COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00085-CR
EX PARTE JUAN ANTONIO
RODRIGUEZ
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Juan Antonio Rodriguez appeals the trial court’s denial of relief
on a pretrial writ of habeas corpus, through which he sought to jeopardy-bar a
retrial after his first trial ended in a mistrial granted on his own motion. We affirm.
Appellant was brought to trial on two counts of indecency with a child.
After four of the State’s witnesses, including the complainant, had testified, the
1
See Tex. R. App. P. 47.4.
prosecutor asked the fifth witness, the investigating officer, about the progress of
the investigation. Specifically, the prosecutor asked what had happened with the
investigation after Appellant had been interviewed and the detective had
gathered all the paperwork for her investigation. To this, the detective replied,
“Well, I attempted to arrange a polygraph for the suspect.” The trial court
sustained Appellant’s objection, instructed the jury to “disregard the last
statement by th[e] witness” and, after specifically finding that there had been no
prosecutorial misconduct, granted Appellant’s motion for mistrial. On a pretrial
writ of habeas corpus, Appellant sought to bar retrial, citing the Bauder line of
cases.2 After a hearing in which the trial court reiterated its previous finding that
there had been no misconduct on the part of the State, the trial court denied
relief.3
In reviewing the trial court’s decision to grant or deny habeas relief, we
review the evidence in the light most favorable to the trial court’s ruling. Ex Parte
Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007); Ex parte Bennett,
245 S.W.3d 616, 618 (Tex. App.––Fort Worth 2008, pet. ref’d). Generally, a trial
2
Ex parte Bauder, 974 S.W.2d 729 (Tex. Crim. App. 1998), overruled by Ex
parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)
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Specifically, the trial court stated its reasoning as follows:
[G]iven that the testimony is that the State had instructed the witness
not to talk about the polygraph, that thus the State did not intend the
result of their conduct or the resulting statement by the witness,
which was to bring up the polygraph exam in the presence of the
jury. And so the relief requested is denied.
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court’s decision denying habeas relief will be upheld absent an abuse of
discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
The double jeopardy provisions of the federal and Texas constitutions
protect a criminal defendant from repeated prosecutions for the same criminal
offense. U.S. Const. amend. V; Tex. Const. Art. I, § 14; Oregon v. Kennedy, 456
U.S. 667, 671, 102 S. Ct. 2083, 2087 (1982); Brown v. Ohio, 432 U.S. 161, 165,
97 S. Ct. 2221, 2225 (1977); Bennett, 245 S.W.3d at 618; Stephens v. State, 806
S.W.2d 812, 815 (Tex. Crim. App. 1990), cert. denied, 502 U.S. 929 (1991).
These provisions afford a criminal defendant a “valued right to have his trial
completed by a particular tribunal.” Kennedy, 456 U.S. at 671–72, 102 S. Ct. at
2087; Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837 (1949). The
provisions generally are not violated when a criminal defendant deliberately
elects to “forgo his valued right to have his guilt or innocence determined before
the first trier of fact” by voluntarily moving for and receiving a mistrial. See
Kennedy, 456 U.S. at 676, 97 S. Ct. at 2089. There is a narrow exception to this
general rule that occurs when the prosecution engages in conduct intended to
“provoke” or “goad” the defendant into moving for a mistrial. Id., 456 U.S. at
675–76, 679, 102 S. Ct. at 2089, 2091; Lewis, 219 S.W.3d at 371 (adopting
Kennedy standard for determining when to grant double jeopardy relief under
Texas constitution after a defense-requested mistrial and overruling Bauder,
which barred retrials under double jeopardy when the prosecutor was aware of
but consciously disregarded the risk that his conduct would require a mistrial at
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the defendant’s request); see also Masonheimer, 220 S.W.3d at 507 (stating that
appellee’s mistrial motions were necessitated primarily by the prosecution’s
intentional failure to disclose exculpatory evidence that was available prior to
appellee’s first trial with the specific intent to avoid the possibility of an acquittal).
Here, the trial court specifically found that the mistrial “was not based on
prosecutorial misconduct.” Having examined the record and after applying the
proper standard set out in Oregon v. Kennedy, as adopted by the court of
criminal appeals in Lewis, we hold that the trial court properly denied relief. At
the writ hearing, the prosecutor testified that she and her co-counsel met with the
investigating officer the Thursday before trial and during that meeting expressly
instructed her not to talk about a polygraph during trial. Specifically, the
prosecutor testified as follows:
It was in the conversation as she [the detective] was conducting her
investigation, it came up. She was talking about needing to get a
Spanish speaking polygrapher, couldn’t remember the name of the
guy they used––usually used, and we just stopped her. I think it was
actually [co-counsel] who stopped her and said it doesn’t matter, you
can’t talk about it anyway. So it was one of those mutual
conversations––it was the three of us in the room at that time, one of
the mutual conversations we said, yeah, you know we can’t talk
about that, right. She says, oh, okay. She acknowledges that and
we move on.
....
We had warned her not to talk about it. What was in her mind
at the time, I honestly can’t answer. She told us later that she
thought it was allowed, to talk about a polygraph but not the results.
What we had told her in the pretrial meeting was, “You know we
can’t talk about it; we just can’t talk about it. So what you’re going
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into, knowing this Spanish speaking polygrapher, it didn’t matter
because we can’t talk about it,” and she acknowledged that.
The prosecutor also testified that when she asked the detective at trial
what she had done next in the investigation, she did not expect the answer to
include mention of a polygraph. Moreover, she testified that at no point during
her direct examination of the detective did she intend to provoke her to say
something that would cause a mistrial. Further, she testified that the prosecution
team felt “pretty good” about the case up to the point that the trial court granted a
mistrial and that no one had hoped that it would end in a mistrial.
Under both the federal and state constitutions, retrial is barred only if the
prosecutor intentionally caused a mistrial. Kennedy, 456 U.S. at 675–76, 102 S.
Ct. at 2089; Bennett, 245 S.W.3d at 618–19; Lewis, 219 S.W.3d at 371. The
record in this case supports the trial court’s finding that the prosecution did not
engage in misconduct. Thus, it supports the trial court’s ruling denying a
jeopardy bar based on prosecutorial misconduct. Accordingly, we affirm the trial
court’s order denying relief.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 22, 2014
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