Javier Rodriguez Carbajal v. State

NO. 07-05-0078-CR 07-05-0079-CR 07-05-0080-CR 07-05-0081-CR 07-05-0082-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 11, 2006 ______________________________ JAVIER RODRIGUEZ CARBAJAL, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; NO. 16,084-B, 16,085-B, 16,086-B, 16,102-B, 16,109-B; HONORABLE JOHN BOARD, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Following his pleas of not guilty to charges brought by five separate indictments, consolidated for trial, appellant Javier Rodriguez Carbajal was convicted by a jury of all five charges and assessed the indicated sentences, as follows: Unauthorized use of a motor vehicle - two years confinement and a $2,000 fine; Unlawful possession of a firearm by a felon - seven years confinement and a $7,000 fine; Aggravated kidnapping (enhanced) - ninety-nine years confinement and a $10,000 fine; Possession of a controlled substance - two years confinement and a $10,000 fine; and Burglary of a habitation (enhanced) - twenty years confinement and a $10,000 fine. By a single issue, appellant contends the trial court denied him his right to effective assistance of counsel during voir dire examination. We affirm. At the conclusion of voir dire, before counsel made their strikes, counsel for appellant requested to be provided with a copy of the criminal history information "pulled" by the State on each potential juror prior to voir dire. Counsel asserted that the information was not protected work product and would inform him of any convictions, including those which tend to disqualify jurors. (1) In response, the court stated that it would expect the State to notify the court and disclose any information that would disqualify a member of the panel from serving as a juror. The State objected to appellant's request for the histories, claiming that there was no authority requiring it to disclose such information to the defense. Counsel for appellant conceded he had no authority to support his position but stated he had been provided such information in the past. The trial court ruled as follows: I'll deny that motion to the extent it calls for matters that would not show a disqualification and would grant it as to matters that would show a disqualification. The jury subsequently convicted appellant on all counts. By his sole issue, appellant contends the trial court's refusal to compel the State to disclose the results of the venire panel's criminal history check denied him the right to effective assistance of counsel. Specifically, he argues that the ruling effectively limited the scope of voir dire and prevented him from intelligently exercising his peremptory challenges. We initially note that counsel's request for the criminal histories at trial was accompanied by his contention that "it is an unfair prejudice if we are not allowed to have that information." Again, the contention on appeal is that the information would have helped appellant to intelligently exercise his peremptory challenges, and that the trial court's failure to order disclosure of the histories effectively limited the scope of his voir dire. The contention on appeal does not correspond with that made at trial. That alone would warrant our overruling appellant's issue. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995) (objection stating one legal theory may not be used to support another legal theory on appeal). Addressing the merits of appellant's issue, he correctly asserts that a criminal defendant's right to counsel protected by Article 1, Section 10 of the Texas Constitution encompasses the right to ask proper questions on voir dire to permit the intelligent exercise of peremptory and for cause challenges. See Taylor v. State, 109 S.W.3d 443, 452 (Tex.Crim.App. 2003) (stating rule). Review of a trial court's decisions during voir dire is for abuse of discretion. Howard v. State, 941 S.W.2d 102, 108 (Tex.Crim.App. 1996). If abuse of discretion infringing the right to question the venire is shown, we will evaluate harm to appellant under the standard applicable to nonconstitutional error under Rule of Appellate Procedure 44.2(b). Taylor, 109 S.W.3d at 450-55. An abuse of discretion infringing the right to question the venire in order to intelligently exercise peremptory challenges ordinarily is shown only when a proper question about a proper area of inquiry is prohibited. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002); Howard, 941 S.W.2d at 108. As noted, appellant's request and the court's ruling occurred at the conclusion of voir dire. Although the trial court partially denied appellant's request, it never prohibited appellant from questioning the venire panel regarding their criminal histories or otherwise inhibited him from obtaining information he needed to exercise his challenges. See Taylor, 109 S.W.3d at 454. Given this fact, we are unable to see how the trial court's ruling prevented the intelligent exercise of appellant's peremptory challenges. Appellant's issue is overruled. Accordingly, the trial court's judgment is affirmed. James T. Campbell Justice Do not publish. 1. See Tex. Code Crim. Proc. Ann. arts. 35.16, 35.19 (Vernon 1989 and Supp. 2006) (providing grounds for disqualification). aughter in 1985, at which point I objected because it violated the Motion in Limine. It did not give me an opportunity to have the Court determine whether or not - even if it was admissible, whether it was more prejudicial than it was probative. If I understand correctly, the Court has denied my - or overruled my objection. THE COURT: All right. I'm going to sustain the objection. MR. McKINNEY: Your Honor, the - at this time uh - I would ask the Court uh - to instruct the jury not to consider it for any purpose, and it's my intention to move for a mistrial, because once the skunk's in the box, I can't remove the stink. THE COURT: All right, I'm granting your Motion for a Mistrial. MR. McKINNEY: Thank you, Your Honor. MR. MARTINDALE: Your Honor, when Mr. McKinney urged his Motion in Limine yesterday morning, as I recall the Court specifically asked me if I had any objections to it. My response to the court was, Your Honor, except for the purposes of impeachment, I have no objection. And the Court said fine, as I recall it. Therefore, I don't see, based on that decision from the Court, how I was limited from going into that particular issue by his Motion in Limine. THE COURT: AS long as you complied with Rule 609, which you did not. You told me that conviction is over ten years old, did you not? It's a 1985 conviction. MR. MARTINDALE: That is correct, Your Honor. THE COURT: All right. Jesse, bring the jury in. MR. McKINNEY: May she stepped [sic step] down? THE COURT: Yes. (Jury seated.) THE COURT: You may be seated. Ladies and gentlemen, I am going to discharge you as jurors from the trial of this case. I am releasing you from all the instructions that I have previously given you. If you just hand your tags to Mr. Salazar, you're free to go. Thank you for your jury service. I apologize if we have caused you any inconvenience. Thank you. (Jury released.) (Reporter then released exhibits to the State.) THE COURT: Counsel, I have a jury panel coming in at 1:30. I expect you to be ready. MR. McKINNEY: Your Honor, uh - THE COURT: If you have other arrangements cancel them. MR. McKINNEY: Your Honor, uh - well, the uh - my intention is to file a writ of habeas corpus alleging pretrial - not pretrial, but alleging prosecutorial misconduct. I would like to go back to my office, I'll prepare it immediately, and I would like to have a hearing on it before we do that. THE COURT: Be ready at 1:30, Mr. McKinney. MR. McKINNEY: Okay. (Recess.) When counsel returned at 1:30, appellant presented her application for writ of habeas corpus. Appellant called the State's attorney as a witness. His examination demonstrated that Mr. Martindale is an experienced prosecutor and was aware of the trial court's order granting the motion in limine; however, he testified that according to his recollection, the court order did not limit use of prior offenses for impeachment purposes. After consideration, the trial court denied the application for writ of habeas corpus on the grounds of double jeopardy. When the State stipulated that appellant was entitled to appeal the court's denial of the application, the court announced a final recess. Restating appellant's five issues, she questions whether (1) jeopardy attached pursuant to Article 1, Section 14 of the Texas Constitution when the trial court granted a mistrial due to the prosecutor's violation of a motion in limine, (2) the trial court properly granted a mistrial, (3) the prosecutor intended to induce the mistrial by asking her about a prior 1985 conviction in violation of a motion in limine, (4) the mistrial occurred as a result of the prosecutor's conscious disregard of the risk of asking her about a 1985 conviction in violation of a motion in limine, and (5) the trial court's ruling denying her application for a pretrial writ of habeas corpus was "clearly erroneous." We need not consider appellant's second issue because she concedes that the trial court properly granted her motion for mistrial and the State acknowledges that after Bauder II (1) the propriety of the mistrial is not a consideration in resolving a double jeopardy argument. Accordingly, we will consider appellant's remaining issues simultaneously; but first, we set forth the appropriate standard of review. Standard of Review In reviewing trial court rulings, an appellate court must determine the amount of deference which is appropriately given to the ruling at issue. Appellate courts either give almost total deference to trial court rulings, or review the rulings de novo, depending on the basis of the decision being challenged. Where, as here a reporter's record of the hearing on the application for writ of habeas corpus is presented, almost total deference is given to the (1) trial court's determinations of historical facts with support in the record, (2) fact determinations involving an evaluation of credibility or demeanor, and (3) rulings on questions involving application of law to fact (also known as mixed questions of law and fact) if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997) (en banc). This level of appellate deference is referred to as a review for abuse of discretion. Id. Mixed questions of law and fact not falling within the foregoing categories may be reviewed de novo by the appellate court. Id. De novo review does not embody the abuse of discretion standard of review. Id. Even when conducting a de novo review, however, an appellate court affords appropriate deference (abuse of discretion) to the trial court's findings on subsidiary factual questions. Id. Generally, the denial of habeas corpus relief is within the discretion of the court considering the habeas petition. Ex Parte Pipkin, 935 S.W.2d 213, 215 (Tex.App.--Amarillo 1996, pet. ref'd). On appeal, the ruling of such court will be upheld unless its ruling is an abuse of discretion. State v. DeLeon, 971 S.W.2d 701, 705 (Tex.App.--Amarillo 1998, pet. ref'd). The ruling of the court considering the habeas petition will be upheld if it is correct on any theory of law. Id. Accordingly, we will review the trial court's order to determine if its decision is clearly erroneous. Ex Parte May, 852 S.W.2d 3, 5 (Tex.App.--Dallas 1993, pet. ref'd). Before Bauder II, 974 S.W.2d at 731, the granting of a defendant's motion for mistrial did not implicate a claim of double jeopardy baring retrial, see Crawford v. State, 703 S.W.2d 655 (Tex.Cr.App. 1986), except when the prosecutor caused the defendant to move for mistrial. Id. at 662; Ex Parte May, 852 S.W.2d at 4. After Bauder II, the questions presented are: •whether the defendant's motion for mistrial was a choice made in response to ordinary reversible error in order to avoid conviction, appeal, reversal and retrial; or, on the other hand, •was the defendant required to move for mistrial because the prosecutor deliberately or recklessly crossed "the line between legitimate adversary gamesmanship and manifestly improper methods" that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it? 974 S.W.2d at 732. (Emphasis added). The opinion does not define "ordinary reversible error," however, where, as here, the trial court granted a mistrial for violation of a motion in limine, we do not consider the error to be "ordinary reversible error, " i.e., inadvertently admitted hearsay evidence, otherwise orders granting motions in limine would be rendered meaningless and produce a waste of judicial resources by the granting of mistrials. Similarly, Bauder II does not provide any guidelines or instruction to assist us or the trial court in determining when the prosecutor deliberately or recklessly crosses "the line between legitimate adversary gamesmanship and manifestly improper methods," that render judicial admonishment to the jury futile. Here, at the hearing on appellant's application, the prosecutor testified that according to his recollection, when the motion in limine was considered, the order did not prohibit use of the evidence for purposes of impeachment. However, the record shows that the motion and the court's remarks were off the record and the order granting the motion does not specifically address the use of prior convictions for purposes of impeachment. Also, the record does not demonstrate whether the prosecutor's recollection was supported by the record or whether his reference to appellant's prior conviction was deliberate or reckless. Therefore, according almost total deference to the trial court's ruling, we are unable to hold that the trial court abused its discretion in denying appellant's application for writ of habeas corpus. We have not overlooked Ex Parte Wheeler, 61 S.W.3d 766 (Tex.App.--Fort Worth 2001, pet. filed Feb. 26, 2002), relied on by appellant; however, it is not controlling because we have been provided with a record of the hearing in the trial court when the application for writ of habeas corpus was presented, and the same judge who heard the application presided over appellant's trial. Issues one, three, four and five are overruled and we need not consider issue two. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice Publish. 1. After its initial decision in Ex Parte Bauder, 921 S.W.2d 696 (Tex.Cr.App. 1996), the Court had a second opportunity to consider when a mistrial implicates double jeopardy. Bauder v. State, 974 S.W.2d 729 (Tex.Cr.App. 1998).