                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                 No. 07-14-00335-CR
                            ________________________

                         RAUL CONSTANCIO, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE



                     On Appeal from the County Court at Law No. 2
                                 Lubbock County, Texas
             Trial Court No. 2013-475,785; Honorable Drue Farmer, Presiding


                                     July 10, 2015

                           MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant, Raul Constancio, was tried for the offense of criminal trespass of

property on July 21, 2014. After both sides had rested but before the charge was read

to the jury, Appellant reurged his trial-based motions for mistrial based on the

introduction of three statements before the jury that were ultimately determined to be

inadmissible. The trial court granted the motion and Appellant subsequently filed an

application for writ of habeas corpus alleging his retrial was barred on the basis of
double jeopardy. The trial court denied that application and this appeal followed. By a

single issue Appellant contends the trial court erred in determining that double jeopardy

did not bar his subsequent prosecution because the State intentionally goaded him into

moving for a mistrial in order to obtain a procedural advantage on retrial. We affirm.


      BACKGROUND

      In August 2012, Appellant was living with his mother in an apartment complex in

Lubbock. After receiving several complaints from other tenants, the apartment complex

management informed Appellant that he could no longer stay there because he was not

an approved tenant and he did not have permission to be on the property. On August

13th, Appellant was given a formal trespass notice and shortly thereafter he moved.

Approximately one year later, Appellant was arrested at the apartment complex for

criminal trespass.


      Prior to trial, Appellant filed a motion in limine requesting that the State not elicit

any oral or written statements allegedly made by him or any extraneous offenses

without first taking the matter up outside the presence of the jury. That motion was

granted. On the day of trial, Appellant filed a supplemental motion in limine requesting

that the State not present any evidence that he was “attempting to lure small children

into the apartment” or that he was “dangerous to other residents” as the basis for the

original trespass notice. The State did not oppose the motion; however, it did argue that

evidence to that effect could become relevant.        The motion was granted and trial

commenced later that day.




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      Following a reading of the information and the entry of a plea of “not guilty” but

before opening statements were made, a hearing was held outside the presence of the

jury regarding the reason why Appellant was originally prohibited from being at the

apartment complex. After hearing evidence and arguments of counsel, the trial court

ruled that testimony concerning the fact that complaints had been made could be

introduced; however, the specific nature of the complaints was ruled to be inadmissible.


      During trial, three objectionable statements were introduced that ultimately

formed the basis of Appellant‟s “cumulative error” motion for mistrial: (1) a statement by

the apartment complex manager that Appellant was “trying to - - lure” two little girls into

an apartment, (2) a statement that Appellant‟s mother was given a notice of lease

violation based on an “unauthorized drunk man . . . [who was] dangerous to other

residents,” and (3) an officer‟s statement that Appellant “told me he‟d beat my ass if he

saw me again.” After the first objectionable statement, the trial court gave a curative

instruction to the jury but denied Appellant‟s motion for mistrial.     After the second

objectionable statement, the trial court sustained an objection as to the “dangerous to

other residents” portion of the statement, redacted that portion from the written trespass

notice, instructed the jury to disregard the objectionable portion of the oral testimony,

and again denied Appellant‟s motion for mistrial. The third objectionable statement was

a non-responsive statement elicited during Appellant‟s cross-examination of the

arresting officer. Appellant argued that statement was covered by the original motion in

limine. The trial court sustained the objection, instructed the jury to disregard the last

answer by the witness, and again denied Appellant‟s motion for mistrial.




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       After the State and defense closed the presentation of evidence but prior to the

jury being charged as to guilt-innocence, the trial court re-entertained Appellant‟s

motions for mistrial.   After hearing the arguments of counsel, including the State‟s

“unintentional—not intended to provoke a mistrial” explanations, the trial court granted a

mistrial. In issuing its ruling, the trial court did not make any specific findings of fact or

conclusions of law other than to say that based on the “cumulative effect” of the

complained-of error, the court did not see any less drastic alternative than to grant the

mistrial. When specifically asked by the State as to whether the State would be entitled

to retry the defendant, the court answered, “Yes.” No findings of fact or conclusions of

law were prepared or filed concerning the factual or legal basis for the mistrial.


       Less than a month later, when the State attempted to retry Appellant for the

same offense, he filed an application for writ of habeas corpus contending further

prosecution was barred by the double jeopardy clause of both the Federal and Texas

Constitutions. The State contended the subsequent prosecution was not barred by

double jeopardy because the mistrial was granted at Appellant‟s request. Appellant

countered the State‟s argument by contending the prosecution acted in bad faith, with

the intent to goad him into requesting a mistrial so that it could gain a procedural

advantage by having the opportunity to correct mistakes made in the original

enhancement notices. Without making findings of fact or conclusions of law, the trial

court denied the double jeopardy motion and this appeal followed.


       APPLICABLE LAW AND STANDARD OF REVIEW

       We review a trial court‟s decision to grant or deny an application for a writ of

habeas corpus on the basis of double jeopardy under an abuse of discretion standard.

                                              4
See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).              An abuse of

discretion occurs when the trial court acts arbitrarily or unreasonably, without reference

to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990).     In determining whether the trial court‟s decision was arbitrary or

unreasonable, we may not substitute our judgment for that of the trial court, Cantu v.

State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), and we must give deference to the

trial court‟s resolution of historical facts supported by the record, as well as application

of law to fact questions that turn on credibility and demeanor. Alford v. State, 358

S.W.3d 647 (Tex. Crim. App. 2012).


       The Federal Constitution, Texas Constitution, and Code of Criminal Procedure all

mandate that no person shall be twice put in jeopardy for the same offense. U.S.

CONST. amend. V; TEX. CONST. art. I, § 14; TEX. CODE CRIM. PROC. ANN. art. 1.10 (West

2005). Courts have recognized the Double Jeopardy Clause as prohibiting a retrial

when the first trial ends in a mistrial resulting from circumstances attributable to

prosecutorial or judicial overreaching that deprives an accused of the valued right to

have his trial completed by the first duly selected jury. Oregon v. Kennedy, 456 U.S.

667, 671-72, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982); Ex parte Lewis, 219 S.W.3d

335, 371 (Tex. Crim. App. 2007) (adopting the constitutional standard set out in Oregon

v. Kennedy for determining whether a retrial is barred after a defense-requested

mistrial).


       Where, as here, a mistrial is declared at the request of the accused, retrial is not

barred unless the error that prompted the mistrial is conduct attributable to the State

which was motivated by bad faith or undertaken to harass or prejudice the accused, and

                                             5
was committed with the intent to provoke the mistrial. Oregon v. Kennedy, 456 U.S. at

670; Ex parte Masonheimer, 220 S.W.3d 494, 506 (Tex. Crim. App. 2007). Accordingly,

prosecutorial misconduct does not bar a retrial absent intent on the part of the

prosecutor to subvert the protections afforded by the Double Jeopardy Clause.

Masonheimer, 220 S.W.3d at 508-09 (finding a subsequent retrial is jeopardy-barred

after a defense-initiated mistrial “when the State intentionally „goads‟ or provokes the

defendant into moving for a mistrial”).


       Here, Appellant contends the State intentionally goaded him into requesting a

mistrial, thereby rendering a retrial jeopardy-barred, because the State hoped to gain a

procedural advantage by having the opportunity to correct mistakes it made in the

original enhancement notices. Appellant further contends the State acted with the intent

to provoke a mistrial because the trial was not going the way the prosecutor had

planned. The trial court, however, did not see it that way.          Instead, the trial court

implicitly ruled the mistrial was not attributable to bad faith on the part of the prosecution

when it immediately stated the State could retry the case. Keeping in mind that we are

required to view the evidence in the light most favorable to the trial court‟s ruling, and

acknowledging that the trial court was in the better position to determine whether the

offending conduct evinced an intent to subvert the protections afforded by the Double

Jeopardy Clause as well as the credibility of the prosecutor‟s explanations, we conclude

the trial court did not abuse its discretion in determining that the prosecutor did not

intend to provoke or goad Appellant into requesting the mistrial. According, the trial

court did not err in denying Appellant‟s application for writ of habeas corpus.




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      Appellant further posits that the State‟s post-mistrial ability to correct the

mistakes it made in the enhancement notices renders a retrial unconstitutional “as

applied” because it provides the State a procedural advantage. We need not address

this “as applied” constitutional argument because the State categorically waived any

enhancements on retrial during its oral arguments before this court.    Accordingly,

Appellant‟s “as applied” argument is rendered moot.


      CONCLUSION

      The judgment of the trial court is affirmed.




                                                Patrick A. Pirtle
                                                    Justice



Do not publish.




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