Ex Parte Darrell J. Brown

Affirmed and Memorandum Opinion filed November 29, 2007 Affirmed and Memorandum Opinion filed November 29, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-07-00116-CR ____________ EX PARTE DARRELL J. BROWN, Appellant On Appeal from the County Criminal Court at Law No. 1 Harris County, Texas Trial Court Cause No. 1428854 M E M O R A N D U M   O P I N I O N Appellant, Darrell J. Brown, appeals the trial court=s denial of pretrial habeas corpus relief. In two issues, he contends that the State=s retrial violates his constitutional guarantee against double jeopardy. We affirm. Factual and Procedural Background Appellant was charged by information with offense of possession of marihuana. He pleaded not guilty and the case proceeded to trial before a jury. Before the State called its first witness, the trial court granted appellant=s motion in limine, which, among other things, ordered the State to refrain from making any reference to appellant being charged or convicted for other crimes. During the State=s direct examination of its first witness, Officer Cantu, the State attempted to elicit evidence that appellant=s place of business was located in an area known for narcotics activity. The following exchange occurred: Q. Okay. And, in your four years on the Narcotics team, have you become aware of whether, or not, this is an actual narcotics area or if there=s a high amount of narcotics activity? A. (No response) [Defense Counsel]: Objection your Honor. Rule 404(b). Rule 403. Speculation and relevancy. [Assistant District Attorney]: Well, Judge, he=s an B The Court: I=ll sustain that. [Assistant District Attorney]: He=s an expert. And, he=s testifying about his experience. And, whether, or not, it would give him cause to be suspicious as to this particular building, and whether drug trafficking could have been involved. It=s not going into any of his priors, or extraneous offenses, or anything like that, and if that=s his purpose for the B [Defense Counsel]: Well, Judge, can we approach? The Court: What for? [Defense Counsel]: Well, we had a Motion In Limine. And, now, the State=s talking about B The Court: Well, let=s take the Jury out. The Bailiff: The Jury will step to the back, please. At the bench, the prosecutors[1] explained that they referred to Apriors@ in the context of responding to appellant=s objections, and pointed out that they did not discuss any specific prior convictions. The prosecutors also explained that the question to the officer was relevant to show the officer=s probable cause to conduct a search pursuant to a search warrant that had already been admitted into evidence. Further, one of the prosecutors stated that she knew of no other way to respond to the defense counsel=s objections. The defense counsel objected that the prosecutor=s comment violated the motion in limine and moved for a mistrial, which the trial court initially denied. However, at the conclusion of Officer Cantu=s testimony, the trial judge decided to grant the mistrial, stating there was Ano way to correct@ the fact that the Apriors@ came into the action. Appellant then filed an application for a pre-trial writ of habeas corpus on double jeopardy grounds, arguing that the prosecutor=s violation of the motion in limine caused the mistrial. After a hearing at which only appellant testified, the trial court denied relief on the writ. This appeal followed. Analysis of the Issues I. The Burden of Proof at the Habeas Corpus Proceeding In his first issue, appellant asserts that, because the State offered no evidence at the habeas corpus hearing, the trial court erred in denying appellant=s requested relief. Appellant acknowledges that the burden of proving a double jeopardy violation is on him, but asserts that the burden shifted to the State once he met his initial burden to prove he was tried for the same offense after a mistrial, citing Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002) (stating that once the defendant meets his initial burden of proving a double jeopardy violation by proving that he was tried for the same offense after a mistrial, the burden then shifts to the State to prove manifest necessity for the mistrial). Here, the habeas corpus hearing was before the same trial judge who presided over appellant=s trial, and the judge was entitled to take judicial notice of the relevant facts and circumstances in the trial proceedings. See Ex parte Turner, 612 S.W.2d 611, 612 (Tex. Crim. App. 1981) (holding that trial judge who presided over revocation of probation hearing and habeas corpus action could properly take judicial notice of evidence presented in revocation of probation hearing during habeas corpus action at which State offered no other evidence); see also State v. Ybarra, 942 S.W.2d 35, 36B37 (Tex. App.CCorpus Christi 1996, pet. dism=d) (stating that review of habeas corpus proceeding is not limited to testimony and evidence adduced at the hearing, but includes the record as it existed before the trial court at the habeas hearing). Accordingly, we disagree that the trial judge erred in denying appellant=s requested relief when the State offered no evidence at the habeas corpus proceeding. Additionally, and as distinguished from Hill, when a defendant alleges that double jeopardy bars a retrial after he successfully moves for a mistrial in response to prosecutorial conduct, he must demonstrate that the Aconduct giving rise to the successful motion for a mistrial 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, 370 (Tex. Crim. App. 2007).[2] At the hearing, appellant offered no evidence to support his request for relief under this standard. And, as we discuss below, the record does not demonstrate that the trial court abused its discretion in denying appellant=s requested relief. We overrule appellant=s first issue. II. Appellant Failed to Demonstrate the Prosecutor=s Conduct Was Intentional In his second issue, appellant contends the trial court erred by denying his requested relief on double jeopardy grounds. According to appellant, the prosecutor intentionally violated the trial court=s motion in limine by referring to his Apriors@ Ain an attempt to torpedo the case,@ and a judicial admonishment would have been insufficient to cure the error. Consequently, appellant asserts the prosecutor=s deliberate provocation forced him to move for a mistrial. A. Standard of Review Generally, we review a trial court=s decision to grant or deny relief on 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 trial court=s ruling. See Ex parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007). We defer to the trial court=s implied factual findings that are supported by the record. Ex parte Wheeler, 203 S.W.3d at 325B26. But we do not defer to implied factual findings if we are unable to determine from the record what the trial court=s implied factual findings are. Id. at 324 n.23. If the resolution of the ultimate question turns on an application of legal standards, however, we review the determination de novo. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellant contends that our review should be de novo, because the State presented no witnesses and did not contest appellant=s own testimony. However, as noted above, the trial court was also entitled to consider the facts and circumstances surrounding the prosecutor=s reference to appellant=s Apriors@ and her explanation for it during the trial on the merits. Because the trial court=s resolution of the ultimate issue here turned on its evaluation of the prosecutor=s credibility and demeanor, we review the trial court=s decision for abuse of discretion. See Ex parte Wheeler, 203 S.W.3d at 326 (holding court of appeals should have reviewed the decision of the trial judge at the habeas hearing for abuse of discretion even though a visiting judge presided over the underlying trial, when the trial judge communicated with the visiting judge concerning the issues, quizzed the prosecutor about his reasons for asking the improper question, and reviewed the transcript of relevant trial testimony). B. Application to Facts According to appellant, the prosecutor=s statements were Aso obviously improper and flagrant that no prosecutor could have made them inadvertently.@ He argues that she intentionally flouted the trial court=s ruling on the motion in limine,[3] and her bad faith is particularly apparent because the comment came from the prosecutor herself, rather than a witness. Further, appellant argues that the trial court itself determined that it could not have given a judicial admonishment sufficient to cure the error. Thus, according to appellant, the prosecutor acted intentionally or at least engaged in the complained-of conduct recklessly. However, as the Court of Criminal Appeals held in Ex parte Lewis, to prevail, appellant must demonstrate that the prosecutor=s conduct was not merely reckless, but was intentional: that the Aconduct was intended to goad the defendant into requesting a mistrial.@ See Ex parte Lewis, 219 S.W.3d at 371 (adopting standard set forth in Oregon v. Kennedy); Sandifer, 2007 WL 1717467, at *2. It is not enough that the prosecutor=s misconduct was the result of inadvertence, sloppiness, or even simple negligence. Ex parte Peterson, 117 S.W.3d at 817. A prosecutor=s blunder that precipitates a successful motion for mistral does not bar a retrial. Id. Here, appellant did not question the prosecutor at the habeas corpus hearing and did not offer any evidence tending to demonstrate that the prosecutor acted intentionally. Appellant=s attorney asked appellant why the mistrial was granted, and appellant answered ABecause the >DA= spoke about my prior assault. Or, something like that.@ But this testimony merely acknowledges the basis for the mistrial; it provides no objective facts tending to demonstrate that the prosecutor acted with a culpable mental state when she referred to appellant=s Apriors.@ In the absence of any evidence offered by appellant concerning the prosecutor=s intent, we turn to the underlying trial record to determine whether the trial court abused its discretion in denying appellant=s requested relief. This record, when viewed in favor of the trial court=s ruling, does not show the trial court abused its discretion. The trial was in a very early stageCthe State was questioning its first witnessCand at that point no apparent basis for the prosecution to provoke a mistrial can be discerned. Both prosecutors argued strenuously for their position and the continuation of the trial. The trial court, as the fact finder, could have chosen to believe the prosecutor=s explanations for the reference to Apriors@ and determined that she did not act intentionally to goad the defendant into requesting a mistrial. The trial court determined whether the prosecutor=s conduct was intentional based on its evaluation of her credibility and demeanor; therefore, we defer to the trial court=s determination of the issue. See Ex parte Wheeler, 203 S.W.3d at 324; see also Ex parte Lewis, 219 S.W.3d at 362 (noting that A[t]rial courts are in the best position to determine whether a prosecutor=s conduct evinces an intent to cause a mistrial@). We overrule appellant=s second issue. Conclusion We affirm the judgment of the trial court denying appellant=s request for habeas corpus relief. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed November 29, 2007. Panel consists of Justices Yates, Fowler, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] At the trial, the State was represented by two prosecutors, both of whom participated in the discussion before the trial judge. [2] In his brief, appellant contends it is sufficient to demonstrate either that the prosecutor acted intentionally or Awith conscious disregard for a substantial risk that the trial court would be required to declare a mistrial,@ citing Ex parte Peterson, 117 S.W.3d 804, 816B17 (Tex. Crim. App. 2003), and Ex parte Bauder, 974 S.W.2d 729, 732 (Tex. Crim. App. 1998). However, in Ex parte Lewis, the Court of Criminal Appeals overruled this line of cases and adopted the federal standard set out in Oregon v. Kennedy. See Ex parte Lewis, 219 S.W.3d at 371; see also Sandifer v. State, No.01-06-01102-CR, ___ S.W.3d ___, ___, 2007 WL 1717467, at *2 (Tex. App.CHouston [1st Dist.] June 15, 2007, no pet.) (explaining that in Ex parte Lewis, the Court of Criminal Appeals held that the rule under the Texas Constitution is the rule articulated by the United States Supreme Court in Oregon v. Kennedy, Ai.e., whether the prosecutor intended to provoke the defendant into moving for a mistrial@). [3] Appellant contends that we must presume bad faith when a prosecutor violates a motion in limine. See Hill v. State, 79 S.W.3d 682, 687 (Tex. App.CAmarillo 2002, pet. ref=d) (stating that when trial court granted mistrial after prosecutor violated motion in limine, the error was not merely Aordinary reversible error@ because Aotherwise orders granting motions in limine would be rendered meaningless and produce a waste of judicial resources by the granting of mistrials@). However, we note that in Hill, the court of appeals ultimately held that the trial court did not abuse its discretion in denying the defendant=s request for habeas corpus relief, and did so under the former, less stringent, standard of deliberate or reckless prosecutorial conduct. See id. (citing Ex parte Bauder, 994 S.W.2d 729, 732 (Tex. Crim. App. 1998)).