                                 IN THE
                         TENTH COURT OF APPEALS

                                  No. 10-08-00189-CR

                 EX PARTE ANTHONY CHARLES GRAVES


                           From the 21st District Court
                             Burleson County, Texas
                             Trial Court No. 11136-B


                                      OPINION


    Graves appeals the habeas court’s denial of relief on the merits of Graves’s pretrial

writ of habeas corpus in Graves’s prosecution for capital murder. See TEX. PENAL CODE

ANN. § 19.03(a) (Vernon Supp. 2007); TEX. CODE CRIM. PROC. ANN. arts. 11.01, 11.06,

11.08 (Vernon 2005). We affirm.

    In two issues, Graves contends that the habeas court erred in denying Graves relief.

Graves’s first issue is premised on double-jeopardy, and his second on speedy-trial

grounds.

    “An appellate court reviewing a trial court’s ruling on a habeas claim must review

the record evidence in the light most favorable to the trial court’s ruling and must

uphold that ruling absent an abuse of discretion.” Kniatt v. State, 206 S.W.3d 657, 664

(Tex. Crim. App.), cert. denied, 127 S. Ct. 667 (2006); accord Ex parte Dowdle, 165 Tex.
Crim. 536, 539, 309 S.W.2d 458, 460 (1958). “It is the applicant’s obligation to provide a

sufficient record that supports his factual allegations with proof by a preponderance of

the evidence.” Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) (citing Ex

parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995)); accord Ex parte Peterson, 117

S.W.3d 804, 818 (Tex. Crim. App. 2003) (double jeopardy); Ex parte Adams, 768 S.W.2d

281, 287-88 (Tex. Crim. App. 1989); see Kniatt at 664; Ex parte Morgan, 412 S.W.2d 657,

659 (Tex. Crim. App. 1967).

     On Graves’s statement of the facts, his conviction was “tainted by recantations of

the State’s so-called ‘star witness,’ which were never disclosed to Mr. Graves or his

attorneys, perjured testimony elicited by the prosecutor and many other egregious acts

of misconduct by the State.”1 (Br. at 3 (citing generally Graves v. Dretke, 442 F.3d 334

(5th Cir. 2006) (orig. proceeding)).) The Fifth Circuit Court of Appeals ordered the

federal district court “to grant” Graves’s “writ of habeas corpus unless the state

proceeds to retry” Graves “within a reasonable time.” Dretke, 442 F.3d at 345.

     1.       Double Jeopardy. In Graves’s first issue, he contends that his “protection from

double jeopardy [is] infringed by a retrial for the same offense when the first conviction

was reversed on the basis of Brady [v. Maryland] for intentional prosecutorial

misconduct.” (Br. at 3 (citing Brady v. Maryland, 373 U.S. 83 (1963)).)

     Brady v. Maryland holds that “the suppression by the prosecution of evidence



          No record evidence before the habeas court supports Graves’s arguments. Graves attached to
          1

his petition deposition testimony recanting the trial testimony of one State’s witness, deceased; and an
affidavit concerning a witness, also deceased, who Graves argues could impeach another State’s witness.
We have, nonetheless, attempted to address Graves’s ground fully on its merits.

Ex Parte Graves                                                                                  Page 2
favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.” Brady, 373 U.S. at 87; accord Banks v. Dretke, 540 U.S. 668, 682 & n.5

(2004); Illinois v. Fisher, 540 U.S. 544, 547 (2004); see U.S. CONST. amend. XIV, § 1; Hayes v.

State, 85 S.W.3d 809, 814-15 (Tex. Crim. App. 2002); Thomas v. State, 841 S.W.2d 399, 402

(Tex. Crim. App. 1992); Means v. State, 429 S.W.2d 490, 494 (Tex. Crim. App. 1968).

     The Double Jeopardy Clause of the United States Constitution provides: “No

person . . . shall . . . be subject for the same offense to be twice put in jeopardy of life or

limb . . . .” U.S. CONST. amend. V.2

     “[A] pretrial writ of habeas corpus is usually the procedural vehicle by which a

defendant should raise a ‘successive prosecution for the same offense’ double jeopardy

claim” which, if successful, would bar retrial. Gonzalez v. State, 8 S.W.3d 640, 643 n.9

(Tex. Crim. App. 2000) (citing Ex parte Robinson, 641 S.W.2d 552, 553-56 (Tex. Crim. App.

1982)); see Ex parte Yates, 193 S.W.3d 149, 150 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

     “The Double Jeopardy Clause embodies three protections: ‘It protects against a

second prosecution for the same offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And it protects against multiple


     2  The Texas Constitution provides, “No person, for the same offense, shall be twice put in jeopardy
of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not
guilty in a court of competent jurisdiction.” TEX. CONST. art. I, § 14. “[T]he proper” double-jeopardy
“rule under the Texas Constitution is the rule articulated by the United States Supreme Court in Oregon v.
Kennedy.” Ex parte Lewis, 219 S.W.3d 335, 337 (Tex. Crim. App. 2007); see Oregon v. Kennedy, 456 U.S. 667
(1982); Stephens v. State, 806 S.W.2d 812, 814 (Tex. Crim. App. 1990); Stine v. State, 935 S.W.2d 443, 445
(Tex. App.—Waco 1996, pet. ref’d); Ex parte Bennett, 245 S.W.3d 616, 618 (Tex. App.—Fort Worth 2008,
pet. ref’d, untimely filed). Graves does not argue to the contrary.

Ex Parte Graves                                                                                     Page 3
punishments for the same offense.’” Grady v. Corbin, 495 U.S. 508, 516 (1990), overruled

on other grounds, United States v. Dixon, 509 U.S. 688, 704 (1993) (Corbin quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969)); accord Dep’t of Revenue v. Kurth Ranch, 511

U.S. 767, 769 n.1 (1994); Ludwig v. Massachusetts, 427 U.S. 618, 631 (1976); Bigon v. State,

252 S.W.3d 360, 369 (Tex. Crim. App. 2008); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.

Crim. App. 1991). “The constitutional prohibition against ‘double jeopardy’ was

designed to protect an individual from being subjected to the hazards of trial and

possible conviction more than once for an alleged offense.” United States v. DiFrancesco,

449 U.S. 117, 127 (1980) (quoting Green v. United States, 355 U.S. 184, 187 (1957)); see

Stephens, 806 S.W.2d at 816.

    [T]he State with all its resources and power should not be allowed to make
    repeated attempts to convict an individual for an alleged 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.

DiFrancesco at 127-28 (quoting Green at 187-88) (alteration added). “[T]he constitutional

protection also embraces the defendant’s ‘valued right to have his trial completed by a

particular tribunal.’” Id. at 128 (quoting Arizona v. Washington, 434 U.S. 497, 503 (1978));

accord Wade v. Hunter, 336 U.S. 684, 689 (1949); see Kennedy, 456 U.S. at 682 n.6; Peterson,

117 S.W.3d at 810.

    Graves argues primarily under the Texas Court of Criminal Appeals’s opinion in Ex

parte Masonheimer. See Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007).

Masonheimer is distinguishable.

    In Oregon v. Kennedy, the Supreme Court held: “Only where the governmental

Ex Parte Graves                                                                       Page 4
conduct in question is intended to ‘goad’ the defendant into moving for mistrial may a

defendant raise the bar of double jeopardy to a second trial after having succeeded in

aborting the first on his own motion.” Kennedy, 456 U.S. at 676. The Kennedy Court

distinguishes prosecutorial misconduct on the standard of intent to provoke a defense

motion for mistrial from “a more generalized standard of ‘bad faith conduct’ or

‘harassment’ on the part of the judge or prosecutor.” Id. at 674. Under Kennedy, the

former bars retrial, the latter does not.

    Masonheimer blurs Kennedy’s distinction between cases where prosecutorial

“conduct giving rise to the successful motion for mistrial was intended to provoke [or

goad] the defendant into moving for mistrial” from that done “with the specific intent

to avoid the possibility of an acquittal.” Masonheimer, 220 S.W.3d at 506, 507 (quoting

Kennedy, 456 U.S. at 679) (alteration in Masonheimer). The Court of Criminal Appeals

held, “Under Oregon v. Kentucky, this deliberate conduct,” i.e., the “’intentional’ failure

to disclose exculpatory evidence,” “accompanied by this specific mens rea,” i.e., “the

specific intent to avoid the possibility of an acquittal,” “bars a retrial.” Masonheimer at

507-508. But Masonheimer maintains a clear distinction between retrial after the granting

of a motion for mistrial and retrial after successful postconviction remedy.

Masonheimer’s holding, as the Masonheimer Court notes, should be limited to “the

unique circumstances of th[e] case.” Id. at 509. Among those circumstances was that

the State had withheld exculpatory evidence in Masonheimer’s first trial, and had done

so again in his second. Moreover, the Court of Criminal Appeals noted that it was

“required to view the evidence in the light most favorable to the” habeas “court’s ruling

Ex Parte Graves                                                                      Page 5
that prosecuting” Masonheimer “a third time” was “jeopardy-barred.” Id. at 507. Here,

the habeas court found that Graves was not entitled to relief, and we are constrained to

view the evidence in the light most favorable to that holding; doing so, we do not

believe that Graves has shown himself entitled to relief.

     Masonheimer, too, although it holds that there is no distinction for double-jeopardy

purposes between cases resulting in mistrial where the prosecutor had the specific

intent to provoke the defendant to move for mistrial and cases where the prosecutor

merely generally intends to avoid acquittal, does not have any bearing on cases other

than those resulting in mistrial. Masonheimer emphasizes that Kennedy and its progeny

bear only on defense-requested mistrials, and not on postconviction reversals:

        There “is some force to the argument that Oregon v. Kennedy protects a defendant
        from a retrial after a defense-requested mistrial where prosecutorial misconduct
        [resulting in the mistrial, not in reversal on appeal] is undertaken with the
        intention of denying the defendant an opportunity to win an acquittal.” (citing
        United States v. Wallach, 979 F.2d 912, 915-16 (2d Cir. 1992))
        “Oregon v. Kennedy may prohibit a retrial after a defense-requested mistrial [not a
        reversal on appeal] resulting from State’s deliberate conduct prompted by a
        desire to ‘sabotage’ a probable acquittal.” (quoting Hagez v. State, 749 A.2d 206,
        228 (Md. Ct. Spec. App. 2000))

Masonheimer, 220 S.W.3d at 805 (bracketed material in Masonheimer) (emphasis in

Masonheimer); see Kennedy, 456 U.S. 667.

     Graves urges, too, that we follow the courts of three federal circuits, 3 and ten other




        3 See Wallach, 979 F.2d at 916-17 (2d Cir.); Robinson v. Wade, 686 F.2d 298, 306-308 (5th Cir. 1982)
(orig. proceeding); Walls v. Hemingway, 27 Fed. App’x 553, 556 (6th Cir. 2001) (not recommended for full-
text publication) (orig. proceeding) (per curiam).

Ex Parte Graves                                                                                      Page 6
states, which, he argues, interpreting their own state constitutions, 4 have held “barr[ed]

a re-trial after a case has been reversed on appeal because of intentional prosecutorial

misconduct.”        (Br. at 15.)      The United States Supreme Court and Texas Court of

Criminal Appeals, however, have held to the contrary. We follow the latter, binding,

precedent, unless and until it is overruled.

     “It has long been settled . . . that the Double Jeopardy Clause’s general prohibition

against successive prosecutions does not prevent the government from retrying a

defendant who succeeds in getting his first conviction set aside, through direct appeal

or collateral attack, because of some error in the proceedings leading to conviction.”

Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (citing United States v. Ball, 163 U.S. 662 (1896);

United States v. Tateo, 377 U.S. 463 (1964)); accord Burks v. United States, 437 U.S. 1, 9

(1978); Kennedy, 456 U.S. at 676 n.6; Bryan v. United States, 338 U.S. 552, 560 (1950),

overruled in part on other grounds, Burks, 437 U.S. 1; Francis v. Resweber, 329 U.S. 459, 462

(1947); Ex parte Davis, 957 S.W.2d 9, 12 (Tex. Crim. App. 1997); Johnson v. State, 108 Tex.

Crim. 499, 503, 1 S.W.2d 896, 897 (1927). “[I]f the first trial has ended in a conviction,

the double jeopardy guarantee ‘imposes no limitations whatever upon the power to

retry a defendant who has succeeded in getting his first conviction set aside.’” 5



        4  See Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984) (orig. proceeding); State v. Colton, 663
A.2d 339, 347 (Conn. 1995); State v. Rogan, 984 P.2d 1231, 1248-49 (Haw. 1999); Commonwealth v. Lam Hue
To, 461 N.E.2d 776, 783-84 (Mass. 1984); Collier v. State, 747 P.2d 225, 226 (Nev. 1987); State v. Marti, 784
A.2d 1193, 1196-97 (N.H. 2001); State v. Briet, 1996-NMSC-67, ¶¶ 32-34, 122 N.M. 655, 666, 930 P.2d 792,
803; State v. Kennedy, 666 P.2d 1316, 1329 (Or. 1983); Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992);
State v. Lettice, 585 N.W.2d 171, 181 (Wis. App. 1998).

        5The only “exception to this rule” is that “the Double Jeopardy Clause prohibits retrial after a
conviction has been reversed because of the” legal “insufficiency of the evidence.” DiFrancesco, 449 U.S.

Ex Parte Graves                                                                                          Page 7
DiFrancesco, 449 U.S. at 131 (quoting Pearce, 395 U.S. at 720) (emphasis in Pearce).

     “The Double Jeopardy Clause . . . does not offer a guarantee to the defendant that

the State will vindicate its societal interest in the enforcement of the criminal laws in one

proceeding.” Kennedy, 456 U.S. at 672 (citing United States v. Jorn, 400 U.S. 470, 483-84

(1971) (plurality op.); Wade v. Hunter, 336 U.S. 684, 689 (1949)); see Peterson, 117 S.W.3d

at 810-11.     “[T]o require a criminal defendant to stand trial again after he has

successfully invoked a statutory right of appeal to upset his first conviction is not an act

of governmental oppression which the Double Jeopardy Clause was intended to

protect.” DiFrancesco, 449 U.S. at 131 (quoting United States v. Scott, 437 U.S. 82, 91

(1978)); see Ex parte Granger, 850 S.W.2d 513, 517 (Tex. Crim. App. 1993). “It would be a

high price indeed for society to pay were every accused granted immunity from

punishment because of any defect sufficient to constitute reversible error in the

proceedings leading to conviction.” DiFrancesco at 131 (quoting Tateo, 377 U.S. at 466);

see Ex parte Mitchell, 977 S.W.2d 575, 579 (Tex. Crim. App. 1997).

          Permitting retrial after a conviction has been set aside also serves the
     interests of defendants, for “it is at least doubtful that appellate courts would
     be as zealous as they are now in protecting against the effects of improprieties
     at the trial or pretrial stage if they knew that reversal of a conviction would put
     the accused irrevocably beyond the reach of further prosecution.”

Lockhart, 488 U.S. at 39 (quoting Tateo, 377 U.S. at 466).

     Viewing the evidence in the light most favorable to the habeas court’s order

denying Graves relief, we hold that the habeas court did not abuse its discretion in

at 131 (citing Burks, 437 U.S. 1; Green v. Massey, 437 U.S. 19, 24 (1978) (orig. proceeding)); see Tibbs v.
Florida, 457 U.S. 31, 41-42 (1982); Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); Ex parte
Bauder, 974 S.W.2d 729, 734-35 (Tex. Crim. App. 1998), overruled on other grounds, Lewis, 219 S.W.3d at 337,
371; Lytle v. State, 131 Tex. Crim. 27, 29, 95 S.W.2d 391, 392 (1936).

Ex Parte Graves                                                                                      Page 8
denying Graves relief on Graves’s double-jeopardy ground. We overrule Graves’s first

issue.

    2.   Speedy Trial. In Graves’s second issue, he contends that his “due process rights

[are] violated when he is re-tried fourteen years after the original trial, when the delay

was a result of intentional prosecutorial misconduct.” (Br. at 3.)

    We understand Graves’s complaint as an attempt to bring a speedy-trial claim. But

a speedy-trial claim is not cognizable on a pretrial writ of habeas corpus.           “[A]n

applicant may not use a pretrial writ to assert his or her constitutional rights to a speedy

trial . . . .” Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001) (citing Ex parte

Delbert, 582 S.W.2d 145, 146 (Tex. Crim. App. 1979); Ex parte Jones, 449 S.W.2d 59, 60

(Tex. Crim. App. 1970)); accord Ex parte Lamar, 184 S.W.3d 322, 323-24 (Tex. App.—Fort

Worth 2005, pet ref’d) (plurality op.); Ex parte Burgett, 850 S.W.2d 267, 268 (Tex. App.—

Fort Worth 1993, no pet.). “Habeas corpus is an extraordinary remedy and is available

only when there is no other adequate remedy at law.” Ex parte Cruzata, 220 S.W.3d 518,

520 (Tex. Crim. App. 2007) (citing Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App.

2004)); accord Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978); Ex parte

Windsor, 78 S.W. 510, 510 (Tex. Crim. App. 1904). Graves’s remedy is a pretrial motion

to set aside the charging instrument on speedy-trial grounds. See TEX. CODE CRIM.

PROC. ANN. art. 27.03 (Vernon 2006); Smith v. Gohmert, 962 S.W.2d 590, 592-93 (Tex.

Crim. App. 1998) (orig. proceeding); Thomas v. Stevenson, 561 S.W.2d 845, 847 n.1 (Tex.

Crim. App. 1978) (orig. proceeding); Pope v. Ferguson, 445 S.W.2d 950, 955-56 (Tex. 1969)

(orig. proceeding); Ex parte Garrison, 47 S.W.3d 105, 107 (Tex. App.—Waco 2001, pet.

Ex Parte Graves                                                                       Page 9
ref’d); State v. Fisher, 198 S.W.3d 332, 336 (Tex. App.—Texarkana 2006, pet. ref’d).

    Graves’s second issue is not cognizable.6 We overrule Graves’s second issue.

    CONCLUSION. Having overruled Graves’s issues, we affirm.



                                                   TOM GRAY
                                                   Chief Justice

Before Chief Justice Gray,
    Justice Vance, and
    Justice Reyna
    (Justice Vance dissenting)
Affirmed
Opinion delivered and filed November 5, 2008
Publish
[CRPM]




       6  To the extent that Graves’s second issue constitutes a general assertion of a due-process
violation, we have determined that the record before us does not support the complaint. On that record,
we cannot say that Graves will not receive a fair trial.

Ex Parte Graves                                                                                Page 10
