Opinion
No. 04-15-00176-CR
05-18-2016
Joe Anthony LARA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR1132
Honorable Jefferson Moore, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRMED
Appellant Joe Anthony Lara was convicted by a jury of one count of continuous sexual assault, two counts of sexual assault, and four counts of indecency with a child. On appeal, Lara contends the trial court erred in (1) denying his motion for new trial, which asserted the trial court erred by denying his motion to admit evidence of the victim's past sexual behavior pursuant to Rule 412 of the Texas Rules of Evidence; (2) denying his pretrial writ of habeas corpus because the prosecutor provoked a mistrial in Lara's first trial; and (3) denying his pretrial writ of habeas corpus without conducting a hearing. Because the issues in this appeal involve the application of well-settled law, we affirm the trial court's judgment in this memorandum opinion. TEX. R. APP. P. 47.4.
After the jury reached its verdict, the trial court vacated three of the indecency with a child convictions during the sentencing hearing based on double jeopardy principles.
MOTION FOR NEW TRIAL
A. Standard of Review
We review a trial court's denial of a motion for new trial for abuse of discretion. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). Similarly, "[a] trial court's ruling admitting evidence will not be reversed on appeal absent a clear abuse of discretion." Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009); Riley, 378 S.W.3d at 457. A trial court does not abuse its discretion unless its ruling falls outside the zone of reasonable disagreement. Riley, 378 S.W.3d at 457.
The same standard applies in reviewing a trial court's ruling on an application for writ of habeas corpus. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). Under this standard, we review the record evidence in the light most favorable to the trial court's ruling. Kniatt, 206 S.W.3d at 664; Ex parte Wheeler, 203 S.W.3d at 324.
B. Texas Rule of Evidence 412
In his first issue, Lara contends the trial court erred in denying his motion for new trial based on the trial court error in denying his motion to admit evidence of the victim's past sexual behavior pursuant to Rule 412. See TEX. R. EVID. 412.
1. Evidence of Victim's Previous Sexual Conduct
Generally, the Texas Rules of Evidence "favor admission of evidence that may be deemed relevant to the issues presented at trial." Todd v. State, 242 S.W.3d 126, 129 (Tex. App.— Texarkana 2007, pet. ref'd); see also Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009) ("Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial."). This general principle does not, however, apply to evidence of a victim's past sexual behavior in a prosecution for sexual assault. Todd, 242 S.W.3d at 129; TEX. R. EVID. 412. "In such cases, our evidentiary rules take a contrary position by creating an extremely high hurdle over which the accused's proposed evidence must clear before a trial court may, in its discretion, admit such evidence." Todd, 242 S.W.3d at 129.
Rule 412, commonly known as the "rape shield law," generally prohibits the admission of evidence of specific instances of a victim's past sexual behavior in a prosecution for sexual assault. TEX. R. EVID. 412(a)(2); Ellison v. State, 165 S.W.3d 774, 777 (Tex. App.—San Antonio 2005), aff'd, 201 S.W.3d 714 (Tex. Crim. App. 2006). Specific instances of a victim's past sexual behavior are, however, admissible if: (1) the evidence "is necessary to rebut or explain scientific or medical evidence offered by the prosecutor" or the evidence "relates to the victim's motive or bias;" and (2) "the probative value of the evidence outweighs the danger of unfair prejudice." TEX. R. EVID. 412(b)(2)(A),(C), (b)(3) (emphasis added); Ellison, 165 S.W.3d at 777.
In order to be admissible under Rule 412, the defendant must first establish how the evidence is relevant to rebut or explain scientific evidence or how it relates to the victim's motive or bias. Ellison, 165 S.W.3d at 777. When the defendant seeks to have the evidence admitted because it relates to the victim's motive or bias, the defendant must "demonstrate a definite and logical link between the complainant's past sexual conduct and the alleged motive or bias." Stephens v. State, 978 S.W.2d 728, 735 (Tex. App.—Austin 1998, pet. ref'd); see also Todd, 242 S.W.3d at 129. Similarly, when the defendant offers the evidence to rebut or explain the State's scientific evidence, the victim's past sexual behavior "must directly address—and must clearly contradict—the State's evidence." Todd, 242 S.W.3d at 129 (emphasis in original). When a defendant seeks to admit evidence of a victim's past sexual behavior, the defendant must inform the trial court of his intention outside the jury's presence, and the trial court must conduct an in camera hearing to determine whether the proposed evidence is admissible. TEX. R. EVID. 412(c).
2. Preservation
In his brief, Lara generally asserts the victim's past sexual behavior was admissible in the instant case both to explain scientific evidence and because it related to the victim's bias or motive. Although both of these grounds were raised in Lara's motion, the only argument presented to the trial court during the hearing on Lara's motion related to the scientific evidence. It is well settled that the argument on appeal must comport with the argument made at trial. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). In this instance, by only arguing the victim's past sexual behavior should be admitted to explain the State's scientific evidence, Lara failed to preserve any argument that the evidence should be admitted because it related to bias or motive. See McDonald v. State, No. 02-13-00483-CR, 2015 WL 2353307, at *3 (Tex. App.—Fort Worth May 14, 2015, no pet.) (not designated for publication) (holding error not preserved when appellant's argument at trial was that evidence of the complainant's sexual history was admissible to explain bias or motive but argument on appeal was that evidence was admissible to rebut scientific or medical evidence). Accordingly, we only address whether the trial court abused its discretion in refusing to admit the evidence of the victim's past sexual behavior because it allegedly explained the State's scientific evidence.
In his brief, Lara describes the Rule 412 hearing as focusing on the scientific evidence. In his application paragraphs, Lara then focuses on how the victim's past sexual behavior would explain the scientific evidence. After this discussion, Lara also states, "It would also have related to [the victim's] motive or bias." Similar to the argument before the trial court, Lara's brief also makes no effort to "demonstrate a definite and logical link between the complainant's past sexual conduct and the alleged motive or bias." Stephens, 978 S.W.2d at 735.
3. Analysis
The evidence presented at trial established that Lara began sexually abusing the victim, his adopted daughter, when she was ten years old. The victim testified that Lara began forcing her to have intercourse with him on his bed in January of 2013, when she was sixteen years old. In March of 2013, the victim's mother arrived home unexpectedly and discovered the victim was with Lara, behind a locked door, in the bedroom he shared with the victim's mother. The victim subsequently made an outcry to her aunt. See TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(a)(3) (West Supp. 2015) (providing statutory hearsay exception to statements that describe alleged offense for child abuse victims where certain conditions are met); Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).
DNA testing of the comforter from Lara's bed established the presence of Lara's and the victim's DNA. The testing also, however, established the presence of the DNA of a second male. For this reason, Lara asserts the trial court erred in excluding evidence that the victim had engaged in repeated sexual intercourse with a teenage boy because it could explain the presence of the second sample of DNA. We disagree.
At the hearing before the trial court, Lara presented no evidence that the victim engaged in sexual intercourse with the teenage boy on Lara's bed. Furthermore, as the trial court noted in its ruling:
. . . the fact that there is a second, not profile, but a second source there doesn't really rebut the fact that the defendant's DNA is there. I mean, it just says, hey, in addition to that, we have something else. But it doesn't rebut or offer an alternative explanation to the presence of [the defendant's] DNA being where it is. And so I believe that's what 412 is discussing, is an alternative explanation for the scientific evidence.Therefore, Lara failed to directly address or clearly contradict the State's evidence regarding the presence of the victim's and Lara's DNA on the comforter. Todd, 242 S.W.3d at 129. As a result, Lara failed to overcome the high hurdle he faced in establishing the relevancy of the victim's past sexual behavior. Id. Moreover, Lara's brief does not address how the trial court would have abused its discretion in deciding the probative value of the victim's past sexual behavior was not outweighed by the danger of unfair prejudice. TEX. R. EVID. 412(b)(3); Russeau, 291 S.W.3d at 438. Because the trial court did not abuse its discretion in excluding the evidence of the victim's past sexual behavior, we hold the trial court did not abuse its discretion in denying Lara's motion for new trial on this ground. Lara's first issue is overruled.
We next turn to Lara's complaints regarding the trial court's denial of his motion for new trial on the grounds that the trial court erred in denying his pretrial application for writ of habeas corpus.
The State contends Lara had the right to immediately appeal the trial court's ruling on Lara's pretrial application; therefore, Lara is precluded from raising the trial court's ruling as an issue in this appeal from his final conviction. In Brooks v. State, Judge Womack made this same argument in a concurring opinion refusing to join the majority's analysis of the trial court's ruling on a pretrial application. 990 S.W.2d 278, 289 (Tex. Crim. App. 1999) (Womack, J., concurring). The majority, however, reached and rejected the merits of the issue without any analysis or acknowledgment of Judge Womack's comment. Id. at 285. "[U]nless the matter is revisited — Brooks is definitive." 43 George Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice & Procedure § 35:8 (3rd ed. 2011). Accordingly, we reject the State's waiver argument. --------
B. Mistrial During Lara's First Trial
In his second issue, Lara contends the trial court erred in denying his application because the State provoked the mistrial in his first trial.
1. Double Jeopardy Based on Prosecutorial Misconduct
Although double jeopardy protections generally do not bar a retrial when the defense requested a mistrial, double jeopardy will apply if the defendant successfully moved for a mistrial because the prosecutor engaged in conduct that was intended to provoke the defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 679 (1982); Ex parte Lewis, 219 S.W.3d 335, 336-37 (Tex. Crim. App. 2007); Ex parte Coleman, 350 S.W.3d 155, 159 (Tex. App.—San Antonio 2011, no pet.). "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." Oregon, 456 U.S. at 675-76; accord Ex parte Masonheimer, 220 S.W.3d 494, 506 (Tex. Crim. App. 2007). "The burden is on the applicant to prove his [double jeopardy] allegations by a preponderance of the evidence." Ex parte Coleman, 350 S.W.3d at 160.
2. Declaration of Mistrial During Lara's First Trial
Before the first trial, Lara requested a motion in limine regarding his request for counsel during an interview by Detective Robert Vara. The State agreed to the request, and the trial court granted the request. During Detective Vara's testimony at trial, however, the following exchange occurred during questioning by the State:
State: All right. Did you prepare any warrants at that point?
Vara: A search warrant was issued for the defendant's buccal swab or DNA.
State: Let's talk about what a buccal swab is, for those who don't know. What is it?
Vara: They look like Q-tips and we use it to insert into the person's mouth and they swab the inside of their cheek and what we do is collect saliva, so later on that's considered their DNA. That's what we term buccal swabs.
State: And did you actually get a search warrant to get the defendant's buccal swabs or saliva sample?
Vara: We did.
State: Okay. And a judge signed that search warrant?
Vara: Yes, he did.
State: Okay. So at some point, in order to — to get that sample from the defendant, you had to find him. Was he ever found?
Vara: That day, he wasn't. But, yes, he was eventually found.
State: I'm sorry?
Vara: He eventually was, yes. He was found.
State: He was found and arrested?
Vara: That's correct.
State: And so did you make contact with him?At that point, defense counsel moved for a mistrial, and the trial court instructed the bailiff to remove the jury from the courtroom. After the jury was removed from the courtroom, the following exchange occurred:
Vara: I did.
State: Where?
Vara: 200 North Comal, which is the Bexar County Sheriff's Office, or Sheriff's Department.
State: Okay. And can you explain for the jury the exact process that you go through with the defendant, or somebody accused of a crime, when you get — you're getting this sample?
Vara: Because he was arrested and we were going to do a search for his DNA, once we made contact with him at the Bexar County where he was being housed at, he was brought into a room that was being recorded, I read him his Miranda rights. I advised him of his rights. He went ahead and — he re — he accepted his — requested his attorney.
State: Well —
Trial Court: Be seated.
Okay. My understanding of the testimony was that he was asked about the process that the witness goes through with the defendant, or somebody accused of a crime. The response was, because he was arrested, we're going to do a search warrant for his DNA. Once we made contact with him at the Bexar County where he was being housed, he was brought into a room, was being recorded, read him his Miranda rights. I advised him of his rights. He went ahead and he accepted—requested his attorney.
Defense Counsel: We object on the grounds as follows, Your Honor: Number one, we had previously filed a motion in limine to preclude that testimony from being given, the State agreed to that motion in limine, and now you have the officer volunteer that information in violation of the Court's order. It violates the defendant's Fifth Amendment rights, Sixth Amendment rights to have counsel. And the officer has just ruined three days of trial. We move for a mistrial.
Trial Court: State, do you have a response to that?
State: Judge, the State did not elicit that testimony about the defense—the defendant requesting an attorney. I don't know if the jury heard him. We stopped him before he finished what he was saying, so ...
Trial Court: I don't think I have a choice. I think—I can't presuppose—unless I brought them all in. I'm not going to bring them all in to see whether they understood that. You know, I'm going to have to grant a mistrial.
The Court finds the question did not invite—it was an open-ended but it—it just generally asked about the process of what he goes through with the defendant. So the Court finds it was not an intentional act by the State trying to elicit the defendant's request for an attorney, but that just the fact that it is, I'm going to grant a mistrial.
3. Lara's Pretrial Application for Writ of Habeas Corpus and Trial Court's Ruling
Before the second trial commenced, Lara filed a pretrial application for writ of habeas corpus asserting his retrial was barred by double jeopardy because the State provoked the mistrial in violation of a motion in limine. The trial court issued an order stating, "the pending writ will be determined on the transcript of the relevant portions of the trial and affidavits."
Defense counsel submitted an affidavit, but neither the prosecutor nor Detective Vara submitted an affidavit. In defense counsel's affidavit, he stated the prosecutor informed him she could not recall whether she had affirmatively instructed Detective Vara on the motion in limine but stated, as a detective, Detective Vara should have known better than to reveal such matters to jurors. Defense counsel also averred that Detective Vara informed him that he had not received any notice regarding the motion in limine. Finally, defense counsel stated the prosecutor obstructed his ability to obtain an affidavit from Detective Vara confirming his lack of notice of the motion in limine.
In its order denying Lara's pretrial application for writ of habeas corpus, the trial court included findings of fact and conclusions of law. One of the trial court's conclusions was that the prosecutor's action "in asking the question that led to the offending testimony was not an intentional or reckless act in order to abort the trial by way of mistrial." The trial court also concluded the question was an open ended question designed to elicit testimony regarding the manner in which Detective Vara collects a DNA sample from a defendant, and Detective Vara's answer was not responsive. Finally, the trial court concluded whether the prosecutor made Detective Vara aware of the motion in limine was not relevant to the analysis. The trial court ruled Lara did not "demonstrate by a preponderance of the evidence that the prosecutor intended to provoke the defendant into moving for a mistrial."
4. Analysis
In this case, both the trial judge who declared the mistrial and the trial judge who ruled on Lara's pretrial application for writ of habeas corpus found the prosecutor's question was open ended and was designed to obtain general information about the procedure Detective Vara follows in obtaining a buccal swab from a defendant. The trial judge who ruled on Lara's pretrial application for writ of habeas corpus further concluded Detective Vara's response regarding Lara requesting an attorney was not responsive to the question.
"Trial courts are in the best position to determine whether a prosecutor's conduct evinces an intent to cause a mistrial." Ex parte Lewis, 219 S.W.3d at 362. For this reason, we defer "to the trial court's assessment of the facts, including the prosecutor's state of mind." Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). Having reviewed the relevant exchange and deferring to the trial court's assessment of the prosecutor's state of mind, we hold the trial court did not abuse its discretion in concluding that the prosecutor did not engage in conduct that was intended to provoke Lara's defense counsel into moving for a mistrial. See Taylor v. State, No. 05-06-01258-CR, 2008 WL 2426655, at *2 (Tex. App.—Dallas June 17, 2008, pet. ref'd) (holding trial court properly denied special plea of double jeopardy where witness testified to inadmissible extraneous offense in response to open ended question which was not intended to elicit testimony regarding extraneous offense) (not designated for publication). See also Kniatt, 206 S.W.3d at 664 (applying abuse of discretion standard of review and viewing the evidence in the light most favorable to the trial court's ruling). Lara's second issue is overruled.
C. Hearing on Pretrial Application for Writ of Habeas Corpus
In his third issue, Lara contends the trial court erred in denying his motion for new trial on the ground that the trial court erred in denying his pretrial application for writ of habeas corpus without a hearing. As Lara acknowledges in his brief, a trial court is not required to conduct an evidentiary hearing before ruling on a defendant's writ application. See Ex parte Nwogu, No. 04-13-00756-CR, 2014 WL 309465, at *1 (Tex. App.—San Antonio Jan. 29, 2014, no pet.) (not designated for publication); Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2015, no pet.).
In his brief, Lara contends a hearing was necessary to explore the motivations of the prosecutor. The trial court, however, found the prosecutor's question was open-ended and was not designed to elicit testimony that Lara requested counsel. See Oregon, 456 U.S. at 690 (requiring mistrial following prosecutor's conduct intending to goad defendant into moving for mistrial); see also Ex parte Wheeler, 203 S.W.3d at 323-24. Therefore, we disagree a hearing was necessary to explore the prosecutor's motivations for asking an open ended question. See Ex parte Wheeler, 203 S.W.3d at 234 (deferring to trial court's assessment of prosecutor's state of mind).
Lara also contends a hearing was necessary to explore Detective Vara's motivations. The only issue in deciding whether double jeopardy bars a retrial in this context is whether the prosecutor intended to goad a mistrial. See Oregon, 456 U.S. at 679. As previously noted, the trial court found Detective Vara's answer to the prosecutor's question was non-responsive. Because the trial court must focus on the prosecutor's motivations, Detective Vara's motivation for providing a non-responsive answer to the prosecutor's question was not relevant to the issue before the trial court. See Oregon, 456 U.S. at 690; Ex parte Wheeler, 203 S.W.3d at 324.
In view of the foregoing, we hold the trial court did not abuse its discretion in denying the motion for new trial because the trial court was not required to hold a hearing on Lara's pretrial application for writ of habeas corpus. Lara's third issue is overruled.
CONCLUSION
Having overrule each of Lara's issues on appeal, the trial court's judgment is affirmed.
Patricia O. Alvarez, Justice DO NOT PUBLISH