                                                                             PD-0308-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 5/4/2015 11:43:56 AM
                                                              Accepted 5/4/2015 4:01:41 PM
                                                                             ABEL ACOSTA
                       Cause No. PD-0308-15                                          CLERK

                       In the Court of Criminal
                           Appeals of Texas


                     Ex parte Byrias Roberson,
                              Petitioner


              On Review from Cause No. 02-13-00582-CR
                   in the Second Court of Appeals
                          Fort Worth, Texas


  State’s Reply to Appellant’s Petition for Discretionary Review


                         Maureen Shelton
               Wichita County Criminal District Attorney

                           Carey Jensen
                   Asst. Criminal District Attorney
                       Wichita County, Texas
                      State Bar No. 24083252
                   Carey.Jensen@co.wichita.tx.us
                         900 Seventh Street
                    Wichita Falls, Texas 76301
                       (940) 766-8113 phone
                         (940) 716-8530 fax

                     Attorneys for Respondent
                           State of Texas

                   Oral Argument Not Requested




May 4, 2015
To the Court of Criminal Appeals:

     Pursuant to Rule 68.9 of the Rules of Appellate Procedure, the State

submits its reply to Appellant’s Petition for Discretionary Review. The State

submits this reply to correct Appellant’s mischaracterization of the facts of

this case and to briefly respond to Appellant’s argument.

                    Statement Regarding Oral Argument

     Because the Second Court of Appeals correctly applied established

precedent in Ex parte Lewis, the State feels that oral argument is

unnecessary.

                                 Statement of Facts

     After jury selection, Donnie Cavinder, an investigator with the Wichita

County Criminal District Attorney’s Office, spoke with a person outside of

the courtroom he believed he knew previously, based on her voir dire

examination.1 Ms. Vale corrected Investigator Cavinder that she was not

Ms. Steele.2 They exchanged pleasantries, and spoke about game warden

school.3   Investigator Cavinder then noticed that Ms. Vale had a juror

badge attached to her purse, and asked her if she was on the jury.4 When




1    III R.R. at 156.
2    Id. at 156; IV R.R. at 5.
3    Id.
4    III R.R. at 157.
                                         2
she said she was, he stopped the conversation.5 Investigator Cavinder

said they did not discuss the case at all.6           Investigator Cavinder

immediately brought this exchange to the attention of the court:7

     INVESTIGATOR CAVINDER: … I noticed a female coming out
         of the courtroom, which I believed to be Ms. Steele, Juror
         No. 15, I believe, who had made a comment during voir
         dire that she recognized me or knew of me or something
         to that effect.

     THE COURT: Juror No. -- to be clear for the record, Juror No.
         15 was released from service?

     INVESTIGATOR CAVINDER: Right. And that's who I believed I
         was speaking to. And when I was starting to talk to her,
         she goes, No, that was Ms. Steele. So I didn't realize at
         the time the lady I was talking to had actually made the
         jury, either, and it came up that she was the one that went
         to game warden school a couple years ago. And I asked
         her what had happened there, and she told me she did it
         for two years, but it was down south of the border and it
         was dangerous down there and that's why she got out of
         it. And we just kind of exchanged pleasantries about that.

            Nothing was brought up about the trial, the defendant,
            anything like that. And then I saw her, she had a button
            down in her right hand next to her side. And that's when I
            said, Oh, you are on the jury. She said, yes, sir. And I
            said, Okay, thank you. We didn't discuss the case at all.8




5    Id.
6    Id.
7    Id. at 155-58.
8    Id. at 156-57.
                                     3
      Both Appellant’s defense attorney and the prosecutor declined to

question Investigator Cavinder, and the trial judge stated he would call Ms.

Vale to testify the following day to see if she would confirm the story.9

      The following day when Juror Vale was questioned about what she

and Investigator Cavinder spoke about, she was nervous and stuttering.10

The following exchange occurred:

      THE COURT: Okay. Thank you. Did he inquire anything about
          this case?

      JUROR VALE: From what I remember, he – he kind of made a
          comment about – I’m trying to – because I was heading
          down the stairs and he was telling me then saying about –
          I’m trying to remember. Let me just – I just said it was
          okay, but we stopped the conversation right there
          because he didn’t realize that at point I was a juror, a
          selected juror, I guess.

      THE COURT: You don’t remember? We just have to be very
          specific.

      JUROR VALE: I know.

      THE COURT: Because it pertains to this case.

      JUROR VALE: Right.

      THE COURT: You’re sure his question or comment pertained to
          this particular case?



9    Id. at 157.
10   IV R.R. at 5-6. See IV R.R. at 8-9 (Ms. Howcroft noted that “[s]he was clearly
uncomfortable when presenting it to the court.”).
                                          4
      JUROR VALE: He just said – uh, I think he said, “You were
          struck, but then we got you on” or something, or
          something to that effect, which I think – which I think – it
          didn’t – I mean, to me, it didn’t – I kinda said, okay,
          whatever. I’m going to leave right now.11

      The Defendant moved for a mistrial, which was granted.12 The trial

court also noted:

      THE COURT: … I’m not casting fault on Investigator Cavinder
      at all. I understand that was an honest mistake. I completely
      believe that he believed he was speaking to Ms. Steele.13

                                    Argument

      There was no evidence that Investigator Cavinder or the prosecutor

attempted to goad Defendant into making a mistrial motion.14 The trial

court made a credibility determination that it believed that Investigator

Cavinder’s actions were an honest mistake.15           Based on the trial court’s

credibility findings and the Ex parte Wheeler16 factors, the Second Court of

Appeals found that prosecution was not barred by double jeopardy.17




11    IV R.R. at 5-6.
12    Id. at 8-9.
13    Id.
14    III R.R. at 156-59; IV R.R. at 5-9.
15    IV R.R. at 5-6.
16    203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
17    See Ex Parte Roberson, 455 S.W.3d 257 n.1 (Tex. App.—Fort Worth 2015)
(“The Court of Criminal Appeals later limited double jeopardy relief to intentional
conduct only. Ex parte Lewis, 219 S.W.3d 335, 336-37, 371 (Tex. Crim. App. 2007)”).
                                          5
      Ex Parte Lewis overturned the ambiguity in Bauder v. State18 and Ex

parte Peterson,19 and made clear that retrial is barred by double jeopardy

after a defendant successfully moves for mistrial only when it is shown that

the prosecutor engaged in conduct that was intended to provoke the

defendant into moving for a mistrial.20            The Court overturned Bauder

because it was “neither consistent nor right.”21             The Second Court of

Appeals correctly applied the clear-cut standard set forth in Lewis by using

the non-exhaustive factors in Wheeler. 22

      Appellant asks this Court to go back to the confusing and inconsistent

days after Bauder but before Lewis. The extraordinary act of overturning

precedent a second time should only be exercised in the most extreme,

unworkable situations.         The standard set forth in Lewis is neither

unworkable nor unfair. The Lewis opinion is not only correct, but has been

consistently and easily applied since its issue.23




18     921 S.W.2d 696 (Tex. Crim. App. 1996).
19     117 S.W.3d 804 (Tex. Crim. App. 2003).
20     Ex Parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).
21     Id. at 376.
22     Roberson, 455 S.W.3d at 263.
23     There was a dissent in this case, but the dissent ignored this Court’s binding
Wheeler factors (which the majority applied with ease) and advocated for a different and
novel standard which has never been applied by this Court. Additionally, the dissent
mischaracterized the limine ruling as an evidentiary ruling, ignored the trial court’s
credibility determination of Investigator Cavinder, and attempted to re-evaluate
Investigator Cavinder’s credibility. Id. at 263-68.
                                           6
                                     Prayer

      The State prays that the Court deny Appellant’s Petition for

Discretionary Review and maintain its precedent in Ex parte Lewis.

                                        Respectfully submitted,

                                        Maureen Shelton
                                        Criminal District Attorney
                                        Wichita County, Texas

                                        /s/Carey Jensen
                                        Carey Jensen
                                        Asst. Criminal District Attorney
                                        Wichita County, Texas
                                        State Bar No. 24083252
                                        Carey.Jensen@co.wichita.tx.us

                                        900 Seventh Street
                                        Wichita Falls, Texas 76301
                                        (940) 766-8113 phone
                                        (940) 766-8177 fax

                          Certificate of Compliance

      I certify that this document contains 1,154 words. The body text is in

14 point font, and the footnote text is in 12 point font.

                                        /s/Carey Jensen
                                        Carey Jensen




                                        7
                          Certificate of Service

     I certify that on May 4, 2015, a true and correct copy of the above

document has been forwarded to Mark Briley via electronic service to

Mark.Briley@co.wichita.tx.us as well as the State Prosecuting Attorney,

Lisa C. McMinn, via electronic service to information@spa.texas.gov.

                                     /s/Carey Jensen
                                     Carey Jensen




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