Affirmed and Opinion Filed April 10, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00047-CR
EX PARTE BRODEY GARRETT DUKE
On Appeal from the County Court at Law No. 2
Grayson County, Texas
Trial Court Cause No. 2014-2-0848
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Brown
Opinion by Justice Bridges
Brodey Garrett Duke appeals the trial court’s order denying him the relief sought by his
pretrial application for writ of habeas corpus. In a single issue, appellant contends the trial court
erred in denying relief because double jeopardy bars retrial after a defense-requested mistrial was
granted. We affirm the trial court’s order.
BACKGROUND
On May 29, 2011, appellant was arrested for evading arrest in a boat, which occurred on
May 28, 2011. He was subsequently charged with the offense by information. The State
provided appellant’s trial counsel with discovery on January 5, 2012 in accordance with their
agreement. A jury trial began on May 22, 2013. During testimony outside the presence of the
jury, Game Warden Randolph McGee stated he pursued a speeding boat driven by appellant.
McGee described an audio CD he had brought to the trial court that contained the radio traffic
exchanged during the chase of appellant’s boat. McGee testified he had obtained the recording
the morning of the trial. He explained that his first request to the Grayson County Sheriff’s
Office for the recording went unanswered. He made a second request, and received the CD on
the morning of trial. McGee testified that when he produced the CD to the prosecutor before the
trial began, he was told to “hold on to it, it was not going to be used.” When questioned about
the CD by the trial court, the prosecutor stated he had not listened to the CD and did not know
whether or not it contained exculpatory evidence. Appellant’s trial counsel moved both for a
mistrial and to dismiss the case. The trial court initially overruled the motions, then recessed the
proceedings to give the parties a chance to listen to the CD. When the proceedings resumed, the
trial court reopened defense counsel’s motion for mistrial and granted that motion on the grounds
of prosecutorial misconduct. The trial court denied the motion to dismiss on the grounds of
double jeopardy.
On July 21, 2014, the Grayson County District Attorney’s Office refiled the evading
arrest case against appellant. On January 7, 2015, appellant filed a pretrial application for writ of
habeas corpus asserting that retrial was barred by double jeopardy due to prosecutorial
misconduct for failure to disclose exculpatory evidence. After a hearing, the trial court denied
appellant relief.
APPLICABLE LAW
The double jeopardy provisions of the federal and Texas constitutions protect a citizen
from repeated attempts at prosecution for the same criminal offense. Ex parte Wheeler, 203
S.W.3d 317, 322 (Tex. Crim. App. 2006). The double jeopardy provisions prohibit a retrial of a
case after the defendant requests and is granted a mistrial only if the prosecution intentionally
commits manifestly improper conduct with the intent to provoke that mistrial. See Oregon v.
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Kennedy, 456 U.S. 667, 672–73 (1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App.
2007). We review the trial court’s ruling on a pretrial writ of habeas corpus for an abuse of
discretion. Ex parte Wheeler, 203 S.W.3d 317, 322 (Tex. Crim. App. 2006). In conducting this
review, we determine whether manifestly improper prosecutorial misconduct provoked the
mistrial; whether the mistrial was required because the prejudice produced from that misconduct
could not be cured by an instruction to disregard; and whether the prosecutor engaged in that
conduct with the intent to goad the defendant into requesting a mistrial. Id. at 323–24.
In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the
facts in the light most favorable to the trial judge’s ruling. Ex parte Peterson, 117 S.W.3d 804,
819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219
S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial court’s ruling absent an abuse of
discretion. Id. In conducting our review, we afford almost total deference to the judge’s
determination of the historical facts that are supported by the record, especially when the facts
are based on an evaluation of credibility and demeanor. Id. We afford the same amount of
deference to the trial judge’s application of the law to the facts, if the resolution of the ultimate
question turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate
question turns on an application of legal standards, we review the determination de novo. Id.
An applicant for habeas corpus relief must prove his claims by a preponderance of the
evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The applicant also
bears the burden of ensuring that a sufficient record is presented to show error requiring reversal
on appeal. See Ex parte Chandler, 182 S.W.3d 350, 353 n. 2 (Tex. Crim. App. 2005); Ex parte
Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993).
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ANALYSIS
In a single issue, appellant contends the trial court erred in concluding the State’s failure
to produce the audiotape of the officers’ transmission during the pursuit did not require dismissal
of the case and that double jeopardy does not bar a retrial. Appellant asserts he is being
subjected to “multiple harassing prosecutions,” and because the trial court found the evidence
withheld by the State was “exculpatory,” it should have granted the relief sought. Appellant
asserts he established the State intentionally provoked appellant into requesting a mistrial, and
that double jeopardy now bars retrial. The State responds that the trial court did not abuse its
discretion in denying habeas corpus relief.
The record shows McGee brought the CD to the trial court on the date he was scheduled
to testify. When he told the prosecutor about its existence, he was told to “hang on to it.” The
trial court questioned McGee and the prosecutor about the details of when the audiotape’s
existence was known, when it was produced, and whether the prosecutor had listened to it. The
trial court recessed the proceedings to give trial counsel time to review the material. Counsel
stated on the record that he believed exculpatory evidence was contained on the CD. The trial
court granted counsel’s motion for mistrial, but denied counsel’s motion to dismiss based upon
double jeopardy because counsel had not shown that the prosecutor’s conduct was intentional or
caused counsel to move for mistrial.
The record shows no prosecutorial misconduct intended to goad appellant into requesting
a mistrial. See Kennedy, 456 U.S. at 679; Ex parte Lewis, 219 S.W.3d at 371. Thus, appellant
has not carried his burden to show that the State’s reprosecution of him is barred by double
jeopardy. See Kniatt, 206 S.W.3d at 664.
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We conclude the trial court did not abuse its discretion in denying appellant the relief
sought by his application for writ of habeas corpus. We overrule appellant’s issue.
We affirm the trial court’s order denying the relief sought by the pretrial application for
writ of habeas corpus.
Do Not Publish
Tex. R. App. P. 47
150047F.U05 /David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE BRODEY GARRETT DUKE Appeal from the County Court at Law
No. 2 of Grayson County, Texas (Tr.Ct.No.
No. 05-15-00047-CR 2014-2-0848).
Opinion delivered by Justice Bridges,
Justices Fillmore and Brown participating.
Based on the Court’s opinion of this date, the trial court’s order denying the relief sought
by the pre-trial application for writ of habeas corpus is AFFIRMED.
Judgment entered April 10, 2015.
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