Ex Parte: Marshall Scott Taylor--Appeal from 411th District Court of Trinity County

NO. 12-06-00272-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE 411TH

EX PARTE:

JUDICIAL DISTRICT COURT

MARSHALL SCOTT TAYLOR

TRINITY COUNTY, TEXAS

MEMORANDUM OPINION

Marshall Scott Taylor s criminal trial ended when the trial court granted his motion for mistrial. He applied for a writ of habeas corpus alleging that double jeopardy principles barred a retrial. The trial court denied his application. We affirm.

Background

Appellant was indicted for official oppression, a class A misdemeanor. See Tex. Pen. Code Ann. 39.03 (a)(1), (d) (Vernon 2003). Prior to trial, Appellant s attorney filed a motion for discovery requesting, among other things, information regarding all inducements offered by the state which might tend to motivate its witnesses to testify against Defendant. That portion of the discovery motion was granted. During trial, Appellant s attorney asked a State s witness, who had been imprisoned previously, whether anyone had written a letter to the parole board on his behalf. The witness said that he did not know of anyone writing a letter on his behalf, but he acknowledged that he had heard the parole board ordinarily consulted with the district attorney before it made a decision to release a person. Counsel then told the trial court that he wished to know if the district attorney had contact with the parole board about the matter. The trial court inquired of the district attorney, who said that he had written a letter to the parole board about the witness. The district attorney provided the letter to Appellant. Subsequently, Appellant s attorney moved for a mistrial on the grounds that he would have questioned the jury panel during voir dire about this issue had he been aware of it. The State did not object to the motion for a mistrial, and the trial court granted it. Appellant subsequently filed an application for a writ of habeas corpus asking the trial court to dismiss his indictment on the grounds that a retrial would violate the double jeopardy protections afforded him by the U.S. and Texas constitutions. The trial court denied the application. This appeal followed.

Double Jeopardy As Bar After Mistrial

Appellant argues that the district attorney s failure to provide him with a letter written to the parole authorities on behalf of a witness was prosecutorial misconduct and that the case should be dismissed because the trial that ended in a mistrial was former jeopardy, which bars his retrial.

Applicable Law and Standard of Review

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides, in pertinent part, [n]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. U.S. Const. amend. V. The Texas Constitution s double jeopardy provision states that [n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person again be put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction. Tex. Const. art. I, 14.

A pretrial writ of habeas corpus is the appropriate method to challenge a prosecution on the grounds of former jeopardy. See Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) ( [T]he accused may raise certain issues [in a pretrial application for a writ of habeas corpus] which, if meritorious, would bar prosecution or conviction. ). Where the facts are uncontested, we review a trial court s decision to grant or deny an application for a writ of habeas corpus de novo. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999).

Analysis

On appeal and at the hearing on his application, Appellant relied principally on three Texas Court of Criminal Appeals decisions, Bauder v. State, Ex parte Bauder (commonly referred to as Bauder I and II), and Ex parte Peterson. See Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003); Ex parte Bauder, 974 S.W.2d 729 (Tex. Crim. App. 1998); Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996). These cases were binding authority at the time Appellant cited them. However, on January 10, 2007, the Texas Court of Criminal Appeals delivered Ex parte Lewis, No. PD-0577-05, 2007 Tex. Crim. App. LEXIS 33 (Tex. Crim. App. Jan. 10, 2007). In that decision the court overruled the Bauder and Peterson decisions, disavowed broader protections under the Texas Constitution for double jeopardy claims where the defense had requested a mistrial, and adopted the federal standard for reviewing these kinds of claims. Id., 2007 Tex. Crim. App. LEXIS 33, at *113 ( As a matter of constitutional law, we adopt the standard articulated by the United States Supreme Court in Oregon v. Kennedy [456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982)]. . . . ).

In Kennedy, which articulated the standard adopted by the court of criminal appeals, the Supreme Court addressed the application of the Double Jeopardy Clause after a defendant s motion for a mistrial is granted. The Court noted that [t]he Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. Id., 456 U.S. at 671, 102 S. Ct. at 2087. As part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a valued right to have his trial completed by a particular tribunal. Id., 456 U.S. at 671 72, 102 S. Ct. at 2087. But there is an exception when it is the defendant who moves for a mistrial. Id., 456 U.S. at 673, 102 S. Ct. at 2088. In those instances, whether retrial is barred will depend on whether the complaint that provoked the mistrial was a result of actions undertaken by the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. Id., 456 U.S. at 675 76, 102 S. Ct. at 2089. Relief is appropriate only where the government conduct in question is intended to goad the defendant into moving for a mistrial. Id. In Kennedy, the Court remanded the case for retrial based on a lower court ruling that the prosecutorial conduct was not intended to cause a mistrial. Id., 456 U.S. at 679, 102 S. Ct. at 2091.

In the present case, Appellant requested a mistrial after learning that the district attorney had written a letter on a witness s behalf to the parole board. Appellant describes the failure to provide the letter as a Brady violation or a potential Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But even a Brady violation1 does not bar retrial. Id., 373 U.S. at 90 91, 83 S. Ct. at 1198; Ex parte Mitchell, 977 S.W.2d 575, 581 (Tex. Crim. App. 1997). Whether it is a discovery violation or not, the failure to provide this letter prior to trial was simply not an action by the prosecutor intended to goad Appellant into moving for a mistrial or to subvert the double jeopardy protections of the U.S. or Texas constitutions. Rather, Appellant elected to terminate the trial after discovery of the letter. He got the relief he requested. See United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187, 2195, 57 L. Ed. 2d 65 (1978) (A defendant s motion for a mistrial is a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact. ). We overrule Appellant s sole issue.

Disposition

We affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered March 14, 2007.

Panel consisted of Worthen, C.J., Griffith, J and Hoyle, J.

(DO NOT PUBLISH)

1 It is not clear that the letter was exculpatory evidence. The recipient of the district attorney s largess testified that he did not know if the prosecutor had written a letter and there is no evidence to the contrary.