Ex Parte Miguel Martinez

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-17-00280-CR
EX PARTE Miguel MARTINEZ
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR4203
Honorable W.C. Kirkendall, Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice
Delivered and Filed: July 31, 2018
AFFIRMED
This is an appeal from the habeas court’s order denying appellant Miguel Martinez’s
application for writ of habeas corpus. On appeal, Martinez contends the habeas court erred in
denying his application because double jeopardy bars any attempt by the State to retry him for
murder following the trial court’s grant of a mistrial. We affirm the trial court’s order.
1
The Honorable Lori Valenzuela is the presiding judge of the 437th District Court, Bexar County Texas. The
Honorable W.C. Kirkendall, retired, was sitting by assignment. Judge Kirkendall signed the order at issue in this
matter.
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BACKGROUND
Investigation, Pre-Indictment, Indictment Phases
On January 11, 2015, San Antonio police were dispatched to a scene following a report of
“possible shots fired.” Upon arrival, authorities found Laura Carter sitting in the driver’s seat of
her vehicle, a Honda Accord. She was sitting in the front seat with her hands in her pockets and
her feet crossed. She was pronounced dead at the scene. It was later determined Carter died as a
result of multiple gunshots to the head.
As a result of their investigation, law enforcement officials came to believe the murder had
been committed by Martinez. Ultimately, authorities arrested Martinez for Carter’s murder. Law
enforcement authorities continued the murder investigation after Martinez’s arrest. In March
2015, law enforcement completed the “prosecution guide,” which was approximately fifty pages
in length. The prosecution guide is prepared in its entirety by law enforcement; no part of the
guide is prepared by the District Attorney’s Office. The guide generally includes initial offense
reports, witness statements, discs of interviews, etc. It is used by prosecutors “to figure out the
nuts and bolts of the case.”
The prosecution guide was turned over to Jason Goss, first-chair prosecutor in the 437th
District Court, which had been assigned to handle the case. Goss testified that around the end of
the work day on March 8, 2015, he gave the prosecution guide to the second-chair prosecutor in
the 437th District Court to review. According to Goss, she was to review the guide to assist him
in preparation for presenting the case to the grand jury. Goss did not believe she took the guide
home with her, stating, “It would be unusual for her to do that.” The next morning — sometime
before 9:15 a.m. — the second-chair prosecutor returned the guide to Goss, informing him that she
had read the guide and did not believe she could continue on the case. When Goss queried her as
to why, she advised she had a “one-night stand” or “one-time sexual encounter” three years earlier
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with Gregory Dalton, who was listed in the prosecution guide as a witness. The second-chair
prosecutor told Goss she did not even know the man’s real name, but recognized him from his
photograph and nickname, Vegas. Goss asked whether she had any contact with Dalton since the
initial encounter and she said, “no, it was one night.”
Goss agreed and immediately removed her from the case, replacing her with the third-chair
prosecutor. He instructed her to have nothing further to do with the case — specifically explaining
she was not permitted to communicate with anyone about the case. She stated she understood. At
her request, Goss agreed to avoid disclosing the details of her removal if possible.
Goss subsequently explained to the habeas court that he believed the second-chair
prosecutor had a “conflict” that precluded her further participation in the matter. As a result of the
“conflict,” Goss removed her from the case, then went to the court advocate and without explaining
the details, advised the advocate that the second-chair prosecutor was conflicted out of the case
and there was to be no communication with her about it. Goss stated he constructed a “firewall”
in the office to prevent the second-chair prosecutor from having anything to do with the case. Goss
believed this action “ended” the matter and he did not think about it again. He explained he had
the file the entire time and the second-chair prosecutor “didn’t have anything to do with this case.”
When asked what he felt the conflict was, Goss replied that he had come from a smaller
county in which it seemed as if someone in the prosecutor’s office always seemed to know a
defendant or witness. In his former office, they would simply remove the conflicted person and
wall them off from the matter. Goss admitted he would not want someone who knew a witness —
like the second-chair prosecutor — questioning him or her because it might affect his or her
objectivity. They might react favorably or unfavorably with the witness, and the existence of a
personal relationship might have the appearance of impropriety. However, Goss specifically
testified that at the time of the disclosure, he “knew that what she had told me was not — was not
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exculpatory, mitigating or relevant so — as far as — as far as to the facts of this case or to trying
this case.” Thus, he “felt like the issue had been dealt with on my level as the supervisor.” Goss
never spoke to the second-chair prosecutor again about the matter.
Goss, with the assistance of the third-chair prosecutor, presented the matter to the grand
jury. On April 14, 2015, the grand jury indicted Martinez for the murder of Carter.
Pre-Trial Phase
In preparation for Martinez’s February 7, 2017 trial, Goss and District Attorney Nicholas
LaHood interviewed Gregory Dalton on January 31, 2017. During the interview, Dalton revealed
additional information he had not previously disclosed to law enforcement. The revelations by
Dalton prompted Goss to prepare an amended Brady notice in response to a motion previously
filed by Martinez and granted by the trial court requesting disclosure of materials within the
purview of Brady v. Maryland. See 373 U.S. 83 (1963). In the amended notice, which was emailed
to the defense on February 1, 2017, Goss fully disclosed the new information provided by Dalton.
Goss explained at the habeas hearing that he filed the amended Brady notice because the
information revealed by Dalton during the interview showed his willingness to participate in a
sexual assault of the victim and in her subsequent murder. Goss stated this information fell within
the confines of Brady because it could be used to impeach Dalton’s credibility as a witness.
Goss did not disclose any information about the prior encounter between Dalton and the
second-chair prosecutor. He explained he did not believe the “one-time sexual encounter” between
the second-chair prosecutor and Dalton fell within the disclosure mandates of Brady. Goss
maintained that position during the habeas hearing. However, Goss admitted he was sufficiently
concerned to bring others from the District Attorney’s Office into the loop. Goss explained that
he “kind of [got] an idea of what the defensive theory might be” with regard to Dalton and his
encounter with the second-chair prosecutor. Accordingly, Goss disclosed the encounter between
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the second-chair prosecutor and Dalton to LaHood. Goss testified at the habeas hearing that
LaHood’s initial reaction was the same as his — this was not mitigating, exculpatory, or
impeachment evidence that needed to be disclosed to the defense.
LaHood contacted the chief of the appellate division, Enrico Valdez, that same evening.
According to LaHood, Valdez advised that it did not seem “like information that needs to be
disclosed,” but he wanted an opportunity to research the issue and speak to Patrick Ballantyne,
chief of the office’s Ethical Disclosure Unit. A couple of days later — on February 2 or 3, 2017,
Valdez informed LaHood that he and Ballantyne had researched the issue and believed the
encounter between the second-chair prosecutor and Dalton “was not information that was required
to be disclosed and that we did not have to disclose it.” They suggested, however, that if Goss and
LaHood wanted to take additional action with regard to the issue — “in an abundance of caution”
— they might consider disclosing to the trial court in camera. LaHood could not remember if he
spoke to Goss about what he learned from Valdez, but he assumed Goss was speaking to Valdez
and Ballantyne too. He did not ask Goss to make an in camera disclosure to the trial court. LaHood
stated he was not concerned about providing the information to Goss because “it wasn’t like we
thought this was a — you know, a critical point for the — for the trial.”
On February 7, 2017, during pretrial motions just prior to voir dire, Goss signed a discovery
acknowledgment pursuant to article 39.14(i) of the Texas Code of Criminal Procedure. Article
39.14(i) requires the State to “electronically record or otherwise document any document, item, or
other information provided to the defendant” during discovery. TEX. CODE CRIM. PROC. ANN. art.
39.14(i) (West Supp. 2017). As Martinez points out, there was nothing in the disclosure about the
one-time encounter between the second-chair prosecutor and Dalton, thereby establishing the State
had not disclosed to the defense information regarding the encounter. Under article 39.14(i), the
acknowledgment is merely a statement of what was provided by the State during discovery. As
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the one-time encounter had not been disclosed, it would not have been listed in the article 39.14(i)
acknowledgment.
Trial Phase — Multiple In-Chambers Hearings
The parties began voir dire on the scheduled trial date — February 7, 2017. A jury was
selected, but not sworn. Proceedings were recessed and the jury left, instructed to return the next
day. The next morning, before the jury was sworn, Goss filed a “Motion for Ex Parte
Communication and In Camera Consideration of Potential Conflict Issue.” The motion was
presented to the trial court and a copy provided to Martinez’s defense counsel. The trial court met
in chambers with Goss. The only other person present was the court reporter, who recorded the
proceedings.
Goss informed the trial court about the second-chair prosecutor’s 2015 disclosure. In his
conversation with the trial judge, the Honorable Lori Valenzuela, Goss used the second-chair
prosecutor’s name. 2 Goss described his actions — immediately removing the second-chair
prosecutor and constructing a firewall “between her and the case.” Goss advised the trial court
that from that point forward, the second-chair prosecutor had nothing to do with the case. He
stated he kept the file and no one spoke to her about the case. He assigned the task of assisting
him with the case to the third-chair prosecutor. Goss told the trial court it was the third-chair
prosecutor who helped him prepare for the grand jury.
Goss then described Dalton’s role as a State’s witness and his possible testimony. Goss
then explained that the purpose of bringing the matter to the trial court’s attention at this time was
the possibility — raised by Ballantyne — that the defense might use the encounter between Dalton
and the second-chair prosecutor to impeach Dalton. As Goss put it, the defense “could say you’re
2
Given that the second-chair prosecutor was assigned at the time of the disclosure to Judge Valenzuela’s court,
concealing her name was obviously unnecessary — Judge Valenzuela would know the prosecutors in her court.
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testifying to this is [sic] because of the sexual relationship you had with one of the prosecutors.”
Goss believed the impeachment value of the encounter was “weak” given that to his knowledge
the second-chair prosecutor and Dalton had not had any contact after that one encounter in 2011
or 2012. Goss testified at the habeas hearing that when the second-chair prosecutor first disclosed
her encounter with Dalton, he asked her if she had any contact with him after that one night.
According to Goss, she said “no, it was one night.” Goss then noted that during his three-hour
interview with Dalton, Dalton never mentioned the second-chair prosecutor.
Despite his belief that the information had little impeachment value, Goss advised the trial
court that out of “an abundance of caution,” the State wanted to make the court aware of the
situation and have the court decide whether the one-time encounter should be disclosed. Goss then
again expressed his belief that the information “would be of no value … to the defense,” but
disclosure could damage the second-chair prosecutor’s reputation.
After Goss completed his statements, the trial court first asked whether the second-chair
prosecutor “[did] the intake?” Goss told the trial court the second-chair prosecutor did not do the
intake. The trial court then asked if there were any “agreements” with Dalton with regard to his
testimony. Goss advised there were not. Goss explained it was understood that after Dalton came
forward and his story matched the evidence — and the District Attorney’s Office found it credible,
he would not be charged with murder. Goss stated “there’s never been a threat of a charge or an
agreement not to charge.” The trial court stated it did not believe that “the extent of their
relationship” should be disclosed at this point. However, the court pointed out that during voir
dire, the attorneys discussed accomplices and the law of parties, suggesting that the defense could
point the finger at Dalton “as being some kind of party to this, an accomplice to this, the getaway
driver[,]” making him more of a star witness than he might otherwise be. Goss agreed, stating
they talked about the law of parties during voir dire because that the defense might point to Dalton
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as the actual murderer given that: (1) he picked up Martinez near the murder scene; (2) a van like
his was seen near the site of the murder; (3) his phone was near the scene; and (4) he had
information about the murder that he could have known only if he committed the murder, was
present at the murder, or was told about the murder by the perpetrator.
The trial court then stated it saw the matter as involving two discrete issues — one, whether
the State should disclose the information, and two, whether the disclosure is admissible for
purposes of impeachment. As to whether the State should disclose the existence of the one-time
encounter, the trial court opined that “the disclosure may be necessary,” but it would have to hear
the testimony before deciding whether it was admissible for impeachment or any other purpose.
The trial court expressed her concern for the second-chair prosecutor and her reputation, agreeing
the matter had the potential to be much bigger than it was. Accordingly, the court agreed to
“contemplate some remedies” to diminish potential harm to the second-chair prosecutor.
The trial judge then stated that, “My gut right now is that I would want it disclosed.” Goss
then asked that if he was being ordered to disclose the information to the defense, whether it should
be disclosed before opening statements or just before Dalton takes the stand. The trial judge then
stated:
This is — this is not — I mean if I say disclose, you need to disclose, and you
decide when you do it.
But this is just my opinion for whatever it’s worth … if this is information you’ve
had since 2014 … [o]kay 2015 … I wouldn’t put yourself — that’s my — I’m just
giving you my advice … I wouldn’t wait any longer ….
In response, Goss stated his concern about disclosing the information before the trial court
had an opportunity to devise a remedy to reduce the effects to the reputation of the second-chair
prosecutor. The trial judge responded by indicating that Goss should withhold the name of the
second-chair prosecutor to give her time to consider a possible remedy. She then stated she would
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take “the responsibility for the delay in disclosure,” advising she would “say I told you that I
thought the disclosure was appropriate but to hold off so that I could make sure that I had an
appropriate remedy.” Judge Valenzuela subsequently explained at the habeas hearing that she
meant she would take the responsibility for any delay in the disclosure of the second-chair
prosecutor’s name, but not any decision by Goss to delay disclosure about the encounter between
Dalton and the second-chair prosecutor. The record does not show that at any time during the
hearing the trial court ordered Goss to disclose to the defense the encounter between Dalton and
the second-chair prosecutor. Rather, the trial judge’s strongest statement during the entire ex parte
hearing was “I mean if I say disclose, you need to disclose[.]” In fact, at the habeas hearing, Judge
Valenzuela admitted she did not order Goss to do anything at that time, agreeing that she left it up
to Goss to do whatever he wanted to do at that point.
Despite the absence of an actual order by the trial court, after the ex parte hearing, Goss
disclosed the “one-time sexual encounter” to the defense, withholding the name and position of
the prosecutor. 3 He also did not disclose that the prosecutor in question had reviewed the
prosecution guide prior to indictment. In essence, he told one of Martinez’s defense attorneys,
Christian Henricksen, that in early 2015, a female prosecutor had informed him that she had a
“one-night stand” with Dalton several years prior to the murder. Goss further advised that he
would provide the name of the prosecutor once the trial court found a “remedy” with regard to
protection of the prosecutor. Henricksen testified at the habeas hearing he was “not then overly
3
Goss’s decision to withhold the position of the prosecutor in addition to her name was logical. Martinez’s defense
attorneys are long-time Bexar County advocates. If Goss had advised them that “the second-chair prosecutor in the
437th District Court” disclosed to him in 2015 that she had an encounter with Dalton, the defense attorneys would
surely have known — or could have easily discovered — the name of the prosecutor to whom Goss was referring,
thereby negating any effect of withholding her name as mandated by Judge Valenzuela.
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concerned” by the disclosure. Henricksen passed the information to his co-counsel, Joe Gonzales,
who testified he was focused on the trial at that point.
After the disclosure, the jurors were sworn and trial began. Goss made an opening
statement during which, among other things, he described the testimony he expected Dalton would
provide; the defense reserved its opening statement. The State then called its first witness, L.C.,
who was fourteen at the time of the murder. L.C. essentially testified that on the evening of the
murder, he was inside when he heard his dog barking. He went outside to feed the dog and saw a
Honda Accord pull up and stop under a street light in front of the empty house next door. L.C.
testified he saw a Hispanic male in a dark hoodie get out of the passenger side of the car. The
male was “messing with his pockets” as if he was removing something. L.C. went back inside and
just a couple of minutes later heard “six gunshots go off.” L.C.’s grandmother called 911 as he
looked outside. After police arrived, L.C. told them he had seen a white Dodge van driving away
from the Honda Accord a few minutes after the shooting. After the State’s direct examination of
the first witness, court recessed for lunch.
After lunch, the trial continued. At the habeas hearing, Judge Valenzuela testified that at
some point that afternoon, an off-the-record conference was held in her chambers. Present at the
conference were the judge, Goss, LaHood, and both defense attorneys. During the conference,
according to Judge Valenzuela, she asked Goss if he had “told them everything.” When Goss
advised that he had not, Judge Valenzuela, for the first time, ordered Goss “[t]ell them now
everything.” [sic] Goss immediately disclosed the remaining details to the defense — the name of
the prosecutor who had the encounter with Dalton, her position as second-chair prosecutor in the
437th District Court, and that she had reviewed the prosecution guide prior to indictment, which
prompted her disclosure to Goss. Goss’s remembrance of events was somewhat different. He
testified that at this conference the trial court stated she was aware that Goss had told the defense
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“some parts of what we talked about,” but had not disclosed the name at the judge’s direction. She
then stated she had devised a remedy and would like for Goss to now disclose the name of the
prosecutor. Goss then made the disclosure.
According to Henricksen, he was upset because the details made the encounter between
the prosecutor and Dalton “a completely different thing.” The defense was angry, believing Goss
was “wrong” to withhold the information until after the jury was sworn and evidence was
presented. Nevertheless, after the conference, the parties went back to the courtroom and trial
resumed. The State called two additional witnesses, L.C.’s grandmother and the first responding
officer.
L.C.’s grandmother confirmed L.C.’s statements about the barking dog and subsequent
gunshots. She agreed that as her grandson looked outside, she called 911. The first responding
officer from the San Antonio Police Department, Michael Wehe, testified that when he arrived he
saw the Honda Accord with its passenger door open — the vehicle was running and the lights were
on. Officer Wehe and his cover officer approached the vehicle and discovered a woman in the
driver’s seat. Officer Wehe testified she was slumped “over to her side, hands in her pockets, not
moving.” He noted her legs were crossed, making it appear she was relaxed before she was shot.
The officer contacted dispatch, advising there was a “female down.” Officer Wehe believed she
had been shot, but could not determine how many times.
At the conclusion of Officer Wehe’s testimony, court was recessed for the evening. As to
the first day of trial, LaHood testified at the habeas hearing that he believed it was going well for
the State. Goss echoed those feelings.
That evening, Henricksen sent a text to the trial court, Goss, and LaHood. Therein, he
expressed his concerns over the disclosure made by Goss earlier that day. He advised the defense
planned to move for a one-day continuance to give the attorneys time to consider the matter. The
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State agreed to the continuance and the trial court indicated its intent to grant it. On the morning
of February 9, 2017, as previously indicated, the defense filed a motion for continuance. In that
motion, the defense stated a continuance was necessary because after the jury was seated, the State
disclosed “critical and sensitive information that is material to the defensive theory in this case.”
The State did not oppose the motion. The trial court granted the defense a continuance to February
14, 2017. Immediately thereafter, the attorneys and the trial court held an in-chambers, on-the-
record, conference.
During this conference, defense counsel was permitted to express their concerns about the
recent disclosure. They expressed the difficulty of the situation and the need to investigate the
matter and speak to an appellate attorney.
Judge Valenzuela noted that once the second-chair prosecutor’s name had been disclosed
to the defense, she had instructed the defense and the State that she “did not want the person named
in the disclosure to be disclosed beyond the people that needed to know[,]” i.e., an investigator for
the defense. She also noted she told the prosecutors she did not want them telling the second-chair
prosecutor that she was likely to be questioned about her encounter with Dalton. Rather, she
instructed them to tell Ballantyne to tell the second-chair prosecutor “to anticipate that there would
be some questions asked of her.” The judge noted she “shouldn’t be in this position” and that it
was not her responsibility or problem. However, she advised that “everybody needs to use their
best discretion,” but she would not make decisions that could “hurt the defendant.” To that end,
she stated she was lifting “the gag order” that she had imposed the day before, stating that if the
defense felt like disclosure of the prosecutor’s name was necessary, that would be their decision.
She emphasized that the second-chair prosecutor did nothing wrong, disclosing her connection to
Dalton “the moment she knew this information[.]”
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The trial court also noted — as it had during the ex parte meeting with Goss — that
although the encounter was discoverable, its ultimate admissibility was a different issue. Judge
Valenzuela opined that even if the second-chair prosecutor had no influence in the case, the defense
could assert a defensive theory in which Dalton was the actual perpetrator, and his encounter with
the prosecutor could be fodder for impeachment based on bias or motive for testifying.
Defense attorney Gonzales advised that he considered the second-chair prosecutor “a friend
and colleague” and would be respectful with how the defense proceeded. However, he could make
no promises until the matter was fully investigated — the timing and chronology of events, whether
the prosecutor had any part in the intake of the file, or had any influence on whether or not Dalton
“was ever considered for indictment as a party to an offense.” Gonzales asserted this would
directly impact the defense’s theory of the case, asserting that Dalton “smells like a codefendant.”
The defense attorneys explained their concern was not really about the second-chair prosecutor,
but Dalton’s potential feelings toward her that might have prompted him to “do what [he] can to
help” the State.
Goss had previously denied the second-chair prosecutor had any part in the intake or any
influence after she reviewed the prosecution guide and disclosed her encounter with Dalton. He
subsequently reiterated this during the conference and then later at the habeas hearing. Goss
further stated “for the record, so the Court knows, there was never a murder case that came in on
Gregory Dalton.” Gonzales stated the defense was not questioning the second-chair prosecutor’s
actions; rather, it was questioning Goss’s decision not to disclose the encounter “in the timely
fashion.”
Goss stated, as he had before, that it was only after Dalton expounded on his previous
statement the week before trial that he began to see a possible defensive theory based on
impeachment due to the encounter between Dalton and the prosecutor. When he did, he took
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action, discussing possible disclosure with his colleagues and then requesting the ex parte hearing
with the trial court. Goss advised that even the appellate chief — Valdez — and the disclosure
integrity chief — Ballantyne — did not believe disclosure was necessary. The ex parte meeting
with Judge Valenzuela was merely a suggestion in the event Goss felt it was necessary “out of an
abundance of caution.”
Goss also explained the intake process to the defense, noting as he had before that the
second-chair prosecutor played no part in it. Rather, her only role was her review of the
prosecution guide during which she discovered Dalton was a witness. After that, she was
“firewalled” from the matter. Goss also stated it was and always had been the State’s position that
the defense had “to do everything [it] can for [the] client.” To that end, Goss reiterated the State
would provide any records concerning the second-chair prosecutor’s assignments during her tenure
in the office, and make anyone available for an interview, as well as for testifying. Goss again
stated it was simply his desire “not to impugn [the prosecutor’s] reputation unneed — needlessly.”
Toward the end of the hearing, the parties discussed defense interviews with Dalton and
the second-chair prosecutor, appointment of an investigator, and appointment of appellate counsel
to assist the defense. The trial court agreed to appoint both an investigator and an appellate
attorney. Ultimately, the trial court appointed James McKay as investigator for the defense and
Mark Stevens as appellate counsel for the defense.
Later that same day, Goss requested that everyone meet in the trial court’s chambers. The
parties indicated no court reporter was present because the discussion was supposed to revolve
around scheduling. The scope of the meeting far exceeded mere scheduling. Moreover, those who
were present later provided conflicting accounts of what occurred. The accounts of what happened
during this off-the-record meeting played out at the habeas hearing.
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Henricksen and Gonzales testified the defense attorneys and trial court arrived first. Both
testified LaHood walked in “aggressively,” and “[h]e appeared angry.” They discussed
scheduling, but after that LaHood began talking about the defense’s prior motion for continuance.
Henricksen and Gonzales stated LaHood had been upset and confronted the defense attorneys that
morning about the way they had filed the motion. Henricksen said he believed they had been
“innocuous” with regard to the wording of the motion, but LaHood was still upset. Henricksen
had considered the matter closed until LaHood raised it at the “scheduling meeting.” According
to Henricksen, LaHood called it “a shit show,” and was unhappy that in the motion the defense
had mentioned “a late disclosure of evidence.” Henricksen claimed LaHood was angry because
the media had picked up on the language and was asking Goss and LaHood about it. LaHood,
believing it was an uncontested motion, questioned the necessity of including the language.
Henricksen then testified that after they finished talking about the motion for continuance,
LaHood began to press Gonzales about their intentions with regard to the disclosure. According
to Henricksen, it was at this point that the issue of a mistrial came up, raised by LaHood.
Henricksen stated LaHood was still angry and advised that if the defense wanted a mistrial, the
State would agree, stating “we will pick a better jury, we will be better prepared next time.”
Gonzales declined the offered mistrial, advising they still needed to look into the matter. Gonzales
stated the defense was not worried about the second-chair prosecutor’s actions, but “about Jason
Goss and him sitting on this for two years.” Henricksen said his co-counsel then stated it might
come to a point where the defense might “have to file something about prosecutorial misconduct.”
Henricksen and Gonzales testified that in response to this statement, LaHood “lost it” and “went
ballistic at that point.” According to Henricksen, LaHood then “started screaming” at Gonzales,
“I will destroy your practice … neither of you will get hired on another case in Bexar County[.]”
Gonzales also testified about similar threats by LaHood. Henricksen claimed he was worried “this
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was going to get violent.” Henricksen said this threat from the District Attorney shook him up.
Both Henricksen and Gonzales stated they viewed LaHood’s comments as a threat to their
livelihood and believed he had the power and ability to make good on his threat. Gonzales said
LaHood’s threats had a “chilling effect on him” and his efforts in defending Martinez. Goss
testified, however, that this was not Gonzales’s only statement about the confrontation. Rather,
he expounded on his “valuable friendship” with LaHood, stating he felt their disagreement may
have hurt their friendship. Goss believed this is why Gonzales stated he could not sleep the night
after the incident. Henricksen admitted that the next day Goss advised them LaHood later
commented that “he didn’t want to lose Joe’s friendship over it.” Judge Valenzuela confirmed that
Goss relayed this statement by LaHood.
LaHood’s memory of what occurred at the in-chambers meeting was different, as was
Goss’s. LaHood testified at the habeas hearing that the contention he was mad the media was
calling him after the motion for continuance was filed was “a gross mischaracterization.” LaHood
testified he fields media questions every day and does not “get mad over that.” According to
LaHood he had heard from Goss that Goss felt the defense put on a show for the media at the
hearing on the motion for continuance. LaHood admitted he called it a “shit show.”
With regard to raising the mistrial issue, LaHood testified he was trying to determine
exactly what Gonzales wanted, pointing out that the State had agreed to a continuance, offered the
defense “every resource from the DA’s Office,” access to Dalton and the second-chair prosecutor,
as well as assistance from any number of investigators. Goss said the matter arose when Gonzales
raised concerns about the length of time the jury would be out while the defense conducted an
investigation into the encounter between Dalton and the prosecutor. In an effort to determine what
Gonzales wanted, LaHood said he asked if Gonzales wanted a mistrial, describing the question as
“more of a diagnostic.” He waited for a response and when none was forthcoming, he stated,
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“Judge, give him a mistrial so we can pick a new jury.” LaHood denied wanting a mistrial,
believing that they had picked a “good jury” and was “happy with our jury.” According to
LaHood, the State had a strong case and intended to try it to a verdict. Goss echoed LaHood’s
impression about the trial, stating he felt it “was going very, very well[,]” exactly as he had
prepared and planned.
LaHood claimed Gonzales advised the situation was not that simple, stating that if there
was going to be a mistrial, he wanted further prosecution barred. LaHood said he scoffed at the
notion. LaHood testified that in response, Gonzales threatened to file a motion for prosecutorial
misconduct and call a press conference. Goss confirmed LaHood’s testimony concerning
Gonzales’s threat to go to the media, testifying that when he made the threat, Gonzales’s “voice
was raised, his face was red and he was pointing in my face saying that he is going to go public,
and accused me of prosecutorial misconduct.” According to Goss, Gonzales was “the first person
to scream” and “the first person to raise his voice and to be aggressive in my direction.” Goss
testified Gonzales’s threat was in stark contrast to his previous statement that he believed Goss
had not intended to do anything wrong. Gonzales admitted saying he had a problem with Goss
and pointed at him. He also admitted the defense might have to allege prosecutorial misconduct,
but denied he threatened to go to the media. Henricksen and Judge Valenzuela echoed Gonzales’s
testimony regarding the alleged threat to go to the press.
LaHood said he then suggested that Gonzales consult the attorney disciplinary rules before
taking such action. According to LaHood, at that point appellate attorney Mark Stevens advised
that LaHood should not be upset with Gonzales because it was actually Stevens who suggested the
notion of prosecutorial misconduct. LaHood admitted that at this point — after Gonzales’s threats
— he said that if a mistrial was granted the State would pick a better jury and be more prepared
for the next one. LaHood also denied threatening the practices of the defense attorneys, but stated
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that when Gonzales threatened to call a press conference and allege prosecutorial misconduct, he
advised that “in the process of defending this office’s honor, I will expose you as the unethical
lawyer that you are, and let’s see what happens to your law practice.” Goss confirmed the gist of
this statement. LaHood further stated that as District Attorney, it was his responsibility to defend
the integrity and honor of his office.
Judge Valenzuela was subpoenaed to testify at the habeas hearing. With regard to the off-
record scheduling hearing at which the issue of a mistrial first arose, she testified LaHood
“expressed some concern about the motion for continuance.” The judge testified LaHood “didn’t
seem happy about … the motion for continuance being handled in open court where the media was
present.” She stated LaHood called it a “shit storm.” Judge Valenzuela agreed LaHood was the
first to mention a mistrial, stating he was willing “to get a new jury to start all over again, the
evidence was what it was.” She also agreed Gonzales said “he would possibly have to allege at
some point prosecutorial misconduct.” The judge testified that in response to this statement,
LaHood said “he was going to shut down his practice,” but she also recalled LaHood advising
Gonzales that he had no right to file a motion in bad faith. She did not feel LaHood’s response
was warranted. Judge Valenzuela felt LaHood was “mad” and she was concerned about the
escalation in volume and tone, fearing a possibility “that somebody would get hurt physically.”
However, there was never any physical violence, and afterward, the attorneys retired to another
room to discuss further proceedings in the matter.
As a result of discussions between the attorneys, the defense was provided an opportunity
to interview the second-chair prosecutor and Dalton. Henricksen testified that during the defense
telephone interview of Dalton, the information provided “pretty much lined up with the initial
disclosure that [Goss] had made to the Judge in chambers that — in terms of where the relationship
happened, how it happened[.]” Dalton confirmed the one-time sexual encounter, but could not
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recall the name of the second-chair prosecutor and could only provide a basic description of her.
Henricksen testified Dalton told the defense he had no contact with the second-chair prosecutor
since their “one-time encounter” and he did not even recall her position in the District Attorney’s
Office. Both the second-chair prosecutor and Dalton denied having any contact regarding the case.
During the defense interview of the second-chair prosecutor, she advised that she
recognized Dalton when she reviewed the prosecution guide based on his photo and nickname,
“Vegas.” She confirmed — as Goss had previously told the defense — she had no contact with
Dalton since their encounter and had no contact with the case since her disclosure to Goss. Under
questioning from the habeas court judge, Henricksen admitted the defense never uncovered any
evidence to indicate the second-chair prosecutor directed the investigation by police or had any
part in the charging decision. But Henricksen opined that it was his belief the prosecutor was
“holding back on some things as far as admitting to the actual relationship.” He also claimed there
were discrepancies between what she allegedly told Goss and what she stated in the interview with
regard to her encounter with Dalton.
According to Gonzales, after the interview, he contacted Jay Norton, Chief of the District
Attorney’s Conviction Integrity Unit. Gonzales wanted to speak with Norton to see if they could
devise a solution to avoid a mistrial. A possible plea bargain was suggested, but Norton advised
he had no authority to negotiate a plea agreement. Then, the issue of a mistrial arose. At the
habeas hearing, the testimony was conflicting when it came to who said what during this meeting.
According to Gonzales, he told Norton LaHood suggested a mistrial, but neither he nor Henricksen
agreed. Norton’s testimony was in opposition. Norton testified it was Gonzales and Henricksen
that wanted a mistrial, but Goss and LaHood were opposed to it. At Gonzales’s request, Norton
discussed the concept of a mistrial with LaHood the next day. Norton stated LaHood was initially
opposed, but after a while, he agreed.
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Mistrial and Habeas Phase
On February 16, 2017, just nine days after voir dire, and on the heels of the meeting
between the defense and Norton, the defense moved for a mistrial in open court. The defense
attorneys claimed they did not want a mistrial and the motion was made reluctantly based on the
untimely disclosure of information that might constitute impeachment evidence under Brady.
Although the State agreed to a mistrial, it denied any wrongdoing or that the defense was forced
into requesting a mistrial based on any action by the State. The trial court granted the motion for
mistrial and reset the trial for May 2017. Thereafter, Martinez filed his pretrial application for writ
of habeas corpus. In his application, Martinez alleged further prosecution based on the murder
indictment was barred based on double jeopardy.
A hearing on Martinez’s habeas application was held in April 2017. The trial court denied
the application, entering written findings of fact and conclusions of law in support of its decision.
Thereafter, Martinez perfected this appeal.
Analysis
As noted above, Martinez contends in this appeal that the habeas court erred in denying his
application for writ of habeas corpus. He argues retrial is barred by the Double Jeopardy Clause
of the Fifth and Fourteenth Amendments 4 to the United States Constitution because: (1) the State
goaded him into moving for a mistrial; (2) the State intentionally engaged in conduct — failure to
disclose exculpatory evidence — with the intent to avoid an acquittal; and (3) the State
4
Martinez does not challenge the habeas court’s ruling based on the double jeopardy clause found within the Texas
Constitution. See TEX. CONST. art. I, § 14. However, the language in both the state and federal double jeopardy
clauses is markedly similar, and as numerous courts have held, the double jeopardy provision in the Texas Constitution
provides substantially identical protection to that provided by the United States Constitution. Compare U.S. Const.
amend. V with TEX. CONST. art. I, § 14; e.g., State v. Blackshare, 344 S.W.3d 400, 405 n.8 (Tex. Crim. App. 2011);
Bien v. State, 530 S.W.3d 177, 180 (Tex. App.—Eastland 2016), aff’d, Nos. PD-0365 & PD 0366, 2018 WL 2715380
(Tex. Crim. App. June 6, 2018); Ex parte Hill, 464 S.W.3d 444, 446 (Tex. App.—Dallas 2015, pet. ref’d); State v.
Almendarez, 301 S.W.3d 886, 889 n.8 (Tex. App.—Corpus Christi 2009, no pet.). Thus, any analysis under the Texas
Constitution would be the same.
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intentionally failed to disclose exculpatory evidence with the intent to protect a colleague from
personal embarrassment. 5
Standard and Scope of Review
It is the burden of the habeas applicant to prove his allegations by a preponderance of the
evidence. Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San Antonio 2011, no pet.) (citing
Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005)); State v. Webb, 244 S.W.3d
543, 547 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (same). The applicant must also provide
the court with a sufficient record to prove his allegations. Coleman, 350 S.W.3d at 160. Our
review of the habeas court’s ruling may include the evidence adduced at the habeas hearing and
the record as it existed before the habeas court at the time of the hearing. Id.
We must review a habeas court’s decision granting or denying relief requested in an
application for writ of habeas corpus under an abuse of discretion standard. Ex parte Baldez, 510
S.W.3d 477, 478 (Tex. App.—San Antonio 2014, no pet.) (citing Kniatt v. State, 206 S.W.3d 657,
664 (Tex. Crim. App. 2006); Ex parte Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth,
2005, no pet.)); see Ex parte Peralta, 87 S.W.3d 642, 645 (Tex. App.—San Antonio 2002, no pet.)
(holding abuse of discretion standard applies with respect to habeas court’s ruling on habeas corpus
petition based on double jeopardy). Notably, in applying this standard, i.e., we must “review the
record evidence in the light most favorable to the trial court’s ruling[.]” Kniatt, 206 S.W.3d at
664; Ex parte Uribe, 516 S.W.3d 658, 665 (Tex. App.—Fort Worth 2017, pet. ref’d). Moreover,
we must afford great deference to the habeas court’s findings and conclusions, especially when, as
5
Martinez has cited no specific authority, nor have we discovered any, holding that failure “to disclose exculpatory
evidence with the specific intent to protect a colleague from personal embarrassment” is an independent ground for
challenging a mistrial based on double jeopardy under Oregon v. Kennedy, 456 U.S. 667 (1982) or Ex parte Lewis,
219 S.W.3d 335 (Tex. Crim. App. 2007). Accordingly, we will not consider this as a separate issue, but shall review
the allegations within this issue as part of our review of Martinez’s other complaints, i.e., whether the State’s conduct
in this matter was undertaken with the intent to goad Martinez into moving for a mistrial or to avoid the possibility of
an acquittal.
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here, they involve determinations of credibility and demeanor. See Ex parte Perusquia, 336
S.W.3d 270, 274–75 (Tex. App.—San Antonio 2010, pet. ref’d) (citing Ex parte Wheeler, 203
S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim.
App. 2003, overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim.
App. 2007)); Uribe, 516 S.W.3d at 665. The mere fact that we might decide the matter differently
is insufficient to constitute an abuse of discretion; rather, to overturn the habeas court’s ruling on
a petition for writ of habeas corpus, we must find the ruling was outside the zone of reasonable
disagreement. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003); Uribe, 516 S.W.3d
at 665.
Applicable Law
As a general rule, the State may not put defendants in criminal cases in jeopardy twice for
the same offense. Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014); see U.S. CONST.
amends. V, XIV; see also TEX. CONST. art. I, § 14. There are, however, exceptions to the general
rule and such exceptions endure because there are situations in which a defendant’s right to be
tried before a particular tribunal should be subordinated “to the public interest in affording the
prosecutor one full and fair opportunity to present [the State’s] evidence to an impartial jury.”
Arizona v. Washington, 434 U.S. 497, 505 (1978). As is applicable here, double jeopardy generally
does not preclude the retrial of a criminal defendant if the defendant requested the mistrial. Oregon
v. Kennedy, 46 U.S. 667, 672 (1982). There is however, a “narrow exception” to this general rule,
the parameters of which were set out in Kennedy. Id. at 673–79.
Prior to Kennedy, numerous Supreme Court cases indicated “that even where the defendant
moves for a mistrial, there is a narrow exception to the rule that the Double Jeopardy Clause is no
bar to retrial.” Id. at 673 (citing United States v. DiFrancesco, 449 U.S. 117, 130 (1980); United
States v. Dinitz, 424 U.S. 600, 611 (1976); United States v. Jorn, 400 U.S. 470, 485 (1971); United
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States v. Tateo, 377 U.S. 463, 468 n.3. (1964)). In these earlier cases, the exception was described
as applying to instances when a prosecutor intended to provoke a mistrial, but further suggested it
also applied when there was “bad faith conduct” or “harassment” by the prosecutor. Id. at 674
(quoting Dinitz, 424 U.S. at 611). The Kennedy court rejected these latter notions, stating they
offered “virtually no standards for their application” particularly given that every act by a rational
prosecutor during a trial is designed to “prejudice” a defendant in order to secure a finding of guilt.
Id. Thus, the Court held “prosecutorial conduct that might be viewed as harassment or
overreaching, even if sufficient to justify a mistrial on defendant’s motion … does not bar retrial
absent intent on the part of the prosecutor to subvert the protections afforded by the Double
Jeopardy Clause.” Id. at 675-76. Accordingly, the exception applies “[o]nly where the
governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.”
Then and only then may a defendant assert double jeopardy in order to bar a retrial “after having
succeeded in aborting the first on his own motion.” Id. at 676.
The Texas Court of Criminal Appeals adopted the Kennedy standard in Ex parte Lewis,
rejecting prior precedent that held the double jeopardy clause of the Texas Constitution barred
retrial if the prosecutor acted recklessly. 219 S.W.3d at 337, 371 (overruling Ex parte Bauder,
974 S.W.2d 729 (Tex. Crim. App. 1998)). Thus, under Lewis, a retrial is barred if a prosecutor
engages in conduct with the intent to goad or provoke the defense into requesting a mistrial. Id. at
336. After Lewis, but in the same term of court, the court of criminal appeals was called upon to
discuss the narrow Kennedy exception in the context of a prosecutor’s failure to disclose
exculpatory Brady material. See Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007).
In Masonheimer, the defendant was charged with murder. Id. at 495. The defendant’s first
two trials ended in mistrials at the defendant’s request, “provoked by the State’s intentional failure
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to disclose exculpatory evidence with the specific intent to avoid an acquittal.” 6 Id. Prior to his
third trial, the defendant filed a pretrial application for writ of habeas corpus, which the trial court
granted. Id. at 503, 505. The court of appeals reversed. Id. at 505. Upon review, the Texas Court
of Criminal Appeals reviewed Kennedy and noted the Court had cited with approval several cases
in which retrial had been barred when the prosecution deliberately engaged in conduct with the
specific intent to avoid an acquittal. Id. at 507–08. Accordingly, after viewing the evidence in the
light most favorable to the trial court’s ruling, the Texas Court of Criminal Appeals held the record
supported a finding that the defendant’s two prior motions for mistrial were “necessitated” by the
State’s deliberate failure to disclose Brady material with the specific intent to avoid the possibility
of an acquittal. Id. In sum, the court concluded that under Kennedy, such deliberate conduct,
accompanied by specific intent to avoid the possibility of an acquittal, barred any retrial. Id.
Thus, in Texas, when a defendant moves for a mistrial and subsequently claims retrial is
barred by double jeopardy, the habeas court, and all subsequent reviewing courts, must determine
whether: (1) the prosecutor engaged in conduct to goad or provoke the defense into requesting a
mistrial; or (2) the prosecutor deliberately engaged in the conduct at issue with the intent to avoid
an acquittal. Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350
S.W.3d at 160. As applied to this case, the issue is whether, viewing the evidence in the light most
favorable to the habeas court’s ruling, the habeas court abused its discretion in concluding
Martinez failed to prove by a preponderance of the evidence that the prosecutors engaged in
conduct — withholding of potential impeachment evidence under Brady or Article 39.14(h) —
with the intent to goad or provoke the defense into moving for a mistrial after jeopardy attached
6
Unlike this case, the defense, the State, the trial court, and the court of appeals in Masonheimer agreed the State
failed to disclose exculpatory Brady material. Masonheimer, 220 S.W.3d at 494 n.1.
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or to avoid a possible acquittal. 7 See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at
336; Coleman, 350 S.W.3d at 160. The Texas Court of Criminal Appeals set out non-exclusive
factors in Wheeler to assist trial and appellate courts in determining whether the prosecutor had
the requisite intent so as to bar any retrial based on double jeopardy: (1) Did it reasonably appear,
at the time the prosecutor acted, that the defendant would likely obtain an acquittal?; (2) Was the
alleged misconduct repeated after admonitions from the trial court?; (3) Did the prosecutor provide
a “good faith” explanation for his conduct?; (4) Was the conduct “clearly erroneous”?; (5) Was
there a plausible basis — factually or legally — for the conduct, despite any ultimate impropriety?;
and (6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence,
negligence, or lack of judgment, or were they consistent with intentional misconduct? 203 S.W.3d
at 323–24. 8
Application
In determining whether the habeas court abused its discretion in denying Martinez’s
application, we consider the evidence in the light most favorable to the court denial using the
Wheeler factors. We consider each factor in turn.
7
Brady material includes evidence favorable to the defense, i.e, material, exculpatory evidence and impeachment
evidence. Pena v. State, 353 S.W.3d 797, 811–12 (Tex. Crim. App. 2011). Exculpatory evidence is evidence that
may justify, clear, or excuse the defendant. Id. Impeachment evidence is evidence that “disputes, disparages, denies,
or contradicts other evidence.” Id. However, in addressing the habeas petition in this case, the habeas court should
not have concerned itself with the propriety of the trial court’s Brady determination. See Coleman, 350 S.W.3d at
160. The granting of the mistrial cured any due process violation based upon Brady. Id. Thus, in this case, the habeas
court’s findings and conclusions relating to the nature and propriety of disclosure of the alleged Brady material are
irrelevant. See id.
8
Courts have modified the Wheeler factors following the disavowment of Bauder by the court of criminal appeals in
Lewis to exclude an original sixth factor — reckless misconduct by the prosecutor. See, e.g., State v. Yetman, 516
S.W.3d 33, 36–37 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Ex parte Roberson, 455 S.W.3d 257, 260 n.1
(Tex. App.—Fort Worth 2015, pet. ref’d).
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1. Did it Reasonably Appear at the Time of Prosecutors’ Actions or Inactions Prior to the
Mistrial that Martinez Would Likely Obtain an Acquittal?
By the time Goss had fully disclosed the details of the encounter between the second-chair
prosecutor and Dalton, the parties had completed voir dire, the State had presented its opening
statement, and the State had presented and the defense had cross-examined three witnesses. At
this point, Goss had, in his opening statement, advised the jury that he expected the evidence to
show that Carter was purchasing heroin from Martinez, and on the night of her murder, Carter met
Martinez for that purpose. Her cell phone records would show she received a call, shortly before
her murder, from a TracFone. That phone was subsequently determined to have called Gregory
Dalton just after the murder. Goss told jurors he expected Dalton would testify that:
• He drove a white van with decals;
• He knows Martinez;
• He picked up Martinez near the location of the murder, but he was unaware of
the murder;
• He called Martinez the night of the murder when he was unable to locate him;
• Martinez paid him $400 or $500 for picking him up;
• Martinez told him he shot the girl featured in a news story;
• Martinez said he asked to borrow the victim’s cell phone, the victim gave him
her phone, he stepped out of her vehicle, and then shot her five times in the right
side of the head.
According to the State, other evidence would confirm that a TracFone that had called Carter
on the night of the murder called Dalton around the time Dalton stated Martinez called and asked
Dalton to pick him up. In addition, the evidence would show Carter was shot five times in the
right side of the head, just as Dalton was told by Martinez. Moreover, Carter’s cell phone was
missing, corroborating Dalton’s claim that Martinez said he took her cell phone.
Also, L.C., the State’s first witness, testified he saw a Honda Accord pull up and stop under
a street light in front of the empty house next door. L.C. testified he saw a Hispanic male in a dark
hoodie get out of the passenger side of the car. The male was “messing with his pockets” as if he
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was removing something. Just a couple of minutes later, L.C. heard multiple gunshots. L.C.
testified he saw a white van — a van that matched the description of the one driven by Dalton —
driving away from the Honda Accord a few minutes after the shooting. L.C.’s grandmother
testified she also heard gunshots and called 911.
Officer Wehe, the first responding officer testified that when he arrived he saw the Honda
Accord with its passenger door open. The victim — later identified as Carter — was dead in the
driver’s seat. Her feet were crossed and her hands were in her pockets, which according to the
officer made it appear she was relaxed before she was shot. Officer Wehe believed she had been
shot, but could not determine how many times.
Goss and LaHood testified at the habeas hearing that they believed the trial was going well.
Although LaHood was the first person to mention a mistrial, he testified this was only in an attempt
to determine what the defense wanted with regard to remedying the disclosure about the encounter
between the second-chair prosecutor and Dalton. According to the defense, LaHood stated the
State would agree to a mistrial and would “pick a better jury and be more prepared for trial” next
time. However, LaHood specifically denied wanting a mistrial, stating his belief that he and Goss
had picked a “good jury.” He stated he was “happy with our jury” and the State intended to try
the case to a verdict. Goss corroborated LaHood’s statements about the status of the trial just prior
to the mistrial, stating he felt the prosecution of Martinez “was going very, very well[,]” just as he
had prepared and planned.
Viewing the evidence in the light most favorable to the habeas court’s ruling, see Kniatt,
206 S.W.3d at 664, we hold it does not support the appearance that during the time leading up to
the mistrial that Martinez was likely to obtain an acquittal. See Wheeler, 203 S.W.3d at 324. Based
on its opening statement, the State expected the evidence to show the same TracFone made
telephone calls to Carter and Dalton around the time of the murder. Dalton would testify he
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received a call from Martinez near the time of the murder, he picked Martinez up near the site of
the murder, and Martinez confessed to the murder — supplying Dalton with details only the
perpetrator would know. The State believed Dalton’s testimony would be confirmed by cell phone
evidence, forensic evidence, and other witnesses. Both prosecutors testified at the habeas hearing
that they felt they had a good jury and the case was going well. The habeas court, in its discretion,
could have found that LaHood’s decision to raise the specter of a mistrial was done for the reason
he stated — to feel out the defense in an effort to “diagnose” what it wanted following the
disclosure.
Accordingly, viewing the evidence in the light most favorable to the habeas court’s ruling,
the habeas court could have determined — as do we — that it did not reasonably appear in the
time leading up to the mistrial that Martinez was likely to obtain an acquittal. See id. The evidence
pertinent to the first Wheeler factor supports the habeas court’s ruling. See id.
2. Did Goss Repeatedly Fail to Disclose All Information Relating to the Encounter Between
the Second-Chair Prosecutor and Dalton After Admonitions from the Trial Court?
Despite Goss’s apparent concerns after his full interview with Dalton, the evidence shows
Valdez — chief of the appellate section — and Ballantyne — chief of the ethical disclosure unit
— did not believe disclosure was necessary. However, they suggested Goss could, out of an
abundance of caution, disclose the information about the encounter between the second-chair
prosecutor and Dalton to the trial court. According to Goss, after speaking to Valdez and
Ballantyne, the State requested an ex parte, in camera hearing with the trial court before the jury
was sworn. During that hearing, Goss made a full disclosure to the trial court. Thereafter, the trial
court stated it did not believe “the extent of their relationship” between the second-chair prosecutor
and Dalton required immediate disclosure. The trial court also opined that “the disclosure may be
necessary,” but it might not be admissible. The trial court expressed its belief that “it would be in
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poor taste just to throw it out there,” and agreed to consider remedies that might minimize any
harm to the second-chair prosecutor.
The trial judge stated her “gut” told her she “would want it disclosed,” when Goss asked if
she was ordering him to disclose the information to the defense. However, Judge Valenzuela then
stated:
This is — this is not — I mean if I say disclose, you need to disclose, and you
decide when you do it.
But this is just my opinion for whatever it’s worth … if this is information you’ve
had since 2014 … [o]kay 2015 … I wouldn’t put yourself — that’s my — I’m just
giving you my advice … I wouldn’t wait any longer ….
Moreover, Judge Valenzuela advised Goss to withhold the name of the second-chair prosecutor
while she considered potential remedies, stating she would take “the responsibility for the delay in
disclosure.” The trial judge told Goss, “say I told you that I thought the disclosure was appropriate
but to hold off so that I could make sure that I had an appropriate remedy.”
Thus, the record does not show that at any time during the ex parte hearing that Goss was
ordered to disclose to the defense the encounter between Dalton and the second-chair prosecutor.
Judge Valenzuela’s strongest statement during the entire ex parte hearing was “I mean if I say
disclose, you need to disclose[.]” Moreover, at the habeas hearing Judge Valenzuela testified she
did not order Goss to do anything at that time, agreeing she left it up to Goss. Viewing the evidence
in the light most favorable to the habeas court’s ruling, we hold this does not constitute an order
to disclose. See Kniatt, 206 S.W.3d at 664
Even though he was not ordered to disclose the information — and was, in fact, advised to
withhold certain information — immediately after the ex parte hearing and before the jury was
sworn, Goss disclosed the “one-time sexual encounter” to the defense, withholding the name and
position of the prosecutor. He also failed to disclose that she had reviewed the prosecution guide.
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However, as previously noted, if Goss had disclosed the position of the prosecutor or that she had
reviewed the guide, he would have, in essence, violated Judge Valenzuela’s admonishment not to
disclose her name. To suggest that disclosing her position or her review of the guide would not
have revealed her identity is farcical. The defense attorneys had worked in the courthouse for
years and it would have taken no time at all for them to discover which female prosecutor in the
437th District Court had suddenly been removed from the Martinez case. And, who but a
prosecutor in the prosecuting court would review the prosecution guide when it was first provided
to the District Attorney’s Office? Thus, the evidence shows Goss took the trial court’s “advice”
and disclosed the encounter between a yet-to-be-named female prosecutor and Dalton, withholding
her name and any additional information that might have revealed her name, as instructed by the
court.
The record shows it was only after the jury was sworn and the State had begun presenting
its case that Goss was ordered to make a full disclosure to Martinez’s defense team. The evidence
of how this occurred was conflicting. According to Judge Valenzuela, during an “off-the-record”
conference in chambers, she inquired as to whether Goss had told the defense “everything.” Goss
testified the trial judge stated she knew he had made certain disclosures, but had withheld
information at her request. What is uncontested is at this point, and for the first time, the trial court
ordered Goss to immediately make a full disclosure, which he did. Although Henricksen claimed
he was upset that he was just learning the details, everyone returned to the courtroom and trial
resumed.
When we view the evidence relating to the ex parte discussion and the subsequent order to
disclose in the light most favorable to the habeas court’s ruling, see Kniatt, 206 S.W.3d at 664, we
hold there is no evidence that Goss — or any other prosecutor or member of the District Attorney’s
Office — continued to withhold information after being ordered to disclose it. See Wheeler, 203
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S.W.3d at 324. Moreover, neither Valdez nor Ballantyne instructed or advised Goss to disclose
the information to the defense or to the trial judge. Rather, they stated they did not believe
disclosure was required, but if Goss wanted to disclose the information “in an abundance of
caution,” he might make an ex parte disclosure to the trial court to determine what the court
believed he should do. Goss did as instructed by his colleagues and by the trial court. There was
no withholding of information, i.e., “repeated misconduct” after advice from other members of the
office or admonitions by the trial court. See Wheeler, 203 S.W.3d at 324. The evidence shows
the trial court never admonished Goss about his failure to disclose the details of the encounter
between the Dalton and the second-chair prosecutor. See id. Nor did the trial court order him to
disclose the information until after the jury was sworn and the State began presenting its case. See
id. Goss immediately complied, as instructed, each time he was told to disclose. See id.
Accordingly, this factor does not suggest an attempt to goad the defense into a mistrial or an
attempt to avoid an acquittal. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at
336; Coleman, 350 S.W.3d at 160.
3. Did Goss Provide a “Good Faith” Explanation for His Lack of Disclosure?
The undisputed evidence shows that when Goss found out about the encounter between the
second-chair prosecutor and Dalton, he immediately “firewalled” the prosecutor from the case.
He questioned the prosecutor, asking her if she had additional contact with Dalton after their “one-
time encounter.” She advised she had not — Dalton later confirmed her statement and there was
no evidence to the contrary. Goss testified he considered the second-chair prosecutor’s encounter
with Dalton a “conflict,” and believed he took appropriate steps to deal with it. Subsequently, he
stated numerous times that he withheld the information — until the week before trial when he
learned Dalton knew far more than he originally disclosed — out of respect for his colleague, to
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protect her reputation. Then, though advised the information need not be disclosed, Goss chose to
disclose the information to the trial court, and then upon order, to the defense in full.
The habeas court was entitled to find Goss’s decision to withhold disclosure of the second-
chair prosecutor’s one-time encounter with Dalton was based on his good-faith desire to protect a
colleague’s reputation in the legal community and at the courthouse. See Kniatt, 206 S.W.3d at
664; Perusquia, 336 S.W.3d at 274–75. Viewing the evidence in the light most favorable to the
habeas court’s ruling, see Kniatt, 206 S.W.3d at 664, we cannot say it was an abuse of discretion
to find Goss provided a good-faith explanation for his failure to disclose fully at an earlier point in
time. See Wheeler, 203 S.W.3d at 324. The evidence relating to this third Wheeler factor does not
suggest an attempt to force a mistrial or avoid an acquittal. See Masonheimer, 220 S.W.3d at 507–
08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160.
4. Was Goss’s Failure to Disclose “Clearly Erroneous”?
It is undisputed that until a week before trial, no one in the District Attorney’s Office had
any idea Dalton would be an important witness for the State. Thus, Dalton’s encounter with a
prosecutor seemed immaterial. See Pena, 353 S.W.3d 797, 811–12 (holding Brady material
includes material, exculpatory evidence and impeachment evidence). It was only when Goss and
LaHood interviewed Dalton the week before trial that they learned he had failed to provide law
enforcement with all of the information he had relating to Martinez and the murder of Carter. Goss
testified it was at this point that he began to see possible impeachment value in the information
concerning the one-time encounter between the second-chair prosecutor and Dalton. See id.
Concerned by the possibility, Goss consulted “experts” — Valdez and Ballantyne — who advised
they did not believe the information had to be disclosed. Nevertheless, Goss disclosed the
information to the trial court, which advised him to make a partial disclosure. Goss complied and
then fully disclosed when ordered to do so by the trial court.
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The habeas court found there was no evidence the second-chair prosecutor or Dalton had
further contact beyond the single encounter. Rather, all of the evidence suggested there was no
additional contact. Moreover, the evidence supports the habeas court’s finding that the second-
chair prosecutor was “firewalled” from the case by Goss, and she had no further involvement in
the case after she told Goss about Dalton. She had no interaction with any witnesses and was not
involved in charging decisions, plea negotiations, trial strategy, or any other aspect of the case.
The habeas court further found there was no evidence Dalton attempted to use the one-time
encounter “to curry favor from” the District Attorney’s Office or law enforcement. This finding
is supported by the evidence. Thus, the habeas court found the defense failed to establish the
encounter between the prosecutor and Dalton was material, relevant, or admissible. Thus, with
regard to Brady, we cannot say the failure to disclose prior to the trial court’s order was “clearly
erroneous.” The habeas court failed to see — as do we — how the evidence would be material or
admissible, even for impeachment purposes given the facts: (1) Dalton and the second-chair
prosecutor had a one-time sexual encounter in 2011 or 2012 — three or four years before the
murder; (2) there was no further contact after the single encounter; (3) the second-chair prosecutor
only recognized Dalton from his picture and nickname; (4) Dalton did not remember the second-
chair prosecutor’s position in the office and had only a vague recollection of what she looked like;
(5) Dalton was never considered a suspect by law enforcement; (6) the second-chair prosecutor
reviewed only the prosecution guide and had nothing else to do with the case after her disclosure;
and (7) Dalton never attempted to use his encounter with the prosecutor to his advantage.
Accordingly, we do not find the decision to withhold the evidence prior to the trial court’s
disclosure order to be “clearly erroneous” under Brady. See Wheeler, 203 S.W.3d at 324.
However, section 39.14(h) of the Texas Code of Criminal Procedure — known as The
Michael Morton Act — does not require evidence to be material or admissible for purposes of
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disclosure. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h). Rather it “creates a general,
continuous duty of the State to disclose before, during, or after trial any discovery evidence tending
to negate the guilt of the defendant or reduce the punishment the defendant could receive.” Hart
v. State, Nos. 14-15-00468-CR & 14-15-00469-CR, 2016 WL 4533419, at *5 (Tex. App.—
Houston [14th Dist.] Aug. 30, 2016, no pet.) (mem. op., not designated for publication (citing TEX.
CODE CRIM. PROC. ANN. art. 38.14(h)). We hold — given the undisputed evidence as set out in
(1) through (7) above — the habeas court could have concluded the failure to disclose the
encounter prior to the trial court’s order was not “clearly erroneous” even under Article 39.14(h).
The one-time sexual encounter between the second-chair prosecutor, who was firewalled from the
case prior to indictment, with Dalton, a potential “star witness,” would not tend to negate
Martinez’s guilt or reduce his sentence under the facts as found by the habeas court in its discretion.
See Kniatt, 206 S.W.3d at 664. Accordingly, we hold this Wheeler factor does not lend itself to a
finding of goading or fear of an acquittal by prosecutors. See Masonheimer, 220 S.W.3d at 507–
08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160.
5. Was There a Plausible Basis — Legally or Factually — for Goss’s Failure to Disclose
Despite Any Ultimate Impropriety?
As discussed above, Goss’s reasoning for not disclosing the encounter between Dalton and
the second-chair prosecutor until ordered to do so by the trial court was based on his belief that
this was nothing more than a conflict that could be resolved by way of a firewall and his concern
for his colleague and her reputation. The first reason proffered by Goss falls within the legal realm.
In the “clearly erroneous” analysis, we held that under the facts of this case, the habeas court did
not err in finding the encounter — the information withheld — immaterial, irrelevant, or
inadmissible. Nor, as we concluded, did it tend to negate Martinez’s guilt given the second-chair
prosecutor’s complete lack of participation in the case, the absence of contact between the relevant
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individuals, and nonexistence of any agreement with Dalton for his testimony. Thus, even if it
should ultimately be determined that disclosure was mandated under Brady or Article 39.14(h),
we hold there was a legally plausible basis for Goss to withhold the information prior to the trial
court’s order to disclose.
There was also a plausible factual basis for Goss’s decision to withhold the information —
respect and concern for his colleague and her reputation. The trial court’s subsequent order to
disclose the encounter and its ultimate propriety, does not detract from the plausible factual basis
for Goss’s decision to withhold the information and “firewall” the prosecutor from the case. The
trial court also expressed its deep concern about what would happen if the information was
disclosed without some court-crafted remedy to minimize the harm to the second-chair prosecutor
and her reputation. If the trial court was concerned about the disclosure in the absence of a remedy,
how can it be argued that Goss’s decision to withhold was less than plausible, even if later
determined to be improper? Viewing the bases provided by Goss for withholding the information
in the light most favorable to the habeas court’s denial of Martinez’s application, we cannot say
the habeas court abused its discretion. See Kniatt, 206 S.W.3d at 664. Thus, this fifth Wheeler
factor does not suggest prosecutors engaged in behavior in an effort to goad the defense into a
mistrial or that they acted out of fear of an acquittal. See Masonheimer, 220 S.W.3d at 507–08;
Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160.
6. Was the Prosecutors’ Failure to Disclose the One-Time Encounter Consistent with
Inadvertence, Negligence, or Lack of Judgment, or Was it Consistent with Intentional
Misconduct?
As a whole, the prosecutors involved in this matter did not believe the information about
the one-time encounter needed to be disclosed at all, especially prior to the full interview with
Dalton a week before trial. Up until a week before trial, Goss firmly believed he had dealt with
the disclosure by the second-chair prosecutor appropriately — he removed her from the case and
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created a firewall so that she would have no further contact with anyone involved. Thereafter,
when he learned about the additional testimony Dalton intended to provide, he began to second-
guess his decision. Accordingly, he brought his concerns to LaHood. Goss and LaHood both
testified they did not believe the encounter fell within the purview of Brady or otherwise required
disclosure. Nevertheless, they consulted the heads of the appellate and ethical integrity units.
Neither Valdez or Ballantyne believed disclosure was mandated, but offered a solution in the event
Goss and LaHood still had concerns. Goss decided to make a full disclosure to Judge Valenzuela
and abided by her advice and subsequent order. The evidence shows that before the jury was
sworn — and in accord with the trial court’s recommendation — Goss advised Martinez’s defense
counsel, Henricksen, that a prosecutor had a one-time sexual encounter with Dalton, a State’s
witness. Henricksen took no action at that time. Goss’s failure to disclose the prosecutor’s identity
or other information that would have revealed her identity was based on the trial court’s direction
not to disclose her name. Then, when ordered to make a full disclosure, Goss fully complied. The
decisions by Goss and LaHood to seek advice from the head of the appellate and ethical integrity
units — and subsequently the trial court itself — belies any intent to engage in misconduct. If
Goss or LaHood desired to intentionally withhold information from the defense — information
they believed they should disclose — they could have simply said nothing. Goss could have kept
the second-chair prosecutor’s disclosure to himself, figuring it would never come out. LaHood
and Goss could have decided between themselves disclosure was not mandated instead of seeking
additional opinions. And once Valdez and Ballantyne told Goss they did not believe disclosure
was mandated, he could have believed he had done his due diligence and moved on, but he did
not. Rather, he went to the trial court with a full and complete disclosure.
Given the evidence of the actions taken by the prosecutors in this case and their testimony
relating thereto, the trial court was within its discretion in finding their actions were inconsistent
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with intentional misconduct. See Kniatt, 206 S.W.3d at 664. After analyzing the final Wheeler
factor, we hold the evidence does not suggest the actions or inactions of the prosecutors were
undertaken out of fear of an acquittal or for the purpose of goading the defense into moving for a
mistrial. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350
S.W.3d at 160.
7. Did LaHood’s Threats to “Shut Down” the Practices of Defense Counsel Goad Martinez
into Moving for a Mistrial or Were They Made Out of Fear of an Acquittal? (Non-Wheeler
Consideration)
Although the Wheeler factors were designed to assist the courts in assessing whether
prosecutors intended to goad a defendant into a mistrial or acted in an effort to avoid an acquittal,
the factors are non-exclusive. See Wheeler, 203 S.W.3d 323. Beyond the Wheeler factors,
Martinez points to the threats by LaHood to shut down the practices of the defense attorneys as
evidence of his intent to goad him into a mistrial.
As set out in detail above, during an off-the-record meeting in chambers, a heated
discussion developed concerning Goss’s actions in this case and the actions the defense would
need to take in response. According to testimony from Henricksen and Gonzales, LaHood was
angry and ranting, threatening to “shut down” the practices of both men. LaHood denied this,
although Judge Valenzuela testified the threat was made. LaHood testified Gonzales threatened
to allege prosecutorial misconduct and seek redress with the media. Goss confirmed Gonzales
threatened to allege prosecutorial misconduct, pointing at him.
All those who were present agreed LaHood was the first to mention the specter of a mistrial.
But he testified this was simply an effort to determine what it was the defense wanted in an effort
to remedy the matter. Both LaHood and Goss testified they did not desire a mistrial. Martinez
disagrees, arguing LaHood’s behavior was nothing more than an attempt to induce the defense into
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requesting a mistrial. According to Martinez, the State needed to force the defense to move for a
mistrial to avoid double jeopardy given the jury had been empaneled and sworn.
The habeas court found LaHood “engaged [in] what one witness properly called a ‘rant.’”
The habeas court further found LaHood stated that he would agree to a mistrial and would pick a
better jury and be more prepared for trial. According to the habeas court’s finding, LaHood
“became enraged and threatened to ‘shut down’ the defense lawyers’ practices, to go to the media
and do whatever it took.” However, the habeas court concluded, that although LaHood behaved
unprofessionally, “neither the intent nor the effect of his behavior was to force the defense to move
for mistrial.” Rather, the habeas court concluded that if done with any intent, LaHood’s actions
were taken “to attempt to deter the claim by the defense of jeopardy [attaching] by reason of
prosecutorial misconduct, an issue separate from the mistrial.” We agree.
Reviewing the evidence in the light most favorable to the habeas court’s denial of
Martinez’s habeas application, see Kniatt, 206 S.W.3d at 664, we hold the habeas court did not err
in accepting testimony by Goss and LaHood that the State did not desire a mistrial. Rather,
LaHood’s rant and threats were made only in an effort to deter the defense from alleging
prosecutorial misconduct, not to force a mistrial. When the evidence is viewed in the proper light,
the habeas court could certainly have concluded from the evidence, as do we, that LaHood’s threats
were related to the defense threats to allege prosecutorial misconduct, which was separate from
the matter of a mistrial.
CONCLUSION
The ultimate issue for the habeas court was whether Martinez proved by a preponderance
of the evidence that the actions of prosecutors were taken: (1) with the intent to goad or force him
into requesting a mistrial in order to subvert double jeopardy protections; or (2) to avoid an
acquittal. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350
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S.W.3d at 160. The habeas court, after hearing testimony and reviewing evidence, found Martinez
failed to meet his burden. Based on an examination of the evidence under the appropriate standard
of review, and considering the Wheeler factors and LaHood’s threats, we hold the habeas court
was within its discretion in concluding Martinez failed to establish by a preponderance of the
evidence that prosecutors intended to goad him into moving for a mistrial or feared an acquittal.
See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at
160. We therefore hold the habeas court did not abuse its discretion in denying Martinez’s petition
for writ of habeas corpus and affirm the habeas court’s order.
Marialyn Barnard, Justice
PUBLISH
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