             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00215-CR
     ___________________________

       EX PARTE MICHAEL ELLIS


  On Appeal from the 213th District Court
         Tarrant County, Texas
       Trial Court No. 1497758D


   Before Meier, Gabriel, and Kerr, JJ.
  Memorandum Opinion by Justice Meier
                           MEMORANDUM OPINION

      Appellant Michael Ellis was charged on July 14, 2017, with burglary of a

habitation, and four days later, the State announced ready for trial.

      Almost a year later, in a hearing before trial, the trial court granted Appellant

Michael Ellis’s unopposed motion in limine to require the State to first approach the

bench for permission before referring to his prior convictions or other bad acts.1

      The reporter’s record reflects that at the bottom of the second page of the

prosecutor’s three-page, seven-paragraph opening statement, in the second-to-last

paragraph, the prosecutor told the jury about Ellis’s arrest by the police on “active

warrants” and his later confession at the police station during an interview. After the

prosecutor concluded his opening statement, Ellis asked to approach the bench.

      During the ensuing bench conference, Ellis objected that the prosecutor had

violated the motion in limine by saying “active warrants,” even though he

acknowledged that “it was barely said” and not “accentuated.” Because the jury had

nonetheless heard it, he asked for a mistrial.

      The trial court recalled from the earlier suppression hearing that Ellis had been

arrested on outstanding traffic warrants. The prosecutor said that for the jury to

understand how the officers could detain Ellis, the State had to explain that there


      1
        Two weeks before trial, the State gave Ellis notice of its intent to introduce
evidence of extraneous offenses and bad acts, which included several convictions. Six
days later, Ellis filed his motion in limine.


                                            2
were warrants, that the mention was minimal, that it would be explained, and that the

State anticipated that it would have come out in testimony. The prosecutor also

argued that active warrants were not in the nature of an extraneous offense and that

they went to the contextual nature of the case, so the warrant reference did not violate

the motion in limine.

       Ellis argued that the prosecutor could have just said in the opening statement

that the police investigated, found evidence, found the perpetrator, took him to the

station and interviewed him, and that he confessed. He argued,

       [T]o add in, at that point, he had arrest warrants that he was arrested for
       puts a taint in the jury, a bell that can’t be unrung, a skunk that can’t be
       taken out of here. They don’t know what those arrest warrants are for.
       It could be murder for all they know.

             And to now just say that we’re going along with the case and just
       ignore it and pretend it never happened, and no one’s going to address
       it. We don’t know that one juror is going to be sitting there the whole
       time going, [“]What was that arrest warrant for? He’s a bad guy.[”]

              That taint can’t be removed from this jury. There is no way an
       instruction to disregard . . . is going to cure this.

       The trial court granted Ellis’s motion for mistrial, observing, “I realize that this

was not done intentionally. I just think it was an inadvertent mistake, but I’m going to

reluctantly grant the mistrial.”

       Ellis then filed an application for pretrial writ of habeas corpus seeking to

preclude his retrial on the basis of Double Jeopardy. In his motion, he argued that the




                                            3
mistrial occurred without manifest necessity2 and that the mistrial was intentionally or

recklessly caused by the prosecutor.

       At the hearing on his application, Ellis argued that the prosecutor had acted

either intentionally or recklessly. The State argued that the prosecutor had just made a

mistake, without any prejudice or malice behind it. The trial court found that while

the prosecutor’s comment was not curable with an instruction, the prosecutor had

acted inadvertently, not intentionally or recklessly, and denied Ellis’s application.

       In a single issue, Ellis complains that the trial court abused its discretion by

denying his application, arguing that the prosecutor’s violation of his motion in limine

“was clearly intentional and provoked a mistrial.” The State responds that there was

no abuse of discretion because it did not intentionally goad a mistrial when it

mentioned Ellis’s active warrants and that mentioning the warrants was merely

contextual, to explain to the jury why Ellis had been detained at the time that he

confessed to the charged offense.

       The Fifth Amendment’s Double Jeopardy Clause bars retrial after a defendant

successfully moves for a mistrial only when it is shown that the prosecutor engaged in

conduct that was intended to provoke the defendant into moving for a mistrial.

Ex parte Lewis, 219 S.W.3d 335, 336–37 (Tex. Crim. App. 2007); see Kennedy, 456 U.S.


       Ellis abandoned the “manifest necessity” argument on appeal. See Oregon v.
       2

Kennedy, 456 U.S. 667, 672–73, 102 S. Ct. 2083, 2088 (1982) (explaining that when a
defendant requests a mistrial, the “manifest necessity” standard has no place in the
Double Jeopardy Clause’s application).

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at 672–73, 676, 102 S. Ct. at 2088–89. The trial court considers a nonexclusive list of

objective factors to determine the prosecutor’s state of mind:

   (1) Was the misconduct an attempt to abort a trial that was going badly for the
       State, i.e., at the time the prosecutor acted, did it reasonably appear that the
       defendant would likely obtain an acquittal?

   (2) Was the misconduct repeated despite the trial court’s admonitions?

   (3) Did the prosecutor provide a reasonable, “good faith” explanation for the
       conduct?

   (4) Was the conduct “clearly erroneous”?

   (5) Was there a legally or factually plausible basis for the conduct despite its
       impropriety?

   (6) Were the prosecutor’s actions leading up to the mistrial consistent with
       inadvertence, lack of judgment, or negligence, or were they intentional?

Ex parte Roberson, 455 S.W.3d 257, 260 (Tex. App.—Fort Worth, pet. ref’d), cert. denied,

136 S. Ct. 490 (2015) (citing Ex parte Wheeler, 203 S.W.3d 317, 323–24 (Tex. Crim.

App. 2006)). We then review the trial court’s decision to grant or deny habeas relief

for an abuse of discretion, considering the evidence in the light most favorable to the

trial court’s ruling. Id. An abuse of discretion occurs when the trial court acts without

reference to any guiding rules or principles such that its action was arbitrary or

unreasonable.    Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)

(defining abuse of discretion). We will uphold the trial court’s judgment if it is correct

on any theory of law applicable to the case. Ex parte Walsh, 530 S.W.3d 774, 778 (Tex.

App.—Fort Worth 2017, no pet.).


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       Ellis focuses on the immediacy of the State’s violation after the motion in

limine was granted to support his argument that the trial court abused its discretion by

denying his application. He argues that the first, second, and sixth Wheeler factors do

not apply because the prosecutor violated the motion in limine during opening

statements, short-circuiting the trial. With regard to the third Wheeler factor, he calls

into question the prosecutor’s explanation that it was an accident and a mistake,

contending, “[I]t was an awfully quick mistake.” With regard to the fourth and fifth

Wheeler factors, Ellis characterizes as “weakly offered” the State’s justification that the

information would have been admitted anyway and calls into question why the State

did not ask the trial court to allow it first or ask for an exception to the limine when it

was granted. Ellis summarizes his argument by claiming, “It’s clear the prosecutor

intended to produce a mistrial,” such that the trial court abused its discretion by

denying his application.

       The State responds that the “active warrants” comment was made at the end of

the prosecutor’s opening statement and that there was no evidence that the State

needed a mistrial to save its case because there was no evidence that the seated jury

was problematic for the State, that the State was not ready for trial or had been denied

a motion for continuance, or that an impediment existed that affected the State’s

ability to prove its case at that time, such as witness unavailability. It further argues

that the prosecutor provided a reasonable “good faith” basis for referring to the active

warrants during the opening statement because he “wanted to fill in how Appellant

                                            6
ended up at the police station to confess because [his] confession to the offense was

important to the narrative [the State] wanted to present during opening statement”

and did not believe that the reference was to an extraneous offense because it was

contextual in nature. And the State argues that not only did it not seek a mistrial but

also that it actively argued against granting one.

       As pointed out by the State, nothing in the record before us indicates that the

prosecutor had any reason to try to goad Ellis into seeking a mistrial at the time that

the “active warrants” statement was made in the second-to-last paragraph of a very

brief opening statement. And at the time the trial court granted the mistrial, Ellis

even acknowledged that the prosecutor “barely said” the words and did not

emphasize them. It seemed apparent to the trial court—and, on this record, to us—

that the prosecutor did not intentionally say “active warrants” in order to poison the

jurors’ minds against Ellis and force him to request a mistrial when the State had been

ready to take the case to trial for almost a year and had Ellis’s confession to the

offense.   Rather, as argued by the prosecutor at the hearing on Ellis’s habeas

application, the prosecutor had not viewed “active warrants” as the same as an actual

extraneous offense and had mentioned it to explain why Ellis was in custody.

Nothing in the prosecutor’s explanation hints at any desire to derail the trial.

       Accordingly, on the record before us, we conclude that the trial court did not

abuse its discretion by denying Ellis’s habeas application, and we affirm the trial

court’s order.

                                             7
                                   /s/ Bill Meier
                                   Bill Meier
                                   Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 20, 2018




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