                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00582-CR


EX PARTE BYRIAS ROBERSON




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        FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
                    TRIAL COURT NO. 58017-E

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                            DISSENTING OPINION

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      I must respectfully dissent from the majority opinion because I believe

appellate courts are obligated to admit that the emperor is wearing no clothes, no

matter how popular the emperor might be.

      Unlike trial judges, who primarily see only the conduct in the courtrooms

over which they preside, appellate courts are presented with records from other

courts in that county as well as other courts in other counties within that appellate

district. Appellate judges are in a better position than trial judges to see patterns

of conduct. Consequently, appellate judges have an obligation to speak up when
observed patterns show a course of conduct at odds with constitutional

mandates and fundamental fairness.

      The trial court granted Appellant Byrias Roberson’s motion for mistrial as a

result of a conversation between the prosecutor’s investigator and a member of

the jury after jeopardy had attached.         After a second prosecution began,

Appellant filed his application for writ of habeas corpus in the trial court, alleging

that denial of habeas corpus relief would result in double jeopardy. In his prayer,

Appellant asked the trial court to grant his application, issue the writ, conduct a

hearing on the merits prior to trial, grant relief discharging him from restraint, and

dismiss the prosecution.

      The trial court set the matter for hearing on its merits, issued a ruling

denying relief after the hearing, and certified Appellant’s right to appeal.

      The majority holds that the record supports the trial court’s conclusion that

Investigator Donnie Cavinder made an honest mistake. Respectfully, although

the Texas Court of Criminal Appeals has abandoned Bauder1 and returned to a

standard requiring proof that the prosecution intended to cause a mistrial, 2 when

the record shows such a total disregard for rules of trial and pretrial conduct that

mistrial is mandated, it is difficult to understand how an objective observer can

conclude that such conduct can be called “just an honest mistake.” At some

      1
       Ex parte Bauder, 974 S.W.2d 729 (Tex. Crim. App. 1998), overruled by Ex
parte Lewis, 219 S.W.3d 335, 371 (Tex. 2007).
      2
       Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014).


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point, appellate courts must hold that the conduct is so egregious that the party

cannot avoid its consequences.

      Appellant made appropriate pretrial requests to discover prior acts of

misconduct that the State intended to use. No such discovery was provided by

the State. Then Appellant filed motions in limine regarding extraneous acts of

misconduct. The trial court heard the motions the day voir dire began. The

prosecutor admitted that she anticipated

      testimony in this case regarding the officer’s entry into the home. If
      defense counsel intends to challenge the legality of that entry, I
      would like the opportunity to question some of the State’s witnesses
      regarding a prior encounter between the defendant and these
      witnesses about and regarding a disturbance call.             He had
      barricaded himself and his family inside his home. The SWAT team
      was called to get him out of the home. Two of the members of the
      SWAT team are witnesses in this case. This prior incident between
      the defendant and these officers is important for several reasons. It
      goes to their familiarity with the defendant, their ability to
      identify him on the date of the offense. It’s part of how they
      recognized him on the date of the offense. It also goes to
      their state of mind on the date of the offense, goes to why
      gang task force officers were asked to serve these warrants
      on the defendant, and also goes to their reason to believe
      that the defendant lived in this particular residence.

      When the trial court asked for his response, defense counsel replied,

“Well, Your Honor, we’ve asked or requested notice of any bad acts or

convictions, and we haven’t received any of those.” The record reflects that

Appellant had requested that notice at least as early as September 2012. His

motion in limine was heard August 21, 2013. The trial judge responded,

              Well, let’s do it this way. I’ll go ahead and sustain or grant on
      this limine that y’all will approach, and then we would get into exactly
      what the officers could or could not go into. Without hearing them,

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      I’d be inclined to say they might have had previous contact or
      something like that that’s how they recognized. But to go any further
      might be a problem. But we’ll discuss that. So I’ll go ahead and
      grant that limine on that ground. Make sure you come up before you
      start with them.

      The lawyers selected the jury, and the jury was seated and sworn and

heard Appellant plead not guilty before the trial judge adjourned the proceedings

and released the jury.

      Cavinder was present in the courtroom during voir dire but claimed that he

left the courtroom before the jury was seated. The record reflects that the trial

judge gave the following instruction to the venire during the time Cavinder said

he was in the courtroom:

             To avoid looking like you are friendly with one side of
      the case, do not mingle or talk with the lawyers, the witnesses, the
      parties, or any other person who might be connected with or
      interested in the case. Do not remain within the hearing of anyone
      who might be discussing the case. These persons have to
      follow these same instructions as you . . . .

Cavinder was introduced to the venire as the investigator for the prosecution.

      Both the State and the defense agree that Cavinder went personally to the

judge, along with the prosecutors, to inform the judge that he had spoken with a

juror, Eileen Vale. Both Cavinder and Vale testified about their encounter. Both

agreed that Cavinder had approached Vale in the hallway outside the courtroom.

That is, it was an intentional encounter on Cavinder’s part, and it was not caused

by anyone else’s actions. Cavinder testified that he believed that Vale was a

member of the venire who had been released from jury service, a Ms. Steele.



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      The record, however, clearly shows that Steele was not released from jury

service until Vale was sworn as a juror. Steele was not excused for cause or for

any other reason. She was released only because she was not chosen as a

juror. It was only the seating of the jury that showed Steele’s release. Cavinder

could not have known Steele was released without also knowing that Vale had

been seated as a juror. Indeed, when each side had submitted its strikes, the

trial judge seated each juror by name. When he reached Vale, he called her

name and then asked if he had pronounced it correctly.        That is, Vale was

singled out by name. Then the trial judge said,

      If each member of the jury will please stand and raise their right
      hand for me.

            (The jury was sworn)

            All right. Thank you. Be seated, please. All right. That’s our
      lucky six. For everybody else who’s here on the panel, I spoke
      with the district clerk, and me releasing you here today here in just
      a couple minutes will end your service for the week. . . .

            ....

            (Remaining jury panel exits courtroom)

      Vale informed Cavinder that he was mistaken about her identity, and he

appeared to recognize his error. According to both Vale and Cavinder, they

continued to speak, even after he realized that she was not Steele. That is,

Cavinder continued his conversation with juror Vale after realizing and admitting

that she was not the venire member who had been excused. They agreed that

he spoke with her about her game warden experience. Vale, however, disagreed



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with Cavinder’s representation that he did not discuss the case at bar.

Specifically, Vale testified,

            JUROR VALE: From what I remember, he—he kind of
      made a comment about—I’m trying to—because I was
      heading down the stairs and he was telling me and then saying
      about—I’m trying to remember. Let me just—I just said it was okay,
      but we stopped the conversation right there because he didn’t
      realize that at point I was a juror, a selected juror, I guess.

           THE COURT: You don’t remember? We just have to
      be very specific.

             JUROR VALE: I know.

             THE COURT: Because it pertains to this case.

             JUROR VALE: Right.

           THE COURT: You’re sure his question or comment
      pertained to this particular case?

            JUROR VALE: He just said—uh, I think he said, “You
      were struck, but then we got you on” or something, or
      something to that effect, which I think—which I think—it
      didn’t—I mean, to me, it didn’t—I kinda said, okay,
      whatever. I’m going to leave right now. [Emphasis added.]

      Clearly, Vale believed that Cavinder was talking about the case at bar

when he said that she had been struck but “we” managed to get her “back on.” It

is difficult to understand how Vale could have believed anything else. And it is

difficult to understand why Cavinder would have told a venire member who had

been excused that she had been struck but “we” managed to get her “back on.”

      The conscientious trial judge, who can only be commended for his

handling of this situation, was concerned about the appearance of impropriety:

      What I’m dealing with now is something that would—whether there
      was any—and I’m not saying there was any intention on it; I’m not

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      saying who said what. However, what remains is the appearance.
      And the appearance that there was in her, at least in her mind, from
      her testimony—I mean that’s—[DEFENSE COUNSEL] stated
      correctly. That’s exactly what I heard.

             And I want both sides to have a fair trial. And with that
      appearance that there was some influence with regard to
      that juror, I am left with no option except granting a mistrial.
      There is no way it can be remedied. And I—I know y’all
      have—we have been through a rough day yesterday. And I
      apologize that that work is for naught. And I’m not casting fault on
      Investigator Cavinder at all. I understand that was an honest
      mistake. I completely believe that he believed he was
      speaking to Ms. Steele.

            However, it’s that appearance that we just cannot get
      by in this matter. So for that reason, I’m going to grant a
      mistrial. Now, we’ll talk later whether double jeopardy has
      attached. I don’t think it has . . . . [Emphasis added.]

      He had no alternative but to grant a mistrial. The positive result of the

mistrial for the State was that its notice of intent to use extraneous acts of

misconduct against Appellant became timely and those extraneous acts became

admissible.

      The rule is well established that the knowledge of one part of the

prosecution team is imputed to all members of the prosecution team.3

      The prosecutors were aware that the venire member with whom Cavinder

improperly spoke had been sworn as a juror.          The record casts doubt on


      3
        Ex parte Adams, 768 S.W.2d 281, 291–92 (Tex. Crim. App. 1989)
(holding that “as a part of the investigating team [the Dallas police officer’s]
knowledge of [the witness’s] lack of identification at the lineup and his assistance
to her” was imputed to the prosecutor); see also Rubalcado v. State, 424 S.W.3d
560, 574 (Tex. Crim. App. 2014) (imputing knowledge of one county’s law
enforcement to the law enforcement of another county).


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Cavinder’s testimony concerning his own knowledge.         The trial judge singled

Vale out when swearing in the jury, asking if he had pronounced her name

correctly. Further, the record shows that Vale was chosen and sworn as a juror

before Steele was released with the other members of the venire who were not

chosen for the jury. It is therefore difficult to understand how Cavinder could

have known that Steele was not chosen as a juror but did not know that Vale was

selected as a juror.

      The Vale’s testimony concerning the improper conversation with Cavinder

also indicated his awareness that she had been chosen as a juror. Specifically,

she stated that he had told her that she had been struck but had also told her,

“[T]hen we got you on.” Even Cavinder admitted that he continued to speak with

her after he realized that she was not the venire member who had been released

from jury service. If we give total deference to the determinations of the trial

judge, we must conclude that when Cavinder first approached Vale, he believed

that she was Steele. If he was aware that Steele had not been chosen for the

jury, he had to be aware that Vale was, either as a result of his own observation

or as a result of the imputed knowledge of the prosecuting attorneys. By his own

admission, he remembered that Vale was the one who had gone to game

warden school. Yet he continued to speak with her.

      After hearing only Cavinder’s admissions, the trial judge did not yet believe

that there was reason to declare a mistrial.      After hearing Vale’s testimony,

however, he concluded that the trial could not continue. Implicitly, the trial judge


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believed her testimony, including the statement that Cavinder told her that she

had been struck, but “we got you on.”

          Given the record before us, it is impossible to conclude that Cavinder was

unaware that Vale had been chosen for the jury at the time they spoke and he

realized she was not Steele. This knowledge means that there is no justification

for the conversation. The mistrial was caused by an improper communication by

a member of the prosecution team with a juror. The trial judge properly granted

the mistrial because of the influence of that conversation on a juror. For the

same reason, the trial judge should have granted Appellant’s requested habeas

relief.

          The prosecution did not provide mandated discovery to the defense. The

trial judge ruled that the notice of extraneous acts of misconduct that the State

intended to offer into evidence was untimely and that the evidence, presumably,

were inadmissible. Perhaps the decision to withhold discovery was a trial tactic.

If so, failing to comply with discovery mandated by rule, statute, or court order

renders that evidence inadmissible at trial. The Texas Court of Criminal Appeals

has held

          Rule 404(b) literally conditions the admissibility of other-crimes
          evidence on the State’s compliance with the notice provision of Rule
          404(b). . . .

                Since the notice requirement of Rule 404(b) is a rule of
          evidence admissibility, then it is error to admit Rule 404(b) evidence




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      when the State has not complied with the notice provision of Rule
      404(b).4

      When the trial judge suggested that would be his ruling, the State clearly

benefitted from the mistrial caused by Cavinder’s actions. That is, the time delay

between the mistrial and future trial setting erased the notice and admissibility

issues.

      Case law instructs us that double jeopardy prohibitions bar retrial when the

prosecution intends to cause a mistrial.5 The Masonheimer court held that the

prosecution’s hiding of Brady material to avoid an acquittal was sufficiently

egregious conduct to bar retrial after the trial court was forced to grant a mistrial

because this prosecutorial misconduct was discovered.6

      Case law does not explain how we are to determine motive when it is an

investigator and not prosecutors who commits the misconduct, and misconduct it

certainly was. There are only two reasons an experienced investigator would tell

a member of the jury that she had been struck but the prosecution had managed

to get her back onto the jury: either he was attempting to cause a mistrial or he

was attempting to deprive the defendant of a fair trial by an impartial jury. In light

of the fact that the State had failed to disclose prior bad acts it fully intended to

use at trial, despite Appellant’s timely request for disclosure, and in light of the
      4
          Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005).
      5
          Ex parte Masonheimer, 220 S.W.3d 494, 509 n.21 (Tex. Crim. App.
2007).
      6
          Id. at 507–08.


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trial court’s statement that those bad acts would probably not be admitted before

the jury because of the failure to disclose them, it is impossible to say that the

mistrial did not benefit the State.

      The conscious decision of the State to withhold such mandated discovery

is particularly disturbing in light of its similar decisions in Dabney v. State,7

Pitman v. State,8 and Juarez v. State.9

      To hold that retrial is not barred by double jeopardy is to condone and

encourage such conduct. We have an obligation to both the bench and the bar

to hold, as the trial court did when granting the mistrial, that ignoring court-

ordered or statutorily- or rule-mandated discovery is not acceptable trial strategy.

I would therefore reverse the order of the trial court denying habeas relief and

remand this cause to the trial court with instructions to grant Appellant’s

requested habeas relief and enter an order of dismissal. Because the majority

does not, I respectfully dissent.




      7
       No. 02-12-00530-CR, 2014 WL 5307178, at *7–9 (Tex. App.—Fort Worth
Oct. 16, 2014, pet. filed) (mem. op., not designated for publication).
      8
       372 S.W.3d 261, 268–70 (Tex. App.—Fort Worth 2012, pet. ref’d).
      9
      No. 02-08-00167-CR, 2009 WL 1564926, at *1 & n.2 (Tex. App.—Fort
Worth June 4, 2009, no pet.) (mem. op., not designated for publication).


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                                  /s/ Lee Ann Dauphinot
                                  LEE ANN DAUPHINOT
                                  JUSTICE

PUBLISH

DELIVERED: January 8, 2015




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