                       PD-0916-15

                    IN THE
       TEXAS COURT OF CRIMINAL APPEALS
                   At Austin
                                                                   AUGUST 6, 2015

                   No. 04-14-00393-CR
              In the Court of Appeals for the
                  Fourth District of Texas
                      At San Antonio

______________________________________________________

               ASEL ABDYGAPPAROVA
                       Appellant
                          v.
                THE STATE OF TEXAS
                       Appellee
______________________________________________________

      PETITION FOR DISCRETIONARY REVIEW
      OF APPELLANT ASEL ABDYGAPPAROVA

______________________________________________________

                                        Shawn Sheffield
                                        State Bar No. 24008020
                                        PO Box 276343
                                        San Antonio, Texas 78227
                                        Tel: (210) 697-9090
                                        Fax; (210) 591-7311
                                        Counsel for Appellant
                                       Table of Contents

                                                                                           Page

Table of Contents    .      .      .        .     .        .    .      .       .       .      i

Statement of the Case       .      .        .     .        .    .      .       .       .      1

Statement of Procedural History . .         .     .        .    .      .       .       .     2

Question Presented .        .      .        .     .        .    .      .       .       .      2

                                 REASON FOR REVIEW

       Asel Abdygapparova’s right to be free from double jeopardy was violated
       by the prosecutions intentional and pervasive misconduct and trial judges
       partiality during the jury trial to the extent that the trial is structurally
       impaired.


Statement of Facts .        .      .        .     .        .    .      .       .       .      3

Argument      .      .      .      .        .     .        .    .      .       .       .      3

Prayer for Relief           .      .        .     .        .    .      .       .       .      6
To The Honorable Court of Criminal Appeals of Texas

STATEMENT REGARDING ORAL ARGUMENT

       Oral argument would not assist this court with determining if the Appellant’s right’s were

violated due to double jeopardy.



                               STATEMENT OF THE CASE

       Appellant Asel Abdygapparova was charged by indictment in Cause No. 2001-

CR-4918A with the offense of capital murder. (CR Vol.1, P.17-20). Ms. Abdygapparova

was previously tried for capital murder and found guilty by a jury and sentenced to life.

This finding was overturned by this court. The 4th Court reversed the conviction,

holding the trial court (175th Judicial District Court), precluded appellant from receiving a

fair trial and violated her due process rights by engaging in ex parte communications with

the prosecutor during the trial. Abdygapparova v State, 243 S.W.3d 191 (Tex.App.-San

Antonio 2007,pet.ref’d). The 4th Court determined that the trial was rife with

prosecutorial misconduct and judicial partiality towards the State was so egregious that

the ends of justice would not permit the verdicts of the jury to stand. The case was

remanded for a new trial. Id.at 210. Ms. Abdygapparova signed a plea agreement with

the trial court. The plea agreement was for a “cap” of 28 years in prison. (CR Vol.1,

p583-587). Appellant also signed the “Trial Court’s Certification of Defendant’s Right to

Appeal.” (CR Vol.1, p.598) The document specifically states that this “is a plea bargain

case but matters were raised by written motion filed and ruled on before trial.” (CR

                                                   1
Vol.1, p 598) There were several motions filed on the appellants’ behalf after the ordered

remand. There were two motions that were ruled on by the trial court. (CR Vol. 1, p 588-

90 and p. 476) The first denial by the trial court was the Applicants’ Writ of Habeas

Corpus and Plea in Bar. (CR Vol.1, p.476) The trial court’s second order of denial

regarded Appellant’s request for dismissal of her court appointed attorney. (CR Vol. 1

p.590)

         A sentencing hearing was held by Judge Rangel. Several witnesses and exhibits

were heard and entered during the hearing. Following the sentencing hearing, the court

assessed the full sentence of 28 years for the negotiated appeal. Appellant’s trial attorney

filed a “Motion to Reconsider” which the court failed to rule upon. The appellant filed a

Notice of Appeal upon a Negotiated Plea. The 4th Court affirmed the finding and plea of

the district court’s finding.

                         STATEMENT OF PROCEDURAL HISTORY

         A panel of the Fourth Court of Appeals reversed the original judgment of the Trial Court.

The Fourth Court remanded the case for a new trial. The case was moved from the 175th District

Court to the 379th District Court. Appellant entered into a plea agreement. Appellant filed a

Notice of Appeal. This counsel filed a appellant’s brief. The Fourth Court of Appeals affirmed

the appeal on June 4, 2015.

                                QUESTION PRESENTED FOR REVIEW

         Whether Asel Abdygapparova’s right to be free from double jeopardy was
         violated by the prosecutions intentional and pervasive misconduct and trial
         judges partiality during the jury trial to the extent that the trial is
         structurally impaired.

                                                     2
                                       REASONS FOR REVIEW

       A. The Court of Appeals has erroneously decided important questions of state and
          federal law that have not been, but should be, settled by the Court.
          Tex.R.App.P.66.3(b)


                 ARGUMENT IN SUPPORT OF REASONS FOR REVIEW

       Appellant was arrested and convicted of capital murder. The appellant was convicted by

a jury in the 175th District Court. Appellant appealed the conviction. The Fourth Court found

that the trial court and prosecutor acted in an impartial and intentional partiality way during the

jury trial. The 4th Court of Appeals reversed the trial court’s decision. The appeals court

determined that the trial was rife with prosecutorial misconduct and trial judges’ failure

to be impartial which infected the integrity of the trial process to such a degree that the

ends of justice would not permit the verdict of the jury to stand. Abdygapparova v. State,

243 S.W.3d 191 (Tex.App.-San Antonio 2007,pet.ref’d)

       By the actions of the Bexar County District Attorney’s Office and the 175th

District Court in the previous jury trial, the appellant was unable to obtain a fair and

impartial trial. Because the right to a fair and impartial judge is fundamental to our

system of justice, a criminal trial court’s primary duty is to see that justice is done by

assuring a fair trial with constitutional and statutory guarantees of due process. U.S.

Const.Amends. V,VI,XIV; Tex Const.art 1Sec 19. The previous jury trial failed to protect

this right. Double jeopardy protection protects a defendant’s valued right to have her trial

completed by the tribunal first assigned. Oregon v. Kennedy, 456 U.S. 667, 673, 102

S.Ct.2083 (1982).

                                                  3
       Ms. Abdygrapprova’s double jeopardy rights were violated by this prosectorial

misconduct and trial court’s judicial overreaching. The State should not have another

opportunity to proceed to trial after acting as it did in the previous jury trial. The State

deprived the Appellant of a fair jury trial, therefor it should not be allowed to given

another opportunity. By the trial court allowing the case to proceed, the court is violating

the appellant’s constitutional fifth amendment rights.


       U.S. CONST. amend V provides that no person “be subject for the same offence to

be twice put in jeopardy of life or limb.” The Fifth Amendment is applied to the states

through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969). In

addition, TEX. CONST. art. I, § 14, contains a similar provision that is conceptually

identical to its federal counterpart. Stephens v. State, 806 S.W.2d 812, 814-15 (Tex.

Crim. App. 1990). In a case tried to a jury, jeopardy attaches when the jury is sworn. Ex

parte Little, 887 S.W.2d 62, 64 (Tex. Crim. App. 1994)(citing Crist v. Bretz, 437 U.S. 28,

35 (1978)). The double jeopardy clause of the Fifth Amendment protects a criminal

defendant from multiple prosecutions for the same offense. U.S. v. Dinitz, 424 U.S. 600,

606, 96 S.Ct. 1075 (1976).       The Texas Constitution provides the same protection in

Article I, Section 14, stating that no person shall be “twice put in jeopardy of life or

liberty, nor shall a person be again put up for trial for the same offense.”


       The Double Jeopardy Clause protects against three different abuses: (1) a second

prosecution for the same offense after an acquittal, (2) a second prosecution for the same


                                                  4
offense after a conviction, and (3) multiple punishments for the same offense. Illinois v.

Vitale, 447 U.S. 410, 415 (1980); Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim.

App. 2003). Ms. Abdygapparova’s claim complains about the second abuse.


       As part of the protection against multiple prosecutions, the Texas Constitution and

Fifth Amendment protects a defendant’s valued right to have his or her trial completed by

the tribunal first assigned. Oregon v. Kennedy, 456 U.S. 667,673, 102 S.Ct.2083 (1982).

This also protects a defendant from multiple attempts by the government, with its vast

resources, “to convict an individual for an alleged offense, thereby subjecting her to

embarrassment, expense and ordeal and compelling her to live in a continuing state of

anxiety and insecurity.” Green v. U.S., 355 U.S. 184, 187, 78 S.Ct.221, 2L.Ed.2d 199

(1957). Appellant, Ms. Abdygapparova has been subjected to this ordeal.


       As this Court is aware, double jeopardy will bar further prosecution in some

circumstances. One of these circumstances can be found in the appellant’s case. The

circumstance that should be reviewed here includes intentional and pervasive misconduct

on the part of the prosecution to the extent that the trial is structurally impaired. Retrial

would be barred when the prosecutor engages in improper conduct that is not merely the

result of legal error, but constitutes intentional conduct that the prosecutor knows to be

improper and prejudicial and which he pursues for any improper purpose with

indifference to a significant resulting danger of mistrial or reversal and the conduct

causes prejudice to the defendant which cannot be cured by means short of a mistrial.


                                             5
Pool v. Superior Court, 139 Ariz.98, 677 (1984). However, in regard the appellants case,

there was not a mistrial. The previous trial was completed. As the appellate court found

in the previous appeal, the previous jury trial was clearly a case in which the absence of

an impartial trial judge on the bench infected the entire trial process, robbing the

appellant of her protections and undermining the ability of the criminal trial to reliably

serve its functions as a vehicle for the determination of guilt or innocence. Neder v.

United States, 527 U.S. 1, 8(1999).


       As the 4th Court found in the first appeal, these actions of prosecutorial misconduct

and judicial partiality are prevalent throughout the previous trial. There was improper ex

parte communication between the assistant district attorney and trial judge. A mistrial

should have been granted in the previous jury trial, however, the actions/misdeeds of the

state and trial judge were not found until after the trial. These actions by the State and

the trial judge were of their own doing. The appellant did not have any part or gave any

cause of these actions. The state should not be granted another opportunity to prosecute

Ms. Agbydapparova. The improper actions by the state and trial judge should not expose

this appellant to multiple prosecutions.


       This court should determine if two separate prosecutions for the charge of Murder

after prosecutorial misconduct and judicial partiality violates double jeopardy.        The

double jeopardy provision was intended to prevent the actions that the state and trial

judge used during the previous jury trial.


                                             6
                                   PRAYER FOR RELIEF

       Appellant respectfully prays that this Honorable Court grant her Petition for

Discretionary Review and reverse the decision of the 4th Court of Appeals and dismiss the

charges against the appellant.

                                             Respectfully submitted,



                                             /s/Shawn Sheffield_____________
                                             Shawn Sheffield
                                             PO Box 276343
                                             San Antonio, Texas 78227
                                             Ph 210-697-9090
                                             Fx 210-591-7311
                                             State Bar No. 24008020
                                             Counsel for Asel Abdygapprova
