                                 NUMBER 13-09-00219-CR

                                 COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


                  EX PARTE: JOSE DAVID FLORES CEDILLO


                     On appeal from the 275th District Court
                           of Hidalgo County, Texas.


                             MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Benavides
                Memorandum Opinion by Justice Rodriguez

      This is an interlocutory appeal from a pre-trial application for writ of habeas corpus

denied by the trial court. By one issue,1 relator Jose David Flores Cedillo complains that


      1
       In his statem ent of issues, Cedillo outlines the following five argum ents:

      Does the State act intentionally when it was ordered three tim es not to m ention extraneous
      offenses, and yet does so during opening statem ent, m inutes after the last order?

      Can a trial court avoid granting habeas relief, m erely based on the State's self-serving denials
      to cause a m istrial (especially when the State cannot substantively explain its conduct)?

      Does an order need to be in writing in order to be effective?
the trial court erred in denying his application because double jeopardy barred his retrial.

We affirm.

                                           I. BACKGROUND

        Cedillo was indicted for injury to a child and murder. Our review of the record

reveals that, in the time between indictment and trial, an issue arose over certain alleged

extraneous offenses committed by Cedillo. Cedillo filed a motion in limine, in which he

sought to prevent the State from introducing evidence of "extraneous crime[s] or

misconduct." Although we find no ruling in the record by the trial court on Cedillo's motion

in limine, the trial court twice instructed the prosecutor, on the record in pre-trial

proceedings, to refrain from delving into extraneous offenses without first approaching the

bench for a ruling.

        Cedillo pleaded not guilty to both indicted counts, and the case proceeded to a jury

trial. During his opening statement, the prosecutor told the jury that:

                [T]here was some talk about self-defense at voir dire which wasn't
        evidence. As the Judge told you before and what I say now isn't evidence
        nor what the Defense counsel is going to tell you later on, which is probably
        going to be around the same theory of self-defense, is not evidence. That
        is not evidence either.

                ....

              Now, what is the evidence going to show? The evidence is going to
        show that [the victim] was a hard-working lady and she was honest. She
        was good. She was not violent and she was decent. That's what the
        evidence is going to show.


        Does the concept of bully ipso facto im plicate extraneous offenses?

        For purposes of crim inal law, does a prosecutor's opening statem ent im plicate the double
        jeopardy clause?

All five are properly characterized as sub-issues of the general double jeopardy issue we address in our
opinion. See T EX . R. A PP . P. 47.1.

                                                    2
               The evidence is going to show that this Defendant, who had a
        reputation for being a bully, bad mouth and —

At that point, Cedillo objected that the prosecutor's statement went to Cedillo's reputation

and asked for a hearing outside the presence of the jury. After the jury left the courtroom,

Cedillo moved for a mistrial on the basis that the prosecutor's statement that Cedillo has

a reputation for being a bully was a reference to extraneous conduct and bad acts and was

therefore in violation of the motion in limine.2 The trial court granted the motion for mistrial

and dismissed the jury.

        Thereafter, Cedillo filed an application for writ of habeas corpus, arguing that, as a

result of the prosecutor's comment during opening statement, his retrial was barred by

double jeopardy. The trial court held a hearing on the application. At the hearing, the

prosecutor testified that he could not recall any express rulings on Cedillo's motion in limine

but that he remembered being instructed by the trial court to not get into extraneous

offenses without first approaching the bench. The prosecutor further testified that he did

not believe the judge would grant a mistrial if he used the word bully; that he was pleased

with the jury that was chosen for the trial; that he believed his comment concerned only

character traits and reputation rather than the prohibited extraneous offenses evidence;

and that he did not make the bully comment because he wanted a mistrial in order to "get

rid" of the case.

        Cedillo's trial counsel also testified at the hearing. He stated that the trial court had

orally granted the motion in limine during an off-the-record conference in chambers.

        2
           Cedillo also com plained that the com m ent violated the State's notice of intent to use extraneous
offenses. However, we find no such notice in the record before us that was on file with the court at the tim e
of trial. The only such notice by the State in the record was filed three days after the m istrial was granted by
the trial court.

                                                       3
Cedillo's counsel testified that, in addition to the two on-record instructions to the

prosecutor, the trial judge also instructed the prosecutor at the in-chambers conference to

avoid extraneous offenses unless he first approached the bench. Counsel further stated

that he believed that the prosecutor's violation of the trial court's "numerous" instructions

on the matter was evidence that his conduct was intentional. The trial court issued an

order denying Cedillo's application for writ of habeas corpus, and this interlocutory appeal

ensued. See Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (holding that

"denial of relief on a pretrial writ of habeas corpus may be appealed immediately").

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       "In a habeas corpus hearing, the burden of proof is on the petitioner." State v.

Cabrera, 24 S.W.3d 528, 530 (Tex. App.–Corpus Christi 2000, pet. ref'd). We review a trial

court's decision to grant or deny a writ of habeas corpus for abuse of discretion. Ex parte

Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). In reviewing the facts, we view the

evidence in the light most favorable to the ruling. Cabrera, 24 S.W.3d at 530.

       The Double Jeopardy Clauses of the United States and Texas Constitutions provide

that no person shall twice be put in jeopardy of life or liberty for the same offense. See

U.S. CONST . amend V.; TEX . CONST . art. 1, § 14. If a double jeopardy complaint is made

on the basis of prosecutorial misconduct that caused a mistrial, we review the prosecutor's

actions under the standard enunciated in Oregon v. Kennedy, 456 U.S. 667 (1982). See

Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. 2007). "[T]he circumstances under which such

a defendant may invoke the bar of double jeopardy in a second effort to try him are limited

to those cases in which the conduct giving rise to the successful motion for a mistrial was



                                             4
intended to provoke the defendant into moving for a mistrial." Kennedy, 456 U.S. at 679.

In other words, relief is appropriate "[o]nly where the governmental conduct in question

[was] intended to 'goad' the defendant into" so moving. Id. at 676.

       In determining whether the prosecutor intended to provoke or goad the defendant

into moving for a mistrial, we look to the objective facts and circumstances surrounding the

prosecutor's conduct. Ex parte Wheeler, 203 S.W.3d at 323; see Kennedy, 456 U.S. at

675. To that end, the following is a non-exclusive list of objective factors we consider in

making our determination:

       1)     Was the misconduct a reaction to abort a trial that was “going badly
              for the State?” In other words, at the time that the prosecutor acted,
              did it reasonably appear that the defendant would likely obtain an
              acquittal?

       2)     Was the misconduct repeated despite admonitions from the trial
              court?

       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 ultimate impropriety?

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

Ex parte Wheeler, 203 S.W.3d at 323-24.

                                      III. DISCUSSION

       By one issue, Cedillo complains that the trial court erred in denying his application

for writ of habeas corpus because double jeopardy barred his retrial after the prosecutor

commented during his opening statement that Cedillo is a bully. Cedillo points to the trial


                                             5
court's instructions to the prosecutor not to mention extraneous offenses without first

approaching the bench and contends that the prosecutor's bully comment violated those

instructions. Citing a concurring opinion in Ex parte Masonheimer, Cedillo argues that "the

objective facts and circumstances clearly demonstrate that the prosecutor intentionally

acted improperly." See 220 S.W.3d 494, 509-10 (Tex. Crim. App. 2007) (Meyers, J.,

concurring) ("My reading of Oregon v. Kennedy is that if the State's intentional actions

goad the defendant into requesting a mistrial, then retrial is jeopardy-barred. Rather than

considering whether the State actually wanted a mistrial, we look to see if the improper

conduct of the State was intentional."). However, Justice Meyers's concurring opinion is

not the controlling law on the issue before us. Rather, Texas law is clear that the burden

was on Cedillo to prove that, by his comment, the prosecutor intended to provoke or goad

Cedillo into moving for a mistrial. See Ex parte Lewis, 219 S.W.3d at 371; Cabrera, 24

S.W.3d at 530. Cedillo did not meet his burden.

       Here, the prosecutor testified at the hearing on Cedillo's application that he did not

believe the judge would grant a mistrial because he referred to Cedillo's reputation as a

bully. He further testified that he "liked" the jury that was chosen and that he did not make

the comment to cause a mistrial and "get rid" of the case. See Ex parte Wheeler, 203

S.W.3d at 324 (holding that one factor in our determination is whether the trial was "going

badly" for the State). Even were we to concede that the prosecutor violated the trial court's

instructions regarding the mentioning of extraneous offenses and/or conduct and that his

comment could be characterized as misconduct, that misconduct was not repeated. See

id. Moreover, the prosecutor provided a "good faith" and "legally and factually plausible"

explanation for his comment when he testified at the hearing on Cedillo's application that


                                             6
he believed the bully comment went to character and reputation and not to extraneous

offenses. See id.; see also TEX . R. EVID . 404(a), (b) (providing distinct rules for character

and character trait evidence versus evidence of extraneous offenses or bad acts).

Similarly, the prosecutor's comment was arguably not "clearly erroneous" because his

reference to Cedillo's reputation did not necessarily contravene the motion in limine or the

trial court's instructions regarding extraneous offenses and other bad acts, none of which

mentioned or referred to reputation or character trait evidence. See Ex parte Wheeler, 203

S.W.3d at 324.

        In sum, the objective facts and circumstances demonstrate that the prosecutor did

not intend to goad Cedillo into moving for a mistrial. See Kennedy, 456 U.S. at 675.

Viewing the evidence in the light most favorable to the ruling, we conclude that the trial

court did not abuse its discretion in denying Cedillo's application for writ of habeas corpus.3

See Ex parte Wheeler, 203 S.W.3d at 324; Cabrera, 24 S.W.3d at 530. Cedillo's sole

issue is overruled.

                                              IV. CONCLUSION

        The order of the trial court denying Cedillo's writ of habeas corpus is affirmed.


                                                                      NELDA V. RODRIGUEZ
                                                                      Justice
Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
27th day of May, 2010.



        3
          Having concluded that the trial court correctly denied Cedillo's application on the basis that he failed
to prove intentional goading by the prosecutor, see Ex parte Lewis, 219 S.W .3d 335, 371 (Tex. 2007), we
need not reach Cedillo's additional sub-issues outlined in our previous footnote. See T EX . R. A PP . P. 47.1.

                                                        7
