Opinion
04-21-00409-CR
06-15-2022
EX PARTE Mark HOWERTON
DO NOT PUBLISH
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2019CR2399 Honorable Michael E. Mery, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Beth Watkins, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
Appellant Mark Howerton's first murder trial ended in a hung jury. Before his second trial, he filed a pretrial writ of habeas corpus seeking dismissal of the indictment on double jeopardy grounds. The trial court denied relief, and Howerton filed this accelerated appeal. We will affirm.
The Honorable Raymond C. Angelini presided over the first trial. The Honorable Michael Mery presided over the pretrial habeas proceedings.
Background
On the night of October 29, 2017, Howerton drove his girlfriend Cayley Mandadi, a student at Trinity University, from San Antonio towards Houston, where he was from. They never made it. Around 10:30 that night, Howerton drove to a hospital in Luling, Texas, and frantically got the attention of a paramedic. The paramedic found Mandadi slumped back in the passenger seat-not breathing, without a pulse, mostly naked, bruised, and bleeding-and started CPR. Howerton told the paramedic and a responding officer that he and Mandadi had attended a music festival in San Antonio earlier in the day, and that they had consumed alcohol and ecstasy. Mandadi later died. A medical examiner ruled the cause of death homicide and manner of death complications of blunt force trauma.
A 2018 grand jury returned murder, sexual assault, and kidnapping indictments against Howerton. These charges were based in part on the statements and grand jury testimony of Mandadi's former boyfriend, Jett Alexander Birchum.
Birchum had filed a police report when Mandadi did not return to her dorm room after the festival, and he could not reach her on her cell phone. Birchum reported that he had seen Howerton and Mandadi at the festival that day and witnessed Howerton physically pick Mandadi up, put her into his car, and drive away. In later statements and grand jury testimony, Birchum reported that: he saw the couple at the festival, but only from afar; he could tell Howerton was angry and Mandadi was upset; he saw Howerton grab Mandadi and walk her in the direction of the bars and the exit; he tried to follow them but lost them in the crowd; he immediately called Mandadi's phone and Howerton answered and told him that Mandadi was his and that Birchum needed to leave her alone.
A 2019 grand jury, provided with the transcripts from the 2018 grand jury proceedings, returned a superseding murder indictment.
Before trial, Howerton filed a motion to dismiss the indictment, alleging the State knew or should have known that Birchum's grand jury testimony was false. According to Howerton, cell phone records prove he never entered the music festival on October 29, 2017, so it would have been impossible for Birchum to observe the couple on the festival grounds. Howerton urged a rule, based on the Due Process Clause of the Fifth Amendment and Texas's Due Course of Law provision, requiring dismissal of the indictment whenever the grand jury is provided with perjured testimony.
At a hearing on the motion, David Gallant, a digital forensics consultant, testified he had reviewed the GPS data on the cell phones belonging to Howerton, Mandadi, and Birchum from October 29, 2017. Gallant created exhibits depicting the phones' locations "within ten meters." Gallant testified that Howerton's records showed his phone on a road next to the stadium where the festival was held between 3:43 p.m. and 3:46 p.m. According to Gallant, it did "not appear as though Mr. Howerton entered the festival area. He drove past it," going "towards the east on Highway 90" and then "north on 10." Gallant further testified that the data from Birchum's phone placed Birchum at the music festival several hours later, at 7:39 p.m. and at 8:51 p.m.-by which time Howerton's phone was near Trinity, almost ten miles away.
Gallant agreed that there was no reason to believe, from the data, that Birchum and Howerton were together or even in line of sight of each other on October 29. On cross-examination, Gallant acknowledged the data showed only that their phones were never together, not necessarily that they were never together. Gallant also acknowledged he had no location data from Howerton's phone in the late afternoon to early evening hours, which could mean that Howerton had turned off his phone.
Howerton argued the cell phone data proved Birchum lied to the police and the grand jury. He acknowledged "the case law in Texas is sparse on the question of what happens when there is false testimony in the Grand Jury" but argued that going forward on the indictment would violate due process, even if the State did not intentionally sponsor false testimony, because it "should have known that Birchum was lying about something." The trial court denied the motion to dismiss the indictment on November 4, 2019, remarking "I can't find that it's material[]-I can't even find that it's false under what I've heard."
Howerton was tried in December 2019. Birchum's trial testimony mirrored his later statements and grand jury testimony. Birchum admitted he lied in the initial report to police about witnessing Howerton forcing Mandadi into his car and driving off. And the trial evidence showed when Birchum placed the phone call to Mandadi-the call he claimed to have made "very shortly" after seeing Howerton and Mandadi at the music festival, and the call he claimed Howerton answered-Mandadi's phone was ten miles away from the music festival near Trinity.
After Birchum's testimony, Howerton renewed his motion to dismiss on the ground that Birchum's testimony before the grand jury, and now before the jury, did not match the cell phone data showing that Howerton and Mandadi never entered the festival. The trial court denied the motion at the close of evidence but expressed exasperation at the State for sponsoring Birchum as a witness and noted that the defense had thoroughly discredited him-"To be quite frank, no one's going to believe Jett Birchum, not about anything."
The jury started deliberations on December 11, 2019. On the afternoon of December 12, it notified the court that it could not reach a unanimous decision. Howerton moved for a mistrial and objected to any kind of Allen or dynamite charge. The trial court overruled the motion and gave the jury an Allen charge. The jury later sent out another note, again saying it could not reach a unanimous decision. After the trial court read the note to the parties, Howerton renewed his motion for mistrial. The prosecutor told the court "We do not object" and the trial court granted the motion for mistrial.
After the State demonstrated that it intended to try the case again, Howerton filed a pretrial writ based on double jeopardy. He argued that the State's use of Birchum's false statements constituted egregious prosecutorial misconduct that merited a bar to retrial. The trial court denied the writ, holding that under the "facts and the well-settled law," Howerton's "due process rights under the Double Jeopardy clause of the United States and Texas Constitutions will not be violated by a retrial of this case." In the same order, the trial court denied Howerton's motion to dismiss for prosecutorial misconduct, finding "there has been no evidence presented to support a claim of prosecutorial misconduct."
On appeal, Howerton argues: (1) the trial court erred when it concluded that no prosecutorial misconduct occurred; (2) an exception to the general rule that "a mistrial resulting from a hung jury does not bar a retrial of the accused" should apply when the record establishes egregious prosecutorial misconduct in the original proceedings; and (3) the trial court abused its discretion in denying his request for an evidentiary hearing in support of his writ of habeas corpus.
Analysis
Double Jeopardy
Standard of Review
"It is the burden of the habeas applicant to prove his allegations by a preponderance of the evidence." Ex parte Martinez, 560 S.W.3d 681, 695 (Tex. App.-San Antonio 2018, pet. ref'd). An appellate court reviews a habeas court's decision to grant or deny relief on double jeopardy grounds under an abuse of discretion standard. Id. In applying this standard, the court reviews the record evidence in the light most favorable to the trial court's ruling. Id. We "afford great deference to the habeas court's findings and conclusions, especially" if they involve determinations of credibility and demeanor. Id. But if there are no underlying questions of fact, double jeopardy is a question of law we review de novo. Palacios v. State, 511 S.W.3d 549, 585 (Tex. App.-Corpus Christi-Edinburg 2014, no pet.); Vasquez v. State, 22 S.W.3d 28, 31-32 (Tex. App.-Amarillo 2000, no pet.).
Applicable Law
As a part of the protection against multiple prosecutions, the Double Jeopardy Clause grants "a criminal defendant a valued right to have his trial completed by a particular tribunal." Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982) (internal quotation marks omitted). But the clause "does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding." Id. at 672. This is because "a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689 (1949).
"Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the 'manifest necessity' standard first enunciated in Justice Story's opinion in United States v. Perez, [22 U.S. 579, 580] (1824)." Kennedy, 456 U.S. at 672. "Perez dealt with the most common form of 'manifest necessity': a mistrial declared by the judge following the jury's declaration that it was unable to reach a verdict." Id. "While other situations have been recognized . . . as meeting the 'manifest necessity' standard, the hung jury remains the prototypical example." Id. "The 'manifest necessity' standard provides sufficient protection to the defendant's interests in having his case finally decided by the jury first selected while at the same time maintaining the public's interest in fair trials designed to end in just judgments." Id. (internal quotation marks omitted).
"But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play." Id. "A defendant's motion for a mistrial constitutes a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact." Id. at 676 (internal quotation marks omitted). Nevertheless, "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. "[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." Id. at 679.
Application
This case deals with the most common form of manifest necessity-a mistrial declared following the jury's declaration that it was unable to reach a verdict. Id. at 672. As in Perez, Howerton "has not been convicted or acquitted, and may again be put upon his defence." Perez, 22 U.S. at 580. Under these circumstances, the law invests trial courts "with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Id. "[S]uch a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial." Id.
Howerton nevertheless argues that retrial is barred by double jeopardy because the prosecution engaged in misconduct designed to prejudice his prospects for an acquittal, and it would be "manifestly absurd to preclude a jeopardy remedy simply because the prosecution's objectives were more broadly to avoid acquittal by dishonest means rather than simply to abort the proceedings before the matter can be submitted to the trier of fact." Either way, argues Howerton, he has lost his right to a fair trial before his chosen jury.
Howerton thus argues for a broader standard than Kennedy. For ten years, Texas offered greater double jeopardy protections than does the Due Process Clause of the Fifth Amendment. Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996), overruled by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). In 1996, in Bauder, the Texas Court of Criminal Appeals interpreted the Texas constitutional double jeopardy standard more broadly than the corresponding federal provision, protecting against "reckless" misconduct, and held that retrial would be barred "when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." Id. at 699. But in 2007, that court overruled Bauder and held that the proper rule under the Texas Constitution is the rule articulated by the United States Supreme Court in Oregon v. Kennedy: double jeopardy bars a retrial only if the prosecutor commits manifestly improper conduct with the intent to goad the defendant into moving for a mistrial. Ex parte Lewis, 219 S.W.3d at 359-60, 371.
Howerton relies on Judge Clinton's dissenting opinion in Buffington v. State for support. 652 S.W.2d 394, 397 (Tex. Crim. App. 1983) (Clinton, J., dissenting) ("as Justice Brennan pointed out in his concurring opinion in Oregon v. Kennedy . . . a state is not required to construe its own constitutional provision in lockstep with the federal counterpart").
The Bauder court had held, much as Howerton argues here, that the right to a trial before the jury first selected is the right to a fair trial before that jury. Bauder, 921 S.W.2d at 698. But that holding "conflates the double jeopardy protection with more generalized notions of due process and due course of law." Lewis, 219 S.W.3d at 358. "The question, for double jeopardy purposes, is not whether the defendant's trial was 'fair' but whether requesting a mistrial was ultimately his decision." Id. "To say that the decision was not the defendant's own is to say that the decision was in reality made by someone else, e.g. the prosecutor." Id. "But when a prosecutor is merely reckless, one cannot say the prosecutor has made the decision to seek a mistrial." Id. "Only when the prosecutor intends to provoke the defendant's mistrial motion can it be said that the prosecutor, rather than the defendant, has exercised primary control over the decision to seek the trial termination." Id. at 358-59.
This case involves a prosecution team that, it is asserted, intended to "win at any price" before a first jury, rather than one trying to get its case before a second jury. The team's intent is different and, under Kennedy, that distinction is crucial for double jeopardy purposes. Here, Howerton does not allege that the prosecution was the true actor behind his request for a mistrial. These circumstances do not show that Howerton's consent to a mistrial was a sham. Id. at 358. Howerton moved for a mistrial because the jury was hung, not because the State forced him to do so.
The habeas court, in denying relief on double jeopardy grounds, followed the letter of Kennedy, as it was obligated to do. Manifest necessity was present to justify the declaration of a mistrial because of jury deadlock, Howerton consented to that mistrial, and Howerton's consent was not a sham. His retrial is, therefore, not barred.
Because Howerton's double jeopardy claim fails as a matter of law, we need not weigh in on his contention that the trial court erred when it reached the legal conclusion that no prosecutorial misconduct occurred or abused its discretion in denying his request for an evidentiary hearing in support of his writ of habeas corpus. Tex.R.App.P. 47.1.
Conclusion
Based on the foregoing, we affirm the trial court's order denying Howerton's application for a pretrial writ of habeas corpus.