State v. Heredia

604 S.W.3d 138

The STATE of Texas, Appellant

v.Daniel HEREDIA, Appellee

NO. 03-19-00633-CR

Court of Appeals of Texas, Austin.

Filed: May 28, 2020

Discretionary Review Refused November 11, 2020

Stacey M. Soule, Austin, Jennifer A. Tharp, Joshua D. Presley, New Braunfels, for Appellant.

Dan Dworin, for Appellee.

Before Chief Justice Rose, Justices Baker and Triana

OPINION

Gisela D. Triana, Justice The State of Texas appeals from the district court's order granting Daniel Heredia's pretrial application for writ of habeas corpus. In four issues on appeal, the State asserts that (1) Heredia should be barred from obtaining habeas relief based on the doctrine of judicial estoppel and (2)–(4) the district court erred in granting habeas relief on the merits. We will affirm.

BACKGROUND

The State charged Heredia in an eight-count indictment with the offenses of murder (Count I), tampering with a human corpse (Count II), and tampering with physical evidence (Counts III, IV, V, VI, VII, and VIII). However, the State proceeded to trial only on the murder charge. At the conclusion of trial, the jury acquitted Heredia of murder but convicted him of the lesser-included offense of manslaughter and assessed punishment at 20 years' imprisonment. The district court rendered judgment on the jury's verdict.¹

The State is now attempting to try Heredia for the tampering charges in the indictment. Prior to trial for those charges, Heredia filed an application for writ of habeas corpus, asserting that his prosecution for the tampering offenses is barred by the Double Jeopardy Clauses of the United States and Texas Constitutions. See U.S. Const. amend. V ; Tex. Const. art. I, § 14 ; see also Tex. Code Crim. Proc. art. 1.10. Specifically, he argued that the State, in order to prosecute the tampering charges in a later trial, was required to waive, abandon, or dismiss the tampering counts prior to jeopardy attaching in the murder trial, and Heredia claimed that the State failed to do so. Heredia acknowledged that the State had informed the district court and counsel in chambers, prior to jeopardy attaching, that the State planned to proceed only on the murder charge. However, the conference in chambers was not transcribed, and Heredia claimed that because the State had failed to abandon or reserve the tampering charges "on the record," the State was prohibited from prosecuting those charges in a later trial.

The district court held a hearing on the application. At the hearing, an assistant district attorney who had participated in the murder trial testified as to his recollection of the conversation that occurred in chambers regarding the charges:

Q. And specifically drawing your attention to the Monday of jury selection, which I believe would have been March 4th of 2019, were you present in Judge Boyer's chambers prior to jury selection for a conversation between defense counsel, the State, and the Judge?

A. Yes, I was.

Q. And could you briefly explain for the record what the subject of that particular conference was.

A. Prior to qualifications and picking of the jury, the conversation was had in regards to the State moving forward solely on the murder charge, which was Count I. And furthermore, we had a conversation that Count II, Count III, Count IV, Count V, Count VI, Count VII, and Count VIII we would be holding and not moving forward with; that we would only present the murder charge to the jury on that trial date and reserve these for a later date.

Q. And did defense counsel appear to understand that that was what the State intended to do?

A. Yes, [he] did.

Q. And did Judge Boyer appear to understand that that's what the State intended to do?

A. Yes.

Q. And did he indicate—or do or say anything that indicated his agreement with that proceeding?

A. The conversation was had that we would present the murder charge, that we would hold these, and only the murder charge would be going forward.

Q. And during the course of voir dire, was any mention made by either side of any charge or any count other than Count I, the charge of Murder?

A. No.

Q. At any point, was the defendant ever arraigned on any of the other counts?

A. Not a single one was read other than Count I.

Q. And was that all based upon the conversation that was had in chambers and everybody's understanding as far as what was going to occur going forward?

A. Yes.

On cross-examination, the prosecutor acknowledged that during the conference, defense counsel had not agreed to the severance of the counts and had instead argued that all the counts should be tried together. The district court then summarized its understanding of the conference as follows: "I'm going to go on the record as my interpretation of the proceedings we had in chambers is that I did not make a ruling. However, I did understand that was the parties' intent. I want to make sure that's clear to everybody."

At the conclusion of the hearing, the district court granted Heredia's application for writ of habeas corpus. The district court subsequently made findings of fact and conclusions of law, including the following:

The witness for the State—[the assistant district attorney]—at Defendant's writ hearing on August 26, 2019 was truthful and credible, and the facts were as he testified.

Prior to the jury being sworn for Defendant's initial trial, in an in-chambers conference with the parties' counsel—but without a court reporter—the State informed this Court and Defendant that it wished to pursue only Count I (the Murder Count) in Defendant's initial trial, and expressly indicated that it wished to hold Counts II through VIII in reserve so that it could later try Defendant on said counts if it so chose.

Over the Defendant's objection, and prior to jeopardy attaching, the State was allowed by the Court to proceed solely on Count I in Defendant's initial trial—before the jury was empaneled and sworn. There was no formal request or ruling on severance on the record. There was no written motion to sever the counts filed by either party.

Voir dire was conducted on Count I, the Murder charge.

The attorney for the State only read Count I of the indictment for the formal arraignment before the jury.

The Trial Court's charge to the jury only referenced Count I.

After his initial trial and conviction under Count I's Murder charge for the lesser-included offense of Manslaughter, the State decided to pursue the aforementioned withheld Counts II through VIII, and Defendant filed a writ alleging a Double Jeopardy violation for Counts II through VIII.

Defendant cited Ex parte Preston , which includes the following statement: "... in order to preserve a portion of a charging instrument for a subsequent trial, the State must, before jeopardy attaches ... [1] take some affirmative action, [2] on the record, [3] to dismiss, waive or abandon that portion of the charging instrument and [4] the State must obtain permission from the trial judge to dismiss, waive or abandon that portion of the charging instrument." Ex parte Preston , 833 S.W.2d 515, 518 (Tex. Crim. App. 1992).

The State met the first, third and fourth parts ( [1] and [3], supra ) of the aforementioned Preston statement regarding Counts II through VIII.

The basis for Court's decision to grant Defendant's writ is the second part of Preston 's statement (supra , "[2] on the record") since the State's affirmative action to sever, dismiss, waive or abandon Counts II through VIII and this Court's allowance for the State to proceed only on Count I took place in an unrecord[ed] in-chambers conference with the parties.

This appeal by the State followed.

STANDARD OF REVIEW

We generally review a trial court's ruling on a habeas-corpus application for abuse of discretion, viewing the evidence in the light most favorable to the trial court's ruling and deferring to the trial court's resolution of factual disputes. Ex parte Wheeler , 203 S.W.3d 317, 324 (Tex. Crim. App. 2006) ; Ex parte Alvarez , 570 S.W.3d 442, 444 (Tex. App.—Austin 2019, pet. ref'd). However, when the facts are undisputed and the resolution of the ultimate question turns on an application of legal standards, as is the case here with Heredia's double-jeopardy claim, we review the ruling de novo. Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999) ; Alvarez , 570 S.W.3d at 444 ; see also State v. Donaldson , 557 S.W.3d 33, 39–40 (Tex. App.—Austin 2017, no pet.) (applying de novo standard to trial court's ruling on motion to quash indictment on double-jeopardy grounds).

ANALYSIS

Merits of the district court's ruling

We first address the State's second, third, and fourth issues, in which it asserts that the district court erred on the merits in granting Heredia's application for writ of habeas corpus. In its second issue, the State contends that the district court improperly "elevated form over substance" by requiring an "on the record" election by the State regarding the tampering charges. In its third and fourth issues, the State asserts that the "complete record" in the case, including both the record of Heredia's murder trial and the habeas proceeding, demonstrate that, prior to jeopardy attaching in Heredia's murder trial, the State made a proper election reserving the tampering charges for prosecution in a later trial.

The Double Jeopardy Clause of the United States Constitution provides that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Similarly, the Double Jeopardy Clause of the Texas Constitution provides that "no person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." Tex. Const. art. I, § 14. It is well established that in a jury trial, jeopardy attaches at the time when the jury is impaneled or sworn. Crist v. Bretz , 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) ; Hill v. State , 90 S.W.3d 308, 313 ...