                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00310-CR


EX PARTE SILVIO ALBERTO
CHAVEZ


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      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      After the trial court granted Appellant Silvio Alberto Chavez’s motion for

mistrial, Chavez filed an application for writ of habeas corpus alleging that further

prosecution was barred by double jeopardy. Specifically, Chavez argued that the

prosecutor engaged in conduct that was intended to provoke him into moving for

a mistrial. The trial court granted the writ, held a hearing, and denied Chavez’s




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       See Tex. R. App. P. 47.4.
application. Chavez now appeals the trial court’s denial of his application. We

will affirm.

                                   II. BACKGROUND

       By information, the State charged Chavez with assault causing bodily

injury to a member of his family or household.        See Tex. Penal Code Ann.

§ 22.01(a) (West Supp. 2013). Chavez pleaded not guilty and elected to have

his case tried before a jury. As the prosecutor questioned the complainant at

trial, the following colloquy took place:

       [Prosecutor]: Okay. When did you or under what circumstances
       did you move out of your parent’s house and get somewhere on
       your own?

       [Complainant]: In September of that year, I believe it was May of
       2009, when he moved into my mom’s house, and in September we
       moved out because that was one of the first times that he --

       [Prosecutor]: Wait a second.

       [Complainant]: Do I continue?

       THE COURT: No. We’re gonna take a break. If the jury will go to
       the jury room while we do something outside your presence. State
       may take their witness into the hall and talk to her.

       After removing the jury, the trial court instructed the prosecutor to explain

to the complainant that she could not discuss extraneous acts. At that point, the

record reflects a pause in the proceedings.

       After the trial court brought the jury back in, and still during the State’s

direct examination of the complainant, the following exchange occurred:

       [Prosecutor]: Why did you look away?


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      [Complainant]: Because I never understood with him, sometimes if I
      looked at him or I dared look him in the eye I would get slapped for
      looking at him in the eye.

      [Defense Counsel]: Objection, Your Honor.

      THE COURT: I know y’all had a break[,] but we did not have a
      break. I'm gonna send you to the jury room . . .

      Outside the presence of the jury, defense counsel objected and requested

that the record reflect that “the witness was admonished in the open courtroom

by the State not to make any reference or allude to any extraneous offenses and

[the complainant] stated she understood.” Defense counsel also moved for a

mistrial. Without ruling on the motion, the trial court admonished the witness by

stating, “You understand what we’re asking of you? Just be very careful.” The

complainant acknowledged that she understood, and the jury was again seated.

      Again, during the State’s direct questioning, the following exchange

occurred:

      [Prosecutor]: What happened after that?

      [Complainant]: He got really angry then. I said, even if I don’t call
      them, they’ll call them. Luis will call them. I said, I’m not the only
      adult here besides yourself now. By then some pushing and I
      remember him grabbing my arms, you know, shaking me, stuff like
      that. He grabbed me again by my hair. And I remember the seat
      was back here at that time. I grabbed whatever I could -- I felt, and I
      told him, I said, I’m tired of you hitting me. And if you keep on I’m
      gonna defend myself because I’m tired of it. And then they’ll call
      911 and then you’ll go to jail. And I’m not going to get you out of it
      this time.




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      Acknowledging that the complainant had “been instructed not to go into

extraneous offenses,” defense counsel again objected and, again outside the

presence of the jury, moved for a mistrial. The trial court denied the request, and

the trial continued.

      During defense counsel’s cross-examination of the complainant, the

following exchange occurred:

      [Defense Counsel]: Did you think he was cheating on you that
      night?

      [Complainant]: No.

      [Defense Counsel]: You didn’t think he was cheating on you?

      [Complainant]: If I answer your question in the form that I want then
      I would go back to other instances and I can’t do that. I wouldn’t
      know how to answer the question.

      [Defense Counsel]: Your Honor, we object.

      The trial court removed the jury, and defense counsel again moved for a

mistrial. Despite the prosecutor’s argument that the complainant’s answers were

vague and that “[o]ther instances could be instances of anything,” the trial court

granted defense counsel’s motion for mistrial.

      At the writ hearing, Chavez called the same prosecutor to the stand. The

prosecutor testified that she had interviewed the complainant on multiple

occasions and had explained to her that she would not be able to “talk about

[extraneous acts] during the course of the trial.” The prosecutor also detailed

how after the complainant’s first alleged reference to extraneous acts occurred,



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the complainant was admonished in court in front of the trial judge and defense

attorney. The prosecutor averred that she had “talked to [the complainant] during

the course of the trial several times about not [talking] about any other

extraneous offenses.” The prosecutor also testified that she did not engage in

conduct intending to provoke Chavez into moving for a mistrial. The prosecutor

testified that she even attempted to use leading questions “aimed at navigating

around those extraneous offenses.”

      After denying Chavez’s application for writ of habeas corpus, the trial court

entered findings of fact and conclusions of law. The trial court specifically found

that the trial court itself had “prophylactically halted” the complainant’s testimony

during the first instance where the complainant “potentially referenced an

extraneous act.” The trial court further found that the second instance of the

complainant’s referencing extraneous acts was a “surprise [to] all parties, coming

without warning.”   The trial court found that after the third instance, defense

counsel noted that the complainant had been instructed not to reference

extraneous acts in his objection. And the trial court found that the fourth instance

in which the complainant referenced extraneous acts was in response to defense

counsel’s questioning.     Ultimately, the trial court found that “[n]one of the

extraneous offense references were caused in any way by the prosecutor” and

that the prosecutor “did not intentionally try to provoke a mistrial but [ ] did the

opposite, posing questions that she believed would navigate around any

extraneous references.” This appeal followed.


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                                  III. DISCUSSION

      The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant from repeated prosecutions for the same offense. United States v.

Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 1079 (1976). A defense-requested

mistrial is jeopardy-barred only when the prosecutorial “conduct giving rise to the

successful motion for a mistrial was intended to provoke [or goad] the defendant

into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 676, 679, 687

n.21, 102 S. Ct. 2083, 2089, 2091, 2095 (1982); Ex parte Lewis, 219 S.W.3d

335, 371 (Tex. Crim. App. 2007) (adopting Oregon v. Kennedy standard).

      An applicant seeking habeas corpus relief must prove his claim by a

preponderance of the evidence.       Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App.), cert. denied, 549 U.S. 1052 (2006).        In reviewing a trial court’s

decision on an application for writ of habeas corpus, we review the facts in the

light most favorable to the trial court’s ruling, and we will uphold the ruling absent

an abuse of discretion. Id.

      Here, viewing the evidence in the light most favorable to the verdict,

defense counsel acknowledged during trial that both the trial court and the

prosecutor had admonished the complainant in open court not to reference

extraneous acts. As to the first three references, the evidence supports the trial

court’s finding that the prosecutor did not pose questions to the complainant

designed to invoke the complainant into testifying about extraneous acts. As to

the fourth instance, the record supports that the complainant was responding to


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defense counsel’s questioning.    Further, even as the trial court declared the

mistrial, the prosecutor attempted to persuade the trial court that a mistrial was

improper. And most importantly, the trial court’s finding that the prosecutor did

not intentionally provoke Chavez into moving for a mistrial is supported by the

record.   We hold that the trial court did not abuse its discretion by denying

Chavez’s application for writ of habeas corpus. See Ex parte Washington, 168

S.W.3d 227, 238–39 (Tex. App.—Fort Worth 2005, no pet.) (concluding that

prosecution did not intentionally provoke mistrial so as to bar retrial when

defense-requested mistrial was prompted by nonresponsive answers of

prosecution’s witnesses and prosecution had instructed witnesses not to

gratuitously mention impermissible evidence); see also Razo v. State, No. 02–

11–00161–CR, 2012 WL 3207271, at *4 (Tex. App.—Fort Worth Aug. 9, 2012,

no pet.) (mem. op., not designated for publication) (holding that evidence

supported that prosecutor did not intentionally provoke witness into making four

references of extraneous acts where prosecutor had instructed witness not to

testify to extraneous acts and prosecutor attempted to persuade trial court that

mistrial was not necessary). We affirm the trial court’s order denying habeas

corpus relief.




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                                 IV. CONCLUSION

      Having determined that the trial court did not abuse its discretion by

denying Chavez’s application for writ of habeas corpus, we affirm the trial court’s

order denying habeas corpus relief.



                                                   /s/ Bill Meier

                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 6, 2014




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