is understandable, however, when one considers
that prosecutors do not ordinarily attempt to ‘throw’ their cases, even when
problems are encountered. Moreover, the double jeopardy sanction renders such
conduct self-defeating.” Ex parte Lewis at 362. The court also noted that
one should expect that such an extreme remedy—what is essentially
an acquittal, ‘the greatest form of relief in the criminal system’—
invoked under the most inhospitable of circumstances—a request for
relief as a result of an action the requesting party procured, which
would ordinarily give rise to estoppel—would be difficult to obtain
and would seldom be granted.
Id. (internal footnotes omitted).
After viewing the trial court’s implied findings regarding the prosecutors’ intent in
the light most favorable to the trial court’s ruling, did the trial court abuse its
discretion in denying the application for writ of habeas corpus?
Appellant does not suggest that the State was attempting to avoid an
acquittal, but rather was attempting to “goad” Appellant into moving for a mistrial
to avoid an unfavorable outcome (i.e., an inability to enhance the conviction under
Section 12.43 of the Texas Penal Code). That argument does not fit within the Ex
parte Masonheimer standard since that standard deals with the “intent to avoid the
15
possibility of an acquittal.”4 As such, Appellant’s argument falls squarely into the
Kennedy and Ex parte Lewis line of cases. Therefore, retrial following the
defense-initiated mistrial is only barred “when it was shown that the prosecutor
engaged in conduct that was ‘intended to provoke the defendant into moving for a
mistrial.’” Ex parte Lewis at 336 (citing Kennedy at 679, 102 S. Ct. at 2091).
In her dissenting opinion in Ex parte Masonheimer, Presiding Judge Keller
provided some guidance as to what conduct by a prosecutor could show specific
intent to force a mistrial. Specifically, her dissenting opinion quoted a Maryland
Court of Appeals case for the following discussion of the Kennedy standard:
Ordinarily, when the prosecutor injects error into the trial, grievous as
that may be, the sanction is mistrial or reversal. It is only where the
prosecutor deliberately subverts the right of the defendant to stay with
the original tribunal that the double jeopardy bar becomes the
appropriate relief. In distinguishing not between grave error and
lesser error and not between intended error and unintended error, but
rather between deliberate error designed to accomplish Purpose A and
deliberate error designed to accomplish Purpose B, the Supreme Court
was emphatic.
Id. at 511 (citing West v. State, 52 Md. App. 624, 632-33, 451 A.2d 1228, 1234
(1982)). Presiding Judge Keller also cited West for its distinction between an
intent to obtain a conviction through improper means and intent to derail the trial:
Even at the extreme end of the reprehensibility spectrum, however,
where the prosecutor has committed the deliberate foul, there is still
this pivotal distinction between (1) seeking to win the game unfairly
4
Ex parte Masonheimer, 220 S.W.3d at 507.
16
and (2), knowing the game is going awry, deliberately causing it to be
cancelled and rescheduled. If the prosecutor wins the game unfairly,
we make him replay it. When the prosecutor deliberately causes the
game to be cancelled unfairly, we do not permit him to reschedule it.
This distinction is what the Supreme Court sought to communicate, as
it concluded its discussion in Oregon v. Kennedy.
Id. at 511-12 (citing West, 52 Md. App. at 637, 451 A.2d at 1236) (emphasis taken
from opinion).
Using the standard enunciated in Oregon v. Kennedy and Ex parte Lewis,
each separate instance of alleged misconduct should be considered to see if the
State’s conduct was intended to provoke Appellant into moving for a mistrial.
1) First Instance: Testimony by Apartment Manager
Following the evidentiary hearing just prior to opening statements by the
parties, the trial court ruled that the “attempting to lure small children into the
apartment” statement was inadmissible at that point. The court ruled that the State
could present testimony that complaints were made, and that was the basis for
Appellant being excluded from the property. (RR vol. 4, p. 20).
During Blanda’s testimony, the following exchange occurred between the
prosecutor and Blanda that forms part of the basis for Appellant’s claims on
appeal:
Q. [By the prosecutor] How did you initially become familiar with
Mr. Constancio?
A. Well - -
17
Q. Without getting into too much detail.
A. Okay. Basically two little girls - - oh, not too much detail.
Q. It's all right.
A. Sorry.
Q. Had you had any complaints?
A. I had complaints, yes.
Q. About?
A. About Mr. Constancio trying to - -
Q. Okay.
A. - - lure - -
MR. GUNTER: Your Honor, we ask the jury be excused.
(RR vol. 4, pp. 29-30) (emphasis added).
After the jury was excused, the trial court acknowledged that the prosecutors
had not had time to talk to Blanda about the court’s ruling regarding the complaints
against Appellant that led to the criminal trespass warning. The court informed
Blanda that the court’s ruling was that he could talk about there being complaints
made, but not the specific nature of the complaints. Blanda apologized to the
court. (RR vol. 4, pp. 30-31). Appellant asked for a curative instruction to the
jury—which was given. The trial court denied the motion for mistrial. (RR vol. 4,
pp. 31-32). Before the jury was brought back in, Blanda was admonished by the
18
court to “listen to the question and answer the question they ask.” (RR vol. 4, p.
32).
During the hearing on the defense motion for mistrial, Appellant argued that
the second motion in limine had been violated when one of the first things the jury
heard from Blanda was “two little girls,” and that there were complaints of “trying
to lure.” (RR vol. 5, p. 5). The State argued that there was no intent to elicit that
type of information. (RR vol. 5, p. 9).
During the hearing on the application for writ of habeas corpus, further
information was given about the admission of the first statement. Appellant argued
that after Blanda said that he had “had complaints, yes,” the prosecutor “then took
it a step further and asked ‘about,’ that question specifically prohibited by this
Court and the answer was certainly prohibited by this Court, and again, goes to one
of the most prejudicial pieces of information that could have come in before this
jury.” (RR vol. 6, p. 7). The prosecutor explained what occurred with the first
statement:
First of those is error number one regarding statements that apartment
manager Jim Blanda made while he was on the stand. And we did
point out that he had not been sufficiently admonished.
That motion in limine number two was filed right before he
took the stand. And the Judge ruled on that motion right before he
took the stand. And we did not take a break and talk to him about
what he could and could not say.
19
Now, she did - - Ms. Johnson did point to a couple pieces of the
record where I asked, first question, “how did you become familiar
with the defendant?” He proceeded to go into talk[ing] about some
things that I didn’t want him to talk about. He used the word Lord,
and I stopped him. I said, okay, I don’t want you get into too much
detail. And then I said, “did you receive complaints, complaints
about,” and he proceeded to go into the substantive nature of those
complaints. What I was looking for him to say was the defendant’s
name.
(RR vol. 6, pp. 13-14). She then noted that she approached Appellant’s counsel
during trial and told her that she was only wanting Blanda to say Appellant’s
name; she was not attempting to violate the motion in limine. (RR vol. 6, p. 14).
Appellant argues that the prosecutor elicited prohibited evidence during the
direct examination testimony of the apartment manager, in violation of the motion
in limine. There are several similar cases that discuss defense-initiated mistrials
due to violations of a motion in limine.
A similar case, Bowen v. State, dealt with a violation of a motion in limine
concerning extraneous offenses. See Bowen v. State, 131 S.W.3d 505 (Tex.
App.—Eastland 2004, pet. ref’d) (a pre-Lewis case). In Bowen, a police officer
witness gave a response to a prosecutor’s question that violated a motion in limine
concerning extraneous offenses. After the trial court granted the defense-requested
motion for mistrial, the appellant filed an application for writ of habeas corpus
alleging that retrial was jeopardy barred—which was denied. On appeal, the
appellant argued that retrial was barred by double jeopardy because of
20
prosecutorial misconduct during the first trial. Bowen, 131 S.W.3d at 507-10. The
appellant argued that retrial was barred because the prosecutor was aware that the
officer would reference the extraneous offense since it followed the chronology of
events in his report and because the prosecutor failed to admonish the State’s
witnesses about the appellant’s motion in limine concerning extraneous offenses.
The Bowen court found that “culpable intent on the prosecutor cannot be inferred
from the fact that [the officer] was testifying about events chronologically and that
the events had been written down in his report chronologically.” Id. at 509.
Additionally, the court noted that “[f]ailure of the prosecutor to admonish the
State’s witnesses as to the requirements of a motion in limine does not mean that
the prosecutor deliberately or recklessly caused the mistrial. Negligent conduct or
sloppiness on the part of the prosecutor will not trigger double jeopardy
protection.” Id. Later in the court’s opinion, the court stated that “[a]t most, the
prosecutor was negligent in failing to remind [the officer] of appellant’s motion in
limine concerning extraneous acts.” Id. at 510.
Another similar case, Ex parte Cruz, came out of the Fourth Court of
Appeals. See Ex parte Cruz, 350 S.W.3d 166 (Tex. App.—San Antonio 2011, no
pet.). In Ex parte Cruz, a police officer testified, while being questioned by the
prosecutor on direct-examination, about currency given to the police department by
the defendant’s attorney in violation of a motion in limine (even after the
21
prosecutor had instructed the officer not to refer to the money given to defense
counsel). After the defense-requested motion for mistrial was granted, the
appellant filed an application for writ of habeas corpus arguing that retrial was
jeopardy-barred. During the hearing on the application, the trial court determined
that the officer had made an honest mistake and that the prosecutor did not have
any intent to solicit testimony in violation of the motion in limine and denied the
application. Ex parte Cruz, 350 S.W.3d at 167-69. On appeal, the appellant
argued that retrial was barred on jeopardy grounds because the prosecutor “set the
stage for the officer to identify the money in Exhibits 20 and 21 as the money
given to defense counsel” and that the State’s use of the word “okay” during the
questioning was “tantamount to encouraging the witness to violate the limine
order. The Cruz court disagreed, determining that the record supported a finding
that the officer’s unsolicited statement was not attributable to the State’s action or
inaction and that the record showed no intentional prosecutorial misconduct either
to provoke the appellant to move for a mistrial or to avoid the appellant’s acquittal.
Id. at 169.
Based on a reading of the trial record here, it is obvious that the first
objectionable statement was not elicited because of any intentional act of
misconduct by the prosecutor. Before Blanda started noting how he knew
Appellant, the prosecutor expressly stated the following: “[w]ithout getting into too
22
much detail.”5 After Blanda said, “[b]asically two little girls,” he immediately
corrected himself and acknowledged the admonishment not to go into too much
detail.6 The prosecutor stated “[i]t’s all right,” then asked Blanda if he had had any
complaints. He said he had had complaints—but did not say whom those
complaints were about. The prosecutor then asked “About?”; Blanda replied
“[a]bout Mr. Constancio trying to” and “lure.”7 In between the “[a]bout Mr.
Constancio trying to” and “lure” statements, the prosecutor said “[o]kay.”8
When the prosecutor thought that Blanda was about to get into some things
she did not want him to talk about, she cut him off and said, “Without getting into
too much detail.”9 When he started discussing the substantive nature of the
complaints a few answers later, the State’s attorney tried to cut him off by saying
“[o]kay.” Appellant asserts that the “[o]kay” statement was meant to encourage
the prohibited testimony.10 However, this is not supported by the record—or by a
commonsense understanding of how people communicate with one another. The
“okay” statement, which appears midsentence in the witness’s “[a]bout Mr.
Constancio trying to lure” testimony, is indicative of the prosecutor trying to cut
5
(RR vol. 4, p. 29).
6
Id.
7
(RR vol. 4, pp. 29-30).
8
(RR vol. 4, p. 30).
9
(RR vol. 4, p. 29; vol. 6, p. 13).
10
(Appellant’s Br. at 18).
23
Blanda off before he said anything further.11 At the very least, assuming that the
prosecutor’s intent to cut Blanda off with the “okay” statement before he said
anything further is not clear from the record, that is because the Court only has the
benefit of a cold record. Since there is nothing definitive in the cold record
showing that the statement was intended as a cutoff as opposed to an
encouragement, the Court should give deference to the trial court’s implied ruling
that the prosecutor’s actions were done in good faith. And, because it is reasonable
that the State could have believed that the response to its question “About?” would
be answered with Appellant’s name and that the State did not intend to elicit
inadmissible evidence,12 the trial court’s ruling should stand.13
Appellant also challenges the prosecutor’s statement that they had not had
time to admonish the witness about Appellant’s second motion in limine.
Appellant argues that there was an hour-and-a-half recess and that four hours
11
See Ex parte Cruz at 169 (concluding that the record supported a finding that the officer’s
statement given in violation of the motion in limine was not attributable to the State’s action or
inaction, even when the prosecutor said the word “[o]kay” right when the impermissible subject
was being broached).
12
(RR vol. 5, p. 9; vol. 6, p. 14).
13
The trial judge obviously believed that Blanda had volunteered unsolicited information. After
advising him about the scope of the allowable testimony about the “complaints,” the judge
admonished him to “[j]ust listen to the question and answer the question they ask.” (RR vol. 4,
pp. 30-32). Thus, Appellant’s argument that the response was a direct response to a specific
question (Appellant’s Br. at 18) is not supported by the record. And, in any event, considering
that the prosecutor “’didn’t expect to elicit’ the answer, was ‘surprised’ by the answer, and ‘had
no idea’ the officer would give the answer,” see Ex parte Bauder, 2 S.W.3d 376, 378 (Tex.
App.—San Antonio 1999, pet. ref’d), it cannot be said that the prosecutor’s conduct was
intended to provoke the defense into requesting a mistrial.
24
elapsed from the time the second motion in limine was granted until the guilt-
innocence phase of trial began.14 However, the argument that the prosecutor had
“ample time” to contact Blanda is not supported by the record. The trial court,
when admonishing Blanda about not going into the nature of the complaints, said
“I’m not sure if y’all have had a chance to talk really. Probably not.”15 The trial
judge, after telling Blanda the scope of the court’s ruling, stating the following to
Blanda after he apologized to the court: “That’s okay. I don’t think they got a
chance to tell you that, so I want to make sure - - we’re not talking about the nature
of the complaints.”16 Obviously, the trial court felt that there had not been enough
time to admonish Blanda about the second motion in limine—which makes sense
given that during that “four hour[]” period alluded to by Appellant, a voir dire
examination of the venire took place, the fire alarm went off (which presumably
led to evacuation of the courthouse17), a hearing was held outside the jury’s
presence with Officer Overholser, and then the trial started with opening
statements of the parties and Blanda being called to the stand. And, there was no
14
(Appellant’s Br. at 17).
15
(RR vol. 4, p. 30) (emphasis added).
16
Id. (emphasis added).
17
(RR vol. 3, p. 102). The fire alarm went off while the questioning of individual
veniremembers was going on at the bench, thereby causing an hour-and-a-half break in time in
the individual questioning. Id. After individual questioning resumed, the trial judge noted that
“everybody ran out for the fire alarm.” (RR vol. 3, p. 106). An evacuation of the courthouse—
and the consequent disarray surrounding that—is hardly the best time to “contact the two
witnesses.” (Appellant’s Br. at 17).
25
recess between the time that the trial court held the statements to be inadmissible
and the beginning of trial.18 Furthermore, there is no proof that Blanda was even in
the courtroom or the general vicinity of the courthouse at such a time that he could
be admonished about the scope of the second motion in limine. Thus, the trial
court’s determination that the prosecutors had not had adequate time to admonish
Blanda about the second motion in limine should be given deference.19
2) Second Instance: Testimony Regarding Admitted Lease Violation
Following the evidentiary hearing just prior to opening statements by the
parties, the trial court ruled that the “dangerous to other residents” statement was
inadmissible at that point. The court ruled that the State could present testimony
that complaints were made, and that was the basis for Appellant being excluded
from the property. (RR vol. 4, p. 20).
After the jury was instructed to disregard “the last couple of statements by
the witness,” Blanda was asked whether Ledesma became aware that Appellant
was not allowed on the premises—to which he replied yes. (RR vol. 4 p. 32). The
State then asked Blanda about the lease violation given to Estella Ledesma. (RR
18
(RR vol. 4, pp. 20-21).
19
Even if there had been sufficient time for the prosecutors to admonish Blanda, however, that
does not show that the prosecutors intended to provoke Appellant into moving for a mistrial.
The Bowen court noted that “[f]ailure of the prosecutor to admonish the State’s witnesses as to
the requirements of a motion in limine does not mean that the prosecutor deliberately or
recklessly caused the mistrial. Negligent conduct or sloppiness on the part of the prosecutor will
not trigger double jeopardy protection.” Bowen at 509.
26
vol. 4, pp. 33, 35). When the State sought to admit the Notice of Lease Violation
as State’s Exhibit 6, defense counsel conducted a brief voir dire examination of
Blanda and then objected on improper predicate grounds. The trial court overruled
the objection and allowed State’s Exhibit 6 to be admitted. (RR vol. 4, pp. 33-35).
After the State admitted State’s Exhibit 6, the prosecutor asked the following
questions regarding it:
Q. Mr. Blanda, can you tell the jury what that document is that I’m
showing to you?
A. This is a lease violation. If there is a violation of the contract for
whomever is on the lease at the apartment, whoever is in the office - -
I obviously can’t be there all the time, but they fill out the appropriate
documents here so we have it for our records should we need to evict
or what have you.
Q. What’s the purpose of a lease violation?
A. The purpose is for the tenant to address that issue immediately.
Q. And who is the tenant that was on the lease at this time?
A. Estella Ledesma.
Q. And what does it say that the violation was?
A. Unauthorized drunk man and dangerous to other residents.
MS. JOHNSON: Objection, your Honor. May we approach?
(RR vol. 4, pp. 35-36).
27
After approaching the bench, Appellant argued that the last statement
violated the second motion in limine. The prosecutor argued that the exhibit had
been offered as a piece of evidence and admitted by the court. (RR vol. 4, p. 36).
Appellant argued that the exhibit was not tendered to the court prior to it being
admitted into evidence, so the court did not have the opportunity to look at it. Id.
The trial court decided that State’s Exhibit 6 was admissible, but that (after further
discussion later in the record) the “dangerous to other residents” portion should be
redacted by whiting out that portion of the document. (RR vol. 4, pp. 36, 54-55).
Appellant’s counsel then renewed the request for a mistrial. The trial court
overruled Appellant’s motion, but instructed the jury to disregard Blanda’s last
statement. (RR vol. 4, pp. 36-37).
Appellant argued during the hearing on the motion for mistrial that Blanda
gave the second inadmissible statement just “10 or 15 minutes” after giving the
first inadmissible statement, in violation of the second motion in limine. (RR vol.
5, p. 5). The prosecutor argued that there was no objection to the substance of
State’s Exhibit 6 (other than an improper predicate objection that did not address
the substance of the document), and therefore it was admitted in its entirety. He
argued that it was not until Blanda was being questioned about the explanation of
the lease violation that the defense objected to the particular statement in the
Notice of Lease Violation. (RR vol. 5, pp. 9-10). When asked by defense counsel
28
if it was the State’s intent to get in a document that the prosecutors knew was a
violation of the second motion in limine, the State’s attorney said “Absolutely not.
It was not. However, we offered that document to the Defense. They objected to
improper predicate. Ms. Johnson took that witness on voir dire, was allowed to ask
questions, and then no other objections were made.” (RR vol. 5, p. 10). The
prosecutor also argued that the defense had the opportunity to address any issues
with the lease violation document and bring it to the court’s attention, but did not
do so. (RR vol. 5, p. 11).
During the hearing on the application for writ of habeas corpus, the
following was stated by defense counsel about the second statement:
The second statement in my motion in limine came from State’s
Exhibit 6, from that lease violation. The [S]tate knew that that
statement was in there, as did the defense. And the [S]tate failed to
tender that document to the Court. After that document was admitted,
the [S]tate again asked “and what does it say that violation was?”
That question again goes specifically into the information clearly
prohibited by the prior Court’s order in this case.
(RR vol. 6, p. 8) (emphasis added). The prosecutor responded as follows:
Error number two, this is a piece of evidence that was a lease
violation. This piece of evidence had been in the possession of both
the defendant and the [S]tate for several months prior to the trial.
When I offered this piece of evidence, it was objected to but only as to
its predicate. And as defense just admitted, defense knew what was in
there. She just said she knew what was in there at that time. She
didn’t object to the substantive nature of that piece of evidence.
29
The purpose of tendering the piece of evidence to the defense is
for them to see if that proposed evidence is objectionable or not.
They pointed out in their brief that we didn’t show it to the Court. I
think they just mentioned that we didn’t show it to the Court. There’s
nothing in the Rules of Evidence or the Code of Criminal Procedure
that requires me to do that.
So ultimately error number two, the only objection she made
was to predicate; therefore, it’s not - - has not - - that issue has not
been preserved for appeal. It is not sufficiently specific for an
appellate court to determine from the record what that objection was
about if it was to the substance of that document.
(RR vol. 6, pp. 14-15) (emphasis added). When defense counsel later asked what
the State’s intent was in introducing the lease violation notice with the
inadmissible language contained therein without bringing it to the court’s attention,
the prosecutor argued that the court had granted a motion in limine, but had not
made a final determination as to the admissibility of the evidence. (RR vol. 6, pp.
21-22).
During the rebuttal argument, Appellant’s counsel stated the following:
I concede that during the original trial of this offense, although I
objected to State’s 6, I did object on the basis of improper predicate.
The Court overruled that objection and it was admitted. But the Court
had made a final ruling as to the statement contained in State’s 6 less
than an hour before. That ruling was still valid. The State was aware
of that ruling. And that ruling was clear.
It was a clear order of the Court not to go into the substance of
any complaints. I may have been mistaken in my assumption that it
would be redacted before being published to the jury. I understand I
may have made an error there. But this Court also, in the heat of the
moment during that original trial proceeding, saw that the [S]tate
30
didn’t tender that to the Court. The Court didn’t have an opportunity
to review it. And the Court had ruled decisively as to that statement.
(RR vol. 6, pp. 18-19) (emphasis added).
A case that deals with a similar fact situation as the one at issue here is Ex
parte Wheeler, supra (a pre-Lewis case). In Ex Parte Wheeler, the issue of fault
(in a manslaughter/criminally negligent homicide trial) was hotly contested
throughout the entire trial. After cross-examining the defense’s expert witness for
three hours, the Stated asked “Are you aware that her [the defendant's] insurance
carrier found her at fault?” The judge immediately sent the jury out and later
granted a mistrial following a weekend recess. Before the next trial, the defendant
filed a pretrial application for writ of habeas corpus claiming a double jeopardy
violation. After the trial judge extensively questioned the prosecutor and defense,
the trial court denied the defendant’s double jeopardy motion and pretrial writ
application. Ex parte Wheeler, 203 S.W.3d at 319-22. The Court of Criminal
Appeals agreed that the asking of the “Are you aware that her [the defendant’s]
insurance carrier found her at fault?” question was manifestly improper. Id. at 324.
But, the court, noting that the prosecutor had a sincere, albeit mistaken, good faith
belief for asking the question, determined that the trial judge did not abuse her
discretion in refusing to find that retrial was jeopardy barred since the record
evidence supported the habeas trial court’s finding that the prosecutor did not
31
possess the culpable mental state required for a double jeopardy violation. Id. at
328-30. In its reasoning, the court noted that
We cannot disagree with the trial judge’s implicit conclusion that this
was a question that was asked in good faith, albeit an impetuous,
perhaps even stupid, question. The trial judge saw the prosecutor and
could judge his credibility and integrity; she was entitled to conclude
that the prosecutor acted with unwarranted zeal rather than malice or
reckless disregard for the defendant’s rights.
Id. at 330.
The record evidence here supports the trial court’s implied finding that the
prosecutor did not intentionally “goad” the defense into a mistrial by either
admitting the un-redacted Notice of Lease Violation or in asking the question about
the specific violation at issue. During the prosecutor’s questioning of James
Blanda, she admitted the Notice as State’s Exhibit 6. When she offered it into
evidence, she first tendered the exhibit to the defense. Though the defense
objected to the admission of the exhibit, the defense objected only on predicate
grounds, not as to the substance of the document.20 Only after the exhibit had been
admitted and Blanda read the “[u]nauthorized drunk man and dangerous to other
residents” line did the defense object that the foregoing statement violated the
20
(RR vol. 4, pp. 33-34).
32
motion in limine. After a hearing, the “and dangerous to other residents” portion
of the notice was redacted from the document.21
In the prosecutor’s attempt to prove up the notice element of the offense of
criminal trespass, i.e., that Appellant had notice that the entry was forbidden,22 the
State admitted evidence that contained a statement that violated the motion in
limine. The prosecutor operated under the belief that because the exhibit had been
admitted into evidence without objection (at least to the substance of the
document), the exhibit was admissible for all purposes. Ultimately, that belief was
erroneous since the “and dangerous to other residents” portion violated both the
motion in limine and the trial court’s order. But, that belief, albeit erroneous, does
not show an intent to provoke a mistrial. The Notice of Lease Violation was
provided to the defense “several months prior to the trial.”23 During trial, the
prosecutor went through the proper steps to get the exhibit admitted into evidence,
namely proving up the predicate for admissibility of the document, tendering it to
the defense, and moving to admit the Notice as an exhibit. Had the prosecutor
intended to provoke a mistrial, she would not have laid the proper foundation for
admitting the document and provided it to the defense before discussing the
contents thereof.
21
(RR vol. 7, State’s Exhibits 6, 6A).
22
See TEX. PEN. CODE ANN. § 30.05(a)(1).
23
(RR vol. 6, p. 14).
33
Although the prosecutor’s actions may have been intentional in the sense
that the prosecutor intended to elicit the statement at issue, nothing in the record
suggests that the prosecutor’s actions were done with the intent to force the defense
to request a mistrial.24 Indeed, far from being an intentional act of misconduct, the
record shows that the error in admitting the un-redacted Notice slipped past not
only the State, but also the defense. The prosecutors made the mistake of not
realizing that the document contained a statement that was covered by the second
motion in limine and the trial court’s order and was not admissible in its then-
current form.25 The defense made the mistake of not objecting to the admission of
24
See Ex parte Wheeler at 330-31 (finding that though the question about whether the
defendant’s accident reconstruction expert was aware that the defendant’s insurer had found her
at fault was manifestly improper, the trial court “was entitled to conclude that the prosecutor
acted with unwarranted zeal rather than malice or [under the former recklessness standard]
reckless disregard for the defendant’s rights.”); Sandifer v. State, 233 S.W.3d 1, 3-4 (Tex.
App.—Houston [1st Dist.] 2007, no pet.) (stating that the prosecutor’s mistake in asking the
investigating detective whether the appellant had not taken a polygraph test, though one was
offered, did not constitute conduct designed to goad the defense into asking for a mistrial); Ex
parte Macias, No. 08-12-00192-CR, 2014 WL 5393042 at *4, 2014 Tex. App. LEXIS 11622 at
*10 (Tex. App.—El Paso Oct. 22, 2014, no pet.) (not designated for publication) (stating that a
holding that retrial is jeopardy barred “where the State engaged in some kind of intentional
conduct even where there is no evidence that the prosecutors acted with the requisite intent to
provoke or goad the defendant into seeking a mistrial” would be contrary to the Kennedy
standard).
25
The prosecutor’s reasonable—albeit mistaken—belief that everything in the Notice was
admissible was shown from the argument given during the motion for mistrial hearing. During
that hearing, the prosecutor argued that “[t]he Court had granted a motion in limine. The Court
had not made a final determination as to the admissibility of that evidence.” (RR vol. 6, p. 22).
Ultimately, that statement is incorrect since there had been a finding by the trial court that the
statement was inadmissible. But, that statement does show that the admission of the statement
was the result of a simple misunderstanding as to the scope of the trial court’s order rather than
intentional misconduct on the prosecutors’ part.
While Appellant criticizes the prosecutor’s mistaken belief that the evidence had not been
ruled inadmissible (Appellant’s Br. at 22-24), that criticism is a blatant attempt at Monday-
34
State’s Exhibit 6 (in its un-redacted form) on Rule 404(b)26 and/or Rule 40327
grounds.
Furthermore, defense counsel made a mistake in believing that a document
that had being admitted for all purposes (without any redactions or a limiting
instruction) would be redacted after it had been admitted. During the hearing on
the application for writ of habeas corpus, Appellant’s counsel acknowledged
knowing that the offending statement was in the Notice.28 She also stated that she
“may have been mistaken in [her] assumption that it would be redacted before
being published to the jury.”29 Her assumption that the document would be
redacted before questions were asked of Blanda about the document was not
reasonable since: (a) the document was being admitted in its entirety at that time;
and (b) there were no redactions to the document at the time it was admitted. To
believe that the document would be redacted after it had been admitted for all
purposes is not a reasonable belief. The appropriate time to ask for redactions
morning quarterbacking. It is easy to see the exact scope of the trial court’s evidentiary order
when one has the Reporter’s Record right in front of them, where the words are clearly on the
computer screen or on the printed page. That, of course, is not what happened at trial, though.
At trial, the prosecutors did not have the court’s evidentiary order written out for them to review
to their heart’s content. During trial, misunderstandings can arise that may seem unreasonable in
retrospect, but are—as here—entirely reasonable while trial is ongoing.
26
TEX. R. EVID. 404(b).
27
TEX. R. EVID. 403.
28
(RR vol. 6, p. 8).
29
(RR vol. 6, p. 18).
35
would be before trial, not during trial—and certainly not after the document with
the offending statement has already been admitted into evidence.30
Appellant suggests that the trial prosecutor knew that the relevant statement
in the Notice of Lease Violation was inadmissible because the prosecutor did not
first tender the document to the trial court to be examined before it was admitted.31
But, there is nothing in the Code of Criminal Procedure or Rules of Evidence that
requires a document to first be provided to the trial court before it is admitted.32
And, there is no record evidence showing that the Notice was not first turned over
to the court as some sort of insidious attempt to admit inadmissible evidence and
provoke the defense into requesting a mistrial.33 Instead, at worst, the admission of
the prejudicial statement was “the result of inadvertence, sloppiness, or even
simple negligence,”34 which does not render re-trial jeopardy-barred.
30
The foregoing observation is noted to highlight that mistakes were made on both sides in the
admission of the prohibited statement. How can there be intentional misconduct by the
prosecutors from the admission of a document when the defense did not even realize—until after
the fact—that the document violated the motion in limine and the trial court’s order?
31
(Appellant’s Br. at 11).
32
Had Appellant objected to the substance of the document, then it would certainly have been
necessary to show State’s Exhibit 6 to the court before it was admitted. But, since the only
objection was on improper predicate grounds, the trial court did not need to look at the exhibit
before it was admitted into evidence.
33
Indeed, if that were the case, then all of the evidence in the case would have been improperly
admitted since there is no record evidence that any of the other State’s Exhibits (State’s 1-5, 7-
15) were first tendered to the trial court before being admitted into evidence. The exhibits were
first shown to the defense at the time they were being offered into evidence, but they were not
first turned over to the trial judge before they were admitted into evidence. (RR vol. 4, pp. 40,
43-44, 73-74). And yet, no argument has been advanced that the other exhibits in the case were
improperly admitted since they were not first shown to the trial judge before being admitted.
34
Ex parte Peterson, 117 S.W.3d at 817. As noted in a footnote, “[d]ouble jeopardy does not bar
36
While the statement contained within the Notice was ultimately not
admissible, the State should not be blamed for admitting evidence that not even the
defense realized—until after the fact—was inadmissible.35 Intent to “goad” or
provoke the defense into a mistrial is not shown from admitting evidence that
neither party realizes at the time the evidence is admitted is inadmissible.
3) Instance Three: Police Officer’s Statement on Cross-Examination
The third statement was elicited during Appellant’s cross-examination of
Officer Overholser. Appellant was asking questions about the arrest for the instant
offense. (RR vol. 4, p. 85). The following then appears on the record:
Q. After you arrested Raul, you told him at this point that if he
returned to the property, he would be arrested for criminal trespass; is
that right?
A. After I arrested him?
Q. Yes, sir.
retrial when the misconduct, causing a reversal or a mistrial, is committed by the inadvertent
Gabriel; double jeopardy bars retrial only when caused by the intentional [or at that time
reckless] misconduct by a consciously aware Beelzebub.” Id. at 817 n. 57.
35
Though Appellant is quick to condemn the failure of the prosecutor to realize the incriminating
nature of the statement and the inadmissibility of the un-redacted Notice, he fails to acknowledge
that the defense also failed to realize its incriminating nature—or at least failed to speak up
before it had been admitted for all purposes at trial. In fact, it can be argued that defense counsel
realized (after the fact) that she was rendering ineffective assistance to her client by not properly
reviewing the proffered document before it was admitted and making appropriate objections
before it had already been admitted for all purposes, and therefore decided to “pass the buck” by
blaming the State’s attorneys for her own deficiency. Of course, that does not relieve the State
from having to comply with motions in limine and court orders (and the State is certainly not
suggesting otherwise), but the fact that not even the defense realized the inadmissible nature of
State’s Exhibit 6 (at least in its un-redacted form) before it had been admitted does show the lack
of intent by the prosecutors to provoke the defense into moving for a mistrial.
37
A. I don't -- we talked about a lot of things so he was already under
arrest. I don't understand.
Q. Well, let me have you look at your --
A. I'm sorry.
Q. If you wouldn't mind going ahead and look at your report to refresh
your memory.
A. Oh, I'm sorry. Oh, I see at the end where he told me he'd beat my
ass if he saw me again.
MS. JOHNSON: Objection, your Honor. May we approach?
(RR vol. 4, pp. 85-86) (emphasis added).
At the bench, defense counsel argued that Officer Overholser’s answer was
nonresponsive to her question. (RR vol. 4, p. 86). After the jury was excused,
defense counsel argued that the last statement was covered by the first motion in
limine since the first motion in limine encompassed extraneous offenses and bad
acts. (RR vol. 4, pp. 86-87). Defense counsel then re-urged her motion for a
mistrial. When asked for a response, the prosecutor argued that it was the defense
that elicited that statement rather than the State and that the witness “was simply
answering the question asked by Ms. Johnson, and she got a response that she
didn’t particularly like.” (RR vol. 4, pp. 87-88). Appellant’s counsel argued that it
was incumbent upon the State to advise their witnesses of motions in limine and
information that would be covered by the motion in limine. The prosecutor noted
38
that he had had a conversation with Overholser prior to his testimony. (RR vol. 4,
p. 89).
The trial court, after looking at the report, acknowledged that the statement
was at the very end of the report. (RR vol. 4, p. 90). Defense counsel argued that
the defense wanted Overholser to refresh his memory about whether he told
Appellant if he ever came back again, he would be arrested for criminal trespass.
Id. The trial court then overruled the motion for mistrial and instructed the jury to
disregard the last answer given by the witness. (RR vol. 4, pp. 90-91).
During the hearing on the motion for mistrial, Appellant argued that
Overholser violated the first motion in limine when he “blurt[ed] out, oh, right
after he threatened to beat my ass.” (RR vol. 5, p. 5). Defense counsel then argued
that “Officer Overholser is a seasoned veteran of the Lubbock Police Department
by his own admission,” that he has been instructed “numerous times about motions
in limine and extraneous offenses,” and that “[t]he actions that he took yesterday
and the reaction that was created within that jury was calculated. He did that on
purpose. There is no question.” (RR vol. 5, p. 7). The prosecutor objected to that
last argument, saying that there is no evidence to support that argument.
Appellant’s attorney argued that “there is plenty of evidence, just by looking at the
question that was asked that was posed to him and the response. There can be no
other logical conclusion to be drawn.” (RR vol. 5, pp. 7-8).
39
The prosecutor then addressed why a mistrial should not be granted. With
regards to Overholser’s response, the prosecutor argued that the response—perhaps
a nonresponsive response—was based on a question asked during cross-
examination, not a question elicited by the State. He argued that the defense asked
a bad question and got a response they did not like. (RR vol. 5, p. 12). The
defense replied that the prosecutors were supposed to meet with their witnesses
ahead of time and instruct them as to the evidence they are not to go into from the
witness stand—from either side. (RR vol. 5, p. 14). The court noted that the
“Defense counsel requested the officer to look at the - - towards the bottom of his
report. Based on the probable cause that’s set out in the Court’s file, that statement
is in the last paragraph of that report[.]” (RR vol. 5, p. 16).
During the hearing on the application for writ of habeas corpus, defense
counsel argued that the impermissible statement from Overholser occurred due to
the State’s “failure” to admonish its witnesses concerning the “boundaries on
testimony that were set by this Court.” (RR vol. 6, pp. 8-9). She also argued that
Overholser “took the opportunity to blurt that information out in front of the jury
when no question had been asked of him, when he simply had been instructed to
review his police report. The question before that could not have been a more
closed-ended question and it went to an essential element of this offense which is
the notice that was given to Mr. Constancio. The officer became aware that his
40
report was going to be used against him and the officer acted out.” (RR vol. 6, pp.
9-10). The prosecutor stated the following about the third statement:
Defense motion in limine specifically directs the prosecutor not to,
quote, elicit a certain response from a witness. Your Honor, I’m not
sure how I could have elicited anything from the witness when he was
on cross examination. Maybe his answer was nonresponsive. I’m not
conceding that it was.
But if the Court finds that his answer was nonresponsive, to
find that the [S]tate acted intentionally getting him to act that way
would require a finding of some kind of collusion or witness
coaching, of which there is no evidence, because it didn’t happen.
And he did on the record state that he had been admonished by the
Court about that motion in limine before he took the stand.
(RR vol. 6, pp. 15-16).
The case before the Court is somewhat similar to Ex parte Washington, a
case out of the Second Court of Appeals. See Ex Parte Washington, 168 S.W.3d
227 (Tex. App.—Fort Worth 2005, no pet.). In Ex Parte Washington, two
testifying officers made three improper references to possible extraneous offenses
committed by the appellant in violation of a motion in limine. After a mistrial was
granted, the appellant argued that re-trial was jeopardy-barred. During the writ
hearing, the two prosecutors in the case and one of the police officers testified
about their conversations with the police officers. During their testimony, it was
revealed that the first officer was not warned not to mention any extraneous
offense or any sort of misconduct until after the first violation of the motion in
41
limine had already occurred, and that the third violation of the motion in limine
occurred because the officer did not believe he was mentioning an extraneous or
bad act on the appellant’s part. Following their testimony, the trial court denied
relief. Ex parte Washington, 168 S.W.3d at 230-33. The appellate court first
determined that a witness’s state of mind is not imputed to the prosecution so as to
constitute prosecutorial misconduct which would preclude retrial. Id. at 237-38.
The court then agreed with the habeas court’s findings that the first two violations
of the motion in limine were inadvertent, but that the third violation was not
inadvertent. Id. at 238-39. But, the court held that the appellant did not meet his
burden of establishing that “any manifestly improper prosecutorial misconduct
provoked the request for mistrial” or that the prosecutor engaged in the conduct
with the intent to goad the appellant into requesting a mistrial. Id. at 239.
The third and final statement Appellant takes issue with occurred while
defense counsel was cross-examining the witness. During the cross-examination,
defense counsel asked Overholser if he told Appellant after he arrested him that if
he returned to the property, he would be arrested for criminal trespass. After
further discussion, defense counsel asked him to look at his police report to refresh
his memory. While presumably looking at his report, Overholser stated, “Oh, I’m
42
sorry. Oh, I see at the end where he told me he’d beat my ass if he saw me
again.”36
Appellant seeks to impute ill motive or intent on Overholser’s part in
making that last statement.37 But, that statement, though a violation of the motion
in limine, seems to be due to an honest mistake on Overholser’s part. Overholser
was obviously confused by defense counsel’s question, as shown from the
following three statements (all of which were given immediately after the question
about whether he told Appellant he would be arrested for criminal trespass if he
returned to the property): “After I arrested him?”; “I don’t - - we talked about a lot
of things so he was already under arrest. I don’t understand.”; and “I’m sorry.”38
After he was directed to look at his police report to refresh his recollection, he
responded with a statement that was taken from his report.39 Far from having an
improper motive to get in inadmissible evidence, the objective facts show that
Overholser was answering what he believed to be the question asked of defense
counsel.
36
(RR vol. 4, pp. 85-86).
37
(Appellant’s Br. at 24).
38
(RR vol. 4, p. 85) (emphasis added).
39
The trial judge even noted that the statement at issue was in the police report. (RR vol. 4, p.
90). The Clerk’s Record backs up that observation since the police report shows that statement
in the second to last line of the main portion of the report. (CR p. 9). Thus, though Appellant
suggests that Overholser failed to look at his report before making the statement (Appellant’s Br.
at 24), the statement is taken directly from his report.
43
This is essentially an instance of “ask a bad question, get a bad answer.”
Appellant asked a question and when Officer Overholser was obviously confused
about the question and even said, “I don’t understand,” Appellant had him refer to
his report. Instead of seeking to clarify what she was looking for before she asked
the officer to look at his report, she asked him to look at his report without making
any attempt to refer to the particular portion of the report she wanted him to look at
(e.g., such as asking him to look at the last line of the report). While the answer
does appear non-responsive to the question, it is possible that, due to his
confusion—which was exacerbated by trial counsel’s inartful questioning and
failure to point out the specific portion of the report to which she was referring—
Overholser thought that defense counsel was asking about statements that
Appellant said to him rather than statements that he said to Appellant.40
The inadvertent nature of the violation of the motion in limine is also shown
from an earlier portion of the cross-examination. Earlier during the cross-
examination, defense counsel was questioning Overholser about Blanda’s
40
The lack of a definitive statement in the record as to why Overholser responded the way he did
is solely due to defense counsel’s refusal to let him speak during the hearing outside the jury’s
presence. During the hearing that occurred outside the jury’s presence after the “beat my ass”
statement was given, Overholser tried to clarify why he gave that statement (after defense
counsel argued that the response “was in no way reflective or responsive to the question
requested”), but defense counsel stated “I would ask that the witness sit silent please.” (RR vol.
4, p. 88). In essence, defense counsel told Overholser to “shut up” and that he did not care what
Overholser had to say—thereby preventing this Court from having the benefit of what
Overholser was thinking at the time he gave the statement.
44
confronting of Ledesma about Appellant. When he asked about which instance
defense counsel was talking about, she referred him to his report, saying that the
report says “that Mr. Blanda spoke with Raul’s mother, is that right?” Overholser
replied, “I’m not finding it, but I’m not disputing it. I remember that happening,
yes.”41 When defense attorney asked to approach, Overholser (who was seemingly
reviewing his report at the time) stated, “I’ve got it. I’ve got it. Sorry. Yes,
ma’am. I’ve got it. Slow reader.”42 As that portion of the trial record suggests,
Overholser simply made an honest mistake when he was reading the incorrect
portion of the report in response to the later question.
Appellant asserts that the improper statement occurred due to the State’s
alleged failure to admonish its witness.43 However, this is not supported by the
record. After the statement was made during trial, the prosecutor expressly stated
that he had had a conversation with Officer Overholser prior to his testimony.44 At
the writ hearing, the prosecutor also stated that Officer Overholser “did on the
record state that he had been admonished by the Court about that motion in limine
before he took the stand.”45 Although the particular admonishment is not found in
41
(RR vol. 4, pp. 80-81).
42
(RR vol. 4, p. 81).
43
(Appellant’s Br. at 24-25).
44
(RR vol. 4, p. 89).
45
(RR vol. 4, pp. 15-16).
45
the record, the Court can infer from this statement that Overholser was admonished
about the motion in limine and its scope prior to his testimony.
Assuming, arguendo, that the State did not admonish Officer Overholser (or
did not properly or fully admonish him), the failure to properly admonish him,
while possibly constituting a violation of the trial court’s order or the motion in
limine, does not equate to intentional misconduct for Kennedy or Ex parte Lewis
purposes. As Appellant points out in his brief,46 Officer Overholser was a veteran
police officer with almost ten years experience at the time of trial.47 As such, he
was likely aware that extraneous offenses are not admissible—thereby further
showing that the “beat my ass” statement was inadvertent and done in response to
defense counsel’s inartful questioning.48 And, even if he did intentionally make the
statement, however, it cannot be imputed to the prosecutors unless there is also a
finding of collusion—of which there is no evidence of such because it did not
occur.49 Instead, as noted in Judge Meyer’s concurring opinion in Ex parte
46
(Appellant’s Br. at 12, 24).
47
(RR vol. 4, pp. 8, 64).
48
Overholser’s knowledge of the motion in limine and his careful attempts to avoid getting into
inadmissible extraneous offense or bad act evidence was shown during the direct examination.
During the direct examination, the prosecutor questioned him about whether he knew Appellant
and how he became familiar with him. After asking how he became familiar with him, she
quickly followed that question up with “Without getting too specific into anything.” He
expressed understanding and stated that he became aware of Appellant because “[h]e was staying
at the apartment complex with his mother and his mother’s unit.” (RR vol. 4, pp. 67-68). A little
later in his testimony, he showed his understanding of the limitation on testimony by referencing
“complaints” without any elaboration about the nature of the complaints. (RR vol. 4, pp. 68-69).
49
As noted in Ex parte Washington, “we decline to hold that the knowledge of a State’s witness
46
Masonheimer, the inadmissible statement at issue that led to the third motion for
mistrial was accidental, in that the “State’s witness blurt[ed] out unelicited,
inadmissible testimony.50 Accidental violations of the motions in limine do not
constitute intentional misconduct on the prosecutor’s part designed to provoke the
defense into moving for a mistrial.
Conclusion
Appellant argues that the prosecution intentionally provoked him into
requesting a mistrial to benefit the State in a retrial, and that further prosecution is
consequently barred by Double Jeopardy. Where a mistrial is declared at the
request of the defendant, retrial is barred by double jeopardy only in circumstances
where the government conduct was intended to provoke or “goad” the defendant
into requesting a mistrial. The relevant inquiry is whether the prosecutor intended
to provoke the defendant’s mistrial motion. See Ex parte Lewis at 358-59.
In examining the intent of the prosecutors, the Kennedy court stated that the
existence or nonexistence of intent can be inferred from “objective facts and
may be imputed to the prosecution so as to constitute prosecutorial misconduct which would
preclude retrial of a defendant under the Fifth Amendment to the United States Constitution or
Article I, section 14 of the Texas Constitution when a claim of double jeopardy is raised
following the trial court granting a mistrial.” Ex parte Washington at 238; see also Washington
v. State, 326 S.W.3d 701, 706-07 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating that a
witnesses outburst in front of the jury was not attributable to the prosecutors “action or inaction,”
and that the record did not show intentional prosecutorial misconduct designed to provoke the
appellant into moving for a mistrial or to avoid the possibility of an acquittal).
50
Ex parte Masonheimer at 509-10 (Meyers, J., concurring).
47
circumstances.” Kennedy at 675, 102 S. Ct. at 2089. The “objective facts and
circumstances” here show that the prosecutors’ actions were the result of
inadvertence or mistake—not due to intentional misconduct. The first statement
was due to an ambiguous question by the State that inadvertently elicited an
unexpected and unanticipated response. The second statement was elicited under
the mistaken (but reasonable) belief that, because the document had been admitted
for all purposes without any defense objection, the entire document (including the
contents thereof) was admissible. The last statement was given in response to an
inartful question asked by the defense that led to confusion on the part of the
witness as to what defense counsel wanted him to answer.
The trial court, of course, heard the explanation from the two prosecutors—
at various stages of the proceedings—and implicitly accepted their good faith
reasons regarding each of the three instances discussed in this brief. Because the
trial judge has determined that a retrial is not jeopardy-barred, the evidence is to be
viewed “in the light most favorable to the trial court’s ruling.” Ex parte
Masonheimer at 506. And, in conducting the review on appeal, “almost total
deference” should be given to the trial court’s determinations of historical fact that
are supported in the record—which the trial court’s implied determinations of
historical fact are so supported—and fact determinations involving an evaluation
of credibility or demeanor. See Hill, 79 S.W.3d at 686. One of the fact
48
determinations would be the prosecutor’s “state of mind.” See Ex parte Wheeler at
323-24. Thus, despite Appellant’s attempts to relitigate credibility determinations
on appeal, the best place to litigate credibility determinations is not on appeal,
where the Court has only a “cold record” before it. Instead, as noted in Ex parte
Lewis, “[t]rial courts are in the best position to determine whether a prosecutor’s
conduct evinces an intent to cause a mistrial.” Ex parte Lewis at 362.
Ultimately, the question to be answered is this: “What was the prosecutor’s
intent, and was that intent to provoke the defense into requesting a mistrial?”
Based on the objective facts and circumstances in the record, the prosecutors’
intent was not to elicit the challenged statements at issue or to “goad” the defense
into requesting a mistrial.
In his analysis of the issue, Appellant focuses solely on the portions of the
record where the three prohibited statements at issue were given in making his
argument that the State intended to provoke the defense into moving for a
mistrial.51 But, the prosecutor’s lack of intent to provoke a mistrial is shown as
much from the portions of the record that do not deal with the statements at issue
as from the portions that do deal with the challenged statements. For example,
during the State’s opening statement, only the following two statements were said
about the complaints at issue: “You’re going to hear that he received some
51
(Appellant’s Br. at 9-25).
49
complaints regarding the Defendant, Raul Constancio, or that he was made aware
of some incidents involving the Defendant.”; and “You’re going to hear that once
those incidents were received regarding the Defendant, that Officer Overholser
approached the Defendant and asked him what was going on. He reported that
information back to Mr. Blanda, and at that time Mr. Blanda made the decision to
criminal-trespass Raul Constancio from the Courtyards of Monterey. 52 Likewise,
during the witnesses testimony, with the exception of the three incidents discussed
in this brief, there were no other instances where any specific extraneous bad act
evidence on Appellant’s part was discussed in the jury’s presence. After the first
two instances with Blanda, the only question asked of Blanda by the State on direct
examination about any complaints against Appellant was the following: “Was the
reason for this lease violation complaints that you had had about the Defendant?”53
That question was asked to show why the lease violation was given against
Ledesma, but the specific facts of any complaints against Appellant were not
elicited. Likewise, during the redirect examination, only the following two
questions were asked: “You made the decision based on complaints without getting
into what those complaints were?” and “You made your decision based on
complaints that the Defendant needed to be criminally trespassed from the
52
(RR vol. 4, p. 23). No specifics were given during the opening statement about the complaints
received by the apartment manager or about any statements from Appellant made to Overholser.
(RR vol. 4, pp. 21-25).
53
(RR vol. 4, p. 37).
50
property?”54 As with the earlier question asked during the direct examination, the
facts of the complaints themselves were not elicited. During Overholser’s
testimony, he was asked the following question: “And did you at any point in - - or
did you at any point receive complaints by the manager of the apartment complex,
Jim Blanda, about the Defendant?”55 No specifics about the “complaints” were
given.56
As shown from the foregoing, the prosecutors did not intend to admit
otherwise inadmissible evidence—and certainly not with the intent to provoke the
defense into moving for a mistrial. The prosecutors’ actions regarding the first and
second instances likely rises to the level of negligence for not properly
admonishing Blanda and for not understanding the full scope of the motions in
limine and the court’s order, but at the very worse-case scenario only arises to
recklessness.57 But, “when a prosecutor is merely reckless, one cannot say the
prosecutor has made the decision to seek a mistrial. Only when the prosecutor
intends to provoke the defendant’s mistrial motion can it be said that the
54
(RR vol. 4, p. 61).
55
(RR vol. 4, p. 68).
56
Id.
57
It is hard to see how the third instance can be attributed to the prosecutors in any way, shape,
or form—especially since (as noted above) the prosecutor did admonish Overholser about the
motion in limine prior to his testimony and he expressed understanding of the scope of what he
could testify to during his testimony. But, if the prohibited statement is somehow attributable to
the State, it would only be under a negligence standard, which obviously does not arise to intent
to provoke the defense into requesting a mistrial.
51
prosecutor, rather than the defendant, has exercised primary control over the
decision to seek the trial termination.” Ex parte Lewis at 358-59. Based on the
record evidence, while negligence or reckless conduct may have been shown,
intentional conduct has not. Instead, the prosecutors’ actions were the result of
mere negligence or inadvertence; none of the prosecutors’ actions was done with
the intent to provoke a mistrial.58
In Ex parte Peterson (a pre-Lewis case), the Court of Criminal Appeals
noted that, when discussing the prosecutor’s intent,
[n]o one is immune to mistakes or lapses in judgment. Especially
during the ‘rough and tumble’ of a jury trial, courts must expect that
much rule-violating conduct is unplanned, inadvertent, or impulsive.
But just as a dog knows the difference between being kicked and
being stumbled over, judges can distinguish between intentional or
reckless misconduct and inadvertent or negligent mistakes.
Ex parte Peterson at 817-18 (internal footnote omitted). The trial judge—who was
actually present during trial and the hearings—heard the explanations given by the
prosecutors and was obviously able to (and ultimately did) “distinguish between
intentional . . . misconduct and inadvertent or negligent mistakes.” Id. at 818.
58
See, e.g., Ex parte Washington at 238-39 (finding that retrial was not jeopardy-barred after the
State’s witnesses violated the motion in limine on three separate occasions—with one of those
occasions being intentional—since the prosecutor did not engage in the conduct with the intent to
goad the defendant into requesting a mistrial); Ex parte Chavez, No. 02-13-00310-CR, 2014 WL
491813 at *3, 2014 Tex. App. LEXIS 1409 at *7-8 (Tex. App.—Fort Worth Feb. 6, 2014, no
pet.) (not designated for publication) (finding that retrial was not jeopardy-barred after the
witness alluded to extraneous bad acts on four occasions—one of which was done during defense
counsel’s questioning—since the prosecutor did not intentionally provoke the defense into
moving for a mistrial).
52
That decision is entitled to deference since it was based on credibility
determinations made after listening to the prosecutors’ reasons regarding all three
statements discussed in this brief.
Appellant, however, argues—based on a cold record—that the State
intentionally provoked the defense to declare a mistrial because its enhancement
notice was incorrect.59 He argues that “[w]ith the mistrial declaration, the State
had (and has taken) the opportunity to correct its mistakes, thereby securing
confinement upon a finding of guilt, with the trial court having the option to
suspend confinement.”60 In other words, he argues that the State provoked the
defense into requesting a mistrial so it could guarantee confinement (since the
“floor” for confinement would be raised to a minimum of 30 days confinement61—
assuming that the sentence is not suspended).
The assertion that the prosecutors committed intentional misconduct so they
could seek to enhance the floor of Appellant’s sentence is so laughable as to not
even be deserving of a response. However, to the extent that it is deserving of a
response, that claim is fallacious. First off, what prosecutor in their right mind is
going to risk their career—indeed, their law license—to secure an enhanced
59
(Appellant’s Br. at 3, 26-30).
60
(Appellant’s Br. at 26).
61
TEX. PEN. CODE ANN. § 12.43(b)(2).
53
sentence of confinement?62 Second, there is absolutely no record evidence for
Appellant’s theory that the State goaded the defense into a mistrial so it could seek
to enhance the range of punishment in a retrial—exactly because there is no
evidentiary support for any of Appellant’s claims.63 Indeed, his entire
“evidentiary” support is his own argument that the State learned before—or right at
the start of—trial that it could not enhance the sentence; therefore, the State must
have sought to provoke the defense into declaring a mistrial so it could secure an
enhanced sentence. Not only does that not qualify as evidentiary support, but that
is a blatant Post Hoc fallacy since there is no reason to suspect any causal
connection between the two events.64 Third, and finally, if the State were seeking
confinement that badly, the obvious route to take would have been to seek a
continuance before trial started so that the State could then file a proper notice of
enhancement—not to go into trial and hope to “engage in such misconduct” that
62
Indeed, if this did occur, then—as noted by the prosecutor during the writ hearing—a
grievance with the State Bar would be appropriate “if you believe that any actions taken during
the course of that trial rise to that level. That’s what it amounts to. It amounts to that type of
prosecutorial misconduct.” (RR vol. 6, p. 21).
63
Defense counsel’s argument that “[t]he [S]tate benefitted in that they got a second bite at the
apple” and served her “with an amended notice of enhancement” (RR vol. 6, p. 12) does not
qualify as evidentiary support. In fact, as noted by the prosecutor during the same hearing, the
prosecutors were anticipating that there could be adverse rulings against them, which “happens
in every trial.” (RR vol. 6, p. 16). That does not mean that the State intentionally sought a
defense-requested mistrial—either in this case or in every other trial before that court—due to
adverse rulings.
64
While it is true that the State filed its First Amended Notice of Intent to Use a Prior Conviction
to Enhance the Range of Punishment of the Charged Offense on July 29, 2014, after the mistrial
had been declared (CR pp. 88-89), that does not establish a causal connection between the filing
of the amended notice and any intent by the prosecutors while the trial was ongoing.
54
the defense would then move for a mistrial. However, no motion for continuance
was ever filed (as shown from the absence of such in the Clerk’s Record)—exactly
because obtaining an enhanced floor in the range of punishment was not quite the
“big deal” for the State that Appellant intimates on appeal.
Appellant has failed to show—and cannot show, since the record does not
reflect—that the prosecutors intentionally goaded Appellant into requesting a
mistrial. The only instance where the prosecutor intentionally acted to introduce
improper evidence (under the mistaken belief that it was proper), was when she
introduced the statement in the lease violation. The first and third instances were
incorrect, unwanted responses by State’s witnesses to questions asked of them—
with the third instance being an answer given to a question asked by the defense.
None of these instances, however, show that the prosecutor acted with the intent to
provoke the defense into moving for a trial—which is the standard required by
Oregon v. Kennedy and Ex parte Lewis for retrial to be jeopardy-barred following
a mistrial granted at the defendant’s request. See Kennedy at 676, 676, 679, 102
S. Ct. at 2088-90; Ex parte Lewis at 336.
The trial court’s ruling denying the application for writ of habeas corpus was
not an abuse of discretion. Consequently, Appellant’s sole issue should be
overruled.
55
Conclusion and Prayer
For the reasons stated above, the State respectfully requests that the Court
affirm the trial court’s ruling denying the pretrial application for writ of habeas
corpus and remand the case to the trial court for a retrial in this case.
Respectfully submitted,
MATTHEW D. POWELL
Criminal District Attorney
State Bar No. 00784782
By: /s/ Jeffrey S. Ford
Jeffrey S. Ford
Assistant Criminal District Attorney
Lubbock County, Texas
State Bar No. 24047280
P.O. Box 10536
Lubbock, Texas 79408
(806)775-1166
FAX (806)775-7930
E-mail: JFord@co.lubbock.tx.us
Certificate of Service
I certify that a true copy of the foregoing brief has been delivered to Allison
Clayton, Attorney for Appellant, by e-mail delivery to
Allison@AllisonClaytonLaw.com on January 30, 2015.
MATTHEW D. POWELL
Criminal District Attorney
State Bar No. 00784782
By: /s/ Jeffrey S. Ford
Jeffrey S. Ford
56
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the
word count of the computer program used to prepare the foregoing State’s
Response, this document contains 12,327 words, inclusive of all portions required
by TEX. R. APP. P. 9.4(i)(1) to be included in calculation of length of the document.
MATTHEW D. POWELL
Criminal District Attorney
State Bar No. 00784782
By: /s/ Jeffrey S. Ford
Jeffrey S. Ford
57