Weekly Case Summaries: August 3, 2018

Texas Courts of Appeals

Ex parte Martinez

No. 04-17-00280-CR                         7/31/18

Issues:

Does Double Jeopardy bar retrial after the defendant requests a mistrial?

Holding:

Maybe. Double Jeopardy does not bar retrial after a mistrial on the defendant’s own motion unless the State goads the defendant into requesting a mistrial or the State “intentionally fails to disclose exculpatory evidence with the specific intent to avoid an acquittal.” Here, the first chair prosecutor did not disclose to the defense until the day of trial that a prosecutor in his court, who was screened from the case, had a one-time encounter with a witness several years before the crime occurred. Retrial is not barred because the prosecutor did not act with the intent to goad the defense into a mistrial or withhold Brady information in an attempt to avoid an acquittal. Read opinion.

Dissent (Martinez, J.):

Retrial should be barred by Double Jeopardy because the State waited until after the jury had been sworn in to inform the defense about possible impeachment evidence on a key State witness. The prosecutor’s desire to “protect his fellow prosecutor’s reputation” was not a good faith explanation for the conduct and the omission was clearly erroneous under the Wheeler factors. Additionally, the District Attorney’s threat to “shut down the defense lawyer’s practice” if he alleged prosecutorial misconduct showed an intent to force the defense to accept a mistrial. Read opinion.

Commentary:

This is a very complicated case, both factually and legally. The facts take up the first 20 pages of the 39-page opinion. The court of appeals applies the test of Oregon v. Kennedy as modified slightly by the Court of Criminal Appeals in Ex parte Masonheimer, but it also extensively applies the factors of Ex parte Wheeler, which was decided by the Court of Criminal Appeals before the Court of Criminal Appeals had adopted Kennedy as the controlling test for this type of Double Jeopardy violation. The opinion gives deference to the factual conclusions of the trial court in denying the defendant’s Double Jeopardy claim. Because this is a Double Jeopardy claim and because there is a dissenting opinion, you might expect the Court of Criminal Appeals to review this decision, but it should hold up because—despite the dissenting opinion—its extensive analysis is very strong.

Bordelon v. State

No. 04-17-00093-CR                         7/31/18

Issues:

Does manifest necessity for a mistrial bar application of Double Jeopardy when defense counsel is required to withdraw due to becoming an outcry witness for a child witness?

Holding:

Yes. As a general rule, Double Jeopardy bars retrial after a mistrial against the defendant’s wishes. Double Jeopardy does not bar retrial after a mistrial if the defendant consents to the retrial or if there was a “manifest necessity to grant a mistrial.” There is manifest necessity for a mistrial when it is impossible to arrive at a fair verdict, it is impossible to continue the trial, or the verdict would be automatically reversed on appeal because of trial error. Here, the entire defensive strategy relied on the testimony of a child witness refuting the claims of abuse by the victim. After the State rested, defense counsel interviewed the witness and was required to recuse herself after the witness made an outcry statement. There was manifest necessity for a mistrial because the defendant would have been prejudiced before the jury by the need for a new attorney and the failure to present the witness key to the defense strategy. Read opinion.

Commentary:

As with Martinez above, this is a unique fact situation. A trial judge should be very cautious about ordering a mistrial when the defense has not moved for one. But in this case, it appears that the trial judge had no choice but to allow defense counsel to withdraw and order a mistrial. If you want to learn about these two different types of double jeopardy claims, be sure to read these two decisions.

Hinojosa v. State

No. 10-15-00356-CR                         7/25/18

Issues:

Does Code of Criminal Procedure Art. 39.14 require the State to provide discovery of evidence substantiating extraneous offenses?

Holding:

No. Art. 39.14 requires the State to disclose exculpatory information or items timely requested by the defendant. Notice requirements of extraneous offenses are governed by Rule of Evidence 404(b). Absent a request for production, Art. 39.14 does not apply to evidence of extraneous offenses. Read opinion.

Commentary:

This is a short—but very helpful—decision. If an item of evidence is not exculpatory (such as an extraneous offense), the State is not required to disclose it, even under Art. 39.14, if the defense has not made a request. But in most cases, defendants will make such requests—under either Art. 39.14, Rule 404, or both—so prosecutors should generally be prepared to disclose the information.

Carrera v. State

No. 10-16-00372-CR                         7/25/18

Issues:

Are exhibits such as a county policies manual and demonstrative photos of the county jail discoverable under Code of Criminal Procedure Art. 39.14?

Holding:

Maybe. The definition of “material” in Art. 39.14 is the same now as before the 2014 amendment. Under this definition, evidence is material and subject to mandatory disclosure if it is “indispensable to the State’s case” or there is “a reasonable probability that its production would result in a different outcome.” Here, the defendant made no showing that the exhibits were material and subject to disclosure under Art. 39.14. Read opinion.

Commentary:

Be careful with this decision. It relies on some recent court of appeals authority for its key holding, but precious little recent Court of Criminal Appeals authority. The court even notes that its decision might have been different if not for the prior older cases that had already been decided on the issue of what is “material.” The court has identified a key concern in the development of Art. 39.14 and its transformation into the Michael Morton Act that has not been squarely addressed by the Court of Criminal Appeals. The word “material” has always been in the statute and, over many decades, has been repeatedly interpreted to mean one thing by the Court of Criminal Appeals. You may have read briefs and heard speeches regarding the proposition that “material” means something new and different after the passage of the Michael Morton Act, and that is almost certainly true. But the court of appeals relies upon rules of statutory construction that would preclude the newer meaning of the word “material.” Until the Court of Criminal Appeals gives more guidance, prosecutors should be very, very hesitant—at the very, very least—in deciding not to disclose something to the defense, especially if it is important to the case.

Watkins v. State

No. 10-16-00377-CR                         7/25/18

Issues:

Does Code of Criminal Procedure Art. 39.14 require the State to turn over extraneous offense records such as book-in records, pen packets, and judgment/sentence records from prior convictions used during the punishment phase of trial?

Holding:

Maybe. Punishment evidence and evidence of extraneous offenses may be subject to disclosure under Art. 39.14 if it is material. Here, the documentary evidence of extraneous offenses was not material because there was not a reasonable probability that the outcome of the trial would have been different or that the defendant would have received a lesser sentence if the documents had been produced. Read opinion.

Commentary:

As with Carrera above, be very cautious with this decision until  the Court of Criminal Appeals or the Legislature gives more guidance on this matter. The court of appeals stated that it would have decided the controversy in this case differently if it were not for the long-standing interpretation of the word “material.” The court even noted an amicus brief filed by the State Prosecuting Attorney on this matter and called the brief “well-reasoned and sound,” which it is. We should stay tuned for further guidance from the Court of Criminal Appeals.

Majors v. State

No. 10-17-00041-CR                         7/25/18

Issues:

Does a motion for discovery that is not ruled on suffice as a request for discovery triggering the State’s duty under Code of Criminal Procedure Art. 39.14?

Holding:

No. A motion for discovery is addressed to the court and requests an order from the court to direct the State to produce evidence. A discovery request is directed at the State and asks the State to produce evidence without intervention by the court. When a document seeks an action from the trial court, it cannot also serve as a request to the State until it is ruled on by the court. Here, the State had no duty to produce the items in the motion for discovery because the defendant did not seek a ruling from the trial court or otherwise request production of the evidence. Read opinion.

Commentary:

This decision is on stronger footing. The analysis is brief, but caselaw has uniformly required a “request,” as is set forth within the express wording of the statute. Caselaw has also uniformly held in this and other contexts that a “motion” does not constitute a “request.” But as always, a prosecutor should be mindful of office policies as well as the ethical rules in deciding whether to turn something over to the defense.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].