                                                                          ACCEPTED
                                                                        01-14-00815
                                                            FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                2/20/2015 8:38:27 AM
                                                                 CHRISTOPHER PRINE
                                                                              CLERK

                   01-14-00815-CR

 IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS
                                            FILED IN
                                             1st COURT OF APPEALS
                                                 HOUSTON, TEXAS
            MUHAMMAD SAADAN AHSAN            2/20/2015 8:38:27 AM
                                             CHRISTOPHER A. PRINE
                         v                           Clerk


             STATE OF TEXAS, APPELLEE

 APPEALED FROM THE 228th JUDICIAL DISTRICT COURT
             HARRIS COUNTY, TEXAS




  BRIEF OF APPELLANT, MUHAMMAD SAADAN AHSAN




                             /s/ Gene P. Tausk___________
                             Gene P. Tausk
                             TBN: 24003035
                             1221 Studewood St.
                             Houston, TX 77008
                             (713) 429-5476
                             (713) 490-3150 (fax)
                             gene@tauskvega.com

                             ATTORNEY FOR APPELLANT,
                             MUHAMMAD AHSAN




APPELLANT REQUESTS AN ORAL HEARING ON THIS BRIEF
                        TABLE OF CONTENTS

Identity of Parties and Counsel ...…………………………………………………iii

Index of Authorities ...………………………………………………………….….v

Statement of the Case ..………………………………………………………….…1

Statement Regarding Oral Hearing...……………………………………………….2

Statement of Jurisdiction ……...………….………………………………………..2

General Statement-Standards of review ….………………………..………………2

Issues Presented ……………………………………………………………………3

    First Point of Error ………...………………………………………………..3

Statement of Facts………………………………………………………………….3

Summary of the Argument ……………………………….………………………..4

Argument …………………………………………………………………………..5

    First Point of Error: The State of Texas intentionally provoked a mistrial
    in this matter and a retrial of Ahsan is therefore not possible………………...5

Conclusion and Summary ………………………………………………………...19

Prayer……………………………………………………………………………...20

Certification of Service……………………………………………………………21

Certificate of Compliance………………………………………………………....21




                                     ii
                                 01-14-00815-CR

       IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS

                EX PARTE MUHAMMAD SAADAN AHSAN


       APPEALED FROM THE 228th JUDICIAL DISTRICT COURT
                   HARRIS COUNTY, TEXAS

         BRIEF OF APPELLANT, MUHAMMAD SAADAN AHSAN



                  IDENTITY OF PARTIES AND COUNSEL

        Pursuant to the Texas Rules of Appellate Procedure 38.2(a)(1)(A), a complete
list of the names of all interested parties is provided below:
Counsel for the State:

Defendant/Appellee:             Muhammad Saadan Ahsan

Trial Counsel for Defendant:    Jed Silverman
                                TBN: 24013511
                                1221 Studewood St.
                                Houston, TX 77008
                                (713) 226-8800

                                Steve Gonzalez
                                TBN: 90001622
                                1520 E. Highway 6
                                Alvin, TX 77511
                                (281) 585-1999

Appellate Counsel for Appellant:

                                Gene P. Tausk
                                Tausk & Vega
                                TBN: 24003035
                                1221 Studewood St.

                                         iii
                              Houston, TX 77008
                              (713) 429-5476
                              (713) 490-3150 (fax)

Plaintiff/Appellee :          The State of Texas

Trial Counsel for Appellee:   Holly Radom
                              Harris County District Attorneys’ Office
                              1201 Franklin St, Ste 600
                              Houston, TX 77002
                              (713) 755 5800


Appellate Counsel for Appellee:


                              Harris County District Attorneys’ Office
                              Appellate Division
                              1201 Franklin St., Ste 600
                              Houston, Texas 77301
                              (713) 755-5800


Trial Judge:                  The Honorable Mark Carter




                                      iv
                        INDEX OF AUTHORITIES

                                   Cases

Bauder v. State, 921 S.W.2d 686, 699 (Tex.Crim.App. 1996)……....…...…..…4, 14

Bowen v. State, 131 S.W. 3d 505 (Tex.App.—Eastland, 2004)……..…....……15, 18

Grace Cmty Church v. Gonzalez, 853 S.W.2d 678, 680 (Tex.App.—Houston
[14th Dist.] 1993, no writ)…………………………………….......………………..12

Oregon v. Kennedy, 456 U.S. 667 (1982)………………..…..…..…….7, 13, 14, 15

United States v. Dinitz, 424 U.S., at 611, cited in Oregon v. Kennedy,
456 U.S. 667 (1982)…………………………………………………………….....15




Statutes and Constitutional Provisions


Texas Rules of Appellate Procedure Section 25.2……………………..……………2

Texas Code of Criminal Procedure article 44.02……………………………........…2

Texas Code of Criminal Procedure article 44.25……………………………........…2

Tex. Const. Amend. 5, art. 1, § 10……………………………..……………………6




U. S. Const., Amend. 5, art. 1, § 10……………………………………....………….6

U.S.C.A. Const. Amend 5., Vernon’s Ann. Texas Const. Art. 1, section 14,
cited in: Bowen v. State, 131 S.W. 3d 505 (Tex.App.—Eastland, 2004)……….…..15



                                         v
                                 01-14-00815-CR

       IN THE FIRST COURT OF APPEALS AT HOUSTON, TEXAS

                  EX PARTE MUHAMMAD SAADAN AHSAN


        APPEALED FROM THE 228th JUDICIAL DISTRICT COURT
                    HARRIS COUNTY, TEXAS

         BRIEF OF APPELLANT, MUHAMMAD SAADAN AHSAN

      Appellant, Muhammad Saadan Ahsan (“Ahsan”) submits this Brief to this

Honorable Court. Appellee is the State of Texas (“State”). This is an interlocutory

appeal of Ahsan invoking double jeopardy.

TO THE HONORABLE JUSTICES OF THE 1st COURT OF APPEALS:

      Appellant Ahsan respectfully asks this Honorable Court to reverse the

decision of the Honorable Mark Carter of the 228 th Judicial District Court who did

not approve Ahsan’s motion to invoke double jeopardy and thus prevent another trial

in this matter.

                         STATEMENT OF THE CASE

      This is a case involving the crime of Assault on a Family Member which was

tried beginning on or about February 18, 2014. During the course of the trial, one

of the State’s witnesses, Officer Dustin Crowder, stated that Ahsan did not want to

give a statement to the police. This was a violation of Ahsan’s Constitutional rights

against self-incrimination and, as such, a mistrial was declared. Ahsan later asked
                                          1
the 228th Judicial District Court to declare that because of this statement, a retrial

was not possible because of Double Jeopardy violations. The Honorable Mark

Carter, presiding judge of the 228th, denied this request on or about November 5,

2014.

        The pertinent proceedings of the trial can be found in Volume 2 of the

Reporter’s Record (“RR”).



               STATEMENT REGARDING ORAL ARGUMENT

        Ahsan respectfully requests that this Honorable Court allow oral arguments

on this matter at a time and date to be set by the Court.

                       STATEMENT OF JURISDICTION

        This Honorable Court has jurisdiction over this matter pursuant to the Texas

Rules of Appellate Procedure Section 25.2.



                GENERAL STATEMENT-STANDARDS OF REVIEW

        As per article 44.02 of the Texas Code of Criminal Procedure, a defendant in

any criminal action has the right of appeal. As per article 44.25 of the Texas Code

of Criminal Procedure, the courts of appeals or the Court of Criminal Appeals may

reverse the judgment in a criminal action as well as upon the law as upon the facts

of the case.


                                           2
                                 ISSUES PRESENTED

     FIRST POINT OF ERROR

     There is only one point of error in these proceedings: was the trial court Judge

correct in denying Ahsan’s Motion Invoking Double Jeopardy on or about

November 5, 2014?



                           STATEMENT OF FACTS

  1. Muhammad Saadan Ahsan, your Appellant, was charged with Assault on a
     Family Member – Impeding Breathing on or about February 8, 2012.

  2. This case was taken to trial on or about February 18, 2014.

  3. The Defendant appeared with Counsel Jed Silverman and Steve Gonzalez.
     The state was represented by an Assistant District Attorney from the State of
     Texas.

  4. Both parties announced ready for trial and a jury was selected and empaneled.

  5. As a result of conduct occurring during trial, this Honorable Court granted a
     Motion for Mistrial.

  6. Specifically, during the course of the trial, one of the State’s witnesses (if not
     the “star” witness), Officer Dustin Crowder, stated in front of the jury while
     being question by Steve Gonzalez that Ahsan did not want to give a statement
     to the police.

  7. Upon hearing this statement, the Assistant District Attorney in this mater, Ms.
     Holly Radom, immediately objected.

  8. The 228th Judicial District Court decided that your Appellant’s rights against
     self-incrimination had been violated by Officer Crowder’s statement and a
     mistrial was declared.


                                          3
   9. Your Appellant filed a Writ invoking Double Jeopardy arguing that a retrial
      was not possible. The 228th denied this Writ and a Findings of Fact and
      Conclusions of Law was signed by the Honorable Mark Carter on or about
      November 5, 2014.

   10.Your Appellant files this appeal under the standards first defined in the State
      of Texas by and through the Bauder line of cases which has now been
      narrowed by the Court of Criminal Appeals to prevent re-trials when it has
      been shown that the prosecutor engaged in conduct that was intended to
      provoke the defendant into moving for a mistrial.

   11.This case was properly appealed and is awaiting a decision from this
      Honorable Court.


                       SUMMARY OF THE ARGUMENT

      With respect to the Honorable Mark Carter, he erred in not signing the Writ

Invoking Double Jeopardy and allowing a retrial of Your Appellant. It is the position

of Ahsan that the conduct of Officer Crowder was a deliberate attempt to force a

mistrial in this matter. When Government conduct exists in forcing a mistrial, as

Your Appellant argues exists in this situation, then double jeopardy is invoked and

a retrial is not possible under the Constitution of the United States and the Texas

Constitution. Evidence demonstrates that the Government, in this case a State agent,

namely Officer Crowder, intentionally provoked a mistrial in this matter and, as

such, a retrial of Ahsan is not possible.




                                            4
                                   ARGUMENT

FIRST POINT OF ERROR: THE STATE OF TEXAS INTENTIONALLY
PROVOKED A MISTRIAL IN THIS MATTER AND A RETRIAL OF
AHSAN IS THEREFORE NOT POSSIBLE.

      The evidence in the trial portion of the case shows that, during trial, Officer

Dustin Crowder, a State witness, violated the Constitutional rights of Your Appellant

and, as such, a mistrial was declared. Specifically, during the trial, Officer Crowder

stated in front of the jury while being questioned by Mr. Steve Gonzalez (during

cross-examination) that Ahsan did not want to give a statement to the police (RR,

vol. 2, p. 101, lines 19-25).

      Jed Silverman, co-counsel with Steve Gonzalez,, with the permission of this

Honorable Court, immediately took Officer Crowder under voir dire examination

after this statement was made. During this voir dire examination, Silverman asked

Officer Crowder (a five year police veteran), if Crowder was familiar with the

Miranda warnings. Officer Crowder, of course, answered that he was. Officer

Crowder was able to repeat the Miranda warnings verbatim into the record (RR, vol.

2, p. 105, lines 1-15, p. 106, lines 1-2). Officer Crowder stated under voir dire

questioning that he stated to the jury that Your Movant chose the right to remain

silent (RR, vol. 2, p. 106, lines 11-14). Specifically, during voir dire questioning,

Officer Crowder stated that he was simply trying to show that he was offering Your




                                          5
Appellant the ability to make a statement (if Ahsan wanted to make a statement).

RR, vol. 2, p. 107, lines 1-17).

      Upon hearing this statement, the Assistant District Attorney on this matter,

Ms. Holly Radom, immediately objected (RR, vol. 2, p. 101, line 24).            The

Honorable Judge Carter, at this point, allowed all counsel to approach the bench.

Counsel for Your Appellant, Mr. Jed Silverman, made an objection pursuant to the

United States Constitution, Article 1, Section 10. (RR, vol. 2, p. 102, lines 15-22).

We note that the Honorable Judge removed the jury from the courtroom at this time.

      Mr. Silverman made the following specific objection:


       “The defense is going to object at this point in time pursuant to the Fifth
Amendment of the United States Constitution, Article 1, Section 10. The witness
has intentionally rung the bell. That’s exactly what he has done. He has commented
on Mr. Ahsan invocating his Fifth Amendment Privilege.”

      Id.

      “My position is that this witness (Officer Crowder) has intentionally rung the
bell. He has commented on Mr. Ahsan invocating his Fifth Amendment Privilege.
An experienced police officer knows better. We’re going to object at this point in
time pursuant to the Fifth Amendment, Article 1, Section 10 of the Texas
Constitution. There’s no cure of instruction that’s going to remedy what he’s done
and defense is going to move for a mistrial.”

      RR, vol. 2, p. 103, lines 4-13.


      While being questioned by this Honorable Court, Mr. Silverman and Mr.

Gonzalez stated that Mr. Gonzalez’s questioning of Officer Crowder was not


                                         6
intended to produce a result where Officer Crowder would state that Your Movant

intended to give a statement (RR, vol. 2, p. 108-109, lines 14-25 and 1-9). Crowder

did this on his own without any prompting from Mssrs. Silverman and Gonzalez.

Silverman and Gonzalez argued that this statement from Officer Crowder meant a

mistrial must be granted.

       In the end, this Honorable Court agreed with Mssrs. Silverman and Gonzalez

in that once the “bell had been rung” by Officer Crowder, specifically that Officer

Crowder stated that Your Appellant did not wish to make a statement to the police,

it could not be “unrung.” Further, any limiting instruction would simply draw

attention to the statement and therefore, the only legal and rational remedy would be

a mistrial (RR vol. 2, p. 112, lines 1-12). In summary, because of the actions of

Officer Crowder, and specifically because of Officer Crowder’s violation of Your

Appellant’s Constitutional rights against self-incrimination, a mistrial was granted.

Respectfully, this is not in dispute.

       Ahsan states, respectfully, that it was because of the actions of the State that

a mistrial was declared in the first place and, as such, it would be a violation of Your

Movant’s Constitutional rights against double jeopardy, as defined by the findings

in Oregon v. Kennedy. See in general: Oregon v. Kennedy, 456 U.S. 667 (1982).

It was the State’s actions, and only the State’s action, that forced Silverman to move

for a mistrial.


                                           7
      Respectfully, it is Ahsan’s position that Officer Crowder knew that the State

was losing this trial. Officer Crowder was forced to admit, under the penalties of

perjury (because he was on the stand testifying), that he had “botched” several key

areas of the case which was leading to a situation where the jury would understand

that there were serious issues with the arrest and prosecution of Ahsan which

ultimately would lead to the State’s losing the case. It is Ahsan’s position that

Officer Crowder realized during the course of the trial that, because of his action,

the State would lose this trial and, therefore, Officer Crowder caused a mistrial

through his statement.

      The State’s problems with Officer Crowder began when Holly Radom began

asking Officer Crowder a series of questions beginning on or about page 18, volume

2 of the Reporter’s Record, which were not designed to elicit any real useful

testimony from Officer Crowder. Beginning on page 18, Ms. Radom began asking

Officer Crowder a series of questions regarding Officer Crowder’s actions on the

case which is the subject matter of this Appeal (RR vol. 2, page 18, line 19). Later

in the direct questioning, Ms. Radom asked Officer Crowder as to whether the

complaining witness in the case ever offered an alternative claim as to why her

breathing was impeded (RR vol. 2, page 18, lines 22-24). This series of questions

by Ms. Radom produced no real testimony of merit from Officer Crowder. These




                                         8
questions from Ms. Radom never addressed the issues of the complaint which

formed the heart of the State’s problems.

      However, during the cross-examination of the officer, Mr. Gonzalez asked

Officer Crowder if the officer had ever compared the complaint which he wrote vs.

the statement of the complaining witness. Officer Crowder answered that he had not

(RR vol. 2, page 30, lines 2-23). This began a series of questions from Mr. Gonzalez

which addressed the problems of the complaint.

      This becomes important because, at a later point in the trial, Mr. Gonzalez

attempted to lay a predicate for a prior inconsistent statement which would be an

exception to the hearsay rule. This was because Ms. Radom asked the officer if he

found the complainant’s statement to be consistent with her injuries. Ultimately,

this line of questioning was denied by the Court. (RR, vol. 2, pages 35-36).

      However, Officer Crowder later admitted during the trial that he did not report

the injuries that Crowder observed when he saw Ms. Divers at the scene (RR, vol.

2, pages 42-43). Further, later in the trial, Officer Crowder admitted that there were

inconsistencies between the complaint prepared by the officer and the complaint

(RR, vol.. 2, pages 53-54). Finally, later in the trial, Officer Crowder admitted that

he had to make a supplement to the report because of the errors (RR, vol. 2, pages

54-55).




                                            9
      Mr. Gonzalez pointed these inconsistencies out to Officer Crowder as the trial

progressed. (RR, vol. 2, pages 55-57). By this point in the trial, it was clear that

Office Crowder became aware of the fact that he had many inconsistencies and

mistakes in his report and evidence and that the trial was not going well for him (and,

as such, for the State).

      Officer Crowder’s inconsistencies became so glaringly obvious and

problematic that, during the trial, Mr. Silverman informed the Court that defense

counsel needed a copy of the report that was made during an interview (RR, vol. 2,

page 59). Once again, Officer Crowder was put on notice that he had made several

mistakes during his police investigation of this matter and that these inconsistencies

were now catching up with him.

      In addition to the inconsistencies which were causing issues for the State,

Officer Crowder admitted on the stand that he did not interview any witnesses at the

scene (RR, vol. 2, page 73). Finally, in what can only be described as a fatal blow

for the State, Officer Crowder admitted under re-cross examination by Mr. Gonzalez

that he made a big mistake on the complaint and he should have written a supplement

for the complaint (RR, vol. 2, pages 84-85).

      It was approximately at this juncture that Officer Crowder made his fateful

statement effectively guaranteeing a mistrial in this case. See: supra.




                                          10
      Based on Officer Crowder’s knowing and intentional conduct, Silverman had

no alternative but to move for a mistrial. Given the absolute blatant announcement

from Officer Crowder that Your Appellant invoked his Constitutional rights against

self-incrimination to the jury, it was clear that a major deprivation of Ahsan’s

Constitutional rights occurred. There was clearly no way in which this trial could

have moved forward. This Court correctly adjured this matter on a mistrial.

      The State absolutely knew that Silverman would have no choice but to move

for a mistrial. Certainly with the violation of Your Appellant’s constitutional rights

that had been committed by Officer Crowder, Silverman would have been remiss as

an effective attorney had he failed to so do.

      However, it was the underlying conduct of Officer Crowder which caused this

mistrial. “But for” Officer Crowder’s conduct, the mistrial would not have occurred.

Respectfully, this is beyond argument. It is also clear, however, that Officer

Crowder intentionally caused this mistrial. As shown supra in the Reporter’s

Record, Officer Crowder knew that the trial was not going well and, indeed, that the

State was suffering because of the fatal problems with the investigation of the case

that were revealed by the questioning of Officer Crowder by Mr. Gonzalez.

Specifically, through the effective questioning of Officer Crowder by Mr. Gonzalez,

Officer Crowder was forced to admit that he made mistake after mistake in his police

investigation.


                                          11
      The jury certainly could not fail to understand that the State’s case was falling

apart in front of them as Officer Crowder was forced to admit his mistakes. Officer

Crowder, seeing this case fall apart, decided to move forward with a mistrial by

blurting out, in the middle of trial, that Your Movant did not give a statement.

      This is made obvious by the fact that, right after he made this statement,

Officer Crowder then made the following statement:

      “And then I also was informed that the defendant did not want to give a
statement.”

      Ms. Radom: “Objection.”

      “Was I not allowed to say that?” (emphasis mine)

RR, vol. 2, page 101, lines 22-25.


      Officer Crowder knew he made a misstatement, and, further, he knew

beforehand that he should not have made this statement. It almost beggars belief

that a five-year veteran would not know the basic Constitutional principles that an

accused has against self-incrimination. Officer Crowder made this statement with

the intent of provoking a mistrial because he knew they State was losing its case.

      It is beyond argument that Officer Crowder is an agent of the State. An agent

is a person who is authorized by the principal to transact business or manage some

affair on the principal’s behalf. Grace Cmty Church v. Gonzalez, 853 S.W.2d 678,


                                          12
680 (Tex.App.—Houston [14th Dist.] 1993, no writ). As an agent of the State,

Officer Crowder was working on behalf of the State when he caused the mistrial.

As stated throughout this Appeal, Officer Crowder, knowing the case was lost, went

forward and intentionally caused a mistrial through his statement.

        In other words, the State intentionally caused a mistrial.

        The correct standard of review in this matter is that Your Appellant must

demonstrate that the State intended to provoke the Movant into moving for a mistrial.

Oregon v. Kennedy, 456 U.S. 667 (1982).

        The facts of this case are clear: Officer Crowder, knowing the case was lost,

went forward and purposely caused a mistrial. An experienced police officer

somehow “forgot” one of the most important provisions of the U.S. and Texas

Constitutions as well as the Miranda warnings every officer not only is expected to

know, but needs to know to perform his job. Officer Crowder knew that by making

this statement, Silverman or Gonzalez would have to move for a mistrial and this is

indeed what occurred.

        The State, in the form of Officer Crowder, knew with absolute certainty that

because of its conduct, Silverman would have to move for a mistrial. Indeed, for

Silverman not to have moved for a mistrial would have been incompetence on his

part.




                                           13
      In other words, once again, the State intentionally provoked Silverman into

moving for a mistrial.

      Through a line of cases beginning with Bauder v. State, the Texas courts

originally took the position that the Double Jeopardy provision of the Texas

Constitution covered reckless conduct on the part of prosecutors which would lead

to a mistrial. Specifically, the courts held that a retrial would also be barred “when

the prosecutor was aware of but consciously disregarded the risk that an

objectionable event for which he was responsible would require a mistrial at the

defendant’s request.” Bauder v. State, 921 S.W.2d 686, 699 (Tex.Crim.App. 1996).

      Throughout litigation over the years, the Court of Criminal Appeals

eventually overruled the Bauder standard and instead adopted the standard

articulated by the Supreme Court of the United States in the case of Oregon v.

Kennedy.

      In the Kennedy case, the USSC ruled that where a defendant in a criminal trial

successfully moves for a mistrial, the defendant may invoke the bar of double

jeopardy in a second effort to try the defendant only if the conduct giving rise to the

successful motion for a mistrial was prosecutorial or judicial conduct intended to

provoke the defendant to move for a mistrial. Oregon v. Kennedy, 456 U.S. 667

(1982).




                                          14
      With this standard, Texas is in line with the findings of the USSC and for a

successful rebuttal to a mistrial, the movant must demonstrate that the prosecution

acted with intent to provoke the defendant into moving for a mistrial. Specifically,

[The Double Jeopardy Clause] bars retrials where `bad-faith conduct by judge or

prosecutor,' threatens the `[h]arassment of an accused by successive prosecutions or

declaration of a mistrial so as to afford the prosecution a more favorable opportunity

to convict' the defendant. United States v. Dinitz, 424 U.S., at 611, cited in Oregon

v. Kennedy, 456 U.S. 667 (1982).

      Only where the governmental conduct in question is intended to "goad" the

defendant into moving for a mistrial may a defendant raise the bar of double jeopardy

to a second trial after having succeeded in aborting the first on his own motion. See

in general: Oregon v. Kennedy, 456 U.S. 667 (1982).

      Appellate courts analyzing a double jeopardy mistrial claim are to make the

following three-part analysis (1) whether manifestly improper prosecutorial

misconduct provoked the mistrial; (2) whether the mistrial was required because the

prejudice produced from the misconduct could not be cured by a motion to disregard;

and (3) whether the prosecutor engaged in the conduct with the intent to goad the

defendant into requesting a mistrial or with conscious disregard for a substantial risk

that the trial court would be required to declare a mistrial. U.S.C.A. Const. Amend




                                          15
5., Vernon’s Ann. Texas Const. Art. 1, section 14, cited in: Bowen v. State, 131 S.W.

3d 505 (Tex.App.—Eastland, 2004).

       In this instance, respectfully, there is no doubt that the above occurred. As

stated supra in this Brief, it was clear from the testimony that Officer Crowder knew

that the trial was going badly for the State. It is also true that Officer Crowder, as

the State’s witness and the arresting officer in this case, was acting as an agent for

the State when he was called to trial. The first element of the above test has been

met.

       It is also clear that the second element was met. The Honorable Mark Carter

declared a mistrial in this matter because he realized that the statement from Officer

Crowder could not be cured with a simple admonition. The fact that the trial court

took the necessary step of deciding on a mistrial is evidence enough that the second

element is met.

       Finally, it is clear that the third element is also met. In this instance, the

officer, acting as an agent for the State, engaged in the misconduct with the intention

that Mssrs. Silverman and Gonzalez would have no choice but to ask for a mistrial

which, once again, was granted. As has been stated throughout this Brief, supra, it

beggars the imagination to believe that a five-year veteran police officer who

certainly had training in the correct arrest and detention procedures, not to mention

the experience on the force, would ever unconsciously or through a “slip of the


                                          16
tongue” make the statement at trial that he did. The concept that a defendant in a

criminal trial has the right against self-incrimination, which is a fundamental part of

both the United States and Texas constitutions, is so basic to the fundamental

principles of law enforcement and criminal defense that it hardly merits a response.

Officer Crowder, who is far from being a “layman” in these proceedings but could

be viewed almost as an expert witness, certainly was aware of the limitations of what

he could and could not state at trial.

         Despite this training and experience, Officer Crowder deliberately made the

statement regarding Ahsan’s silence which is a direct violation of the right against

self-incrimination. The only legal, not to mention logical, response from Messrs.
                                                                                            1
Silverman and Gonzalez to this blatant statement was to ask for a mistrial.                     The

mistrial was asked for, and granted.

         Based on the above, supra, therefore, Your Appellant respectfully repeats his

request that this Honorable Court reverse the decision from the Honorable Mark

Carter and declare that due to a violation of double-jeopardy rights, Ahsan cannot

be re-tried in this matter.




1
    As has been stated elsewhere in the record, it would have been borderline malpractice for Mssrs.

Silverman and Gonzalez not to have asked for a mistrial given this incredible statement from

Officer Crowder.


                                                 17
      It should be noted for the purposes of this Brief that although the Court found

against the Appellant in the Bowen case, the facts between the Bowen case and the

matter before this Honorable Court are easily distinguishable. In the Bowen case,

the Court made the observation that the officer who made the objectionable

statement was testifying about events chronologically and that the events had been

written down in the officer’s report chronologically. In the matter before this

Honorable Court, as discussed previously, supra, Officer Crowder was being asked

if he had ever compared the complaint (written by Officer Crowder) vs. the statement

of the complaining witness. Officer Crowder was certainly not reading a report

chronologically nor was he simply reciting facts: he was being placed “on the spot”

about inconsistencies in his written statements by Defense Counsel Steve Gonzalez.




                                         18
                           CONCLUSION AND SUMMARY

      Respectfully, the Honorable Mark Carter was incorrect when he did not grant

Ahsan’s Writ of Double Jeopardy. It is clear from the record that Officer Crowder

made a statement on the stand that could have no other response from Defense

Counsel but to ask for a mistrial. Officer Crowder, a five year police veteran and

trained Law Enforcement Officer who had been educated in Constitutional Law and

the correct procedures for arrest and detention made a statement that clearly violated

Ahsan’s right against self-incrimination. Once the statement was made, Judge

Carter correctly ruled that the “bell could not be unrung” and granted a mistrial.

However, as the evidence clearly demonstrates, this statement from Officer Crowder

was not just a random mistake, but an intentional outburst designed to provoke a

mistrial. There was no possibility, given the gravity of the statement from Officer

Crowder, that Defense Counsel could have moved for anything else other than a

mistrial. Further, the evidence clearly shows that Officer Crowder was being forced

into a corner under questioning by Defense Counsel and the trial was going badly

for the State as a result. Officer Crowder deliberately provoked a mistrial through

his actions.




                                         19
                                   PRAYER

      In accordance with the foregoing argument, therefore, Your Appellant prays

that this Honorable Court REVERSE the order of the Trial Court Judge and approve

the Writ Involving Double Jeopardy.



                                            Respectfully submitted:

                                            TAUSK & VEGA


                                            _/s/ Gene P. Tausk_
                                            Gene P. Tausk
                                            TBN: 24003035
                                            1221 Studewood
                                            Houston, TX 77008
                                            (713) 429-5476
                                            (713) 490-3150 (fax)
                                            gene@tauskvega.com

                                            ATTTORNEY FOR APPELLANT
                                            MUHAMMAD AHSAN




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                           CERTIFICATE OF SERVICE

   I, the undersigned, state that a true and correct copy of this Brief was served upon
the following individuals by certified mail, return receipt requested, on February 20,
2015:

      Harris County District Attorneys’ Office
      Appellate Division
      1201 Franklin
      Ste. 600
      Houston, TX 77002

                                        /s/ Gene P. Tausk___________




                        CERTIFICATE OF COMPLIANCE

   I, the undersigned, state that this document contains approximately 4,774 words.


                                        /s/ Gene P. Tausk___________




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