Opinion
NO. 03-15-00586-CR
04-27-2016
Crispin James Harmel, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 13-0826-K277, HONORABLE RICK J. KENNON, JUDGE PRESIDINGMEMORANDUM OPINION
Appellant Crispin James Harmel appeals the trial court's denial of his pre-trial writ of habeas corpus, in which Harmel contended that his re-trial violated the prohibition against double jeopardy. We will affirm.
BACKGROUND FACTS
Harmel went to trial on charges of capital murder, aggravated kidnapping, and aggravated robbery. Several days into trial, the trial court granted Harmel's motion for a mistrial on the basis that the State failed to provide defense counsel with the means to view time stamps on a Walmart surveillance tape. The defense's case was based primarily on the surveillance video without time stamps and the argument that Harmel could not have been with the victim at the time of the offenses.
After the mistrial, the State re-indicted Harmel on the same charges. Harmel then filed a pre-trial Motion for Writ of Habeas Corpus and Request for Hearing. The trial court held a hearing on Harmel's motion over the course of three days and, at its conclusion, made extensive findings of fact and conclusions of law that are not challenged on appeal with the exception of the trial court's conclusion denying relief.
The State objected to the trial court's findings of fact concerning what the trial court found to be willful and intentional misconduct on the part of the district attorney, but it does not raise any objections on appeal.
It is undisputed that prior to trial, defense counsel sent the State an email request for a time-stamped version of the Walmart surveillance video. The State initially told defense counsel that a time-stamped version of the video did not exist. During trial, however, the district attorney ordered her trial team to figure out the "time issue." Ultimately, the prosecutor learned that the time stamp issue could be solved by playing the surveillance video on a different software player.
At the hearing, the district attorney admitted that during trial she and her trial team figured out how to play the surveillance video so that the time stamps were displayed but that they did not tell the defense about it because of the feeling that if the State could figure it out, then defense counsel should have as well, noting that the State had "earned it." The district attorney also testified that "after the way [she] was treated throughout that entire trial, [she] didn't really feel very magnanimous" as far as turning over the method for viewing the time stamps, even though she knew that the State had a "very big advantage" in knowing how to play the video with time stamps. She agreed that when the time stamps were shown to the jury, the defense "basically had no more case left."
The trial court found that the district attorney's decision not to disclose the method of viewing the time stamps on the Walmart surveillance video was intentional. "The Court finds that [the district attorney's] conduct in this case; in which she withheld evidence, repeatedly violated Court orders, expressed bias against the Defendant and his Counsel, has been intentional and willful." The court further concluded that the State was aware that the revelation of this time stamped evidence effectively "gutted" Harmel's case and that the State's having withheld the means for viewing the video with the time stamps displayed was the reason Harmel moved for a mistrial. The court, however, ultimately concluded that there was no evidence that the prosecutor "intended to goad a mistrial or avoid an acquittal." As a result, the court denied Harmel's motion for writ of habeas corpus, and this appeal followed.
STANDARD OF REVIEW
We review a trial court's ruling on a pre-trial writ of habeas corpus under an abuse of discretion standard. Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.). We will not reverse the trial court unless its ruling is arbitrary or unreasonable. Gaytan v. State, 331 S.W.3d 218, 223 (Tex. App.—Austin 2011, pet. ref'd). A trial court does not abuse its discretion if its ruling lies within the "zone of reasonable disagreement." Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). When reviewing a double-jeopardy writ, an appellate court will view the evidence in the light most favorable to the trial court's ruling, understanding that the trial court is in the best position to make the evaluations necessary to this type of decision, particularly where a prosecutor's state of mind is concerned. Ex parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007); Ex parte Lewis, 219 S.W.3d 335, 362 (Tex. Crim. App. 2007).
DISCUSSION
The Fifth Amendment's Double Jeopardy Clause protects a criminal defendant from repeated prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671 (1982); United States v. Dinitz, 424 U.S. 600, 606 (1976). As a general rule, when, as in this case, a defendant requests a mistrial and elects to terminate the proceedings against him, the Double Jeopardy Clause will not serve as a bar to re-trial. Kennedy, 456 U.S. at 672. A narrow exception to this general rule exists when a prosecutor's actions giving rise to the defendant's motion for mistrial were done with an intent to "goad" the defendant into requesting a mistrial. Id. at 673. "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Id. at 676. The Texas Court of Criminal Appeals has adopted both this rule and its exception. See Ex parte Lewis, 219 S.W.3d at 336. Harmel contends that this narrow exception applies under the facts of this case. We disagree.
As Harmel points out, there is little question that the prosecutor's conduct in this matter was intentional. As the trial court found, the prosecutors knew that defense counsel had requested a copy of the surveillance video with time stamps. The prosecutors figured out how to play the video with the time stamps displayed during trial but failed to share that information with Harmel's counsel until the video, with time stamps, was played at trial. At the hearing on Harmel's pre-trial writ of habeas corpus, the district attorney admitted that she withheld this information from defense counsel for a variety of reasons, including her perceived mistreatment by defense counsel and the fact that the State had worked hard to figure out how to play the video so that the time stamps were displayed, something she felt defense counsel could also do on its own. Harmel contends that the intentional nature of the prosecutor's actions in this case, which ultimately led to a mistrial, demonstrate that he is entitled to relief under the Kennedy standard.
The prosecutor's intentional acts standing alone, however, are not sufficient to invoke double jeopardy protection. As the Supreme Court and the Texas Court of Criminal Appeals have made clear, the intent of the prosecutor must be to "goad" the defendant into requesting a mistrial. In other words, it is not enough that the prosecutor acted in an intentional manner or even that these intentional acts led to the defense's request for a mistrial. There must be evidence that the prosecutor acted with the specific intent to goad the defendant into requesting a mistrial.
Viewing the evidence in the light most favorable to the trial court's ruling, as we must, it is apparent from the record—and the parties agree—that the time stamps, when added to the video, were devastating to Harmel's case, effectively "gutting" it. The addition of the time stamps to the surveillance video eviscerated the defense's theory of the case at trial. There is nothing in the record, however, to indicate that the State acted with the intent to provoke Harmel to request a mistrial in order to avoid an acquittal or for any other reason. Rather, the evidence showed only that the State's intentional withholding of inculpatory evidence until the time of trial instead of producing it pre-trial was driven solely by the district attorney's ill feelings toward defense counsel or was gamesmanship. As observed by the Supreme Court, "[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Kennedy, 456 U.S. at 675-76.
This case is distinguishable from Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007), in which a prosecutor withheld exculpatory evidence with the specific intent to avoid the possibility of an acquittal. --------
Here, the trial court's denial of relief was not outside the zone of reasonable disagreement. The grant of pre-trial habeas relief to a defendant on double jeopardy grounds is rare given that prosecutors do not ordinarily attempt to "throw" their cases. Ex parte Lewis, 219 S.W.3d at 362. Such relief is "difficult to obtain and would be seldom granted." Id. The trial court was in the best position to determine whether the prosecutor's actions were intended to "goad" Harmel into requesting a mistrial, see id., and there is sufficient evidence in the record to support the trial court's denial of relief based on its conclusion that the prosecutor did not act with such intent.
CONCLUSION
Accordingly, we overrule Harmel's sole issue on appeal and affirm the trial court's order denying Harmel's motion for pre-trial writ of habeas corpus.
/s/_________
Scott K. Field, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: April 27, 2016 Do Not Publish