Ex Parte Graves

271 S.W.3d 801

Ex parte Anthony Charles GRAVES.

No. 10-08-00189-CR.

Court of Appeals of Texas, Waco.

November 5, 2008.

David Mullin, Mullin Hoard & Brown LLP, Amarillo, for relator.

Patrick C. Batchelor, Corsicana, Charles M. Mallin, Asst. Crim. Dist. Atty. for Tarrant

County, Fort Worth, for real party in interest.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

TOM GRAY, Chief Justice.

Graves appeals the habeas court's denial of relief on the merits of Graves's pretrial writ of habeas corpus in Graves's prosecution for capital murder. See TEX. PENAL CODE ANN. § 19.03(a) (Vernon Supp.2007); TEX.CODE CRIM. PROC. ANN. arts. 11.01, 11.06, 11.08 (Vernon 2005). We affirm.

In two issues, Graves contends that the habeas court erred in denying Graves relief. Graves's first issue is premised on double-jeopardy, and his second on speedy-trial grounds.

"An appellate court reviewing a trial court's ruling on a habeas claim must review the record evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion." Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.), cert. denied, 549 U.S. 1052, 127 S.Ct. 667, 166 L.Ed.2d 514 (2006); accord Ex parte Dowdle, 165 Tex.Crim. 536, 539, 309 S.W.2d 458, 460 (1958). "It is the applicant's obligation to provide a sufficient record that supports his factual allegations with proof by a preponderance of the evidence." Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim.App.2005) (citing Ex parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App.1995)); accord Ex parte Peterson, 117 S.W.3d 804, 818 (Tex.Crim.App.2003) (double jeopardy); Ex parte Adams, 768 S.W.2d 281, 287-88 (Tex.Crim.App.1989); see Kniatt at 664; Ex parte Morgan, 412 S.W.2d 657, 659 (Tex.Crim.App.1967).

On Graves's statement of the facts, his conviction was "tainted by recantations of the State's so-called `star witness,' which were never disclosed to Mr. Graves or his attorneys, perjured testimony elicited by the prosecutor and many other egregious acts of misconduct by the State."¹ (Br. at 3 (citing generally Graves v. Dretke, 442 F.3d 334 (5th Cir.2006) (orig.proceeding)).) The Fifth Circuit Court of Appeals ordered the federal district court "to grant" Graves's "writ of habeas corpus unless the state proceeds to retry" Graves "within a reasonable time." Dretke, 442 F.3d at 345.

1. Double Jeopardy. In Graves's first issue, he contends that his "protection from double jeopardy [is] infringed by a retrial for the same offense when the first conviction was reversed on the basis of Brady [v. Maryland] for intentional prosecutorial misconduct." (Br. at 3 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)).)

Brady v. Maryland holds that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194; accord Banks v. Dretke, 540 U.S. 668, 682 & n. 5, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); Illinois v. Fisher, 540 U.S. 544, 547, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004); see U.S. CONST. amend. XIV, § 1; Hayes v. State, 85 S.W.3d 809, 814-15 (Tex.Crim.App.2002); Thomas v. State, 841 S.W.2d 399, 402 (Tex. Crim.App.1992); Means v. State, 429 S.W.2d 490, 494 (Tex.Crim.App.1968).

The Double Jeopardy Clause of the United States Constitution provides: "No person ... shall ... be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. CONST. amend. V.²

"[A] pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant should raise a `successive prosecution for the same offense' double jeopardy claim" which, if successful, would bar retrial. Gonzalez v. State, 8 S.W.3d 640, 643 n. 9 (Tex.Crim.App.2000) (citing Ex parte Robinson, 641 S.W.2d 552, 553-56 (Tex.Crim.App.1982)); see Ex parte Yates, 193 S.W.3d 149, 150 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

"The Double Jeopardy Clause embodies three protections: `It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" Grady v. Corbin, 495 U.S. 508, 516, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled on other grounds, United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (Corbin quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)); accord Dep't of Revenue v. Kurth Ranch, 511 U.S. 767, 769 n. 1, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); Ludwig v. Massachusetts, 427 U.S. 618, 631, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976); Bigon v. State, 252 S.W.3d 360, 369 (Tex.Crim. App.2008); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991). "The constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." United States v. DiFrancesco, 449 U.S. 117, 127, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)); see Stephens, 806 S.W.2d at 816.

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

DiFrancesco at 127-28, 101 S.Ct. 426 (quoting Green at 187-88, 78 S.Ct. 221) (alteration added). "[T]he constitutional protection also embraces the defendant's `valued right to have his trial completed by a particular tribunal.'" Id. at 128, 101 S.Ct. 426 (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)); accord Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949); see Kennedy, 456 U.S. at 682 n. 6, 102 S.Ct. 2083; Peterson, 117 S.W.3d at 810.

Graves argues primarily under the Texas Court of Criminal Appeals's opinion in Ex parte Masonheimer. See Ex parte Masonheimer, 220 S.W.3d 494 (Tex.Crim. App.2007). Masonheimer is distinguishable.

In Oregon v. Kennedy, the Supreme Court held: "Only where the governmental conduct in question is intended to `goad' the defendant into moving for mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Kennedy, 456 U.S. at 676, 102 S.Ct. 2083. The Kennedy Court distinguishes prosecutorial misconduct on the standard of intent to provoke a defense motion for mistrial from "a more generalized standard of `bad faith conduct' or `harassment' on the part of the judge or prosecutor." Id. at 674, 102 S.Ct. 2083. Under Kennedy, the former bars retrial, the latter does not.

Masonheimer blurs Kennedy's distinction between cases where prosecutorial "conduct giving rise to the successful motion for mistrial was intended to provoke [or goad] the defendant into moving for mistrial" from that done "with the specific intent to avoid the possibility of an acquittal." Masonheimer, 220 S.W.3d at 506, 507 (quoting Kennedy, 456 U.S. at 679, 102 S.Ct. 2083) (alteration in Masonheimer). The Court of Criminal Appeals held, "Under Oregon v. Kennedy, this deliberate conduct," i.e., the "`intentional' failure to disclose exculpatory evidence," "accompanied by this specific mens rea," i.e., "the specific intent to avoid the possibility of an acquittal," "bars a retrial." Masonheimer at 507-508. But Masonheimer maintains a clear distinction between retrial after the granting of a motion for mistrial and retrial after successful postconviction remedy. Masonheimer's holding, as the Masonheimer Court notes, should be limited to "the unique circumstances of th[e] case." Id. at 509. Among those circumstances was that the State had withheld exculpatory evidence in Masonheimer's first trial, and had done so again in his second. Moreover, the Court of Criminal Appeals noted that it was "required to view the evidence in the light most favorable to the" habeas "court's ruling that prosecuting" Masonheimer "a third time" was "jeopardy-barred." Id. at 507. Here, the habeas court found that Graves was not entitled to relief, and we are constrained to view the evidence in the light most favorable to that holding; doing so, we do not believe that Graves has shown himself entitled to relief.

Masonheimer, too, although it holds that there is no distinction for double-jeopardy purposes between cases resulting in mistrial where the prosecutor had the specific intent to provoke the defendant to move for mistrial and cases where the prosecutor merely generally intends to avoid acquittal, does not have any bearing on cases other than those resulting in mistrial. Masonheimer emphasizes that Kennedy and its progeny bear only on defense-requested mistrials, and not on postconviction reversals:

• There "is some force to the argument that Oregon v. Kennedy protects a defendant from a retrial after a defense-requested mistrial where prosecutorial misconduct [resulting in the mistrial, not in reversal on appeal] is undertaken with the intention of denying the defendant an opportunity to win an acquittal." (citing United States v. Wallach, 979 F.2d 912, 915-16 (2d Cir.1992))

• "Oregon v. Kennedy may prohibit a retrial after a defense-requested mistrial [not a reversal on appeal] resulting from State's deliberate conduct prompted by a desire to `sabotage' a probable acquittal." (quoting Hagez v State, 131 Md.App. 402, 749 A.2d 206, 228 (Md.Ct.Spec.App.2000))

Masonheimer, 220 S.W.3d at 505 (bracketed material in Masonheimer) (emphasis in Masonheimer); see Kennedy, 456 U.S....