Opinion filed April 12, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-17-00207-CR
                                   __________

                       EX PARTE RAMON QUIROGA


                     On Appeal from the 244th District Court
                               Ector County, Texas
                         Trial Court Cause No. C-40,472

                      MEMORANDUM OPINION
       Ramon Quiroga stands charged by indictment with the offense of continuous
sexual abuse of a young child. A previous jury trial in this cause resulted in a
mistrial. Subsequent to the mistrial, Quiroga filed a pretrial application for writ of
habeas corpus in which he sought to have the indictment dismissed on double
jeopardy grounds. The trial court held a hearing and denied the relief requested by
Quiroga. We affirm.
       In a single issue on appeal, Quiroga contends that the trial court erred when it
denied relief because the prosecutor had goaded Quiroga into requesting a mistrial
during the initial trial of this cause. If the granting of a mistrial at the defendant’s
request is based upon the conduct of the prosecutor, the Fifth Amendment guarantee
against double jeopardy bars retrial only when it has been 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) (quoting
Oregon v. Kennedy, 456 U.S. 667, 679 (1982)) (adopting the Oregon v. Kennedy
standard as the proper rule in Texas). Here, the trial court found that the prosecutor
“did not intend to cause a mistrial” and that the prosecutor’s comments and conduct
“were not intended to ‘goad’ the Defendant into moving for a mistrial.”
      In reviewing the trial court’s decision in a habeas corpus appeal, we review
the facts in the light most favorable to the trial court’s ruling and uphold that ruling
absent an abuse of discretion. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim.
App. 1999) (citing Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)). We
must afford almost total deference to a trial court’s determination of historical facts
and also to mixed questions of law and fact when the resolution of those questions
turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We
review de novo any mixed questions of law and fact that do not depend upon
credibility and demeanor. Martin, 6 S.W.3d at 526; Guzman, 955 S.W.2d at 89.
      During the trial that ended in a mistrial, defense counsel showed a handwritten
letter to the victim and to the victim’s grandmother. The letter was allegedly written
by the victim to Quiroga but was not admitted into evidence at trial because the
victim denied that she had written it and the grandmother denied that the handwriting
was the victim’s. Although the letter was not admitted into evidence because it could
not be authenticated by the witnesses at trial, defense counsel addressed it in his
closing argument. In response to defense counsel’s argument, the prosecutor argued:
“Members of the jury, the trial didn’t go the way he thought, that evidence didn’t


                                           2
come in that he thought was going to impeach the charge of that 11-year-old girl on
a forged document made - - .” At that point, defense counsel objected; shortly
thereafter, he moved for a mistrial. Defense counsel complained that the prosecutor
had not only accused him of lying at the start of the prosecutor’s closing argument
but had also implied that defense counsel “had something to do with forging a
document.” The trial court granted the defendant’s request for a mistrial based on
the State’s “highly inflammatory and prejudicial” argument.
        The attorney that represented Quiroga during the trial testified at the hearing
on Quiroga’s request for habeas corpus relief. He testified that he did not believe
that the prosecutor was trying to get the defense to move for a mistrial by referring
to the letter as a forgery. The prosecutor testified that he had not intended to cause
a mistrial. After the habeas hearing, the trial court found that the prosecutor’s
misconduct was not intended to provoke the defendant into moving for a mistrial.
We note that the same trial judge that granted the mistrial also issued the findings of
fact and conclusions of law with respect to Quiroga’s request for habeas corpus
relief. The trial court’s findings are supported by the record. Accordingly, Quiroga
is not entitled to habeas corpus relief on double jeopardy grounds. See Kennedy,
456 U.S. at 679. Quiroga’s sole issue on appeal is overruled.
        We affirm the order of the trial court.


                                                                   JIM R. WRIGHT
April 12, 2018                                                     SENIOR CHIEF JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1
        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


                                                      3
