                                Fourth Court of Appeals
                                        San Antonio, Texas
                                                 OPINION

                                            No. 04-17-00280-CR

                                    EX PARTE Miguel MARTINEZ

                     From the 437th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2015CR4203
                            Honorable W.C. Kirkendall, Judge Presiding 1

Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:         Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice
                 Irene Rios, Justice

Delivered and Filed: July 31, 2018

AFFIRMED

           This is an appeal from the habeas court’s order denying appellant Miguel Martinez’s

application for writ of habeas corpus. On appeal, Martinez contends the habeas court erred in

denying his application because double jeopardy bars any attempt by the State to retry him for

murder following the trial court’s grant of a mistrial. We affirm the trial court’s order.




1
 The Honorable Lori Valenzuela is the presiding judge of the 437th District Court, Bexar County Texas. The
Honorable W.C. Kirkendall, retired, was sitting by assignment. Judge Kirkendall signed the order at issue in this
matter.
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                                           BACKGROUND

                        Investigation, Pre-Indictment, Indictment Phases

       On January 11, 2015, San Antonio police were dispatched to a scene following a report of

“possible shots fired.” Upon arrival, authorities found Laura Carter sitting in the driver’s seat of

her vehicle, a Honda Accord. She was sitting in the front seat with her hands in her pockets and

her feet crossed. She was pronounced dead at the scene. It was later determined Carter died as a

result of multiple gunshots to the head.

       As a result of their investigation, law enforcement officials came to believe the murder had

been committed by Martinez. Ultimately, authorities arrested Martinez for Carter’s murder. Law

enforcement authorities continued the murder investigation after Martinez’s arrest. In March

2015, law enforcement completed the “prosecution guide,” which was approximately fifty pages

in length. The prosecution guide is prepared in its entirety by law enforcement; no part of the

guide is prepared by the District Attorney’s Office. The guide generally includes initial offense

reports, witness statements, discs of interviews, etc. It is used by prosecutors “to figure out the

nuts and bolts of the case.”

       The prosecution guide was turned over to Jason Goss, first-chair prosecutor in the 437th

District Court, which had been assigned to handle the case. Goss testified that around the end of

the work day on March 8, 2015, he gave the prosecution guide to the second-chair prosecutor in

the 437th District Court to review. According to Goss, she was to review the guide to assist him

in preparation for presenting the case to the grand jury. Goss did not believe she took the guide

home with her, stating, “It would be unusual for her to do that.” The next morning — sometime

before 9:15 a.m. — the second-chair prosecutor returned the guide to Goss, informing him that she

had read the guide and did not believe she could continue on the case. When Goss queried her as

to why, she advised she had a “one-night stand” or “one-time sexual encounter” three years earlier
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with Gregory Dalton, who was listed in the prosecution guide as a witness. The second-chair

prosecutor told Goss she did not even know the man’s real name, but recognized him from his

photograph and nickname, Vegas. Goss asked whether she had any contact with Dalton since the

initial encounter and she said, “no, it was one night.”

       Goss agreed and immediately removed her from the case, replacing her with the third-chair

prosecutor. He instructed her to have nothing further to do with the case — specifically explaining

she was not permitted to communicate with anyone about the case. She stated she understood. At

her request, Goss agreed to avoid disclosing the details of her removal if possible.

       Goss subsequently explained to the habeas court that he believed the second-chair

prosecutor had a “conflict” that precluded her further participation in the matter. As a result of the

“conflict,” Goss removed her from the case, then went to the court advocate and without explaining

the details, advised the advocate that the second-chair prosecutor was conflicted out of the case

and there was to be no communication with her about it. Goss stated he constructed a “firewall”

in the office to prevent the second-chair prosecutor from having anything to do with the case. Goss

believed this action “ended” the matter and he did not think about it again. He explained he had

the file the entire time and the second-chair prosecutor “didn’t have anything to do with this case.”

       When asked what he felt the conflict was, Goss replied that he had come from a smaller

county in which it seemed as if someone in the prosecutor’s office always seemed to know a

defendant or witness. In his former office, they would simply remove the conflicted person and

wall them off from the matter. Goss admitted he would not want someone who knew a witness —

like the second-chair prosecutor — questioning him or her because it might affect his or her

objectivity. They might react favorably or unfavorably with the witness, and the existence of a

personal relationship might have the appearance of impropriety. However, Goss specifically

testified that at the time of the disclosure, he “knew that what she had told me was not — was not
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exculpatory, mitigating or relevant so — as far as — as far as to the facts of this case or to trying

this case.” Thus, he “felt like the issue had been dealt with on my level as the supervisor.” Goss

never spoke to the second-chair prosecutor again about the matter.

       Goss, with the assistance of the third-chair prosecutor, presented the matter to the grand

jury. On April 14, 2015, the grand jury indicted Martinez for the murder of Carter.

                                         Pre-Trial Phase

       In preparation for Martinez’s February 7, 2017 trial, Goss and District Attorney Nicholas

LaHood interviewed Gregory Dalton on January 31, 2017. During the interview, Dalton revealed

additional information he had not previously disclosed to law enforcement. The revelations by

Dalton prompted Goss to prepare an amended Brady notice in response to a motion previously

filed by Martinez and granted by the trial court requesting disclosure of materials within the

purview of Brady v. Maryland. See 373 U.S. 83 (1963). In the amended notice, which was emailed

to the defense on February 1, 2017, Goss fully disclosed the new information provided by Dalton.

Goss explained at the habeas hearing that he filed the amended Brady notice because the

information revealed by Dalton during the interview showed his willingness to participate in a

sexual assault of the victim and in her subsequent murder. Goss stated this information fell within

the confines of Brady because it could be used to impeach Dalton’s credibility as a witness.

       Goss did not disclose any information about the prior encounter between Dalton and the

second-chair prosecutor. He explained he did not believe the “one-time sexual encounter” between

the second-chair prosecutor and Dalton fell within the disclosure mandates of Brady. Goss

maintained that position during the habeas hearing. However, Goss admitted he was sufficiently

concerned to bring others from the District Attorney’s Office into the loop. Goss explained that

he “kind of [got] an idea of what the defensive theory might be” with regard to Dalton and his

encounter with the second-chair prosecutor. Accordingly, Goss disclosed the encounter between
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the second-chair prosecutor and Dalton to LaHood. Goss testified at the habeas hearing that

LaHood’s initial reaction was the same as his — this was not mitigating, exculpatory, or

impeachment evidence that needed to be disclosed to the defense.

       LaHood contacted the chief of the appellate division, Enrico Valdez, that same evening.

According to LaHood, Valdez advised that it did not seem “like information that needs to be

disclosed,” but he wanted an opportunity to research the issue and speak to Patrick Ballantyne,

chief of the office’s Ethical Disclosure Unit. A couple of days later — on February 2 or 3, 2017,

Valdez informed LaHood that he and Ballantyne had researched the issue and believed the

encounter between the second-chair prosecutor and Dalton “was not information that was required

to be disclosed and that we did not have to disclose it.” They suggested, however, that if Goss and

LaHood wanted to take additional action with regard to the issue — “in an abundance of caution”

— they might consider disclosing to the trial court in camera. LaHood could not remember if he

spoke to Goss about what he learned from Valdez, but he assumed Goss was speaking to Valdez

and Ballantyne too. He did not ask Goss to make an in camera disclosure to the trial court. LaHood

stated he was not concerned about providing the information to Goss because “it wasn’t like we

thought this was a — you know, a critical point for the — for the trial.”

       On February 7, 2017, during pretrial motions just prior to voir dire, Goss signed a discovery

acknowledgment pursuant to article 39.14(i) of the Texas Code of Criminal Procedure. Article

39.14(i) requires the State to “electronically record or otherwise document any document, item, or

other information provided to the defendant” during discovery. TEX. CODE CRIM. PROC. ANN. art.

39.14(i) (West Supp. 2017). As Martinez points out, there was nothing in the disclosure about the

one-time encounter between the second-chair prosecutor and Dalton, thereby establishing the State

had not disclosed to the defense information regarding the encounter. Under article 39.14(i), the

acknowledgment is merely a statement of what was provided by the State during discovery. As
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the one-time encounter had not been disclosed, it would not have been listed in the article 39.14(i)

acknowledgment.

                           Trial Phase — Multiple In-Chambers Hearings

        The parties began voir dire on the scheduled trial date — February 7, 2017. A jury was

selected, but not sworn. Proceedings were recessed and the jury left, instructed to return the next

day.   The next morning, before the jury was sworn, Goss filed a “Motion for Ex Parte

Communication and In Camera Consideration of Potential Conflict Issue.” The motion was

presented to the trial court and a copy provided to Martinez’s defense counsel. The trial court met

in chambers with Goss. The only other person present was the court reporter, who recorded the

proceedings.

        Goss informed the trial court about the second-chair prosecutor’s 2015 disclosure. In his

conversation with the trial judge, the Honorable Lori Valenzuela, Goss used the second-chair

prosecutor’s name. 2 Goss described his actions — immediately removing the second-chair

prosecutor and constructing a firewall “between her and the case.” Goss advised the trial court

that from that point forward, the second-chair prosecutor had nothing to do with the case. He

stated he kept the file and no one spoke to her about the case. He assigned the task of assisting

him with the case to the third-chair prosecutor. Goss told the trial court it was the third-chair

prosecutor who helped him prepare for the grand jury.

        Goss then described Dalton’s role as a State’s witness and his possible testimony. Goss

then explained that the purpose of bringing the matter to the trial court’s attention at this time was

the possibility — raised by Ballantyne — that the defense might use the encounter between Dalton

and the second-chair prosecutor to impeach Dalton. As Goss put it, the defense “could say you’re


2
  Given that the second-chair prosecutor was assigned at the time of the disclosure to Judge Valenzuela’s court,
concealing her name was obviously unnecessary — Judge Valenzuela would know the prosecutors in her court.

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testifying to this is [sic] because of the sexual relationship you had with one of the prosecutors.”

Goss believed the impeachment value of the encounter was “weak” given that to his knowledge

the second-chair prosecutor and Dalton had not had any contact after that one encounter in 2011

or 2012. Goss testified at the habeas hearing that when the second-chair prosecutor first disclosed

her encounter with Dalton, he asked her if she had any contact with him after that one night.

According to Goss, she said “no, it was one night.” Goss then noted that during his three-hour

interview with Dalton, Dalton never mentioned the second-chair prosecutor.

       Despite his belief that the information had little impeachment value, Goss advised the trial

court that out of “an abundance of caution,” the State wanted to make the court aware of the

situation and have the court decide whether the one-time encounter should be disclosed. Goss then

again expressed his belief that the information “would be of no value … to the defense,” but

disclosure could damage the second-chair prosecutor’s reputation.

       After Goss completed his statements, the trial court first asked whether the second-chair

prosecutor “[did] the intake?” Goss told the trial court the second-chair prosecutor did not do the

intake. The trial court then asked if there were any “agreements” with Dalton with regard to his

testimony. Goss advised there were not. Goss explained it was understood that after Dalton came

forward and his story matched the evidence — and the District Attorney’s Office found it credible,

he would not be charged with murder. Goss stated “there’s never been a threat of a charge or an

agreement not to charge.” The trial court stated it did not believe that “the extent of their

relationship” should be disclosed at this point. However, the court pointed out that during voir

dire, the attorneys discussed accomplices and the law of parties, suggesting that the defense could

point the finger at Dalton “as being some kind of party to this, an accomplice to this, the getaway

driver[,]” making him more of a star witness than he might otherwise be. Goss agreed, stating

they talked about the law of parties during voir dire because that the defense might point to Dalton
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as the actual murderer given that: (1) he picked up Martinez near the murder scene; (2) a van like

his was seen near the site of the murder; (3) his phone was near the scene; and (4) he had

information about the murder that he could have known only if he committed the murder, was

present at the murder, or was told about the murder by the perpetrator.

          The trial court then stated it saw the matter as involving two discrete issues — one, whether

the State should disclose the information, and two, whether the disclosure is admissible for

purposes of impeachment. As to whether the State should disclose the existence of the one-time

encounter, the trial court opined that “the disclosure may be necessary,” but it would have to hear

the testimony before deciding whether it was admissible for impeachment or any other purpose.

The trial court expressed her concern for the second-chair prosecutor and her reputation, agreeing

the matter had the potential to be much bigger than it was. Accordingly, the court agreed to

“contemplate some remedies” to diminish potential harm to the second-chair prosecutor.

          The trial judge then stated that, “My gut right now is that I would want it disclosed.” Goss

then asked that if he was being ordered to disclose the information to the defense, whether it should

be disclosed before opening statements or just before Dalton takes the stand. The trial judge then

stated:

          This is — this is not — I mean if I say disclose, you need to disclose, and you
          decide when you do it.

          But this is just my opinion for whatever it’s worth … if this is information you’ve
          had since 2014 … [o]kay 2015 … I wouldn’t put yourself — that’s my — I’m just
          giving you my advice … I wouldn’t wait any longer ….

          In response, Goss stated his concern about disclosing the information before the trial court

had an opportunity to devise a remedy to reduce the effects to the reputation of the second-chair

prosecutor. The trial judge responded by indicating that Goss should withhold the name of the

second-chair prosecutor to give her time to consider a possible remedy. She then stated she would


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take “the responsibility for the delay in disclosure,” advising she would “say I told you that I

thought the disclosure was appropriate but to hold off so that I could make sure that I had an

appropriate remedy.” Judge Valenzuela subsequently explained at the habeas hearing that she

meant she would take the responsibility for any delay in the disclosure of the second-chair

prosecutor’s name, but not any decision by Goss to delay disclosure about the encounter between

Dalton and the second-chair prosecutor. The record does not show that at any time during the

hearing the trial court ordered Goss to disclose to the defense the encounter between Dalton and

the second-chair prosecutor. Rather, the trial judge’s strongest statement during the entire ex parte

hearing was “I mean if I say disclose, you need to disclose[.]” In fact, at the habeas hearing, Judge

Valenzuela admitted she did not order Goss to do anything at that time, agreeing that she left it up

to Goss to do whatever he wanted to do at that point.

        Despite the absence of an actual order by the trial court, after the ex parte hearing, Goss

disclosed the “one-time sexual encounter” to the defense, withholding the name and position of

the prosecutor. 3 He also did not disclose that the prosecutor in question had reviewed the

prosecution guide prior to indictment. In essence, he told one of Martinez’s defense attorneys,

Christian Henricksen, that in early 2015, a female prosecutor had informed him that she had a

“one-night stand” with Dalton several years prior to the murder. Goss further advised that he

would provide the name of the prosecutor once the trial court found a “remedy” with regard to

protection of the prosecutor. Henricksen testified at the habeas hearing he was “not then overly




3
  Goss’s decision to withhold the position of the prosecutor in addition to her name was logical. Martinez’s defense
attorneys are long-time Bexar County advocates. If Goss had advised them that “the second-chair prosecutor in the
437th District Court” disclosed to him in 2015 that she had an encounter with Dalton, the defense attorneys would
surely have known — or could have easily discovered — the name of the prosecutor to whom Goss was referring,
thereby negating any effect of withholding her name as mandated by Judge Valenzuela.

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concerned” by the disclosure. Henricksen passed the information to his co-counsel, Joe Gonzales,

who testified he was focused on the trial at that point.

       After the disclosure, the jurors were sworn and trial began. Goss made an opening

statement during which, among other things, he described the testimony he expected Dalton would

provide; the defense reserved its opening statement. The State then called its first witness, L.C.,

who was fourteen at the time of the murder. L.C. essentially testified that on the evening of the

murder, he was inside when he heard his dog barking. He went outside to feed the dog and saw a

Honda Accord pull up and stop under a street light in front of the empty house next door. L.C.

testified he saw a Hispanic male in a dark hoodie get out of the passenger side of the car. The

male was “messing with his pockets” as if he was removing something. L.C. went back inside and

just a couple of minutes later heard “six gunshots go off.” L.C.’s grandmother called 911 as he

looked outside. After police arrived, L.C. told them he had seen a white Dodge van driving away

from the Honda Accord a few minutes after the shooting. After the State’s direct examination of

the first witness, court recessed for lunch.

       After lunch, the trial continued. At the habeas hearing, Judge Valenzuela testified that at

some point that afternoon, an off-the-record conference was held in her chambers. Present at the

conference were the judge, Goss, LaHood, and both defense attorneys. During the conference,

according to Judge Valenzuela, she asked Goss if he had “told them everything.” When Goss

advised that he had not, Judge Valenzuela, for the first time, ordered Goss “[t]ell them now

everything.” [sic] Goss immediately disclosed the remaining details to the defense — the name of

the prosecutor who had the encounter with Dalton, her position as second-chair prosecutor in the

437th District Court, and that she had reviewed the prosecution guide prior to indictment, which

prompted her disclosure to Goss. Goss’s remembrance of events was somewhat different. He

testified that at this conference the trial court stated she was aware that Goss had told the defense
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“some parts of what we talked about,” but had not disclosed the name at the judge’s direction. She

then stated she had devised a remedy and would like for Goss to now disclose the name of the

prosecutor. Goss then made the disclosure.

           According to Henricksen, he was upset because the details made the encounter between

the prosecutor and Dalton “a completely different thing.” The defense was angry, believing Goss

was “wrong” to withhold the information until after the jury was sworn and evidence was

presented. Nevertheless, after the conference, the parties went back to the courtroom and trial

resumed. The State called two additional witnesses, L.C.’s grandmother and the first responding

officer.

           L.C.’s grandmother confirmed L.C.’s statements about the barking dog and subsequent

gunshots. She agreed that as her grandson looked outside, she called 911. The first responding

officer from the San Antonio Police Department, Michael Wehe, testified that when he arrived he

saw the Honda Accord with its passenger door open — the vehicle was running and the lights were

on. Officer Wehe and his cover officer approached the vehicle and discovered a woman in the

driver’s seat. Officer Wehe testified she was slumped “over to her side, hands in her pockets, not

moving.” He noted her legs were crossed, making it appear she was relaxed before she was shot.

The officer contacted dispatch, advising there was a “female down.” Officer Wehe believed she

had been shot, but could not determine how many times.

           At the conclusion of Officer Wehe’s testimony, court was recessed for the evening. As to

the first day of trial, LaHood testified at the habeas hearing that he believed it was going well for

the State. Goss echoed those feelings.

           That evening, Henricksen sent a text to the trial court, Goss, and LaHood. Therein, he

expressed his concerns over the disclosure made by Goss earlier that day. He advised the defense

planned to move for a one-day continuance to give the attorneys time to consider the matter. The
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State agreed to the continuance and the trial court indicated its intent to grant it. On the morning

of February 9, 2017, as previously indicated, the defense filed a motion for continuance. In that

motion, the defense stated a continuance was necessary because after the jury was seated, the State

disclosed “critical and sensitive information that is material to the defensive theory in this case.”

The State did not oppose the motion. The trial court granted the defense a continuance to February

14, 2017. Immediately thereafter, the attorneys and the trial court held an in-chambers, on-the-

record, conference.

       During this conference, defense counsel was permitted to express their concerns about the

recent disclosure. They expressed the difficulty of the situation and the need to investigate the

matter and speak to an appellate attorney.

       Judge Valenzuela noted that once the second-chair prosecutor’s name had been disclosed

to the defense, she had instructed the defense and the State that she “did not want the person named

in the disclosure to be disclosed beyond the people that needed to know[,]” i.e., an investigator for

the defense. She also noted she told the prosecutors she did not want them telling the second-chair

prosecutor that she was likely to be questioned about her encounter with Dalton. Rather, she

instructed them to tell Ballantyne to tell the second-chair prosecutor “to anticipate that there would

be some questions asked of her.” The judge noted she “shouldn’t be in this position” and that it

was not her responsibility or problem. However, she advised that “everybody needs to use their

best discretion,” but she would not make decisions that could “hurt the defendant.” To that end,

she stated she was lifting “the gag order” that she had imposed the day before, stating that if the

defense felt like disclosure of the prosecutor’s name was necessary, that would be their decision.

She emphasized that the second-chair prosecutor did nothing wrong, disclosing her connection to

Dalton “the moment she knew this information[.]”



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       The trial court also noted — as it had during the ex parte meeting with Goss — that

although the encounter was discoverable, its ultimate admissibility was a different issue. Judge

Valenzuela opined that even if the second-chair prosecutor had no influence in the case, the defense

could assert a defensive theory in which Dalton was the actual perpetrator, and his encounter with

the prosecutor could be fodder for impeachment based on bias or motive for testifying.

       Defense attorney Gonzales advised that he considered the second-chair prosecutor “a friend

and colleague” and would be respectful with how the defense proceeded. However, he could make

no promises until the matter was fully investigated — the timing and chronology of events, whether

the prosecutor had any part in the intake of the file, or had any influence on whether or not Dalton

“was ever considered for indictment as a party to an offense.” Gonzales asserted this would

directly impact the defense’s theory of the case, asserting that Dalton “smells like a codefendant.”

The defense attorneys explained their concern was not really about the second-chair prosecutor,

but Dalton’s potential feelings toward her that might have prompted him to “do what [he] can to

help” the State.

       Goss had previously denied the second-chair prosecutor had any part in the intake or any

influence after she reviewed the prosecution guide and disclosed her encounter with Dalton. He

subsequently reiterated this during the conference and then later at the habeas hearing. Goss

further stated “for the record, so the Court knows, there was never a murder case that came in on

Gregory Dalton.” Gonzales stated the defense was not questioning the second-chair prosecutor’s

actions; rather, it was questioning Goss’s decision not to disclose the encounter “in the timely

fashion.”

       Goss stated, as he had before, that it was only after Dalton expounded on his previous

statement the week before trial that he began to see a possible defensive theory based on

impeachment due to the encounter between Dalton and the prosecutor. When he did, he took
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action, discussing possible disclosure with his colleagues and then requesting the ex parte hearing

with the trial court. Goss advised that even the appellate chief — Valdez — and the disclosure

integrity chief — Ballantyne — did not believe disclosure was necessary. The ex parte meeting

with Judge Valenzuela was merely a suggestion in the event Goss felt it was necessary “out of an

abundance of caution.”

       Goss also explained the intake process to the defense, noting as he had before that the

second-chair prosecutor played no part in it. Rather, her only role was her review of the

prosecution guide during which she discovered Dalton was a witness. After that, she was

“firewalled” from the matter. Goss also stated it was and always had been the State’s position that

the defense had “to do everything [it] can for [the] client.” To that end, Goss reiterated the State

would provide any records concerning the second-chair prosecutor’s assignments during her tenure

in the office, and make anyone available for an interview, as well as for testifying. Goss again

stated it was simply his desire “not to impugn [the prosecutor’s] reputation unneed — needlessly.”

       Toward the end of the hearing, the parties discussed defense interviews with Dalton and

the second-chair prosecutor, appointment of an investigator, and appointment of appellate counsel

to assist the defense. The trial court agreed to appoint both an investigator and an appellate

attorney. Ultimately, the trial court appointed James McKay as investigator for the defense and

Mark Stevens as appellate counsel for the defense.

       Later that same day, Goss requested that everyone meet in the trial court’s chambers. The

parties indicated no court reporter was present because the discussion was supposed to revolve

around scheduling. The scope of the meeting far exceeded mere scheduling. Moreover, those who

were present later provided conflicting accounts of what occurred. The accounts of what happened

during this off-the-record meeting played out at the habeas hearing.



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       Henricksen and Gonzales testified the defense attorneys and trial court arrived first. Both

testified LaHood walked in “aggressively,” and “[h]e appeared angry.”              They discussed

scheduling, but after that LaHood began talking about the defense’s prior motion for continuance.

Henricksen and Gonzales stated LaHood had been upset and confronted the defense attorneys that

morning about the way they had filed the motion. Henricksen said he believed they had been

“innocuous” with regard to the wording of the motion, but LaHood was still upset. Henricksen

had considered the matter closed until LaHood raised it at the “scheduling meeting.” According

to Henricksen, LaHood called it “a shit show,” and was unhappy that in the motion the defense

had mentioned “a late disclosure of evidence.” Henricksen claimed LaHood was angry because

the media had picked up on the language and was asking Goss and LaHood about it. LaHood,

believing it was an uncontested motion, questioned the necessity of including the language.

       Henricksen then testified that after they finished talking about the motion for continuance,

LaHood began to press Gonzales about their intentions with regard to the disclosure. According

to Henricksen, it was at this point that the issue of a mistrial came up, raised by LaHood.

Henricksen stated LaHood was still angry and advised that if the defense wanted a mistrial, the

State would agree, stating “we will pick a better jury, we will be better prepared next time.”

Gonzales declined the offered mistrial, advising they still needed to look into the matter. Gonzales

stated the defense was not worried about the second-chair prosecutor’s actions, but “about Jason

Goss and him sitting on this for two years.” Henricksen said his co-counsel then stated it might

come to a point where the defense might “have to file something about prosecutorial misconduct.”

Henricksen and Gonzales testified that in response to this statement, LaHood “lost it” and “went

ballistic at that point.” According to Henricksen, LaHood then “started screaming” at Gonzales,

“I will destroy your practice … neither of you will get hired on another case in Bexar County[.]”

Gonzales also testified about similar threats by LaHood. Henricksen claimed he was worried “this
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was going to get violent.” Henricksen said this threat from the District Attorney shook him up.

Both Henricksen and Gonzales stated they viewed LaHood’s comments as a threat to their

livelihood and believed he had the power and ability to make good on his threat. Gonzales said

LaHood’s threats had a “chilling effect on him” and his efforts in defending Martinez. Goss

testified, however, that this was not Gonzales’s only statement about the confrontation. Rather,

he expounded on his “valuable friendship” with LaHood, stating he felt their disagreement may

have hurt their friendship. Goss believed this is why Gonzales stated he could not sleep the night

after the incident. Henricksen admitted that the next day Goss advised them LaHood later

commented that “he didn’t want to lose Joe’s friendship over it.” Judge Valenzuela confirmed that

Goss relayed this statement by LaHood.

       LaHood’s memory of what occurred at the in-chambers meeting was different, as was

Goss’s. LaHood testified at the habeas hearing that the contention he was mad the media was

calling him after the motion for continuance was filed was “a gross mischaracterization.” LaHood

testified he fields media questions every day and does not “get mad over that.” According to

LaHood he had heard from Goss that Goss felt the defense put on a show for the media at the

hearing on the motion for continuance. LaHood admitted he called it a “shit show.”

       With regard to raising the mistrial issue, LaHood testified he was trying to determine

exactly what Gonzales wanted, pointing out that the State had agreed to a continuance, offered the

defense “every resource from the DA’s Office,” access to Dalton and the second-chair prosecutor,

as well as assistance from any number of investigators. Goss said the matter arose when Gonzales

raised concerns about the length of time the jury would be out while the defense conducted an

investigation into the encounter between Dalton and the prosecutor. In an effort to determine what

Gonzales wanted, LaHood said he asked if Gonzales wanted a mistrial, describing the question as

“more of a diagnostic.” He waited for a response and when none was forthcoming, he stated,
                                              - 16 -
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“Judge, give him a mistrial so we can pick a new jury.” LaHood denied wanting a mistrial,

believing that they had picked a “good jury” and was “happy with our jury.” According to

LaHood, the State had a strong case and intended to try it to a verdict. Goss echoed LaHood’s

impression about the trial, stating he felt it “was going very, very well[,]” exactly as he had

prepared and planned.

       LaHood claimed Gonzales advised the situation was not that simple, stating that if there

was going to be a mistrial, he wanted further prosecution barred. LaHood said he scoffed at the

notion. LaHood testified that in response, Gonzales threatened to file a motion for prosecutorial

misconduct and call a press conference.        Goss confirmed LaHood’s testimony concerning

Gonzales’s threat to go to the media, testifying that when he made the threat, Gonzales’s “voice

was raised, his face was red and he was pointing in my face saying that he is going to go public,

and accused me of prosecutorial misconduct.” According to Goss, Gonzales was “the first person

to scream” and “the first person to raise his voice and to be aggressive in my direction.” Goss

testified Gonzales’s threat was in stark contrast to his previous statement that he believed Goss

had not intended to do anything wrong. Gonzales admitted saying he had a problem with Goss

and pointed at him. He also admitted the defense might have to allege prosecutorial misconduct,

but denied he threatened to go to the media. Henricksen and Judge Valenzuela echoed Gonzales’s

testimony regarding the alleged threat to go to the press.

       LaHood said he then suggested that Gonzales consult the attorney disciplinary rules before

taking such action. According to LaHood, at that point appellate attorney Mark Stevens advised

that LaHood should not be upset with Gonzales because it was actually Stevens who suggested the

notion of prosecutorial misconduct. LaHood admitted that at this point — after Gonzales’s threats

— he said that if a mistrial was granted the State would pick a better jury and be more prepared

for the next one. LaHood also denied threatening the practices of the defense attorneys, but stated
                                               - 17 -
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that when Gonzales threatened to call a press conference and allege prosecutorial misconduct, he

advised that “in the process of defending this office’s honor, I will expose you as the unethical

lawyer that you are, and let’s see what happens to your law practice.” Goss confirmed the gist of

this statement. LaHood further stated that as District Attorney, it was his responsibility to defend

the integrity and honor of his office.

       Judge Valenzuela was subpoenaed to testify at the habeas hearing. With regard to the off-

record scheduling hearing at which the issue of a mistrial first arose, she testified LaHood

“expressed some concern about the motion for continuance.” The judge testified LaHood “didn’t

seem happy about … the motion for continuance being handled in open court where the media was

present.” She stated LaHood called it a “shit storm.” Judge Valenzuela agreed LaHood was the

first to mention a mistrial, stating he was willing “to get a new jury to start all over again, the

evidence was what it was.” She also agreed Gonzales said “he would possibly have to allege at

some point prosecutorial misconduct.” The judge testified that in response to this statement,

LaHood said “he was going to shut down his practice,” but she also recalled LaHood advising

Gonzales that he had no right to file a motion in bad faith. She did not feel LaHood’s response

was warranted. Judge Valenzuela felt LaHood was “mad” and she was concerned about the

escalation in volume and tone, fearing a possibility “that somebody would get hurt physically.”

However, there was never any physical violence, and afterward, the attorneys retired to another

room to discuss further proceedings in the matter.

       As a result of discussions between the attorneys, the defense was provided an opportunity

to interview the second-chair prosecutor and Dalton. Henricksen testified that during the defense

telephone interview of Dalton, the information provided “pretty much lined up with the initial

disclosure that [Goss] had made to the Judge in chambers that — in terms of where the relationship

happened, how it happened[.]” Dalton confirmed the one-time sexual encounter, but could not
                                               - 18 -
                                                                                    04-17-00280-CR


recall the name of the second-chair prosecutor and could only provide a basic description of her.

Henricksen testified Dalton told the defense he had no contact with the second-chair prosecutor

since their “one-time encounter” and he did not even recall her position in the District Attorney’s

Office. Both the second-chair prosecutor and Dalton denied having any contact regarding the case.

       During the defense interview of the second-chair prosecutor, she advised that she

recognized Dalton when she reviewed the prosecution guide based on his photo and nickname,

“Vegas.” She confirmed — as Goss had previously told the defense — she had no contact with

Dalton since their encounter and had no contact with the case since her disclosure to Goss. Under

questioning from the habeas court judge, Henricksen admitted the defense never uncovered any

evidence to indicate the second-chair prosecutor directed the investigation by police or had any

part in the charging decision. But Henricksen opined that it was his belief the prosecutor was

“holding back on some things as far as admitting to the actual relationship.” He also claimed there

were discrepancies between what she allegedly told Goss and what she stated in the interview with

regard to her encounter with Dalton.

       According to Gonzales, after the interview, he contacted Jay Norton, Chief of the District

Attorney’s Conviction Integrity Unit. Gonzales wanted to speak with Norton to see if they could

devise a solution to avoid a mistrial. A possible plea bargain was suggested, but Norton advised

he had no authority to negotiate a plea agreement. Then, the issue of a mistrial arose. At the

habeas hearing, the testimony was conflicting when it came to who said what during this meeting.

According to Gonzales, he told Norton LaHood suggested a mistrial, but neither he nor Henricksen

agreed. Norton’s testimony was in opposition. Norton testified it was Gonzales and Henricksen

that wanted a mistrial, but Goss and LaHood were opposed to it. At Gonzales’s request, Norton

discussed the concept of a mistrial with LaHood the next day. Norton stated LaHood was initially

opposed, but after a while, he agreed.
                                               - 19 -
                                                                                                    04-17-00280-CR


                                          Mistrial and Habeas Phase

         On February 16, 2017, just nine days after voir dire, and on the heels of the meeting

between the defense and Norton, the defense moved for a mistrial in open court. The defense

attorneys claimed they did not want a mistrial and the motion was made reluctantly based on the

untimely disclosure of information that might constitute impeachment evidence under Brady.

Although the State agreed to a mistrial, it denied any wrongdoing or that the defense was forced

into requesting a mistrial based on any action by the State. The trial court granted the motion for

mistrial and reset the trial for May 2017. Thereafter, Martinez filed his pretrial application for writ

of habeas corpus. In his application, Martinez alleged further prosecution based on the murder

indictment was barred based on double jeopardy.

         A hearing on Martinez’s habeas application was held in April 2017. The trial court denied

the application, entering written findings of fact and conclusions of law in support of its decision.

Thereafter, Martinez perfected this appeal.

                                                     Analysis

         As noted above, Martinez contends in this appeal that the habeas court erred in denying his

application for writ of habeas corpus. He argues retrial is barred by the Double Jeopardy Clause

of the Fifth and Fourteenth Amendments 4 to the United States Constitution because: (1) the State

goaded him into moving for a mistrial; (2) the State intentionally engaged in conduct — failure to

disclose exculpatory evidence — with the intent to avoid an acquittal; and (3) the State


4
  Martinez does not challenge the habeas court’s ruling based on the double jeopardy clause found within the Texas
Constitution. See TEX. CONST. art. I, § 14. However, the language in both the state and federal double jeopardy
clauses is markedly similar, and as numerous courts have held, the double jeopardy provision in the Texas Constitution
provides substantially identical protection to that provided by the United States Constitution. Compare U.S. Const.
amend. V with TEX. CONST. art. I, § 14; e.g., State v. Blackshare, 344 S.W.3d 400, 405 n.8 (Tex. Crim. App. 2011);
Bien v. State, 530 S.W.3d 177, 180 (Tex. App.—Eastland 2016), aff’d, Nos. PD-0365 & PD 0366, 2018 WL 2715380
(Tex. Crim. App. June 6, 2018); Ex parte Hill, 464 S.W.3d 444, 446 (Tex. App.—Dallas 2015, pet. ref’d); State v.
Almendarez, 301 S.W.3d 886, 889 n.8 (Tex. App.—Corpus Christi 2009, no pet.). Thus, any analysis under the Texas
Constitution would be the same.

                                                        - 20 -
                                                                                                       04-17-00280-CR


intentionally failed to disclose exculpatory evidence with the intent to protect a colleague from

personal embarrassment. 5

                                         Standard and Scope of Review

         It is the burden of the habeas applicant to prove his allegations by a preponderance of the

evidence. Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San Antonio 2011, no pet.) (citing

Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005)); State v. Webb, 244 S.W.3d

543, 547 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (same). The applicant must also provide

the court with a sufficient record to prove his allegations. Coleman, 350 S.W.3d at 160. Our

review of the habeas court’s ruling may include the evidence adduced at the habeas hearing and

the record as it existed before the habeas court at the time of the hearing. Id.

         We must review a habeas court’s decision granting or denying relief requested in an

application for writ of habeas corpus under an abuse of discretion standard. Ex parte Baldez, 510

S.W.3d 477, 478 (Tex. App.—San Antonio 2014, no pet.) (citing Kniatt v. State, 206 S.W.3d 657,

664 (Tex. Crim. App. 2006); Ex parte Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth,

2005, no pet.)); see Ex parte Peralta, 87 S.W.3d 642, 645 (Tex. App.—San Antonio 2002, no pet.)

(holding abuse of discretion standard applies with respect to habeas court’s ruling on habeas corpus

petition based on double jeopardy). Notably, in applying this standard, i.e., we must “review the

record evidence in the light most favorable to the trial court’s ruling[.]” Kniatt, 206 S.W.3d at

664; Ex parte Uribe, 516 S.W.3d 658, 665 (Tex. App.—Fort Worth 2017, pet. ref’d). Moreover,

we must afford great deference to the habeas court’s findings and conclusions, especially when, as


5
  Martinez has cited no specific authority, nor have we discovered any, holding that failure “to disclose exculpatory
evidence with the specific intent to protect a colleague from personal embarrassment” is an independent ground for
challenging a mistrial based on double jeopardy under Oregon v. Kennedy, 456 U.S. 667 (1982) or Ex parte Lewis,
219 S.W.3d 335 (Tex. Crim. App. 2007). Accordingly, we will not consider this as a separate issue, but shall review
the allegations within this issue as part of our review of Martinez’s other complaints, i.e., whether the State’s conduct
in this matter was undertaken with the intent to goad Martinez into moving for a mistrial or to avoid the possibility of
an acquittal.

                                                         - 21 -
                                                                                       04-17-00280-CR


here, they involve determinations of credibility and demeanor. See Ex parte Perusquia, 336

S.W.3d 270, 274–75 (Tex. App.—San Antonio 2010, pet. ref’d) (citing Ex parte Wheeler, 203

S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim.

App. 2003, overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim.

App. 2007)); Uribe, 516 S.W.3d at 665. The mere fact that we might decide the matter differently

is insufficient to constitute an abuse of discretion; rather, to overturn the habeas court’s ruling on

a petition for writ of habeas corpus, we must find the ruling was outside the zone of reasonable

disagreement. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003); Uribe, 516 S.W.3d

at 665.

                                           Applicable Law

          As a general rule, the State may not put defendants in criminal cases in jeopardy twice for

the same offense. Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014); see U.S. CONST.

amends. V, XIV; see also TEX. CONST. art. I, § 14. There are, however, exceptions to the general

rule and such exceptions endure because there are situations in which a defendant’s right to be

tried before a particular tribunal should be subordinated “to the public interest in affording the

prosecutor one full and fair opportunity to present [the State’s] evidence to an impartial jury.”

Arizona v. Washington, 434 U.S. 497, 505 (1978). As is applicable here, double jeopardy generally

does not preclude the retrial of a criminal defendant if the defendant requested the mistrial. Oregon

v. Kennedy, 46 U.S. 667, 672 (1982). There is however, a “narrow exception” to this general rule,

the parameters of which were set out in Kennedy. Id. at 673–79.

          Prior to Kennedy, numerous Supreme Court cases indicated “that even where the defendant

moves for a mistrial, there is a narrow exception to the rule that the Double Jeopardy Clause is no

bar to retrial.” Id. at 673 (citing United States v. DiFrancesco, 449 U.S. 117, 130 (1980); United

States v. Dinitz, 424 U.S. 600, 611 (1976); United States v. Jorn, 400 U.S. 470, 485 (1971); United
                                                 - 22 -
                                                                                       04-17-00280-CR


States v. Tateo, 377 U.S. 463, 468 n.3. (1964)). In these earlier cases, the exception was described

as applying to instances when a prosecutor intended to provoke a mistrial, but further suggested it

also applied when there was “bad faith conduct” or “harassment” by the prosecutor. Id. at 674

(quoting Dinitz, 424 U.S. at 611). The Kennedy court rejected these latter notions, stating they

offered “virtually no standards for their application” particularly given that every act by a rational

prosecutor during a trial is designed to “prejudice” a defendant in order to secure a finding of guilt.

Id.   Thus, the Court held “prosecutorial conduct that might be viewed as harassment or

overreaching, even if sufficient to justify a mistrial on defendant’s motion … does not bar retrial

absent intent on the part of the prosecutor to subvert the protections afforded by the Double

Jeopardy Clause.”      Id. at 675-76.    Accordingly, the exception applies “[o]nly where the

governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.”

Then and only then may a defendant assert double jeopardy in order to bar a retrial “after having

succeeded in aborting the first on his own motion.” Id. at 676.

       The Texas Court of Criminal Appeals adopted the Kennedy standard in Ex parte Lewis,

rejecting prior precedent that held the double jeopardy clause of the Texas Constitution barred

retrial if the prosecutor acted recklessly. 219 S.W.3d at 337, 371 (overruling Ex parte Bauder,

974 S.W.2d 729 (Tex. Crim. App. 1998)). Thus, under Lewis, a retrial is barred if a prosecutor

engages in conduct with the intent to goad or provoke the defense into requesting a mistrial. Id. at

336. After Lewis, but in the same term of court, the court of criminal appeals was called upon to

discuss the narrow Kennedy exception in the context of a prosecutor’s failure to disclose

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

       In Masonheimer, the defendant was charged with murder. Id. at 495. The defendant’s first

two trials ended in mistrials at the defendant’s request, “provoked by the State’s intentional failure



                                                 - 23 -
                                                                                                   04-17-00280-CR


to disclose exculpatory evidence with the specific intent to avoid an acquittal.” 6 Id. Prior to his

third trial, the defendant filed a pretrial application for writ of habeas corpus, which the trial court

granted. Id. at 503, 505. The court of appeals reversed. Id. at 505. Upon review, the Texas Court

of Criminal Appeals reviewed Kennedy and noted the Court had cited with approval several cases

in which retrial had been barred when the prosecution deliberately engaged in conduct with the

specific intent to avoid an acquittal. Id. at 507–08. Accordingly, after viewing the evidence in the

light most favorable to the trial court’s ruling, the Texas Court of Criminal Appeals held the record

supported a finding that the defendant’s two prior motions for mistrial were “necessitated” by the

State’s deliberate failure to disclose Brady material with the specific intent to avoid the possibility

of an acquittal. Id. In sum, the court concluded that under Kennedy, such deliberate conduct,

accompanied by specific intent to avoid the possibility of an acquittal, barred any retrial. Id.

         Thus, in Texas, when a defendant moves for a mistrial and subsequently claims retrial is

barred by double jeopardy, the habeas court, and all subsequent reviewing courts, must determine

whether: (1) the prosecutor engaged in conduct to goad or provoke the defense into requesting a

mistrial; or (2) the prosecutor deliberately engaged in the conduct at issue with the intent to avoid

an acquittal. Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350

S.W.3d at 160. As applied to this case, the issue is whether, viewing the evidence in the light most

favorable to the habeas court’s ruling, the habeas court abused its discretion in concluding

Martinez failed to prove by a preponderance of the evidence that the prosecutors engaged in

conduct — withholding of potential impeachment evidence under Brady or Article 39.14(h) —

with the intent to goad or provoke the defense into moving for a mistrial after jeopardy attached




6
  Unlike this case, the defense, the State, the trial court, and the court of appeals in Masonheimer agreed the State
failed to disclose exculpatory Brady material. Masonheimer, 220 S.W.3d at 494 n.1.

                                                       - 24 -
                                                                                                    04-17-00280-CR


or to avoid a possible acquittal. 7 See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at

336; Coleman, 350 S.W.3d at 160. The Texas Court of Criminal Appeals set out non-exclusive

factors in Wheeler to assist trial and appellate courts in determining whether the prosecutor had

the requisite intent so as to bar any retrial based on double jeopardy: (1) Did it reasonably appear,

at the time the prosecutor acted, that the defendant would likely obtain an acquittal?; (2) Was the

alleged misconduct repeated after admonitions from the trial court?; (3) Did the prosecutor provide

a “good faith” explanation for his conduct?; (4) Was the conduct “clearly erroneous”?; (5) Was

there a plausible basis — factually or legally — for the conduct, despite any ultimate impropriety?;

and (6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence,

negligence, or lack of judgment, or were they consistent with intentional misconduct? 203 S.W.3d

at 323–24. 8

                                                   Application

         In determining whether the habeas court abused its discretion in denying Martinez’s

application, we consider the evidence in the light most favorable to the court denial using the

Wheeler factors. We consider each factor in turn.




7
  Brady material includes evidence favorable to the defense, i.e, material, exculpatory evidence and impeachment
evidence. Pena v. State, 353 S.W.3d 797, 811–12 (Tex. Crim. App. 2011). Exculpatory evidence is evidence that
may justify, clear, or excuse the defendant. Id. Impeachment evidence is evidence that “disputes, disparages, denies,
or contradicts other evidence.” Id. However, in addressing the habeas petition in this case, the habeas court should
not have concerned itself with the propriety of the trial court’s Brady determination. See Coleman, 350 S.W.3d at
160. The granting of the mistrial cured any due process violation based upon Brady. Id. Thus, in this case, the habeas
court’s findings and conclusions relating to the nature and propriety of disclosure of the alleged Brady material are
irrelevant. See id.
8
  Courts have modified the Wheeler factors following the disavowment of Bauder by the court of criminal appeals in
Lewis to exclude an original sixth factor — reckless misconduct by the prosecutor. See, e.g., State v. Yetman, 516
S.W.3d 33, 36–37 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Ex parte Roberson, 455 S.W.3d 257, 260 n.1
(Tex. App.—Fort Worth 2015, pet. ref’d).

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   1. Did it Reasonably Appear at the Time of Prosecutors’ Actions or Inactions Prior to the
      Mistrial that Martinez Would Likely Obtain an Acquittal?

       By the time Goss had fully disclosed the details of the encounter between the second-chair

prosecutor and Dalton, the parties had completed voir dire, the State had presented its opening

statement, and the State had presented and the defense had cross-examined three witnesses. At

this point, Goss had, in his opening statement, advised the jury that he expected the evidence to

show that Carter was purchasing heroin from Martinez, and on the night of her murder, Carter met

Martinez for that purpose. Her cell phone records would show she received a call, shortly before

her murder, from a TracFone. That phone was subsequently determined to have called Gregory

Dalton just after the murder. Goss told jurors he expected Dalton would testify that:

       •   He drove a white van with decals;
       •   He knows Martinez;
       •   He picked up Martinez near the location of the murder, but he was unaware of
           the murder;
       •   He called Martinez the night of the murder when he was unable to locate him;
       •   Martinez paid him $400 or $500 for picking him up;
       •   Martinez told him he shot the girl featured in a news story;
       •   Martinez said he asked to borrow the victim’s cell phone, the victim gave him
           her phone, he stepped out of her vehicle, and then shot her five times in the right
           side of the head.

       According to the State, other evidence would confirm that a TracFone that had called Carter

on the night of the murder called Dalton around the time Dalton stated Martinez called and asked

Dalton to pick him up. In addition, the evidence would show Carter was shot five times in the

right side of the head, just as Dalton was told by Martinez. Moreover, Carter’s cell phone was

missing, corroborating Dalton’s claim that Martinez said he took her cell phone.

       Also, L.C., the State’s first witness, testified he saw a Honda Accord pull up and stop under

a street light in front of the empty house next door. L.C. testified he saw a Hispanic male in a dark

hoodie get out of the passenger side of the car. The male was “messing with his pockets” as if he


                                                - 26 -
                                                                                       04-17-00280-CR


was removing something. Just a couple of minutes later, L.C. heard multiple gunshots. L.C.

testified he saw a white van — a van that matched the description of the one driven by Dalton —

driving away from the Honda Accord a few minutes after the shooting. L.C.’s grandmother

testified she also heard gunshots and called 911.

       Officer Wehe, the first responding officer testified that when he arrived he saw the Honda

Accord with its passenger door open. The victim — later identified as Carter — was dead in the

driver’s seat. Her feet were crossed and her hands were in her pockets, which according to the

officer made it appear she was relaxed before she was shot. Officer Wehe believed she had been

shot, but could not determine how many times.

       Goss and LaHood testified at the habeas hearing that they believed the trial was going well.

Although LaHood was the first person to mention a mistrial, he testified this was only in an attempt

to determine what the defense wanted with regard to remedying the disclosure about the encounter

between the second-chair prosecutor and Dalton. According to the defense, LaHood stated the

State would agree to a mistrial and would “pick a better jury and be more prepared for trial” next

time. However, LaHood specifically denied wanting a mistrial, stating his belief that he and Goss

had picked a “good jury.” He stated he was “happy with our jury” and the State intended to try

the case to a verdict. Goss corroborated LaHood’s statements about the status of the trial just prior

to the mistrial, stating he felt the prosecution of Martinez “was going very, very well[,]” just as he

had prepared and planned.

       Viewing the evidence in the light most favorable to the habeas court’s ruling, see Kniatt,

206 S.W.3d at 664, we hold it does not support the appearance that during the time leading up to

the mistrial that Martinez was likely to obtain an acquittal. See Wheeler, 203 S.W.3d at 324. Based

on its opening statement, the State expected the evidence to show the same TracFone made

telephone calls to Carter and Dalton around the time of the murder. Dalton would testify he
                                                - 27 -
                                                                                       04-17-00280-CR


received a call from Martinez near the time of the murder, he picked Martinez up near the site of

the murder, and Martinez confessed to the murder — supplying Dalton with details only the

perpetrator would know. The State believed Dalton’s testimony would be confirmed by cell phone

evidence, forensic evidence, and other witnesses. Both prosecutors testified at the habeas hearing

that they felt they had a good jury and the case was going well. The habeas court, in its discretion,

could have found that LaHood’s decision to raise the specter of a mistrial was done for the reason

he stated — to feel out the defense in an effort to “diagnose” what it wanted following the

disclosure.

       Accordingly, viewing the evidence in the light most favorable to the habeas court’s ruling,

the habeas court could have determined — as do we — that it did not reasonably appear in the

time leading up to the mistrial that Martinez was likely to obtain an acquittal. See id. The evidence

pertinent to the first Wheeler factor supports the habeas court’s ruling. See id.

   2. Did Goss Repeatedly Fail to Disclose All Information Relating to the Encounter Between
      the Second-Chair Prosecutor and Dalton After Admonitions from the Trial Court?

       Despite Goss’s apparent concerns after his full interview with Dalton, the evidence shows

Valdez — chief of the appellate section — and Ballantyne — chief of the ethical disclosure unit

— did not believe disclosure was necessary. However, they suggested Goss could, out of an

abundance of caution, disclose the information about the encounter between the second-chair

prosecutor and Dalton to the trial court. According to Goss, after speaking to Valdez and

Ballantyne, the State requested an ex parte, in camera hearing with the trial court before the jury

was sworn. During that hearing, Goss made a full disclosure to the trial court. Thereafter, the trial

court stated it did not believe “the extent of their relationship” between the second-chair prosecutor

and Dalton required immediate disclosure. The trial court also opined that “the disclosure may be

necessary,” but it might not be admissible. The trial court expressed its belief that “it would be in


                                                - 28 -
                                                                                      04-17-00280-CR


poor taste just to throw it out there,” and agreed to consider remedies that might minimize any

harm to the second-chair prosecutor.

          The trial judge stated her “gut” told her she “would want it disclosed,” when Goss asked if

she was ordering him to disclose the information to the defense. However, Judge Valenzuela then

stated:

          This is — this is not — I mean if I say disclose, you need to disclose, and you
          decide when you do it.

          But this is just my opinion for whatever it’s worth … if this is information you’ve
          had since 2014 … [o]kay 2015 … I wouldn’t put yourself — that’s my — I’m just
          giving you my advice … I wouldn’t wait any longer ….

Moreover, Judge Valenzuela advised Goss to withhold the name of the second-chair prosecutor

while she considered potential remedies, stating she would take “the responsibility for the delay in

disclosure.” The trial judge told Goss, “say I told you that I thought the disclosure was appropriate

but to hold off so that I could make sure that I had an appropriate remedy.”

          Thus, the record does not show that at any time during the ex parte hearing that Goss was

ordered to disclose to the defense the encounter between Dalton and the second-chair prosecutor.

Judge Valenzuela’s strongest statement during the entire ex parte hearing was “I mean if I say

disclose, you need to disclose[.]” Moreover, at the habeas hearing Judge Valenzuela testified she

did not order Goss to do anything at that time, agreeing she left it up to Goss. Viewing the evidence

in the light most favorable to the habeas court’s ruling, we hold this does not constitute an order

to disclose. See Kniatt, 206 S.W.3d at 664

          Even though he was not ordered to disclose the information — and was, in fact, advised to

withhold certain information — immediately after the ex parte hearing and before the jury was

sworn, Goss disclosed the “one-time sexual encounter” to the defense, withholding the name and

position of the prosecutor. He also failed to disclose that she had reviewed the prosecution guide.


                                                 - 29 -
                                                                                         04-17-00280-CR


However, as previously noted, if Goss had disclosed the position of the prosecutor or that she had

reviewed the guide, he would have, in essence, violated Judge Valenzuela’s admonishment not to

disclose her name. To suggest that disclosing her position or her review of the guide would not

have revealed her identity is farcical. The defense attorneys had worked in the courthouse for

years and it would have taken no time at all for them to discover which female prosecutor in the

437th District Court had suddenly been removed from the Martinez case. And, who but a

prosecutor in the prosecuting court would review the prosecution guide when it was first provided

to the District Attorney’s Office? Thus, the evidence shows Goss took the trial court’s “advice”

and disclosed the encounter between a yet-to-be-named female prosecutor and Dalton, withholding

her name and any additional information that might have revealed her name, as instructed by the

court.

         The record shows it was only after the jury was sworn and the State had begun presenting

its case that Goss was ordered to make a full disclosure to Martinez’s defense team. The evidence

of how this occurred was conflicting. According to Judge Valenzuela, during an “off-the-record”

conference in chambers, she inquired as to whether Goss had told the defense “everything.” Goss

testified the trial judge stated she knew he had made certain disclosures, but had withheld

information at her request. What is uncontested is at this point, and for the first time, the trial court

ordered Goss to immediately make a full disclosure, which he did. Although Henricksen claimed

he was upset that he was just learning the details, everyone returned to the courtroom and trial

resumed.

         When we view the evidence relating to the ex parte discussion and the subsequent order to

disclose in the light most favorable to the habeas court’s ruling, see Kniatt, 206 S.W.3d at 664, we

hold there is no evidence that Goss — or any other prosecutor or member of the District Attorney’s

Office — continued to withhold information after being ordered to disclose it. See Wheeler, 203
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S.W.3d at 324. Moreover, neither Valdez nor Ballantyne instructed or advised Goss to disclose

the information to the defense or to the trial judge. Rather, they stated they did not believe

disclosure was required, but if Goss wanted to disclose the information “in an abundance of

caution,” he might make an ex parte disclosure to the trial court to determine what the court

believed he should do. Goss did as instructed by his colleagues and by the trial court. There was

no withholding of information, i.e., “repeated misconduct” after advice from other members of the

office or admonitions by the trial court. See Wheeler, 203 S.W.3d at 324. The evidence shows

the trial court never admonished Goss about his failure to disclose the details of the encounter

between the Dalton and the second-chair prosecutor. See id. Nor did the trial court order him to

disclose the information until after the jury was sworn and the State began presenting its case. See

id. Goss immediately complied, as instructed, each time he was told to disclose. See id.

Accordingly, this factor does not suggest an attempt to goad the defense into a mistrial or an

attempt to avoid an acquittal. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at

336; Coleman, 350 S.W.3d at 160.

   3. Did Goss Provide a “Good Faith” Explanation for His Lack of Disclosure?

       The undisputed evidence shows that when Goss found out about the encounter between the

second-chair prosecutor and Dalton, he immediately “firewalled” the prosecutor from the case.

He questioned the prosecutor, asking her if she had additional contact with Dalton after their “one-

time encounter.” She advised she had not — Dalton later confirmed her statement and there was

no evidence to the contrary. Goss testified he considered the second-chair prosecutor’s encounter

with Dalton a “conflict,” and believed he took appropriate steps to deal with it. Subsequently, he

stated numerous times that he withheld the information — until the week before trial when he

learned Dalton knew far more than he originally disclosed — out of respect for his colleague, to



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protect her reputation. Then, though advised the information need not be disclosed, Goss chose to

disclose the information to the trial court, and then upon order, to the defense in full.

       The habeas court was entitled to find Goss’s decision to withhold disclosure of the second-

chair prosecutor’s one-time encounter with Dalton was based on his good-faith desire to protect a

colleague’s reputation in the legal community and at the courthouse. See Kniatt, 206 S.W.3d at

664; Perusquia, 336 S.W.3d at 274–75. Viewing the evidence in the light most favorable to the

habeas court’s ruling, see Kniatt, 206 S.W.3d at 664, we cannot say it was an abuse of discretion

to find Goss provided a good-faith explanation for his failure to disclose fully at an earlier point in

time. See Wheeler, 203 S.W.3d at 324. The evidence relating to this third Wheeler factor does not

suggest an attempt to force a mistrial or avoid an acquittal. See Masonheimer, 220 S.W.3d at 507–

08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160.

   4. Was Goss’s Failure to Disclose “Clearly Erroneous”?

       It is undisputed that until a week before trial, no one in the District Attorney’s Office had

any idea Dalton would be an important witness for the State. Thus, Dalton’s encounter with a

prosecutor seemed immaterial. See Pena, 353 S.W.3d 797, 811–12 (holding Brady material

includes material, exculpatory evidence and impeachment evidence). It was only when Goss and

LaHood interviewed Dalton the week before trial that they learned he had failed to provide law

enforcement with all of the information he had relating to Martinez and the murder of Carter. Goss

testified it was at this point that he began to see possible impeachment value in the information

concerning the one-time encounter between the second-chair prosecutor and Dalton. See id.

Concerned by the possibility, Goss consulted “experts” — Valdez and Ballantyne — who advised

they did not believe the information had to be disclosed. Nevertheless, Goss disclosed the

information to the trial court, which advised him to make a partial disclosure. Goss complied and

then fully disclosed when ordered to do so by the trial court.
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       The habeas court found there was no evidence the second-chair prosecutor or Dalton had

further contact beyond the single encounter. Rather, all of the evidence suggested there was no

additional contact. Moreover, the evidence supports the habeas court’s finding that the second-

chair prosecutor was “firewalled” from the case by Goss, and she had no further involvement in

the case after she told Goss about Dalton. She had no interaction with any witnesses and was not

involved in charging decisions, plea negotiations, trial strategy, or any other aspect of the case.

The habeas court further found there was no evidence Dalton attempted to use the one-time

encounter “to curry favor from” the District Attorney’s Office or law enforcement. This finding

is supported by the evidence. Thus, the habeas court found the defense failed to establish the

encounter between the prosecutor and Dalton was material, relevant, or admissible. Thus, with

regard to Brady, we cannot say the failure to disclose prior to the trial court’s order was “clearly

erroneous.” The habeas court failed to see — as do we — how the evidence would be material or

admissible, even for impeachment purposes given the facts: (1) Dalton and the second-chair

prosecutor had a one-time sexual encounter in 2011 or 2012 — three or four years before the

murder; (2) there was no further contact after the single encounter; (3) the second-chair prosecutor

only recognized Dalton from his picture and nickname; (4) Dalton did not remember the second-

chair prosecutor’s position in the office and had only a vague recollection of what she looked like;

(5) Dalton was never considered a suspect by law enforcement; (6) the second-chair prosecutor

reviewed only the prosecution guide and had nothing else to do with the case after her disclosure;

and (7) Dalton never attempted to use his encounter with the prosecutor to his advantage.

Accordingly, we do not find the decision to withhold the evidence prior to the trial court’s

disclosure order to be “clearly erroneous” under Brady. See Wheeler, 203 S.W.3d at 324.

       However, section 39.14(h) of the Texas Code of Criminal Procedure — known as The

Michael Morton Act — does not require evidence to be material or admissible for purposes of
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disclosure. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h). Rather it “creates a general,

continuous duty of the State to disclose before, during, or after trial any discovery evidence tending

to negate the guilt of the defendant or reduce the punishment the defendant could receive.” Hart

v. State, Nos. 14-15-00468-CR & 14-15-00469-CR, 2016 WL 4533419, at *5 (Tex. App.—

Houston [14th Dist.] Aug. 30, 2016, no pet.) (mem. op., not designated for publication (citing TEX.

CODE CRIM. PROC. ANN. art. 38.14(h)). We hold — given the undisputed evidence as set out in

(1) through (7) above — the habeas court could have concluded the failure to disclose the

encounter prior to the trial court’s order was not “clearly erroneous” even under Article 39.14(h).

The one-time sexual encounter between the second-chair prosecutor, who was firewalled from the

case prior to indictment, with Dalton, a potential “star witness,” would not tend to negate

Martinez’s guilt or reduce his sentence under the facts as found by the habeas court in its discretion.

See Kniatt, 206 S.W.3d at 664. Accordingly, we hold this Wheeler factor does not lend itself to a

finding of goading or fear of an acquittal by prosecutors. See Masonheimer, 220 S.W.3d at 507–

08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160.

   5. Was There a Plausible Basis — Legally or Factually — for Goss’s Failure to Disclose
      Despite Any Ultimate Impropriety?

       As discussed above, Goss’s reasoning for not disclosing the encounter between Dalton and

the second-chair prosecutor until ordered to do so by the trial court was based on his belief that

this was nothing more than a conflict that could be resolved by way of a firewall and his concern

for his colleague and her reputation. The first reason proffered by Goss falls within the legal realm.

In the “clearly erroneous” analysis, we held that under the facts of this case, the habeas court did

not err in finding the encounter — the information withheld — immaterial, irrelevant, or

inadmissible. Nor, as we concluded, did it tend to negate Martinez’s guilt given the second-chair

prosecutor’s complete lack of participation in the case, the absence of contact between the relevant


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individuals, and nonexistence of any agreement with Dalton for his testimony. Thus, even if it

should ultimately be determined that disclosure was mandated under Brady or Article 39.14(h),

we hold there was a legally plausible basis for Goss to withhold the information prior to the trial

court’s order to disclose.

       There was also a plausible factual basis for Goss’s decision to withhold the information —

respect and concern for his colleague and her reputation. The trial court’s subsequent order to

disclose the encounter and its ultimate propriety, does not detract from the plausible factual basis

for Goss’s decision to withhold the information and “firewall” the prosecutor from the case. The

trial court also expressed its deep concern about what would happen if the information was

disclosed without some court-crafted remedy to minimize the harm to the second-chair prosecutor

and her reputation. If the trial court was concerned about the disclosure in the absence of a remedy,

how can it be argued that Goss’s decision to withhold was less than plausible, even if later

determined to be improper? Viewing the bases provided by Goss for withholding the information

in the light most favorable to the habeas court’s denial of Martinez’s application, we cannot say

the habeas court abused its discretion. See Kniatt, 206 S.W.3d at 664. Thus, this fifth Wheeler

factor does not suggest prosecutors engaged in behavior in an effort to goad the defense into a

mistrial or that they acted out of fear of an acquittal. See Masonheimer, 220 S.W.3d at 507–08;

Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160.

   6. Was the Prosecutors’ Failure to Disclose the One-Time Encounter Consistent with
      Inadvertence, Negligence, or Lack of Judgment, or Was it Consistent with Intentional
      Misconduct?

       As a whole, the prosecutors involved in this matter did not believe the information about

the one-time encounter needed to be disclosed at all, especially prior to the full interview with

Dalton a week before trial. Up until a week before trial, Goss firmly believed he had dealt with

the disclosure by the second-chair prosecutor appropriately — he removed her from the case and
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created a firewall so that she would have no further contact with anyone involved. Thereafter,

when he learned about the additional testimony Dalton intended to provide, he began to second-

guess his decision. Accordingly, he brought his concerns to LaHood. Goss and LaHood both

testified they did not believe the encounter fell within the purview of Brady or otherwise required

disclosure. Nevertheless, they consulted the heads of the appellate and ethical integrity units.

Neither Valdez or Ballantyne believed disclosure was mandated, but offered a solution in the event

Goss and LaHood still had concerns. Goss decided to make a full disclosure to Judge Valenzuela

and abided by her advice and subsequent order. The evidence shows that before the jury was

sworn — and in accord with the trial court’s recommendation — Goss advised Martinez’s defense

counsel, Henricksen, that a prosecutor had a one-time sexual encounter with Dalton, a State’s

witness. Henricksen took no action at that time. Goss’s failure to disclose the prosecutor’s identity

or other information that would have revealed her identity was based on the trial court’s direction

not to disclose her name. Then, when ordered to make a full disclosure, Goss fully complied. The

decisions by Goss and LaHood to seek advice from the head of the appellate and ethical integrity

units — and subsequently the trial court itself — belies any intent to engage in misconduct. If

Goss or LaHood desired to intentionally withhold information from the defense — information

they believed they should disclose — they could have simply said nothing. Goss could have kept

the second-chair prosecutor’s disclosure to himself, figuring it would never come out. LaHood

and Goss could have decided between themselves disclosure was not mandated instead of seeking

additional opinions. And once Valdez and Ballantyne told Goss they did not believe disclosure

was mandated, he could have believed he had done his due diligence and moved on, but he did

not. Rather, he went to the trial court with a full and complete disclosure.

       Given the evidence of the actions taken by the prosecutors in this case and their testimony

relating thereto, the trial court was within its discretion in finding their actions were inconsistent
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with intentional misconduct. See Kniatt, 206 S.W.3d at 664. After analyzing the final Wheeler

factor, we hold the evidence does not suggest the actions or inactions of the prosecutors were

undertaken out of fear of an acquittal or for the purpose of goading the defense into moving for a

mistrial. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350

S.W.3d at 160.

   7. Did LaHood’s Threats to “Shut Down” the Practices of Defense Counsel Goad Martinez
      into Moving for a Mistrial or Were They Made Out of Fear of an Acquittal? (Non-Wheeler
      Consideration)

       Although the Wheeler factors were designed to assist the courts in assessing whether

prosecutors intended to goad a defendant into a mistrial or acted in an effort to avoid an acquittal,

the factors are non-exclusive. See Wheeler, 203 S.W.3d 323. Beyond the Wheeler factors,

Martinez points to the threats by LaHood to shut down the practices of the defense attorneys as

evidence of his intent to goad him into a mistrial.

       As set out in detail above, during an off-the-record meeting in chambers, a heated

discussion developed concerning Goss’s actions in this case and the actions the defense would

need to take in response. According to testimony from Henricksen and Gonzales, LaHood was

angry and ranting, threatening to “shut down” the practices of both men. LaHood denied this,

although Judge Valenzuela testified the threat was made. LaHood testified Gonzales threatened

to allege prosecutorial misconduct and seek redress with the media. Goss confirmed Gonzales

threatened to allege prosecutorial misconduct, pointing at him.

       All those who were present agreed LaHood was the first to mention the specter of a mistrial.

But he testified this was simply an effort to determine what it was the defense wanted in an effort

to remedy the matter. Both LaHood and Goss testified they did not desire a mistrial. Martinez

disagrees, arguing LaHood’s behavior was nothing more than an attempt to induce the defense into



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requesting a mistrial. According to Martinez, the State needed to force the defense to move for a

mistrial to avoid double jeopardy given the jury had been empaneled and sworn.

        The habeas court found LaHood “engaged [in] what one witness properly called a ‘rant.’”

The habeas court further found LaHood stated that he would agree to a mistrial and would pick a

better jury and be more prepared for trial. According to the habeas court’s finding, LaHood

“became enraged and threatened to ‘shut down’ the defense lawyers’ practices, to go to the media

and do whatever it took.” However, the habeas court concluded, that although LaHood behaved

unprofessionally, “neither the intent nor the effect of his behavior was to force the defense to move

for mistrial.” Rather, the habeas court concluded that if done with any intent, LaHood’s actions

were taken “to attempt to deter the claim by the defense of jeopardy [attaching] by reason of

prosecutorial misconduct, an issue separate from the mistrial.” We agree.

        Reviewing the evidence in the light most favorable to the habeas court’s denial of

Martinez’s habeas application, see Kniatt, 206 S.W.3d at 664, we hold the habeas court did not err

in accepting testimony by Goss and LaHood that the State did not desire a mistrial. Rather,

LaHood’s rant and threats were made only in an effort to deter the defense from alleging

prosecutorial misconduct, not to force a mistrial. When the evidence is viewed in the proper light,

the habeas court could certainly have concluded from the evidence, as do we, that LaHood’s threats

were related to the defense threats to allege prosecutorial misconduct, which was separate from

the matter of a mistrial.

                                           CONCLUSION

        The ultimate issue for the habeas court was whether Martinez proved by a preponderance

of the evidence that the actions of prosecutors were taken: (1) with the intent to goad or force him

into requesting a mistrial in order to subvert double jeopardy protections; or (2) to avoid an

acquittal. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350
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S.W.3d at 160. The habeas court, after hearing testimony and reviewing evidence, found Martinez

failed to meet his burden. Based on an examination of the evidence under the appropriate standard

of review, and considering the Wheeler factors and LaHood’s threats, we hold the habeas court

was within its discretion in concluding Martinez failed to establish by a preponderance of the

evidence that prosecutors intended to goad him into moving for a mistrial or feared an acquittal.

See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at

160. We therefore hold the habeas court did not abuse its discretion in denying Martinez’s petition

for writ of habeas corpus and affirm the habeas court’s order.

                                                  Marialyn Barnard, Justice

PUBLISH




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