Ex Parte Silvio Alberto Chavez

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00310-CR
EX PARTE SILVIO ALBERTO
CHAVEZ
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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
After the trial court granted Appellant Silvio Alberto Chavez’s motion for
mistrial, Chavez filed an application for writ of habeas corpus alleging that further
prosecution was barred by double jeopardy. Specifically, Chavez argued that the
prosecutor engaged in conduct that was intended to provoke him into moving for
a mistrial. The trial court granted the writ, held a hearing, and denied Chavez’s
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See Tex. R. App. P. 47.4.
application. Chavez now appeals the trial court’s denial of his application. We
will affirm.
II. BACKGROUND
By information, the State charged Chavez with assault causing bodily
injury to a member of his family or household. See Tex. Penal Code Ann.
§ 22.01(a) (West Supp. 2013). Chavez pleaded not guilty and elected to have
his case tried before a jury. As the prosecutor questioned the complainant at
trial, the following colloquy took place:
[Prosecutor]: Okay. When did you or under what circumstances
did you move out of your parent’s house and get somewhere on
your own?
[Complainant]: In September of that year, I believe it was May of
2009, when he moved into my mom’s house, and in September we
moved out because that was one of the first times that he --
[Prosecutor]: Wait a second.
[Complainant]: Do I continue?
THE COURT: No. We’re gonna take a break. If the jury will go to
the jury room while we do something outside your presence. State
may take their witness into the hall and talk to her.
After removing the jury, the trial court instructed the prosecutor to explain
to the complainant that she could not discuss extraneous acts. At that point, the
record reflects a pause in the proceedings.
After the trial court brought the jury back in, and still during the State’s
direct examination of the complainant, the following exchange occurred:
[Prosecutor]: Why did you look away?
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[Complainant]: Because I never understood with him, sometimes if I
looked at him or I dared look him in the eye I would get slapped for
looking at him in the eye.
[Defense Counsel]: Objection, Your Honor.
THE COURT: I know y’all had a break[,] but we did not have a
break. I'm gonna send you to the jury room . . .
Outside the presence of the jury, defense counsel objected and requested
that the record reflect that “the witness was admonished in the open courtroom
by the State not to make any reference or allude to any extraneous offenses and
[the complainant] stated she understood.” Defense counsel also moved for a
mistrial. Without ruling on the motion, the trial court admonished the witness by
stating, “You understand what we’re asking of you? Just be very careful.” The
complainant acknowledged that she understood, and the jury was again seated.
Again, during the State’s direct questioning, the following exchange
occurred:
[Prosecutor]: What happened after that?
[Complainant]: He got really angry then. I said, even if I don’t call
them, they’ll call them. Luis will call them. I said, I’m not the only
adult here besides yourself now. By then some pushing and I
remember him grabbing my arms, you know, shaking me, stuff like
that. He grabbed me again by my hair. And I remember the seat
was back here at that time. I grabbed whatever I could -- I felt, and I
told him, I said, I’m tired of you hitting me. And if you keep on I’m
gonna defend myself because I’m tired of it. And then they’ll call
911 and then you’ll go to jail. And I’m not going to get you out of it
this time.
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Acknowledging that the complainant had “been instructed not to go into
extraneous offenses,” defense counsel again objected and, again outside the
presence of the jury, moved for a mistrial. The trial court denied the request, and
the trial continued.
During defense counsel’s cross-examination of the complainant, the
following exchange occurred:
[Defense Counsel]: Did you think he was cheating on you that
night?
[Complainant]: No.
[Defense Counsel]: You didn’t think he was cheating on you?
[Complainant]: If I answer your question in the form that I want then
I would go back to other instances and I can’t do that. I wouldn’t
know how to answer the question.
[Defense Counsel]: Your Honor, we object.
The trial court removed the jury, and defense counsel again moved for a
mistrial. Despite the prosecutor’s argument that the complainant’s answers were
vague and that “[o]ther instances could be instances of anything,” the trial court
granted defense counsel’s motion for mistrial.
At the writ hearing, Chavez called the same prosecutor to the stand. The
prosecutor testified that she had interviewed the complainant on multiple
occasions and had explained to her that she would not be able to “talk about
[extraneous acts] during the course of the trial.” The prosecutor also detailed
how after the complainant’s first alleged reference to extraneous acts occurred,
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the complainant was admonished in court in front of the trial judge and defense
attorney. The prosecutor averred that she had “talked to [the complainant] during
the course of the trial several times about not [talking] about any other
extraneous offenses.” The prosecutor also testified that she did not engage in
conduct intending to provoke Chavez into moving for a mistrial. The prosecutor
testified that she even attempted to use leading questions “aimed at navigating
around those extraneous offenses.”
After denying Chavez’s application for writ of habeas corpus, the trial court
entered findings of fact and conclusions of law. The trial court specifically found
that the trial court itself had “prophylactically halted” the complainant’s testimony
during the first instance where the complainant “potentially referenced an
extraneous act.” The trial court further found that the second instance of the
complainant’s referencing extraneous acts was a “surprise [to] all parties, coming
without warning.” The trial court found that after the third instance, defense
counsel noted that the complainant had been instructed not to reference
extraneous acts in his objection. And the trial court found that the fourth instance
in which the complainant referenced extraneous acts was in response to defense
counsel’s questioning. Ultimately, the trial court found that “[n]one of the
extraneous offense references were caused in any way by the prosecutor” and
that the prosecutor “did not intentionally try to provoke a mistrial but [ ] did the
opposite, posing questions that she believed would navigate around any
extraneous references.” This appeal followed.
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III. DISCUSSION
The Double Jeopardy Clause of the Fifth Amendment protects a criminal
defendant from repeated prosecutions for the same offense. United States v.
Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 1079 (1976). A defense-requested
mistrial is jeopardy-barred only when the prosecutorial “conduct giving rise to the
successful motion for a mistrial was intended to provoke [or goad] the defendant
into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 676, 679, 687
n.21, 102 S. Ct. 2083, 2089, 2091, 2095 (1982); Ex parte Lewis, 219 S.W.3d
335, 371 (Tex. Crim. App. 2007) (adopting Oregon v. Kennedy standard).
An applicant seeking habeas corpus relief must prove his claim by a
preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App.), cert. denied, 549 U.S. 1052 (2006). In reviewing a trial court’s
decision on an application for writ of habeas corpus, we review the facts in the
light most favorable to the trial court’s ruling, and we will uphold the ruling absent
an abuse of discretion. Id.
Here, viewing the evidence in the light most favorable to the verdict,
defense counsel acknowledged during trial that both the trial court and the
prosecutor had admonished the complainant in open court not to reference
extraneous acts. As to the first three references, the evidence supports the trial
court’s finding that the prosecutor did not pose questions to the complainant
designed to invoke the complainant into testifying about extraneous acts. As to
the fourth instance, the record supports that the complainant was responding to
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defense counsel’s questioning. Further, even as the trial court declared the
mistrial, the prosecutor attempted to persuade the trial court that a mistrial was
improper. And most importantly, the trial court’s finding that the prosecutor did
not intentionally provoke Chavez into moving for a mistrial is supported by the
record. We hold that the trial court did not abuse its discretion by denying
Chavez’s application for writ of habeas corpus. See Ex parte Washington, 168
S.W.3d 227, 238–39 (Tex. App.—Fort Worth 2005, no pet.) (concluding that
prosecution did not intentionally provoke mistrial so as to bar retrial when
defense-requested mistrial was prompted by nonresponsive answers of
prosecution’s witnesses and prosecution had instructed witnesses not to
gratuitously mention impermissible evidence); see also Razo v. State, No. 02–
11–00161–CR, 2012 WL 3207271, at *4 (Tex. App.—Fort Worth Aug. 9, 2012,
no pet.) (mem. op., not designated for publication) (holding that evidence
supported that prosecutor did not intentionally provoke witness into making four
references of extraneous acts where prosecutor had instructed witness not to
testify to extraneous acts and prosecutor attempted to persuade trial court that
mistrial was not necessary). We affirm the trial court’s order denying habeas
corpus relief.
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IV. CONCLUSION
Having determined that the trial court did not abuse its discretion by
denying Chavez’s application for writ of habeas corpus, we affirm the trial court’s
order denying habeas corpus relief.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 6, 2014
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