Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00249-CR
EX PARTE COBY STEWART
From the County Court at Law No. 15, Bexar County, Texas
Trial Court No. 486896
The Honorable Robert Behrens, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: April 4, 2018
AFFIRMED
Coby Stewart appeals from the trial court’s denial of his request for habeas corpus relief
barring a retrial in his DWI case. Stewart asserts the State’s intentional misconduct forced him to
move for the mistrial; therefore, retrial is barred by double jeopardy. We affirm the trial court’s
order.
BACKGROUND
Stewart was arrested and charged with driving while intoxicated with a blood alcohol
content of 0.15 or higher. Stewart’s blood was drawn by a nurse at the Bexar County Central
Magistrate, who subsequently left Bexar County employment. Stewart filed a pre-trial motion for
discovery seeking the State’s compliance with its duty of disclosure under article 39.14 of the Code
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of Criminal Procedure, including the disclosure of any expert witnesses per article 39.14(b). TEX.
CODE CRIM. PROC. ANN. art. 39.14 (West Supp. 2017).
Nine months later, Stewart appeared for his twelfth trial setting and announced ready for
trial. Before the jury was sworn, Stewart’s defense counsel informed the trial court that she had
not received a witness list from the State and would be moving to exclude any expert witness
testimony offered by the State. The trial court’s file also did not contain a State’s witness list. The
State then produced a file-stamped witness list from its work-product file that it represented was
faxed to defense counsel several months earlier. Stewart’s counsel disputed receiving the fax and
the State’s confirmation sheet did not list counsel’s fax number, referring to it as “unknown.” The
witness list identified the nurse as “Elva Villarreal, Licensed Vocational Nurse, Bexar County
Central Magistrate” and provided that address. After an in-camera inspection of the State’s work-
product file, performed at defense counsel’s request, the prosecutors revealed that Ms. Villarreal
was no longer employed by Bexar County and they had not had any contact with her for several
months. After defense counsel renewed her objection to the lack of notice, the prosecutors stated
they did not intend to call the nurse as a witness and planned to present the blood evidence through
the toxicologist. However, the trial court indicated that it would require the nurse to testify before
it would admit the blood draw evidence. 1 At that time, the prosecutors admitted they did have Ms.
Villarreal’s current contact information and would attempt to contact her to appear for trial the
next day. The nurse’s current contact information was not disclosed to the defense at that time.
The jury was selected and sworn, and opening statements were presented.
1
The trial court later acknowledged it was incorrect in stating the blood draw evidence was not admissible without
the nurse’s testimony. See State v. Guzman, 439 S.W.3d 482, 488-89 (Tex. App.—San Antonio 2014, no pet.).
However, that mistake is not relevant to the appellate issue before this court.
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The next morning, before any evidence was presented, Stewart’s counsel renewed the
objection to admission of the blood evidence due to the lack of notice concerning Ms. Villarreal
as a potential witness and the State’s subsequent failure to disclose the potentially exculpatory
impeachment material that she no longer worked for Bexar County. Stewart also objected to the
State’s failure to amend the witness list to update Ms. Villarreal’s contact information and disclose
her departure from Bexar County in violation of its continuing duty to disclose. One of the
prosecutors stated she personally learned just the day before that Ms. Villarreal no longer worked
for Bexar County. The prosecutor stated she obtained Ms. Villarreal’s cell phone number and
email from “a list of contact information” and successfully contacted her. After a lengthy
discussion, the trial court stated it was not going to exclude the blood evidence and inquired of
defense counsel “what remedy are you asking for?” and “are you asking for a mistrial?” Stewart’s
counsel replied, “yes,” and the court granted the mistrial. At that time, the prosecutor gave defense
counsel the email address for Ms. Villarreal. The trial court ordered the State to also obtain her
address and provide it to defense counsel.
When the case was re-set for trial, Stewart filed a pre-trial petition for writ of habeas corpus
asserting that retrial was barred under the Double Jeopardy Clause. U.S. CONST. amends. V, XIV;
TEX. CONST. art. I, § 14. Stewart argued retrial was barred because it was the State’s intentional
misconduct, i.e., nondisclosure of material witness information, that forced him to request a
mistrial. After a non-evidentiary hearing on the habeas, the same trial court found, based on its
recollection of the events, caselaw, and arguments of counsel, that there was not “any intentional
misconduct on the State’s part as far as the witness in the case, Ms. Elva Villarreal, they didn’t
have any intent to call her.” Stewart perfected this appeal of the trial court’s order denying habeas
corpus relief.
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ANALYSIS
Habeas Corpus Standard of Review
“An applicant seeking habeas corpus relief must prove his claim by a preponderance of the
evidence.” Ex parte Cruz, 350 S.W.3d 166, 167 (Tex. App.—San Antonio 2011, orig.
proceeding). When reviewing a trial court’s ruling on an application for habeas corpus, an
appellate court reviews the evidence in the light most favorable to the trial court’s ruling, and
upholds the ruling absent an abuse of discretion. Id.
Applicable Double Jeopardy Law
Generally, a defendant in a criminal case may not be put in jeopardy by the State twice for
the same offense. U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 14; see also Pierson v. State,
426 S.W.3d 763, 769 (Tex. Crim. App. 2014). Because a defendant has a right to have the jury
empaneled and sworn in his case to try it, the protection provided to defendants under the Double
Jeopardy Clause attaches after the jury is sworn. Pierson, 426 S.W.3d at 769. Absent exceptional
circumstances that show the prosecutor intentionally provoked a mistrial, the Double Jeopardy
Clause is not violated if the trial ends prematurely. Id. at 770. The United States Supreme Court
has explained that when the defendant is the party requesting the mistrial, the Double Jeopardy
Clause generally does not bar the State from trying the defendant again. Oregon v. Kennedy, 456
U.S. 667, 672, (1982). A retrial may be barred by double jeopardy, however, if the defendant
presents objective facts and circumstances to demonstrate that the prosecutor’s misconduct in the
case occurred because the prosecutor “intended to ‘goad’ the defendant into moving for a
mistrial[.]” Kennedy, 456 U.S. at 676.
In 2007, the Texas Court of Criminal Appeals held that the standard announced in Oregon
v. Kennedy for review of double jeopardy claims after a defense-requested mistrial also applies to
such double jeopardy claims under the Texas Constitution. Ex parte Lewis, 219 S.W.3d 335, 371
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(Tex. Crim. App. 2007). Thus, whether the claim is raised under the United States constitution or
the Texas constitution, or both, a reviewing court must determine whether a defendant successfully
moved for a mistrial because the prosecutor “engaged in conduct that was ‘intended to provoke
the defendant into moving for a mistrial.’” Id. at 336 (citing Kennedy, 456 U.S. at 679). In
Kennedy, the Supreme Court stressed that such a degree of prosecutorial misconduct presents a
narrow exception to the general rule that retrial is not barred when the mistrial was granted at the
defendant’s request. Kennedy, 456 U.S. at 673. The Supreme Court explained, “prosecutorial
conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial
on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to
subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76. In adopting the
Kennedy standard, the Texas Court of Criminal Appeals overruled its prior precedent interpreting
the Texas constitution’s double jeopardy provision to also cover “reckless” conduct by the
prosecution. Ex parte Lewis, 219 S.W.3d at 337, 371 (overruling Ex parte Bauder, 974 S.W.2d
729 (Tex. Crim. App. 1998), and remanding to trial court for consideration under Kennedy
standard).
In another case decided during the same term as Ex parte Lewis, the Texas Court of
Criminal Appeals discussed the Kennedy standard in the context of nondisclosure of Brady
material. 2 See Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007). In that case, the
defendant was granted a mistrial in his two previous trials based on the prosecution’s failure to
disclose Brady material. Before the third trial setting, the defendant filed a pre-trial habeas corpus
application claiming double jeopardy barred the retrial. The trial court granted habeas relief,
finding that jeopardy had attached in the prior trials and retrial was barred by double jeopardy; the
2
Brady v. Maryland, 373 U.S. 83 (1963).
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trial court made no finding as to whether the prosecution intended to provoke a mistrial. Id. at
505. On review, the Court of Criminal Appeals looked to cases cited with approval in Kennedy in
which habeas relief had been granted because the prosecution acted with intent to avoid a probable
acquittal. See id. at 507-08. Applying that analysis to the facts before it, the Masonheimer opinion
held that, viewing the evidence in the light most favorable to the trial court’s ruling, the record
supported a finding that the defendant’s two motions for mistrial were “necessitated primarily by
the State’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.” Id. The court
concluded, “[u]nder Oregon v. Kennedy, this deliberate conduct, accompanied by this specific
mens rea, bars a retrial.” Id.
Based on the Court of Criminal Appeals’s application of the Kennedy standard in Ex parte
Lewis and Ex parte Masonheimer, we have described the double jeopardy analysis as follows, “[a]
retrial is not barred by double jeopardy unless the prosecutor engaged in the conduct with the intent
to provoke the defense to request a mistrial or the prosecutor intentionally engaged in the conduct
with the intent to avoid an acquittal.” Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San
Antonio 2011, orig. proceeding) (internal citations omitted).
The habeas applicant has the burden to provide the court with a record sufficient to prove
his allegations by a preponderance of the evidence. Ex parte Coleman, 350 S.W.3d at 160; Ex
parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005). In the habeas proceeding, the
trial court may take judicial notice of earlier proceedings before the same judge and involving the
same parties. Coleman, 350 S.W.3d at 160. “Appellate review of the [trial] court’s ruling is not
limited to the evidence adduced at the habeas hearing, but may include the record as it existed
before the trial court at the time of the hearing.” Id. The appellate court will reverse the ruling
only if the record shows the trial court abused its discretion based on the decision it made when
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ruling on the defendant’s application seeking habeas relief. Ex parte Wheeler, 203 S.W.3d 317,
319-20 (Tex. Crim. App. 2006). Stewart argues in his brief for application of a de novo standard
of review to “the issue of intentionality on the part of the State,” asserting that intent is a legal
question based on the facts contained in the record and does not turn on credibility. See, e.g.,
Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (when there is no dispute about
the material historical facts reflected in the record, an appellate court may review the legal
significance of the undisputed facts de novo). However, the issue of the prosecutor’s intent is
necessarily a fact question to be determined, in this context, from the circumstances and objective
facts contained in the record. Ex parte Coleman, 350 S.W.3d at 160.
In Wheeler, the court provided a list of non-exclusive factors to be considered when
determining whether the prosecutor’s misconduct goaded or provoked the defendant into
requesting a mistrial:
1) Was the misconduct a reaction to abort a trial that was “going badly for the
State?” In other words, at the time that the prosecutor acted, did it reasonably
appear that the defendant would likely obtain an acquittal?
2) Was the misconduct repeated despite admonitions from the trial court?
3) Did the prosecutor provide a reasonable, “good faith” explanation for the
conduct?
4) Was the conduct “clearly erroneous”?
5) Was there a legally or factually plausible basis for the conduct, despite its
ultimate impropriety?
6) Were the prosecutor's actions leading up to the mistrial consistent with
inadvertence, lack of judgment, or negligence, or were they consistent with
intentional . . . misconduct?
Wheeler, 203 S.W.3d at 323-24 (modified to delete “reckless” from the sixth factor per Ex parte
Lewis); see also State v. Rushing, No. 09-16-00423-CR, 2017 WL 4182316, at *6 (Tex. App.—
Beaumont Sept. 20, 2017, pet. filed).
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Application of the Law
A distinction must be made between the prosecution’s intentional failure to disclose Brady
material or engagement in other misconduct that led to the remedy of a mistrial, and the specific
intent necessary to bar a retrial, i.e., intent to provoke a mistrial to subvert double jeopardy
protections or to avoid a possible acquittal. Ex parte Coleman, 350 S.W.3d at 160-61. “Double
jeopardy ‘is neither another form of due process protection ensuring the propriety of the criminal
trial nor a means to protect against outrageous government conduct.’” Id. (quoting Ex parte Lewis,
219 S.W.3d at 358). Here, the mistrial cured the due process violation stemming from the State’s
violation of its continuing duty of disclosure under article 39.14, Code of Criminal Procedure and
Brady. Id. at 160 (“The impropriety of the prosecutor’s response was remedied by the mistrial.”).
The relevant issue here is whether Stewart met his burden to prove the State committed the
due process violation, i.e., engaged in the misconduct, with the specific intent (1) to provoke him
into moving for a mistrial to subvert the protections of the Double Jeopardy Clause, or (2) to avoid
the possibility of an acquittal. In making this determination, we review the entire record, including
the habeas evidence and the trial record, and view the evidence in the light most favorable to the
trial court’s finding that the State did not have the specific intent necessary to bar retrial. Id.
The State argues there is nothing in the record to indicate its prosecutors had the requisite
intent when they failed to disclose the material evidence, to wit: the current contact information
for Ms. Villareal, the former Bexar County nurse who drew Stewart’s blood. The State contends
its prosecutors could not have withheld the information about the nurse’s employment and contact
information with the intent to avoid an acquittal because no evidence had been presented at the
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time of the mistrial; therefore, it could not be said the trial was not going well for the State. 3
Further, the State asserts the record does not support a finding that it intended to subvert Stewart’s
double jeopardy rights because it shows the prosecutors did not originally intend to call the nurse
to testify, and only changed its trial strategy after the trial court indicated it would require the
nurse’s testimony for admission of the blood draw evidence. This contention is supported by the
record, as detailed above. At the time of the mistrial, the trial court had already reversed its ruling
that the nurse’s testimony was necessary for admission of the blood draw evidence. Nevertheless,
the State disclosed the nurse’s change in employment and provided her contact information to
defense counsel at that time, late but prior to commencement of the State’s case-in-chief. In
addition, as the State points out, Stewart’s counsel never requested a continuance during the
discussions about Ms. Villarreal’s contact information and availability as a witness. In other
words, Stewart had a lesser remedy that he chose not to use, i.e., a motion for continuance, instead
of a mistrial.
Stewart argues the record shows the State engaged in the type of “intentional strategic
gamesmanship” that article 39.14 seeks to avoid because the State had the nurse’s updated
information in its work-product file, but failed to amend its witness list before trial. Stewart asserts
that if his attorneys had timely received the nurse’s updated information, they would have
contacted her before trial and investigated whether she complied with the required procedures for
the blood draw. As evidence of the required intent to subvert double jeopardy or avoid an acquittal,
Stewart cites to the circumstances showing the prosecutors initially stated they had lost contact
3
The State seems to suggest in its brief that jeopardy had not yet attached. However, jeopardy had attached because
the jury had been sworn. See Downum v. United States, 372 U.S. 734, 735-36 (1963); Hill v. State, 90 S.W.3d 308,
313 (Tex. Crim. App. 2002).
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with the nurse, but then located her cell phone number and email address in their file and were
able to successfully contact her that day.
Viewing the record in the light most favorable to the trial court’s ruling, as we must, we
conclude the State’s misconduct in failing to timely disclose the change in Ms. Villarreal’s
employment and update her contact information was not committed with the specific intent to
provoke a mistrial to subvert double jeopardy or avoid an acquittal. See Ex parte Coleman, 350
S.W.3d at 160. Stewart has not carried his burden to show that the State engaged in this
misconduct with the intent to goad him into moving for a mistrial. See id. Therefore, we hold the
trial court did not abuse its discretion in denying Stewart’s petition for habeas corpus relief barring
his retrial.
CONCLUSION
Based on the foregoing reasons, we overrule Stewart’s issue on appeal and affirm the trial
court’s order denying habeas corpus relief.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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Ex Parte Coby Stewart
Combined Opinion