Opinion
No. 13-09-00219-CR
Delivered and filed May 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 275th District Court of Hidalgo County, Texas.
Before Justices RODRIGUEZ, GARZA, and BENAVIDES.
MEMORANDUM OPINION
This is an interlocutory appeal from a pre-trial application for writ of habeas corpus denied by the trial court. By one issue, relator Jose David Flores Cedillo complains that the trial court erred in denying his application because double jeopardy barred his retrial. We affirm.
In his statement of issues, Cedillo outlines the following five arguments:
Does the State act intentionally when it was ordered three times not to mention extraneous offenses, and yet does so during opening statement, minutes after the last order?
Can a trial court avoid granting habeas relief, merely based on the State's self-serving denials to cause a mistrial (especially when the State cannot substantively explain its conduct)?
Does an order need to be in writing in order to be effective?
Does the concept of bully ipso facto implicate extraneous offenses?
For purposes of criminal law, does a prosecutor's opening statement implicate the double jeopardy clause?
All five are properly characterized as sub-issues of the general double jeopardy issue we address in our opinion. See Tex. R. App. P. 47.1.
I. Background
Cedillo was indicted for injury to a child and murder. Our review of the record reveals that, in the time between indictment and trial, an issue arose over certain alleged extraneous offenses committed by Cedillo. Cedillo filed a motion in limine, in which he sought to prevent the State from introducing evidence of "extraneous crime[s] or misconduct." Although we find no ruling in the record by the trial court on Cedillo's motion in limine, the trial court twice instructed the prosecutor, on the record in pre-trial proceedings, to refrain from delving into extraneous offenses without first approaching the bench for a ruling. Cedillo pleaded not guilty to both indicted counts, and the case proceeded to a jury trial. During his opening statement, the prosecutor told the jury that:[T]here was some talk about self-defense at voir dire which wasn't evidence. As the Judge told you before and what I say now isn't evidence nor what the Defense counsel is going to tell you later on, which is probably going to be around the same theory of self-defense, is not evidence. That is not evidence either.
. . . .Now, what is the evidence going to show? The evidence is going to show that [the victim] was a hard-working lady and she was honest. She was good. She was not violent and she was decent. That's what the evidence is going to show. The evidence is going to show that this Defendant, who had a reputation for being a bully, bad mouth and —
At that point, Cedillo objected that the prosecutor's statement went to Cedillo's reputation and asked for a hearing outside the presence of the jury. After the jury left the courtroom, Cedillo moved for a mistrial on the basis that the prosecutor's statement that Cedillo has a reputation for being a bully was a reference to extraneous conduct and bad acts and was therefore in violation of the motion in limine. The trial court granted the motion for mistrial and dismissed the jury.
Cedillo also complained that the comment violated the State's notice of intent to use extraneous offenses. However, we find no such notice in the record before us that was on file with the court at the time of trial. The only such notice by the State in the record was filed three days after the mistrial was granted by the trial court.
II. Standard of Review and Applicable Law
"In a habeas corpus hearing, the burden of proof is on the petitioner." State v. Cabrera, 24 S.W.3d 528, 530 (Tex. App.-Corpus Christi 2000, pet. ref'd). We review a trial court's decision to grant or deny a writ of habeas corpus for abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). In reviewing the facts, we view the evidence in the light most favorable to the ruling. Cabrera, 24 S.W.3d at 530. The Double Jeopardy Clauses of the United States and Texas Constitutions provide that no person shall twice be put in jeopardy of life or liberty for the same offense. See U.S. Const. amend V.; Tex. Const. art. 1, § 14. If a double jeopardy complaint is made on the basis of prosecutorial misconduct that caused a mistrial, we review the prosecutor's actions under the standard enunciated in Oregon v. Kennedy, 456 U.S. 667 (1982). See Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. 2007). "[T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Kennedy, 456 U.S. at 679. In other words, relief is appropriate "[o]nly where the governmental conduct in question [was] intended to `goad' the defendant into" so moving. Id. at 676. In determining whether the prosecutor intended to provoke or goad the defendant into moving for a mistrial, we look to the objective facts and circumstances surrounding the prosecutor's conduct. Ex parte Wheeler, 203 S.W.3d at 323; see Kennedy, 456 U.S. at 675. To that end, the following is a non-exclusive list of objective factors we consider in making our determination:1) Was the misconduct a reaction to abort a trial that was "going badly for the State?" In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal?
2) Was the misconduct repeated despite admonitions from the trial court?
3) Did the prosecutor provide a reasonable, "good faith" explanation for the conduct?
4) Was the conduct "clearly erroneous"?
5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety?
6) Were the prosecutor's actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional . . . misconduct?Ex parte Wheeler, 203 S.W.3d at 323-24.