Ex Parte: Robert Gonzalez--Appeal from 205th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-04-00328-CR

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) Appeal from the

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EX PARTE: ROBERT GONZALEZ ) 205th District Court

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) of El Paso County, Texas

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) (TC# 20040D0095)

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O P I N I O N

In two issues, Appellant appeals from the trial court=s denial of his writ of habeas corpus. We affirm.

Appellant was charged with three counts of aggravated sexual assault of a child. The cause was tried to a jury. After the jury began deliberating, counsel for Appellant received certain Child Protective Services (CPS) records which he had earlier subpoenaed. After reviewing the records in camera, the trial court granted Appellant=s motion for a mistrial because of the State=s failure to produce the CPS report during discovery. The Appellant then filed a pretrial habeas corpus application, alleging a retrial would violate his Federal and State constitutional rights against double jeopardy. The trial court stated at the writ hearing that Aby granting the mistrial, it did not in any way make a finding that the prosecutors had, in fact, shown any misconduct, prosecutorial misconduct.@ After hearing argument from both defense counsel and the State, the trial court denied Appellant=s pretrial application for writ of habeas corpus.

The burden of proof is on the applicant for a writ of habeas corpus. He or she must present evidence that shows by a preponderance of the evidence that he or she is entitled to relief. Ex parte Peterson, 117 S.W.3d 804, 818 (Tex.Crim.App. 2003). In reviewing the trial court=s decision, appellate courts review the facts in the light most favorable to the trial judge=s ruling and should uphold it absent an abuse of discretion. Id. at 819. Reviewing courts, including this Court, should A>afford almost total deference to a trial court=s determination of the historical facts that the record supports especially when the trial court=s fact findings are based on an evaluation of credibility and demeanor.=@ Id. We also afford that same level of deference to a trial court=s ruling on A>application of law to fact questions,= also known as >mixed questions of law and fact,= if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.@ Id. But appellate courts review de novo those A>mixed questions of law and fact=@ that do not depend upon credibility and demeanor. Id.

Issues One and Two are essentially the same claim, and we will address them together. Ex parte Peterson, 117 S.W.3d at 810. Double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that: (1) was justified under the manifest necessity doctrine; or (2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial. Id. at 810 11. A mistrial which the defense freely chooses does not bar retrial. Id. at 811. However, a mistrial that the defense is compelled to request because of manifestly improper prosecutorial conduct may bar retrial. Id.

Retrial is only bared under the Texas double jeopardy provision when the defendant is required to move for a mistrial because the prosecutor deliberately or recklessly crossed the line between legitimate adversarial gamesmanship and manifestly improper methods that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it. Ex parte Peterson, 117 S.W.3d at 816, citing State v. Lee, 15 S.W.3d 921, 923 (Tex.Crim.App. 2000). In analyzing a double jeopardy mistrial claim, we engage in the following three part analysis:

(1) Did manifestly improper prosecutorial misconduct provoke the mistrial?

(2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard?

(3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial?

Id. at 816 18.

Under the first part of the test, prosecutorial misconduct reasonably reaches only that conduct which is qualitatively more serious than simple error and connotes an intentional flouting of known rules or laws. Id. at 816 n.55. If the prosecutor=s conduct, viewed objectively, was not Amanifestly improper,@ then the double jeopardy inquiry ends at this first stage. Id. If, for example, the law itself is unsettled or the application of the law in the particular situation is debatable, the prosecutor=s conduct cannot be said to be manifestly improper. Id.

Under the Due Process Clause of the Fourteenth Amendment, a prosecutor has an affirmative duty to turn over material, exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.Crim.App. 1993). Impeachment evidence is included within the scope of the term Aexculpatory evidence.@ United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985). A due process violation occurs if a prosecutor (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a reasonable probability of a different outcome. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000).

The rule of Brady v. Maryland applies only to information known to the prosecution, but unknown to the defense. United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342 (1976); Jackson v. State, 552 S.W.2d 798, 804 (Tex.Crim.App. 1976)(holding that the prosecutor did not violate his duty to disclose favorable information when the evidence was already available to the defense). The State does not have a duty to seek out evidence for the defendant=s use. Palmer v. State, 902 S.W.2d 561, 563 (Tex.App. -Houston [1st Dist.] 1995, no pet.). If the prosecutor opens his files for examination by defense counsel, he fulfills his duty to disclose exculpatory evidence. See Todd v. State, 911 S.W.2d 807, 818 (Tex.App. El Paso 1995, no pet.), citing Givens v. State, 749 S.W.2d 954, 957 (Tex.App. -Fort Worth 1988, pet. ref=d).

Based on the very limited record we have before us, it is clear that the State had knowledge of the on-going CPS investigation of Appellant for sexual assault of a child. It is also clear that while the State was not in possession of any records from the CPS investigation, the fact that an investigation by CPS was still on-going was noted in a police report contained within the State=s file. Apparently, defense counsel was also aware of the on-going CPS investigation and made repeated inquiries as to whether or not the State had these records. According to the State, on three separate occasions, defense counsel inquired about the CPS records and was informed that although the State did not have them, Adefense counsel could obtain them if he wanted to.@ Appellant, in his brief, also states that he made Arepeated requests for the evidence.@ In fact, there is some indication that counsel for Appellant first became aware of those records some three to four months prior to trial. At the writ hearing, counsel for Appellant made the following statement:

As [the prosecutor] pointed out in his response . . . he knew that there had been a CPS investigation in this case because it was in his police report.

A police report, yes, I will concede that I was at liberty to read by visiting the district attorneys office and exercising due diligence as a defense attorney. I did that. Okay.

But whether or not those records were readily available to me is not the issue. It is whether or not he should have taken a look at those records and then disclosed them once it was determined that there was impeachment material in those records.

The record demonstrates that the State made its file completely open to Appellant=s counsel pursuant to the Aopen file policy@ of the District Attorney=s Office. In that file, it was clearly noted that CPS was still investigating the matter. By this fact alone, the State fulfilled its duty of disclosure. See Todd, 911 S.W.2d at 818. At the writ hearing, counsel for Appellant argued that not only did the State have a duty to disclose information, it also had a duty to seek it out, read and/or examine the evidence, and then based on its evaluation, inform defense counsel if the State felt it was something A[the defense] should have known about before trial.@ Appellant raises essentially the same argument on appeal. We disagree with Appellant. When a defendant is aware of possible evidence, the State is under no such duty. See U. S. v. Agurs, 427 U.S. at 103, 96 S. Ct. at 2392; Ex parte Russell, 738 S.W.2d 644, 646 (Tex.Crim.App. 1986).

Appellant also attempts to argue that the records were not available to him because they were confidential and Anot subject to disclosure via a Public Information Act request.@ [Emphasis in original]. However, this argument must also fail. The Texas Family Code provides a mechanism for disclosure on proper motion of the parties. See Tex.Fam.Code Ann. ' 261.201(b)(Vernon Supp. 2005). Further, Appellant apparently utilized this procedure in eventually retrieving the records from CPS. Thus, we find this argument to be without merit.

We find, based on the record before us, that the prosecutor=s conduct, viewed objectively, was not Amanifestly improper.@ Because Appellant fails to meet the first prong of the three-part analysis as set forth in Peterson, his argument fails and our analysis stops here. Accordingly, we find that Appellant has not met his burden to show that the trial court abused its discretion in not granting his writ of habeas corpus. Therefore, we overrule Issues One and Two.

Having overruled Issues One and Two on review, we affirm the order of the trial court.

February 9, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)