Ex Parte Mark Anthony Garza--Appeal from 226th Judicial District Court of Bexar County

No. 04-01-00454-CR
EX PARTE Mark Anthony GARZA
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-0965
Honorable Sid L. Harle, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice, Justice
Sarah B. Duncan, Justice, Justice
Karen Angelini, Justice, Justice

Delivered and Filed: November 21, 2001

AFFIRMED

Mark Anthony Garza appeals the trial court's denial of relief on his petition for a writ of habeas corpus. We affirm.

Factual and Procedural Background

Garza was charged with aggravated sexual assault on a child, a first-degree felony; indecency with a child by contact, a second-degree felony; and indecency with a child by exposure, a third-degree felony. At the conclusion of the first day of trial, the trial court informed Garza's attorney and the prosecutor that the first count in the indictment was defective. (1) In response, Garza's attorney stated he would not agree to an amendment.

On the morning of the second day of trial, Garza's attorney was informed by the prosecutor that the lab had informed him that DNA testing revealed the presence of the victim's DNA on Garza's clothes or the presence of Garza's DNA on the victim's clothes. According to the prosecutor, he was told by the lab that these test results were 90-97% certain. At the time, the prosecutor had no reason to believe what he had been told by the lab was incorrect. Because of this new information, Garza's attorney entered an agreement with the prosecutor to permit the State to amend the indictment in exchange for its agreement not to introduce the DNA evidence. The jury convicted Garza of all three counts charged in the indictment and sentenced him to confinement for life in the Texas Department of Criminal Justice - Institutional Division.

Several weeks after trial, the prosecutor received a copy of the lab's written DNA report and learned the information he had provided Garza's attorney regarding the DNA testing was incorrect; in fact, the results were inconclusive. The prosecutor immediately admitted the error to Garza's attorney and, after the two talked, the State agreed to Garza's motion for a new trial. The trial court granted the motion.

Before the second trial commenced, Garza filed a pre-trial application for a writ of habeas corpus. Garza argued a second trial was barred by double jeopardy because it was necessitated by the prosecutor's intentional or reckless misconduct. The trial court granted the writ and, after an evidentiary hearing, denied the requested relief.

Discussion

Garza argues the trial court erred in denying his request for relief because retrial was barred by double jeopardy under Ex parte Bauder, 921 S.W.2d 696 (Tex. Crim. App. 1996); see also Ex parte Bauder, 974 S.W.2d 729 (Tex. Crim. App. 1998). We disagree.

In Bauder, the Texas Court of Criminal Appeals held that "a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request." Bauder, 921 S.W.2d at 699.

Assuming for purposes of argument that Bauder applies to cases involving a new trial, rather than a mistrial, we hold there is no evidence the prosecutor either intended to induce a new trial or was aware of but consciously disregarded the risk that his conduct would require Garza to request a new trial. Indeed, the evidence conclusively establishes that the prosecutor believed the information he initially conveyed to Garza's attorney was correct. Accordingly, the trial court did not err in denying the requested relief.

The trial court's order is affirmed.

Sarah B. Duncan, Justice

Do not publish

1. The indictment alleged Garza committed aggravated sexual assault "by placing the finger of the said defendant in the anus of the said defendant."