                              NUMBER 13-16-00242-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


RICHARD HENDERSON,                                                                        Appellant,

                                                v.

THE STATE OF TEXAS,                                                                       Appellee.


                        On appeal from the 94th District Court
                             of Nueces County, Texas.


                             MEMORANDUM OPINION
                 Before Justices Longoria, Perkes, and Valdez                         1

                    Memorandum Opinion by Justice Valdez

        Appellant Richard Henderson was indicted for armed robbery. See TEX. PENAL



        1 Retired Thirteenth Court of Appeals Chief Justice Rogelio Valdez, assigned to this Court by the

Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN.
§ 74.003 (West, Westlaw through 2017 1st C.S.).
CODE § 29.03 (West, Westlaw through 2017 1st C.S.). A jury was convened, and after

two days of testimony, the trial court granted Henderson’s request for a mistrial. The

State recharged Henderson with felony theft by information and alleged he was a habitual

felony offender. Act of June 7, 1995, 74th Leg., R.S., ch. 318, § 9, 1995 Tex. Gen. Laws

2734, 2738 (amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(4)(D)

(West, Westlaw through 2017 1st C.S.)); TEX. PENAL CODE ANN. 12.425(b) (West,

Westlaw through 2017 1st C.S.). Henderson filed a writ of habeas corpus arguing double

jeopardy prevented the subsequent prosecution for theft, which the trial court denied.

Pursuant to a plea agreement, Henderson pleaded guilty to the offense, and the trial court

sentenced him to ten years confinement. By three issues, Henderson argues that: (1)

the trial court erroneously ordered a mistrial sua sponte, (2) the State engaged in

prosecutorial misconduct, and (3) he received ineffective assistance of counsel. We

affirm.

                                     I.     BACKGROUND

          Javier Santos was working as a loss prevention officer at Sears in Corpus Christi,

Texas. His testimony provided that on October 13, 2014, he observed Henderson remove

a security device from a tool bag and proceed to exit Sears without paying for the

merchandise. When Santos and another loss prevention officer confronted Henderson

in the parking lot, Henderson drew an object that appeared to be a revolver. The loss

prevention officers hid behind some pillars while Henderson yelled obscenities and drove

away with the merchandise.

          On May 21, 2015, Henderson was indicted for armed robbery as a habitual felony

offender, and the case went to trial on December 8, 2015. See id. §§ 29.03; 12.42(d).



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Prior to opening statements, the trial court ruled that the State would be allowed to present

evidence that Henderson stole merchandise from Sears on previous occasions. During

its opening statement, the State advised the jury it would hear evidence of Henderson

making “statements trying to get him anything but an aggravated robbery charge.”

       The State called Corpus Christi police officer Crispin Mendez as a witness. When

the State questioned Mendez about a conversation he had with Henderson, Mendez

testified that Henderson said he could not “go to back to prison.” Henderson objected,

and the trial court recessed. When the trial court reconvened, Henderson moved for a

mistrial, which the trial court granted.

       Approximately two months later, Henderson filed a writ of habeas corpus

complaining that the trial court declared a mistrial sua sponte when lesser sanctions

should have been administered. Alternatively, he argued the mistrial was a result of

prosecutorial misconduct. When the trial court asked Henderson’s counsel whether he

asked for a mistrial rather than the trial court ordering one sua sponte, counsel responded,

“I asked for a limine instruction and a mistrial.” The trial court denied the writ.

       The State moved to dismiss Henderson’s indictment for aggravated robbery on

April 4, 2016 and recharged him by information with felony theft as a habitual felony

offender. See id. §§ 31.03(e)(4)(d); 12.425(b). Pursuant to a plea agreement, Henderson

pleaded guilty to the offense, and the trial court sentenced him to ten years’ confinement.

This appeal followed.

                                  II.      DOUBLE JEOPARDY

       By his first issue, Henderson contends that his subsequent prosecution on April 4,

2016, for theft violates the Fifth Amendment Double Jeopardy Clause. See U.S. CONST.



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amend. V. Specifically, Henderson claims “the trial court determined to grant a mistrial

sua sponte.”      In response, the State asserts the trial court granted a mistrial at

Henderson’s request. Henderson concedes that “[o]n the face of the record, it appears

defense counsel asked for a mistrial before the court ordered it”; however, the trial court

“had already stated in chambers his decision to declare a mistrial.”2

A.    Applicable Law

      The Double Jeopardy Clause commands that “no person shall be subject for the

same offence to be twice put in jeopardy of life or limb.” Id. The clause prohibits the

State from repeatedly attempting to convict a defendant of an offense, thereby “subjecting

him to embarrassment, expense and ordeal and compelling him to live in a continuing

state of anxiety and insecurity, as well as enhancing the possibility that even though

innocent he may be found guilty.” Blueford v. Arkansas, 132 S. Ct. 2044, 2050 (2012).

When a jury is empaneled and sworn, jeopardy attaches. Hill v. State, 90 S.W.3d 308,

313 (Tex. Crim. App. 2002). When jeopardy attaches, a mistrial declared over the

defendant’s objection, ordinarily bars further prosecution for the same offense. Ex parte

Garza, 337 S.W.3d 903, 909 (Tex. Crim. App. 2011). However, double jeopardy does

not bar the subsequent prosecution of the same offense when a mistrial is declared either

with the defendant’s consent or when it arises from a manifest necessity. Hill, 90 S.W.3d

at 313.

B.    Henderson Requested a Mistrial

      On December 9, 2015, the following exchange occurred in front of the jury:

      [State]:                 Now, after talking about the knife, do you remember
                               talking, or [Henderson] talking about anything else?


      2   No record was made of the in-chambers discussion.

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      [Mendez]:            Yeah, talking about the knife, I told him I liked his knife,
                           the way it was shaped like a gun. And then he just
                           wanted to know that if there was anything I could do to
                           help him.

      [State]:             Okay.

      [Mendez]:            And his thing was he wouldn’t mind going out and
                           getting dope or making cases for us. He just didn’t
                           want to have – you know, he goes, “I can’t go back to
                           prison. I can’t do time in prison.” And so –

      [Defense Counsel]: Objection, Your Honor.

      [Court]:             Sustained.

      [State]:             Okay. What was his main –

      [Defense Counsel]: I move –

      [Court]:             Okay, let’s – let’s take a break. Yeah all right. Let’s
                           take a break.

After a recess, Henderson moved for a jury instruction and a mistrial:

      [Defense Counsel]: I already objected and –

      [Court]:             You objected.

      [Defense Counsel]: I need to move for a jury instruction and move – move
                         for a mistrial.

      [State]:             And I would ask that it be struck from the record and
                           that the jury be asked to disregard it, instead of a
                           mistrial at this point.

      [Court]:             I just don’t think – I just think it’s too prejudicial. I think
                           I have to declare a mistrial because the prior came out
                           . . . . Okay, all right. Well, I’ll declare a mistrial. Give
                           them resets.

      Henderson expressly moved for a jury instruction and a mistrial.                 Although

Henderson argues that the trial court sua sponte ordered a mistrial, the record shows that

the trial court granted the mistrial at Henderson’s request—the underlying basis of which

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was the prejudicial effect of Henderson’s prior criminal offense. Moreover, at the writ of

habeas corpus hearing on February 18, 2016, the trial court asked Henderson whether

Henderson requested a mistrial. Henderson admitted that he asked the trial court for a

mistrial: “When we came back on the record, I asked for a limine instruction and a mistrial

to give [the trial court] options.” Because the trial court granted a mistrial at Henderson’s

request, he cannot now argue that the trial court sua sponte ordered a mistrial. See Ex

parte Wheeler, 203 S.W.3d 317, 322 (Tex. Crim. App. 2006) (holding that if a defendant

requests a mistrial, double jeopardy normally does not bar reprosecution). Therefore,

double jeopardy did not attach. See Hill, 90 S.W.3d at 313. We overrule Henderson’s

first issue.

C.     Prosecutorial Misconduct

       By his second issue, Henderson argues that double jeopardy attaches because

the mistrial was a result of the State’s misconduct as well as “governmental misconduct”

by “agents of the State.”

       1.      Applicable Law

       Absent exceptional circumstances that show the prosecutor intentionally provoked

a mistrial, the Double Jeopardy Clause is not violated if the trial ends prematurely.

Pierson v. State, 426 S.W.3d 763, 740 (Tex. Crim. App. 2014). A retrial may be barred

by double jeopardy, however, if the defendant presents objective facts and circumstances

to demonstrate that the prosecutor’s misconduct in the case occurred because the

prosecutor “intended to ‘goad’ the defendant into moving for a mistrial[.]” Oregon v.

Kennedy, 456 U.S. 667, 679 (1982). In a hearing on an application seeking pretrial

habeas relief, the defendant bears the burden of proving his double jeopardy claim by a



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preponderance of the evidence. Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—

San Antonio 2011, no pet.). When the defendant is the party who requested the mistrial,

as is the case here, the record must show the State intentionally provoked the defendant

into requesting the mistrial. See Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim.

App. 2005). The Court of Criminal Appeals has provided the following nonexclusive list

of factors for courts to consider:

       (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 or reckless misconduct?

Ex parte Wheeler, 203 S.W.3d 317, 323–24 (Tex. Crim. App. 2006). These factors are

not exclusive. Id. at 323.

       2.     Prosecutorial Misconduct

       At the writ of habeas corpus hearing, although Henderson bore the burden of proof

on his application, he called no witnesses. See Ex parte Chandler, 182 S.W.3d at 353

n.2. Henderson merely argued the State committed prosecutorial misconduct by going

outside the scope of Mendez’s testimony to elicit testimony about Henderson’s previous

conviction in violation of a motion in limine. However, the State did not violate the motion



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in liminie; it was the witness that inadvertently went beyond the scope of the State’s

question. The State testified that it was attempting to elicit information about Henderson

seeking to cooperate in exchange for reduced charges, which was relevant to establish

Henderson’s admission of guilt. Therefore, the State provided a reasonable good faith

explanation for its line of questioning, and there was a plausible basis for the conduct.

See Ex parte Wheeler, 203 S.W.3d at 323–24. Moreover, the witness did not repeat the

complained-of comment, nor did the trial court admonish the witness. Id.

       According to Henderson, “statements made in plea negotiations are inadmissible

when they fail to lead to a plea agreement or when the agreement is later withdrawn.”

While Henderson is correct in that statements made during plea negotiations are

inadmissible, the complained of statement was not made while Henderson was engaged

in a plea negotiation. Mendez, acting in his role as a police officer, was not engaging in

a plea agreement, and therefore, the statement was not part of plea discussions. See

TEX. R. EVID. 410(b) (providing that a statement made during plea discussions with an

attorney is inadmissible if the discussion did not result in a guilty or nolo contendere plea

or resulted in a later withdrawn guilty or nolo contendere plea); see also Abdel–Sater v.

State, 852 S.W.2d 671, 673 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d (holding

that appellant’s statements to a police officer were not part of plea negotiations).

Therefore, we conclude that the State did not intend to engage in an objectionable line of

questioning. See Ex parte Wheeler, 203 S.W.3d at 323–24.

       3.     Governmental Misconduct

       Next, Henderson claims that the mistrial was the result of State misconduct

because “law enforcement officers are no less agents of the State of Texas than are



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prosecuting attorneys.” However, the State’s witness never testified that he was assigned

to or worked under the direction of the District Attorney’s Office. See State v. Rushing,

__ S.W.3d __, __, No. 09-16-00423-CR, 2017 WL 4182316, at *7 (Tex. App.—Beaumont

2017, pet. ref’d) (refusing to find police misconduct in a double jeopardy analysis could

be attributed to the State’s conduct). Moreover, there was no evidence before the trial

court showing the State had notice that its witness might mention Henderson’s previous

offense. By contrast, the record reflects the State previously instructed Mendez not to

discuss Henderson’s prior offense, and Mendez apologized for inadvertently commenting

on it: “Yeah, we talked about not bringing up, you know, what he was arrested for, this

and that, and I just was thinking about [my] conversation with [Henderson] and what we

had said, and [the prior] just came out. And I was like – as soon as I said it, I know it was

wrong [sic].” 3

        While we certainly cannot condone any violation of a motion in limine by any

witness, we agree with the trial court that the testimony was inadvertent, as acknowledged

at the time by Mendez, the State, and the trial judge. See Ex parte Washington, 168

S.W.3d 227, 237–38 (Tex. App.—Fort Worth 2005, no pet.) (refusing to attribute the

witness’s conduct to the prosecution for double jeopardy purposes where the State had

no advance notice the witness intended to provide improper testimony about the

defendant’s extraneous offenses). Therefore, we conclude Henderson did not meet his

burden of establishing that manifestly improper prosecutorial misconduct provoked the

request for a mistrial or that the State engaged in that conduct with the intent to goad

Henderson into requesting a mistrial. See id. at 239.                      Accordingly, we hold these


        3 In addition, the State testified that it intended to ask its witness to “confirm that we talked about
not getting into that and it was nothing intentional . . . on either of our part[s].”

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comments do not constitute a basis for barring retrial under double jeopardy principles.

See id. We overrule his second issue.

                        III.     INEFFECTIVE ASSISTANCE OF COUNSEL

        In his final issue, Henderson contends that he did not receive effective assistance

of counsel because he was “coerced” to plead guilty to a “fatally deficient” information “as

it did not contain any enhancement allegations that would allow [Henderson’s] alleged

Class B misdemeanor theft to be enhanced to a State Jail Felony.” 4 However, the record

reveals that Henderson was charged with a state jail felony, not a Class B Misdemeanor.

See TEX. CODE CRIM. PROC. ANN. 1.141 (West, Westlaw through 2017 1st C.S.) (“A person

represented by legal counsel may in open court or by written instrument voluntarily waive

the right to be accused by indictment of any offense other than a capital felony. On waiver

as provided in this article, the accused shall be charged by information.”).

A.      Standard of Review

        Henderson shouldered the burden to establish by a preponderance of the evidence

that: (1) trial counsel performed deficiently; and (2) counsel’s deficient performance

prejudiced his defense. See Strickland v. Washington, 466 U.S. 664, 668 (1984); see

also Pina v. State, 127 S.W.3d 68, 72 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

Judicial review of counsel’s performance is highly deferential, and ineffective assistance

will be found only if Henderson is able to overcome the strong presumption that his


        4  Contrary to the ineffective assistance of counsel claim, Henderson made the following statement
to the trial court:

        And I’d also like to do something else that’s unusual here and that’s to thank my court-
        appointed attorney. You don’t see too many guys standing up here going to prison thanking
        their lawyers, but I’d like to thank [my attorney]. If I had had a million bucks, I wouldn’t
        have wanted a different attorney. In all my life, I’ve never been represented more
        passionately by a paid or a court-appointed attorney, and I believe the Court will stipulate
        I’ve known a few attorneys.

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counsel’s conduct fell within the wide range of reasonable, professional assistance. See

Strickland, 466 U.S. at 668. In evaluating trial counsel’s performance, we presume

counsel’s conduct was motivated by sound trial strategy. See Mata v. State, 226 S.W.3d

425, 431 (Tex. Crim. App. 2007). The record must affirmatively demonstrate trial

counsel’s alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App.

2017). When the record is silent concerning the reasons for trial counsel’s actions, we

do not engage in speculation to find ineffective assistance of counsel. Gamble v. State,

916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). “The fact that another

attorney might have pursued a different course of action or tried the case differently will

not support a finding of ineffective assistance of counsel.” De Los Santos v. State, 219

S.W.3d 71, 75 (Tex. App.—San Antonio 2006, no pet.).

B.     Discussion

       At the time Henderson was charged, the Texas Penal Code provided that an

offense under section 31.03 was a state jail felony if the value of the property was less

than $1,500 and the defendant had previously been convicted of any grade of theft at

least twice. Act of June 7, 1995, 74th Leg., R.S., ch. 318, § 9, 1995 Tex. Gen. Laws

2734, 2738 (amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(4)(D)

(West, Westlaw through 2017 1st C.S.)). Here, the felony information filed by the State

alleged, in relevant part, that Henderson previously had been convicted of theft on

December 5, 2005 and March 20, 2006 and listed the cause numbers of the previous

convictions and court in which he was convicted. Thus, we disagree with Henderson that

it was “impossible to discern what those [prior] misdemeanor convictions” were such that

the felony information was fatally improper on its face.        Accordingly, he has not



                                            11
established that but for his counsel’s failure to move to quash or otherwise object to the

indictment, the outcome of his trial would have been different. Straight v. State, 515

S.W.3d 553, 570 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). We overrule his last

issue.

                                    IV.    CONCLUSION

         Having overruled Henderson’s issues, we affirm the trial court’s judgment.



                                                        ROGELIO VALDEZ,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of April, 2019.




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