Wash. v. State

326 S.W.3d 701

Kelvin WASHINGTON, Appellant,

v.The STATE of Texas, Appellee.

No. 01-10-00589-CR.

Court of Appeals of Texas, Houston (1st Dist.).

Oct. 7, 2010.

Gail Kikawa McConnell, John J. Harrity III, Assistant District Attorneys, John F. Healey Jr., Fort Bend County District Attorneys Office, Richmond, TX, for Appellant.

Kent Schaffer, Steven J. Lieberman, Houston, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Kelvin Washington, appeals the trial court's denial of his request for pretrial habeas corpus relief. See Tex.R.App. P. 31. Appellant identifies three issues in which he contends that the State's prosecution of him violates his state and federal constitutional guarantees against double jeopardy.

We affirm.

Background

On January 8, 2007, four men broke into and stole merchandise from a jewelry store owned by Sohail Ahmed. Appellant was later charged with the offense of burglary related to the break in and theft.

On July 13, 2010, a jury was impaneled to hear the burglary charge against appellant. The next day, each side made opening arguments, and the State presented its first witness.

Before the State's second witness testified, the following exchange occurred between the prosecutor and the trial court:

[Prosecutor:] May we approach, Your Honor?

(At the Bench, on the record)

THE COURT: Yes, ma'am.

[Prosecutor:] Judge, our victim is present in the courthouse but is apparently ill.

THE COURT: Who, Mr.—

[Prosecutor:] Mr. Ahmed, our victim. I don't know, right now might be a good time to take our morning break so I can at least assess if he is in any position to maybe testify or what to do with that.

THE COURT: Do you know what his problem is?

[Prosecutor:] I'm not really sure. I was told they were getting him a Sprite. I do believe that it may be a stomach issue, but I don't know.

THE COURT: Well, okay. We'll take about a 15-minute recess and see what you can find out.

During the recess, the complaining witness, Mr. Ahmed, had a confrontation with the court's bailiff in the hallway. Mr. Ahmed became agitated and loudly made disparaging remarks about the bailiff, the prosecution, the defense attorneys, the defendant, and the judicial process generally.

After the recess, the defense moved the court to declare a mistrial based on Mr. Ahmed's outburst. The defense argued that appellant's right to a fair trial had been prejudiced because a number of jurors were in the hallway and had heard Mr. Ahmed's disparaging comments.

The trial judge stated on the record that he also had been in the hallway and had intervened to diffuse the situation. The judge agreed that some of the jurors had likely heard Mr. Ahmed's remarks. The court granted the motion for mistrial and reset trial for the following week.

After granting the mistrial, the trial court requested Mr. Ahmed to appear before it. Mr. Ahmed approached the bench and was placed under oath. The court verbally reprimanded Mr. Ahmed for his conduct and informed him that his outburst had caused the mistrial. In response, Mr. Ahmed explained that he had been feeling ill from food poisoning. He told the court that the burglary of his store had caused him financial ruin and great hardship for his family. He expressed that he was frustrated with the legal system because it had taken three years for the case to go to trial. Mr. Ahmed indicated that he had been called to the courthouse a number of times during that time to no avail.

In the end, Mr. Ahmed took responsibility for his improper conduct. He apologized to the court, explaining that his outburst had occurred "spur of the moment, it had no reference or context."

Five days later, appellant filed an application for writ of habeas corpus based on double jeopardy grounds. Appellant asserted that Mr. Ahmed's conduct, which necessitated the mistrial, could be imputed to the State.

To support his arguments, appellant alleged, in his verified habeas corpus application, that the prosecution had "engaged in communications, via post-it notes passed between themselves and the complainant [Mr. Ahmed] by way of an intern." Appellant claimed that "[t]he notes set out the complainant's health problems and his discomfort while sitting in the hallway, outside of the courtroom." He asserted that"[t]he State was, effectively put on notice that the complainant was upset and disturbed to the point that he could cause a disruption of the trial proceedings." Appellant alleged, "With knowledge of the complainant's location and disturbed state of mind, the prosecution allowed the jury to walk directly in front of the enraged complainant." Appellant further argued,

The mistrial was caused by the prosecution's conscious disregard of a substantial risk that the complainant, whom the prosecution knew to be intensely angry and ill, would taint the jury. The complainant informed the prosecution by note that he was extremely upset at being summoned to court again and was not feeling well. Knowing the complainant was just outside the courtroom; the prosecution requested a recess and consciously disregarded the fact that the jury could hear the complainant's expletive filled statements about the Defendant, defense counsel, and the judicial system.

Appellant averred that, if the trial court did not find that the State acted with conscious disregard, then "the prosecutors are de facto agents for the complainant." Appellant argued that Mr. Ahmed's improper conduct, and the State's conscious disregard of Mr. Ahmed's conduct, "created a jeopardy bar" because such actions were prejudicial to him and were intended to provoke a mistrial. Appellant asserted that as a result of the State's and Mr. Ahmed's actions, he was "forced to move for a mistrial."

The State filed an answer to appellant's habeas application. In its answer, the State asserted that appellant's request for habeas relief was "frivolous and without legal support." The State also requested sanctions against appellant.

The trial court conducted a hearing on appellant's habeas application. Appellant argued that the prosecutor was an agent of the complainant, Mr. Ahmed. Appellant also reiterated that during trial, an intern had given the prosecutor a note stating that Mr. Ahmed was ill and "having problems." Immediately thereafter, the prosecutor had requested a recess to speak to Mr. Ahmed to determine whether he could testify. Appellant alleged that Mr. Ahmed was being accompanied by "a representative of the district attorney's office" prior to his outburst.

For these reasons, appellant intimated that the prosecution should have been aware that Mr. Ahmed was ill and agitated. Appellant argued that if the prosecutor had informed the trial court of "the potential problem," perhaps the court or the State could have taken steps to insulate the jury from his tirade.

Appellant argued that it was these actions, or inactions, by the State that required him to move for a mistrial. Appellant asserted that permitting the State's continued prosecution of him "would amount to double jeopardy."

The prosecution responded by pointing out that it does not represent the complainant, Mr. Ahmed; it represents the State of Texas. The prosecution asserted that appellant relied on an improper legal standard to impute responsibility for Mr. Ahmed's improper conduct to the State. The State explained, "For prosecutorial misconduct to occur, you must show that the prosecutor intentionally engaged in such outrageous conduct that his only purpose was to get a mistrial. That's what they have to show. There is no indication whatsoever that ever even occurred in [sic] here."

To support his habeas application, appellant offered the portion of the trial transcript related to his motion for mistrial. At the habeas hearing, the trial court alsotook judicial notice of its knowledge of the trial proceedings related to the motion for mistrial.

After considering the application on its merits, the trial court denied appellant's request for habeas relief. In rejecting appellant's double jeopardy claim, the trial court orally found that the prosecution had not acted as an agent for Mr. Ahmed. The court also found that the prosecution could not have anticipated Mr. Ahmed's outburst and that his improper remarks cannot be imputed to the State. In making its findings, the trial court cited Mr. Ahmed's sworn statement in the trial transcript that he had made the improper remarks "spur of the moment, it had no reference or context."

The trial court also denied the State's request for sanctions. The court agreed that appellant had the right to appeal the denial of his habeas application. The court continued appellant's trial, pending resolution of this appeal.

In his opening brief, appellant identifies three issues in which he generally contends that the trial court erred in denying his habeas application and specifically contends that his retrial is barred by the double jeopardy clauses of the state and federal constitutions. Because they are interrelated, we, like the parties, jointly discuss and consider the three issues.

A. Legal Principles

1. Standard and Scope of Review

We review a trial court's ruling on a pretrial writ of habeas corpus for an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App.2006). In conducting this review, we view the facts in the light most favorable to the trial court's ruling and defer to the trial court's implied factual findings, which are supported by the record. Id. at 325-26.

2. Double Jeopardy Following Mistrial

The double jeopardy clauses of our federal and state constitutions protect a criminal defendant from repeated prosecutions for the same offense. See U.S. Const. amend. V (providing "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"); Tex. Const. art. I, § 14 ("No person, for the same offense, shall be put twice in jeopardy of life or liberty."). In Oregon v....