In re Ahn

EX PARTE: DORA AHN

No. 08-14-00082-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

August 19, 2015

Appeal from 346th District Court of El Paso County, Texas

(TC# 20110D00574)

OPINION

Dora Ahn was charged with multiple counts of injury to a child. In this appeal, we are asked whether the State is barred by double jeopardy from prosecuting Ahn for a second time after a mistrial was declared in her first trial. The mistrial arose because of unexpected testimony elicited from a treating medical doctor by the State's attorney. We affirm the trial court's denial of Ahn's Application for pretrial habeas corpus relief based on double jeopardy.

DOUBLE JEOPARDY

In her sole issue, Ahn contends that the Fifth Amendment to the United States Constitution prohibits a retrial of her case. The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. U.S. Const. art. V; Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). Jeopardy attaches once a jury is empaneled and sworn. Martinez v. Illinois, ___U.S.___, 134 S.Ct.2070, 2072, 188 L.Ed.2d 1112 (2014). The Double Jeopardy Clause affords a criminal defendant a "valued right to have his trial completed by a particular tribunal." Oregon v. Kennedy, 456 U.S. at 671-72, 102 S.Ct. at 2087; see Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App. 2007). And while a prosecutor is generally entitled to one, and only one opportunity to have the defendant stand trial, Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1977), the rub comes when that first trial must be terminated, such as through a mistrial.

As a general rule, double jeopardy does not bar a retrial when a mistrial is granted at the defendant's request. Oregon v. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088. But there is an important exception: the Double Jeopardy Clause will bar retrial when the defendant is able to show that the prosecution engaged in conduct that was intended to provoke the defendant into moving for a mistrial. Id. at 679, 102 S.Ct. at 2091; Ex parte Lewis, 219 S.W.3d at 371. The Texas Court of Criminal Appeals has also described the exception as encompassing improper actions intentionally done with the specific intent to avoid an acquittal at the first proceeding. Ex parte Masonheimer, 220 S.W.3d 494, 507-08 (Tex.Crim.App. 2007). In Ex parte Masonheimer, for instance, the State was alleged to have intentionally refused to turn over Brady materials to the defense which led to a mistrial. Id. at 499.

At one time, Texas had a much broader view of this exception and barred a retrial when it was shown that the prosecutor was aware of, but consciously disregarded the risk that his conduct would require a mistrial at the defendant's request. Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996). But Bauder was overruled by Ex parte Lewis and the Texas rule is now co-extensive to the Oregon v. Kennedy standard. Ex parte Lewis, 219 S.W.3d at 371. The present day exception has been described by both the United States Supreme Court and the Courtof Criminal Appeals as a narrow one. Oregon v. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088; Ex parte Masonheimer, 220 S.W.3d at 506.

To come within this narrow exception, a habeas corpus applicant must prove the double jeopardy claim by a preponderance of the evidence. State v. Guerrero, 400 S.W.3d 576, 583 (Tex.Crim.App. 2013). In reviewing the trial court's decision to deny habeas relief, we consider the evidence in the light most favorable to the trial court's ruling. Ex parte Masonheimer, 220 S.W.3d at 507. We afford almost total deference to the trial judge's determination of historical facts which are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

FACTUAL SUMMARY

Ahn was indicted on multiple counts of injury and serious bodily injury to a child. The child, whom we refer to as K.K., was Ahn's daughter who was six years old at the time of the offense. Counts one through four describe specific actions that Ahn is alleged to have directed to specific body parts of K.K. (i.e. Ahn with a belt, wire, hand, foot, or buckle caused injury to K.K.'s arm, leg, or body). Counts five and six allege that Ahn failed to seek medical attention and failed to protect K.K. as a parent should. The underlying facts suggest that K.K. was beaten with a belt, a belt buckle, a wire, and by hand, and that both Ahn and her husband in varying degrees participated in that abuse. Ahn's theory at trial was that the abuse came from the husband, and that she was victimized by him as well.

Ahn's case proceeded to a jury trial. The State called K.K., then aged nine, who testified that her mother would spank her on the back with a wire. She also acknowledged that her father spanked her with a belt. She testified to having scars from the spankings. K.K's younger sisteralso testified to seeing both Ahn and the father spank K.K. A forensic nurse similarly testified that K.K. said that both her dad and mom had hit her with a belt and a wire.

The issue came to light when the police were called on December 26, 2010 to an apartment complex where K.K. and her parents had resided. Several first responders testified at trial to the encounter. A relative at the scene pointed out injuries on K.K.'s body. The officers documented bruising and raised marks throughout K.K.'s back and torso, thighs and buttocks, including loop type patterns on her back. She had cuts in various stages of healing. Her feet were swollen and there were marks along with bruising on her legs and ankles. The police noticed a scabbed wound on her head and the bridge of her nose. The police took a series of photographs at the scene depicting these wounds which were admitted into evidence at trial.

The child was then taken to the hospital and admitted under the care of Dr. Roberto Canales as the on call physician. X-rays showed one of K.K.'s ankles was broken and that she had several rib fractures. The child was in the hospital for ten days. Another set of photographs taken by the police at the hospital were admitted into evidence. At trial, the State called K.K.'s treating pediatrician who testified that none of these injuries were present in April of 2010 when he had seen the child. The injuries were in various states of healing when he saw K.K. on January 12, 2011. The scars were still present in July 2013 when he last saw the child.

The State then called Dr. Canales to testify. After establishing his qualifications as a physician and the circumstances of seeing K.K., Dr. Canales was asked to describe the various injuries as seen on some of the photographs. At that point, this exchange occurred:

[PROSECUTOR]: And can you please describe the injuries in State's Exhibit No. 4?

[Dr. CANALES]: This is an old injury that's already healing. This was like somebody tied her legs here, right here, and this right here --THE COURT: I'm sorry, Dr. Canales. I will ask you to go a little slowly, okay, just so everybody can hear you.

[Dr. CANALES]: This here, it's like she was tied with something.

[PROSECUTOR]: Okay.

[Dr. CANALES]: This one is an old lesion, and both feet were inflamed.

[PROSECUTOR]: Okay. And so you say that the feet look like there was something that was tied, and then a lesion. And then explain what you mean the feet being inflamed.

[Dr. CANALES]: When you tie the feet, the circulation gets a little decreased circulation, and it gets very swelling of the legs, of the feet.

THE COURT: I' m sorry. When you tie someone --

[Dr. CANALES]: Then your feet get edema. The circulation --

[DEFENSE ATTORNEY]: Your Honor, I ask that we approach.

THE COURT: Hold on a second. I want to make sure -- you can approach in a minute. I want to make sure that his response is taken down by my court reporter and that my jury can hear, so hang on a second. So you were saying -- would you go ahead and repeat slowly into the microphone? You can turn this way, Doctor. Go ahead.

[Dr. CANALES]: This here, (pointing), is like somebody tied the legs with something. And when you tie it, you impede the circulation -- so your feet get swelled [sic] -- swollen.

THE COURT: Okay. I' m going to stop you there. Go ahead and approach. Thank you. And I apologize, Doctor, we have a really bad system, so I apologize for having to stop you. Thank you.

At that point, Ahn moved for a mistrial because the State had never disclosed as an extraneous offense that the child had been tied up while being beaten. In the ensuing discussion, the State's prosecutor stated on the record that while she had talked to Dr. Canales before he took the stand, she did not know he would testify that K.K. had ligature type markings. The prosecutor also stated that once Dr. Canales testified that the wounds were "like" someone hadtied up the child, she tried to steer the doctor's testimony back to the edema in the feet as a consequence of the broken ankle. The State urged the trial court to instruct the jury to disregard the ligature testimony and proceed forward with the trial.

Instead, the trial court granted a mistrial. The trial court noted that it asked the doctor to repeat his testimony because he was hard to understand. The trial court also stated that: "I do not believe that the D.A.'s Office in any way, shape, or form had any type of misconduct in asking that question at all. . . . And I am going to find that there was no misconduct in the D.A.'s Office at that point in time for that question."

The Application for Habeas Corpus

Following the mistrial, Ahn filed a Pretrial Application for Writ of Habeas Corpus. The factual portion of the Application focused solely on the ligature testimony from Dr. Canales. The Application was premised on the alleged "gross negligence" of the State's prosecutor in admitting that testimony:

In the case before this court, Defend

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