Ex Parte Michael Sean McCord ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00267-CR
EX PARTE MICHAEL SEAN MCCORD
From the 19th District Court
McLennan County, Texas
Trial Court No. 2021-2982-1
MEMORANDUM OPINION
In two issues, Michael Sean McCord, complains about the trial court’s denial of his
application for writ of habeas corpus. We affirm.
Background
On November 30, 2016, McCord was charged by indictment with sexual assault of
a child. See TEX. PENAL CODE ANN. § 22.011.
PRE-TRIAL DISCOVERY HEARINGS
More than four-and-a-half-years after indictment, at a pre-trial hearing on June 2,
2021, counsel for McCord complained that several items were not provided in discovery,
including information about the complainant’s prior arrests, any CPS referrals on the
complainant, any other allegations where the alleged victim was the complainant, and a
recording of a 911 call that purportedly corresponded with this allegation. McCord’s
counsel also noted that, despite the age of the allegations, ambulance records and
colposcope pictures were just provided by the State the day prior to the hearing and that
the State had not produced the criminal history of one of its witnesses.
In addressing McCord’s contention that the State delayed in turning over the
forensic interview and colposcope photos, the State argued that there was no forensic
interview of the complainant and that the photos had been in the Advocacy Center’s
possession, not the State’s. The State further asserted that no one requested or looked at
the photos until McCord requested them prior to the June 2, 2021 hearing.
The trial court then inquired about the CPS records, which the State responded
that an investigator in the District Attorney’s office had found no CPS report “out of this
case.” Defense counsel clarified that she was referencing a CPS records of the
complainant as a juvenile and when the complainant’s felony probation was revoked.
The State questioned how records in another case related to this case, argued that the CPS
records were not in the State’s possession, and noted that there are no juvenile criminal
records or juvenile CPS records of the complainant. The trial court ordered the CPS
records to be produced for an in-camera inspection to determine relevancy.
Ex parte McCord Page 2
Additionally, the State asserted that there was no 911 call, but only a call log, which
had already been provided to McCord. Regarding the criminal history of a State’s
witness, the trial court ordered the State to produce that information the same day.
At a second pre-trial hearing conducted on June 4, 2021, McCord’s counsel
contended that the State had not provided discovery regarding a case involving William
Knox, where the complainant in this case was the alleged victim. Although the
allegations in Knox occurred after the allegations in this case, McCord contended that the
records were relevant to the limited “probative medical evidence” exception to Texas
Rule of Evidence 412. See TEX. R. EVID. 412. After discussion, the trial court denied
McCord’s request for the medical evidence in Knox. However, the trial court inquired
further about the status of the CPS records, which still had not been provided.
At a third pre-trial hearing conducted on June 7, 2021, McCord revisited the issue
of the CPS records, noting that they still had not been provided.1 The State “put in
everything [it] could to order those” and that it sent over the trial court’s order to produce
those record to Austin CPS. However, the records still had not been received.
MCCORD’S ORAL MOTION FOR MISTRIAL
On June 8, 2021, the trial court conducted yet another pre-trial hearing in this
matter. At this hearing, McCord moved for a mistrial. Specifically, McCord argued that:
1 The record reflects that although discovery disputes remained, the jury was empaneled on June
7, 2021.
Ex parte McCord Page 3
It’s an oral motion based on what we’ve had two pretrial matters over. Our
investigator kept looking. In the middle of jury selection yesterday, the jail
provided a whole lot more of information through subpoena. It talks about
this incident specifically in notes from the jail. And it is definitely
impeachment evidence, exculpatory. So we’re asking for a mistrial under
Brady. We have asked for this numerous times. We’ve had two hearings
over it, and we still didn’t get it. And then we get it in the middle of trial
yesterday only because our investigator kept looking. It talks about other
incidents that happened during the time of this incident. So it is very
specific this time to this incident. Plus a lot more records, like I said, that
were dumped on us. And we just don’t have time to flush those out. And
so because of the serial 39.14 violations and the Brady violation, we are
asking for a mistrial in this case.
Counsel for the State noted that she had subpoenaed the jail records also and that
the records received pertained to the complainant’s book-in information for a 2015
offense. McCord’s counsel advised that the records were “progressory [sic] notes”
relating to the complainant in April 2015, and that involved an incident at “Elk” where
the complainant alleged that she was sexually assaulted by two guys that was “new
information that was not in one police report or anything . . . .” These records also
included allegations that the complainant was sex trafficked from age twelve to age
sixteen by her cousin’s husband and that the April 2015 incident occurred when the
complainant was fifteen years old. McCord’s counsel also referenced testimony from the
complainant that “she was having nightmares” from the April 2015 incident. Thereafter,
the prosecutor who handled the sex trafficking case involving the complainant informed
the trial court that the sex-trafficking case was resolved by a guilty plea and that the
complainant had not testified, but rather gave an unrecorded victim impact statement.
Ex parte McCord Page 4
After additional discussion about the production of other information, the trial
court denied McCord’s oral motion for mistrial. McCord then requested a two-week
continuance of the trial. Before the conclusion of the hearing, the State provided an
explanation of the jail records at issue:
And Judge, in looking at the records, I kind of figured what they were.
What it is is an emergency detention order. She was suicidal a month after
he assaulted her. And so she was—as you know how that works—she was
picked up by the sheriff’s office. She was taken to Providence Hospital.
And these nine pages are a medical doctor, a psychiatrist talking to her
about her suicidal ideal—ideations. This is no—this is not anything to do
with—I mean, I don’t know what would be impeachment except for one
thing she states about maybe somebody else sexually assaulted her that
night, too, which, all right, ask her all about it.
McCord responded that this explanation further demonstrated the need for the CPS
records. The trial court concluded the hearing by granting McCord’s request for a
continuance.
MCCORD’S WRITTEN MOTION FOR MISTRIAL
On June 9, 2021, McCord filed a written motion for mistrial premised on “flagrant
and intentional violations of Defendant’s right to timely production of discovery” under
article 39.14(a) and (h) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 39.14(a), (h). McCord identified the following items as untimely
produced:
• McLennan County Jail Records regarding the complainant (discovered by defense
investigator on 6/7/2021)
• Complainant CD of police department interview produced on 5/29/2021
Ex parte McCord Page 5
• Ambulance records produced on 6/1
• Colposcope pictures allowed to be viewed on 6/2/2021, after a pre-trial hearing
• Criminal history summary of witnesses produced on 6/2/2021, after a pre-trial
hearing
McCord argued that the State’s “intentional untimely discovery of evidence” was
“egregious” and had “seriously compromised” his “right to effective assistance of
counsel, right to present a defense, and right to due process.” McCord alleged that he
was unable “to voir dire on other potentially viable defensive theories, interview
additional fact witnesses . . . , enlist the help of subject matter experts to review the
records to evaluate other defensive theories, or timely receipt and evaluation of the
evidence that could be used against him by the State.”
The trial court conducted a hearing on McCord’s written motion for mistrial on
June 9, 2021. At the hearing, the parties re-asserted many of the same arguments
contained in the motion for mistrial and from prior hearings regarding the status of
discovery and the reasons for the late production of documents. The State provided a
timeline of events, noting the following:
June 2, 2021
Status hearing occurred—
Defense asked for records pertaining to [the complainant] as the victim in
any other case. After reviewing the Court Reporter’s notes, the Court did
not address this request.
June 7, 2021
Jury was selected and sworn in.
Ex parte McCord Page 6
June 8, 2021
Before the trial began, defense appeared with records from the McLennan
County Jail. The records included from counseling the victim received a
month after this offense at DePaul (Providence Hospital). This was after
being received on an Emergency Detention Order as a juvenile. Thus, these
records are her juvenile mental health records.
This moment is when the State first became aware the victim went to
DePaul for suicidal attempt(s) after this offense. The DePaul detention was
solely based on her safety and not a situation where law enforcement was
dealing with her in any suspect capacity.
The State has since learned that upon arrest of the victim in 2017, the Mental
Health Division of the jail interviewed victim to determine if she was in
need of services and learned of her EDO experience and requested said
records from DePaul.
The State does not have access to the records at the jail held by the jail staff
unless the State subpoenas the records. Since we had no knowledge of
DePaul records held by the jail, we could not have known to subpoena the
records.
The Judge ordered the State to produce in camera the reports from any
other criminal case where the victim was [the complainant] where the
offense date was March 2015 or prior.
The State ordered two files from archives this same day and received said
files. In viewing these files, the State found:
- Therapy records for the victim, dating immediately after this
offense date, March 2015
- School records of the victim
- DFPS records where victim was 17 and her name is briefly
mentioned
The State immediately turned the therapy records, school records[,] and
DFPS records over to defense counsel.
Ex parte McCord Page 7
After the Court Ordered the State, the State also provided copies of the two
aforementioned police reports to defense counsel.
(Emphasis in original).
After the trial court observed that a continuance would address all the defense
concerns, except for the voir-dire issues, McCord emphasized that had the newly-found
materials been available before voir dire, the entire nature of the defense questioning
would have been different, which would have resulted in different for-cause and
peremptory strikes and potentially the seating of different jurors. The trial court
ultimately granted McCord’s motion for a mistrial, but specifically mentioned: “I do not
find there was malice on the part of the State.”
MCCORD’S APPLICATION FOR WRIT OF HABEAS CORPUS
After the trial court granted his motion for mistrial, McCord filed an application
for writ of habeas corpus seeking to bar re-prosecution based on his claim of a double-
jeopardy violation under both the federal and state constitutions. In his habeas
application, McCord stated that the following evidence had been intentionally withheld
by the State until after trial began:
1. McLennan County Jail Records regarding [the complainant]
a. Discovered by defense investigator on 6/7/2021 after defense
investigator learned about the Knox case on 6/3. After court denied
request for contents of Knox case file at Friday 6/4 hearing,
investigator subpoenaed more records on Friday 6/4/2021 for
production on Monday 6/7/2021 at 1:30pm.
Ex parte McCord Page 8
2. 4/24/2015 EDO information/therapy notes (51 pages)
a. Reveal [the complainant] was sexually assaulted by two guys, which
is new information; and information from 3/21/2019 about [the
complainant] testifying in court that she was “trafficked” from the
age of 12 to 16 by her cousin’s husband, which overlaps which [sic]
the alleged offense date in this case;
3. [The complainant] therapy notes (52 pages) provided by the state the
afternoon of 6/8/2021
a. Been in the possession of State since December 2016
b. Contains information dealing specifically with the indicted offense
in this case
4. Midway ISD records (47 pages) produced on 6/8/2021
5. CPS records (20 pages) produced on 6/8/2021
a. Ruled out extraneous allegation(s) of sexual abuse by [the
complainant]
6. Police packets of Fredrick Lougheed (58 pages) and Trey Cartwright (111
pages) produced on 6/8/2021
McCord also alleged that, in the week leading up to trial, the State produced:
1. [The complainant] CD of PD interview produced on 5/29/2021
2. Ambulance record produced on 6/1
3. Colposcope pictures allowed to be viewed 6/2 after the hearing
4. Criminal History summary of witnesses produced on 6/2 after the hearing
In contrast, pre-trial, only 59 pages of reports were previously turned over
in discovery in this case on 7/29/2020, along with In-Car Videos and a CD
of photos.
Ex parte McCord Page 9
McCord argued in his habeas application that retrial is barred by the Double
Jeopardy Clause because the State goaded him into moving for a mistrial; the State
intentionally failed to disclosed exculpatory evidence with an intent to avoid an acquittal;
and “the State intentionally failed to disclose exculpatory evidence with the intent to
avoid the defense discovering that the complainant is a habitual victim who made
materially inconsistent statements recorded in jail records, that were otherwise not
contained in police reports regarding this allegation.”2
The State filed an “answer” to McCord’s habeas application. Relying on the trial
court’s statement at the hearing on McCord’s written motion for mistrial that there was
no malice, the State argued that the trial court should deny McCord’s double-jeopardy
claims and his habeas application based on a failure to prove intentional misconduct on
the part of the State.
After a hearing, the trial court once again found “that there was no malicious intent
by the two prosecutors in the courtroom” and, thus, denied McCord’s habeas application.
The trial court certified McCord’s right of appeal, and this appeal followed.
2 McCord also asserted in his habeas application that the State’s withholding of critical exculpatory
evidence deprived him of “his right to a reliable jury verdict at the original trial, his right to voir dire his
panel, his counsel’s right to conduct a full and fair investigation on his behalf of the charges against him,
and his Sixth Amendment right to present a defense.”
Ex parte McCord Page 10
Standard of Review and Applicable Law
We review a trial court’s decision to grant or deny an application for writ of habeas
corpus on the basis of double jeopardy under an abuse-of-discretion standard. See Kniatt
v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). A trial court abuses its discretion
when it acts arbitrarily or unreasonably, without reference to guiding rules or principles.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In determining whether
the trial court’s decision was arbitrary or unreasonable, we may not substitute our
judgment for that of the trial court, and we must give deference to the trial court’s
resolution of historical facts supported by the record, as well as application-of-law-to-fact
questions that turn on credibility and demeanor. See Alford v. State, 358 S.W.3d 647, 652-
53 (Tex. Crim. App. 2012); see also Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.
1992).
The Federal Constitution, State Constitution, and the Code of Criminal Procedure
all mandate that no person shall be twice put in jeopardy for the same offense. See U.S.
CONST. amend. V; TEX. CONST. art. I, § 14; TEX. CODE CRIM. PROC. ANN. art. 1.10. The
Double Jeopardy Clause of the United States Constitution prohibits a retrial when the
first trial ends in a mistrial resulting from circumstances attributable to prosecutorial or
judicial overreaching that deprives an accused of the valued right to have his trial
completed by the first duly selected jury. Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.
Ct. 2083, 2087, 72 L. Ed. 2d 416 (1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App.
Ex parte McCord Page 11
2007) (adopting the constitutional standard set out in Oregon v. Kennedy for determining
whether a retrial is barred by the Double Jeopardy Clause after a defense-requested
mistrial).
Here, McCord requested, and the trial court granted, a mistrial. When a mistrial
is declared at the request of an accused, retrial is not barred unless the error that
prompted the mistrial is conduct attributable to the State which was motivated by bad
faith or undertaken to harass or prejudice the accused and was committed with the intent
to provoke the mistrial. Kennedy, 456 U.S. at 670, 102 S. Ct. at 2086; see Ex parte
Masonheimer, 220 S.W.3d 494, 506 (Tex. Crim. App. 2007). Prosecutorial misconduct does
not bar a retrial absent intent on the part of the prosecutor to subvert the protections
afforded by the Double Jeopardy Clause. See Ex parte Masonheimer, 220 S.W.3d at 508-09(finding a subsequent retrial is barred by the Double Jeopardy Clause after a defense-
requested mistrial “when the State intentionally ‘goads’ or provokes the defendant into
moving for a mistrial”).
In Ex parte Wheeler, the Court of Criminal Appeals listed the following non-
exclusive factors to assist in assessing the prosecutor’s state of mind:
(1) Was the misconduct an attempt to abort a trial that was going badly for the
State? Put another way, at the time the prosecutor acted, did it reasonably
appear that the defendant would likely obtain an acquittal?
(2) Was the misconduct repeated despite the trial court’s admonitions?
(3) Did the prosecutor provide a reasonable, “good faith” explanation for the
conduct?
Ex parte McCord Page 12
(4) Was the conduct “clearly erroneous”?
(5) Was there a legally and factually plausible basis for the conduct despite its
impropriety?
(6) Were the prosecutor’s actions leading up to the mistrial consistent with
inadvertence, lack of judgment, or negligence, or were they intentional?
203 S.W.3d 317, 323-34 (Tex. Crim. App. 2006). Using the Wheeler factors as our guide,
we consider the record evidence.
Discussion
On appeal, McCord contends that the trial court abused its discretion by denying
his application for writ of habeas corpus based on double jeopardy. Specifically, McCord
alleges that the trial court erred by failing to impute the knowledge of the chief crimes
against children prosecutor to her subordinate prosecutors regarding the existence of
exculpatory evidence that served as the basis for which the trial court granted his motion
for mistrial. As a result of this error, McCord asserts that he cannot be retried for this
offense under the Double Jeopardy Clause.
As stated earlier, the trial court granted McCord’s motion for mistrial. However,
the trial judge specifically stated on the record that he did “not find there was malice on
the part of the State.” Moreover, at the hearing on McCord’s habeas application, the trial
court once again concluded “that there was no malicious intent by the two prosecutors
in the courtroom.” Thus, the trial court did not find that the State’s actions were
intentional.
Ex parte McCord Page 13
Furthermore, McCord does not direct us to any evidence in the record that the
State engaged in conduct that was motivated by bad faith or untaken to harass or
prejudice McCord and was committed with the intent to provoke a mistrial. See Kennedy,
456 U.S. at 670, 102 S. Ct. at 2086; see also Ex parte Masonheimer, 220 S.W.3d at 506. At the
various pre-trial hearings, the State argued that it was not aware of some of the records
sought by McCord, especially the complainant’s mental-health records that were
protected by confidentiality laws. The State also argued that records from other legal
proceedings where the complainant was the victim were excluded under Texas Rule of
Evidence 412 and that the “testimony” of the complainant sought by McCord was an
unrecorded victim impact statement. See, e.g., Ex parte O’Connor, No. 09-09-00122-CR,
2009 Tex. App. LEXIS 7650, at *16 (Tex. App.—Beaumont Sept. 30, 2009, no pet.) (mem.
op., not designated for publication) (noting that the habeas court is free to accept the
State’s explanation for the conduct that led to the defendant’s motion for mistrial and,
under Oregon v. Kennedy, could conclude that the prosecutor did not act with the intent
to provoke a mistrial so as to avoid an acquittal).
In addition to the foregoing, there is nothing in this record showing that the State’s
discovery efforts were designed to abort a trial that was going badly for the State. In fact,
at the time McCord’s motion for mistrial was granted, no witnesses had been called and
no evidence had been admitted. Indeed, McCord acknowledged in his motion for
mistrial and habeas application that the State’s actions affected pre-trial investigation of
Ex parte McCord Page 14
the case and jury selection. See, e.g., State v. Rushing, No. 09-16-00423-CR, 2017 Tex. App.
LEXIS 8854, at *25 (Tex. App.—Beaumont Sept. 20, 2017, pet. ref’d) (mem. op., not
designated for publication) (“The fact that the mistrial occurred at a very early stage in
the proceedings further supports our view that double jeopardy does not bar Rushing
from being retried . . . .”). The trial court’s grant of a mistrial remedied the complaint
about jury selection and allowed for more time to investigate the allegations in this case.
While we do not condone the State’s discovery efforts in this case that is now
almost six years old, there is nothing in this record demonstrating that the State goaded
McCord into moving for a mistrial or that the State was attempting to avoid an acquittal. 3
See Kennedy, 456 U.S. at 670, 102 S. Ct. at 2086; Ex parte Masonheimer, 220 S.W.3d at 506; see
3 However, we emphasize that article 39.14 of the Texas Code of Criminal Procedure provides that:
(a) [A]s soon as practicable after receiving a timely request from the defendant[,] the state
shall produce and permit the inspection and the electronic duplication, copying, and
photographing, by or on behalf of the defendant, of any offense reports, any designated
documents, papers, written or recorded statements of the defendant or a witness,
including witness statements of law enforcement officers but not including the work
product of counsel for the state in the case and their investigators and their notes or report,
or any designated books, accounts, letters, photographs, or objects or other tangible things
not otherwise privileged that constitute or contain evidence material to any matter
involved in the action and that are in the possession, custody, or control of the state or any
person under contract with the state.
...
(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any
exculpatory, impeachment, or mitigating document, item, or information in the possession custody,
or control of the state that tends to negate the guilt of the defendant or would tend to reduce the
punishment for the offense charged.
TEX. CODE CRIM. PROC. ANN. art. 39.14(a), (h) (emphasis added).
Ex parte McCord Page 15
also Ex parte Wheeler, 203 S.W.3d at 334 (considering whether the prosecutor’s actions
leading up to the mistrial were consistent with inadvertence, lack of judgment,
negligence, or intentional conduct). Thus, after viewing the record and considering the
non-exclusive Wheeler factors, we cannot say that the trial court abused its discretion by
denying McCord’s habeas application. See Ex parte Wheeler, 203 S.W.3d at 323-34; see also
Kniatt, 206 S.W.3d at 664. Accordingly, we overrule both of McCord’s issues on appeal.
Conclusion
We affirm the judgment of the trial court.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed October 12, 2022
Do not publish
[OT06]
Ex parte McCord Page 16