                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                              §
                                                             No. 08-12-00192-CR
                                              §
                                                                  Appeal from
 EX PARTE: VIKKI MACIAS                       §
                                                              210th District Court
                                              §
                                                           of El Paso County, Texas
                                              §
                                                             (TC # 20110D01993)
                                              §

                                          OPINION

       Vikki Macias appeals from an order denying her application for writ of habeas corpus.

For the reasons that follow, we affirm.

                                    FACTUAL SUMMARY

       An El Paso County grand jury returned a two-count indictment against Macias alleging

she committed capital murder of a person under six years of age (Count I) and injury to a child

with intent or knowledge by omission causing serious bodily injury (Count II).        Detective

Rosalynn Carrasco of the El Paso Police Department testified on the second day of trial. When

asked by the prosecutor to explain how she became involved in the case, Carrasco began crying

and said, “I apologize, it’s unprofessional.” She composed herself and answered the question

and proceeded to give brief answers to two more questions. When Carrasco testified that the

child victim had died, she began sobbing loudly before the jury. The prosecutor stated she had
no further questions. The trial court excused the jury and addressed what had just transpired.

After a brief discussion, Macias moved for a mistrial.        The trial judge, characterizing the

witness’s behavior before the jury as an “emotional breakdown,” granted the motion for mistrial

but he declined to find that the prosecutors had committed prosecutorial misconduct or had acted

in bad faith.

        Macias filed an application for writ of habeas corpus to prohibit further prosecution on

double jeopardy grounds under the constitutions of both Texas and the United States. The trial

court, apparently utilizing the court reporter’s transcription of Carrasco’s testimony, described in

detail what had happened before, during, and after Carrasco’s emotional outburst. Assistant

District Attorney Jennifer VandenBosch testified that she had spoken with Detective Carrasco in

preparation for the case, during pretrials, and after trial began, and Carrasco had not indicated to

her that she had any emotional problems regarding the case. VandenBosch had no idea that

Carrasco would lose her composure on the witness stand, and if she had known this to be the

case, she would not have called Carrasco as a witness. VandenBosch expressly denied that

either she or Assistant District Attorney Penny Hamilton asked the witness to make an emotional

outburst to taint the jury or goad the defense into requesting a mistrial. On cross-examination,

VandenBosch admitted that she knew Detective Carrasco had cried while talking to Hamilton on

the telephone shortly after the victim died and more than a year before trial, but she reiterated

that the witness had not given her any indication that she would lose her composure on the stand.

        Detective Carrasco testified at the writ hearing that she cried while talking on the

telephone with Hamilton about the case over a year before trial. The case continued to trouble


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her emotionally, but she did not reveal that to anyone including the two prosecutors. She spoke

with VandenBosch about a week and a half before trial and she did not tell either of the

prosecutors that she had any concern about being able to control her emotions.

       Richard Huffman, an attorney, was present prior to Detective Carrasco’s testimony and

saw her seated in the courtroom while the attorneys were discussing an issue with extraneous

offenses. He noticed that she sat with her hands by her face and over her eyes. He did not

observe her crying but she appeared to be “emotional.” At the conclusion of the hearing, the trial

court denied the writ application because it found that a retrial was not barred by the double

jeopardy clause because the mistrial was with the defendant’s consent and due to manifest

necessity. The trial court specifically found that the State did not act with bad faith and did not

have a specific intent to provoke or goad defense counsel into seeking a mistrial.

                                    DOUBLE JEOPARDY

       In her sole issue, Macias contends that the double jeopardy provisions of the United

States and Texas constitutions prohibits a retrial in this case because a mistrial was declared at

her request due to the intentional misconduct of the State and its witness.              See U.S.

CONSTITUTION amend. V; TEXAS CONSTITUTION art. 1, § 14. The State responds that Macias

failed to establish that the prosecutors engaged in conduct that was intended to provoke her into

moving for a mistrial.

                              Review Restricted to Fifth Amendment

       Macias’s brief does not contain any argument or authority explaining how the protection

provided by Article I, Section 14 of the Texas Constitution differs from the protection provided


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by the Fifth Amendment. An appellant is required to raise state and federal constitutional claims

as separate grounds with separate substantive analysis or argument provided for each ground.

See Berry v. State, 233 S.W.3d 847, 855 n.3 (Tex.Crim.App. 2007); Muniz v. State, 851 S.W.2d

238, 251-52 (Tex.Crim.App. 1993); Heitman v. State, 815 S.W.2d 681, 690-91 n.23

(Tex.Crim.App. 1991). Because Macias does not argue that the Texas Constitution provides

more protection than the United States Constitution, we will restrict our analysis of the double

jeopardy claim to the Fifth Amendment.        See Flores v. State, 319 S.W.3d 697, 702 n.8

(Tex.Crim.App. 2010); Muniz, 851 S.W.2d at 251-52.

                               Relevant Law and Standard of Review

       The Fifth Amendment provides that a person shall not be twice put in jeopardy for the

same offense. TEX.CONST. Amend. V. Thus, it protects a criminal defendant from repeated

prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 2087,

72 L.Ed.2d 416 (1982). 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)(adopting

Oregon v. Kennedy standard as the correct standard when addressing a double jeopardy claim

under the Texas Constitution and overruling Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.

1996), which had established a rule that retrial would be barred 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).

       As a general rule, when a mistrial is granted at the defendant’s request, double jeopardy


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principles do not bar a retrial. Oregon v. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088. An

exception occurs and 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. Oregon v. Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091; Ex parte Lewis,

219 S.W.3d 335, 371 (Tex.Crim.App. 2007). This exception has been described by both the

United States Supreme Court and the Court of Criminal Appeals as a narrow one. See Oregon v.

Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088; Ex parte Masonheimer, 220 S.W.3d 494, 506

(Tex.Crim.App. 2007).

       A habeas corpus applicant must prove her double jeopardy claim by a preponderance of

the evidence. State v. Guerrero, 400 S.W.3d 576, 583 (Tex.Crim.App. 2013). Consequently, to

be entitled to habeas corpus relief on double jeopardy grounds, Macias was required to establish

by a preponderance of the evidence that the prosecutor engaged in conduct that was intended to

provoke her into moving for a mistrial. See Kennedy, 456 U.S. at 679; Ex parte Peterson, 117

S.W.3d 804, 818 (Tex.Crim.App. 2003). In reviewing the trial court’s decision to deny habeas

relief, we review the evidence in the light most favorable to the trial court’s ruling. Ex Parte

Masonheimer, 220 S.W.3d at 507. Generally, a trial court’s decision denying habeas relief will

be upheld absent an abuse of discretion.          Ex parte Wheeler, 203 S.W.3d 317, 324

(Tex.Crim.App. 2006).

                                            Analysis

       Macias argues that the prosecutors were aware Carrasco had cried while speaking to

Hamilton at the inception of the case and she appeared to be having emotional difficulties in the


                                              -5-
minutes prior to her testimony, and therefore, the prosecutors should have anticipated the witness

would have a “meltdown” when she testified. This is similar to the argument raised by the

appellant in Washington v. State, 326 S.W.3d 701 (Tex.App.--Houston [1st Dist.] 2010, no pet.),

a case which involved an emotional outburst by the complainant just before he testified.

       In Washington, the defendant was charged with burglarizing a jewelry store owned by

Sohail Ahmed. Washington, 326 S.W.3d at 701. After trial began and shortly before Mr.

Ahmed’s testimony, the prosecutor informed the trial court and the defense that the complainant

was ill so the court took a brief recess. Id. at 702. During the recess, the complainant had a loud

confrontation with the court’s bailiff in the hallway and made disparaging remarks about “the

bailiff, the prosecution, the defense attorneys, the defendant, and the judicial process generally.”

Id. Several of the jurors were present in the hallway and heard the outburst. Id. The trial court

granted Washington’s motion for a mistrial. Id. The trial court called the complainant into the

courtroom and placed him under oath. Id. Mr. Ahmed explained that he was ill from food

poisoning, the burglary had created a financial hardship, and he was frustrated that it had taken

three years for the case to go to trial. Id. He apologized and explained that his outburst had

occurred “spur of the moment.”        Id.   Washington subsequently filed a habeas application

asserting that further prosecution was barred by double jeopardy principles. Id. At the hearing,

Washington argued that the prosecutors were aware that Mr. Ahmed was ill and agitated because

an intern had given the prosecutor a note stating that Mr. Ahmed was ill and “having problems.”

Id. at 703. The trial court denied habeas relief. Id. at 704.

       On appeal, Washington argued that the actions of the complaining witness were imputed


                                                -6-
to the prosecution and he suffered the same type of harm which would have resulted from the

State goading him into moving for a mistrial. Washington, 326 S.W.3d at 705. The First Court

of Appeals rejected Washington’s assertion that double jeopardy would apply to anything other

than intentional conduct by the prosecution. Id. It found that the record did not support

Washington’s assertion that the prosecution knew, or should have known, that Mr. Ahmed was

angry or agitated. Id. It further held that the record did not support a finding that the prosecution

had the intent to goad Washington into a mistrial or the intent to avoid the possibility of an

acquittal. Id., 326 S.W.3d at 705-06, citing Lewis, 219 S.W.3d at 336 and Masonheimer, 220

S.W.3d at 507.

       The case before us is similar to Washington because it also involves an emotional

outburst by a witness. Carrasco testified at the writ hearing that she did not expect to have any

difficulties when testifying.   She denied crying prior to her testimony while seated in the

courtroom. She explained that she had lowered her face and looked down in an effort to

concentrate and prepare for her testimony.        There is no evidence that anyone, other than

Huffman, saw Carrasco seated with her head down immediately prior to her testimony. Both

prosecutors knew that Carrasco had cried while talking on the phone with Hamilton shortly after

the victim died, but that occurred more than a year before trial and Carrasco gave no indication

to either prosecutor that she was having trouble controlling her emotions at the time of trial.

VandenBosch believed the detective had gotten emotional during the telephone conversation

with Hamilton because it was the first case Carrasco had worked on where the child victim had

died. VandenBosch worked with Carrasco while “pre-trialing” the case approximately a week


                                                -7-
and a half before trial and Carrasco did not give her any indication that she was having any

emotional difficulties or could not testify without breaking down emotionally. VandenBosch

also testified that she and Hamilton believed they would obtain convictions on both counts and

they had no idea Carrasco would lose her composure on the witness stand.

       Macias candidly admits she cannot argue that the State called Carrasco to the stand to

intentionally sabotage the case, but she asserts it is possible that the prosecutors were aware of

Carrasco’s fragile state of mind and they intentionally elected to have her testify anyway. Thus,

Macias asks us to find a double jeopardy bar where the State engaged in some kind of intentional

conduct even where there is no evidence that the prosecutors acted with the requisite intent to

provoke or goad the defendant into seeking a mistrial. Such a holding would be contrary to the

Oregon v. Kennedy standard which we are obligated to apply. Macias was required to prove by a

preponderance of the evidence that the State acted with the intent to provoke or goad Macias into

seeking a mistrial. See Washington, 326 S.W.3d at 705-07.

       The trial court affirmatively found that the State did not have any intent to provoke or

goad Macias into seeking a mistrial. When reviewing this finding we keep in mind that the trial

court is in the best position to determine whether a prosecutor’s conduct evinces intent to cause a

mistrial. See Lewis, 219 S.W.3d at 362. The evidence, when viewed in the light most favorable

to the trial court’s findings and ruling, does not show that the prosecutors were aware of

Carrasco’s emotional condition at the time of trial or that they suspected she would lose her

composure on the witness stand.        More importantly, the record does not show that the

prosecutors had any intent to provoke or goad Macias into seeking a mistrial. See Washington,


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326 S.W.3d at 705-07. Accordingly, we overrule the sole issue presented and affirm the order of

the trial court denying Macias’s writ application.



October 22, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)

(Do Not Publish)




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