

Opinion issued October
7, 2010
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00589-CR
———————————
KELVIN WASHINGTON, Appellant
V.
THE STATE OF
TEXAS, Appellee

 

 
On Appeal from the 240th District
Court
Fort Bend County, Texas

Trial Court Case No. 45872A
 

 
O P I N I O N
          Appellant, Kelvin Washington, appeals
the trial court’s denial of his request for pretrial habeas corpus relief.  See Tex. R. App. P. 31.  Appellant identifies three issues in which he
contends that the State’s prosecution of him violates his state and federal constitutional
guarantees against double jeopardy.
          We affirm.
Background
          On January 8, 2007, four men broke
into and stole merchandise from a jewelry store owned by Sohail Ahmed.  Appellant was later charged with the offense
of burglary related to the break in and theft. 

On July 13,
2010, a jury was impaneled to hear the burglary charge against appellant.  The next day, each side made opening
arguments, and the State presented its first witness.  
Before the
State’s second witness testified, the following exchange occurred between the
prosecutor and the trial court:
[Prosecutor:]  May we approach, Your Honor?
(At the
Bench, on the record)
THE
COURT:  Yes, ma’am.
[Prosecutor:] 
Judge, our victim is present in the courthouse but is apparently ill.
 
THE
COURT: Who, Mr.—
 
[Prosecutor:] 
Mr. Ahmed, our victim.  I don’t
know, right now might be a good time to take our morning break so I can at
least assess if he is in any position to maybe testify or what to do with that.
          
          THE COURT:  Do you
know what his problem is?
 
[Prosecutor:] 
I’m not really sure.  I was told
they were getting him a Sprite.  I do
believe that it may be a stomach issue, but I don’t know.
 
THE COURT: 
Well, okay.  We’ll take about a
15-minute recess and see what you can find out.         
 
During the
recess, the complaining witness, Mr. Ahmed, had a confrontation with the
court’s bailiff in the hallway.  Mr.
Ahmed became agitated and loudly made disparaging remarks about the bailiff,
the prosecution, the defense attorneys, the defendant, and the judicial process
generally.  
          After the recess, the defense moved the
court to declare a mistrial based on Mr. Ahmed’s outburst.  The defense argued that appellant’s right to
a fair trial had been prejudiced because a number of jurors were in the hallway
and had heard Mr. Ahmed’s disparaging comments. 

          The trial judge stated on the record
that he also had been in the hallway and had intervened to diffuse the
situation.  The judge agreed that some of
the jurors had likely heard Mr. Ahmed’s remarks.  The court granted the motion for mistrial and
reset trial for the following week.
          After granting the mistrial, the trial
court requested Mr. Ahmed to appear before it. 
Mr. Ahmed approached the bench and was placed under oath.  The court verbally reprimanded Mr. Ahmed for
his conduct and informed him that his outburst had caused the mistrial.  In response, Mr. Ahmed explained that he had
been feeling ill from food poisoning.  He
told the court that the burglary of his store had caused him financial ruin and
great hardship for his family.  He expressed
that he was frustrated with the legal system because it had taken three years
for the case to go to trial.  Mr. Ahmed
indicated that he had been called to the courthouse a number of times during
that time to no avail.  
In the end,
Mr. Ahmed took responsibility for his improper conduct.  He apologized to the court, explaining that
his outburst had occurred “spur of the moment, it had no reference or context.”  
          Five days later, appellant filed an
application for writ of habeas corpus based on double jeopardy grounds.  Appellant asserted that Mr. Ahmed’s conduct,
which necessitated the mistrial, could be imputed to the State.    
To support
his arguments, appellant alleged, in his verified habeas corpus application,
that the prosecution had “engaged in communications, via post-it notes passed
between themselves and the complainant [Mr. Ahmed] by way of an intern.”  Appellant claimed that “[t]he notes set out
the complainant’s health problems and his discomfort while sitting in the
hallway, outside of the courtroom.”  He
asserted that “[t]he State was, effectively put on notice that the complainant
was upset and disturbed to the point that he could cause a disruption of the
trial proceedings.”  Appellant alleged, “With
knowledge of the complainant’s location and disturbed state of mind, the
prosecution allowed the jury to walk directly in front of the enraged
complainant.”  Appellant further argued, 
The mistrial was caused by
the prosecution’s conscious disregard of a substantial risk that the
complainant, whom the prosecution knew to be intensely angry and ill, would
taint the jury.  The complainant informed
the prosecution by note that he was extremely upset at being summoned to court
again and was not feeling well.  Knowing
the complainant was just outside the courtroom; the prosecution requested a
recess and consciously disregarded the fact that the jury could hear the
complainant’s expletive filled statements about the Defendant, defense counsel,
and the judicial system.
 
          Appellant averred that, if the trial
court did not find that the State acted with conscious disregard, then “the
prosecutors are defacto agents for
the complainant.”  Appellant argued that
Mr. Ahmed’s improper conduct, and the State’s conscious disregard of Mr.
Ahmed’s conduct, “created a jeopardy bar” because such actions were prejudicial
to him and were intended to provoke a mistrial. 
Appellant asserted that as a result of the State’s and Mr. Ahmed’s
actions, he was “forced to move for a mistrial.”  
          The State filed an answer to
appellant’s habeas application.  In its
answer, the State asserted that appellant’s request for habeas relief was “frivolous
and without legal support.”  The State
also requested sanctions against appellant.
          The trial court conducted a hearing on
appellant’s habeas application.  Appellant
argued that the prosecutor was an agent of the complainant, Mr. Ahmed.  Appellant also reiterated that during trial, an
intern had given the prosecutor a note stating that Mr. Ahmed was ill and
“having problems.”  Immediately
thereafter, the prosecutor had requested a recess to speak to Mr. Ahmed to
determine whether he could testify.  Appellant alleged that Mr. Ahmed was being
accompanied by “a representative of the district attorney’s office” prior to
his outburst.  
For these
reasons, appellant intimated that the prosecution should have been aware that
Mr. Ahmed was ill and agitated.  Appellant
argued that if the prosecutor had informed the trial court of “the potential
problem,” perhaps the court or the State could have taken steps to insulate the
jury from his tirade.  
          Appellant argued that it was these
actions, or inactions, by the State that required him to move for a
mistrial.  Appellant asserted that
permitting the State’s continued prosecution of him “would amount to double
jeopardy.”  
          The prosecution responded by pointing
out that it does not represent the complainant, Mr. Ahmed; it represents the
State of Texas.  The prosecution asserted
that appellant relied on an improper legal standard to impute responsibility
for Mr. Ahmed’s improper conduct to the State. 
The State explained, “For prosecutorial misconduct to occur, you must
show that the prosecutor intentionally engaged in such outrageous conduct that
his only purpose was to get a mistrial. That’s what they have to show.  There is no indication whatsoever that ever
even occurred in [sic] here.”
To support
his habeas application, appellant offered the portion of the trial transcript
related to his motion for mistrial.  At
the habeas hearing, the trial court also took judicial notice of its knowledge
of the trial proceedings related to the motion for mistrial.  
After
considering the application on its merits, the trial court denied appellant’s
request for habeas relief.  In rejecting appellant’s
double jeopardy claim, the trial court orally found that the prosecution had
not acted as an agent for Mr. Ahmed.  The
court also found that the prosecution could not have anticipated Mr. Ahmed’s
outburst and that his improper remarks cannot be imputed to the State.  In making its findings, the trial court cited
Mr. Ahmed’s sworn statement in the trial transcript that he had made the
improper remarks “spur of the moment, it had no reference or context.”
The trial
court also denied the State’s request for sanctions.  The court agreed that appellant had the right
to appeal the denial of his habeas application. 
The court continued appellant’s trial, pending resolution of this
appeal.
          In his opening brief, appellant
identifies three issues in which he generally contends that the trial court
erred in denying his habeas application and specifically contends that his
retrial is barred by the double jeopardy clauses of the state and federal
constitutions.  Because they are
interrelated, we, like the parties, jointly discuss and consider the three
issues.  
A.    Legal Principles 
1.     Standard and Scope of Review
We review a
trial court’s ruling on a pretrial writ of habeas corpus for an abuse of
discretion.  Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex. Crim. App. 2006).  In conducting this review, we view the facts
in the light most favorable to the trial court’s ruling and defer to the trial
court’s implied factual findings, which are supported by the record.  Id. at
325–26. 
2.    
Double Jeopardy Following Mistrial
The double jeopardy
clauses of our federal and state constitutions protect a criminal defendant from
repeated prosecutions for the same offense. 
See U.S. Const. amend. V (providing “nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb”); Tex. Const. art. I, § 14 (“No person,
for the same offense, shall be put twice in jeopardy of life or liberty.”).  In Oregon
v. Kennedy, the United States Supreme Court held that the Fifth Amendment’s
Double Jeopardy Clause barred retrial after a defendant successfully moved for
mistrial only when it was shown that the prosecutor engaged in conduct that was
“intended to provoke the defendant into moving for a mistrial.”  456 U.S. 667, 679, 102 S. Ct. 2083, 2091
(1982).  
In contrast,
the Texas Court of Criminal Appeals interpreted the Double Jeopardy provision
of the Texas Constitution more expansively, to cover “reckless” conduct.  Bauder
v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996).  The Bauder
court held that retrial would also be barred “when the prosecutor was aware
but consciously disregarded the risk that an objectionable event for which he
was responsible would require a mistrial at the defendant’s request.”  Id.  The Court of Criminal Appeals re-affirmed
and clarified the standards enunciated
in Bauder in Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003).
Four years
later, the Court of Criminal Appeals overruled Bauder and Peterson in Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim.
App. 2007).  The Lewis court held that “the proper rule under the Texas Constitution
is the rule articulated by the United States Supreme Court in Oregon v. Kennedy,” i.e., whether the
prosecutor intended to provoke the defendant into moving for a mistrial.  Id.
at 337.
Two months after
deciding Lewis, the Court of Criminal
Appeals decided Ex parte Masonheimer,
220 S.W.3d 494 (Tex. Crim. App. 2007).  The
court held that the standard enunciated in Oregon
v. Kennedy barred retrial “under the unique circumstances of that case”
because the State had intentionally failed to disclose exculpatory evidence
with the specific intent to avoid the possibility of an acquittal.  Id. at
509.  The Masonheimer court reasoned that “in a case like this, a defendant
suffers the same harm as when the State intentionally ‘goads’ or provokes the
defendant into moving for a mistrial.”  Id. at 508–09.
B.      Analysis

          Citing Masonheimer, appellant contends, “In the instant case,
circumstances existed which allow the actions of the complaining witness to be
imputed to the prosecution, and to which Appellant suffered the same type of
harm which would have resulted from the State ‘goading’ Appellant into moving
for a mistrial.”  In making this assertion,
appellant does not recognize that in Masonheimer,
as in Lewis, the Court of Criminal
Appeals required intentional conduct by the State, which resulted in harm to
the defendant.  The Masonheimer court held that re-prosecution of the defendant was
jeopardy barred because the State had failed to disclose exculpatory evidence
with the specific intent to avoid the
possibility of the defendant’s acquittal.  Id. at 509.
          In this case, viewing the record in
the light most favorable to the trial court’s ruling, no action by the
prosecution indicates that it had either the intent to goad appellant into a
mistrial or the intent to avoid the possibility of appellant’s acquittal.  See
Lewis, 219 S.W.3d at 336; Masonheimer,
220 S.W.3d at 507.  Mr. Ahmed’s sworn
statements to the trial court following the mistrial indicate that he alone was
accountable for his improper conduct and the resulting mistrial.  Mr. Ahmed took responsibility for his conduct
when he apologized to the trial court. 
As noted by the trial court, Mr. Ahmed stated that he had made the
remarks “on the spur of the moment, without reference or context.”  Such comment indicates that he had not
planned to make the remarks; rather, they were made out of anger and
frustration.
          In addition, the exchange between the
prosecutor and the trial court before the recess indicates that the prosecution
believed Mr. Ahmed to be physically ill with a stomach ailment.  Nothing in the exchange indicates that the
prosecution knew, or should have known, that Mr. Ahmed was also agitated or
angry.  
          Appellant also asserts that, at the
time of his outburst, a representative of the district attorney’s office was
seated with Mr. Ahmed outside the courtroom. 
Appellant contends that Mr. Ahmed was under “the supervision” of this
representative.  Appellant intimates that
the representative was aware of Mr. Ahmed’s agitated state and informed the
prosecutor.  Appellant also contends that
a note passed by an intern to the prosecutor inside the courtroom indicated
that Mr. Ahmed was ill and agitated.  Relying
on these factual allegations, and on a case from the Fourth Circuit Court of
Appeals, United States v. Smith,
appellant contends that the government’s conduct can be “so reckless as to be
‘the functional equivalent’ of intent to cause a mistrial.”  See 441
F.3d 254, 265 (4th Cir. 2006). Given the Court of Criminal Appeals clear
indication that the State’s conduct must be intentional, not reckless, the merits
of appellant’s legal argument are doubtful. 
See Lewis, 219 S.W.3d at 336; Masonheimer, 220 S.W.3d at 507.  In any event, appellant’s factual assertions underlying
his argument are not supported by the record. 

          An applicant for a writ of habeas
corpus bears the burden of proving his allegations by a preponderance of the
evidence.  Ex Parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995).  The applicant also bears the burden of
ensuring that a sufficient record is presented to show error requiring reversal
on appeal.  See Ex parte Chandler, 182 S.W.3d 350, 353 n. 2 (Tex. Crim. App. 2005);
Ex parte Kimes, 872 S.W.2d 700, 703
(Tex. Crim. App. 1993).  Here, appellant
has failed to meet this burden.
The record
does indicate that the State knew that Mr. Ahmed felt physically ill.  Appellant, however, did not offer testimony
or other evidence at the habeas hearing to support his factual allegations
regarding the prosecution’s knowledge of Mr. Ahmed’s agitated state of mind.  The allegations were contained in his
verified application, but they were not supported by testimony or documentary
evidence at the habeas hearing.  See Ex parte Wells 332 S.W.2d 565, 565 (Tex.
Crim. App.  1960) (“The application for
the writ, although sworn to, is but a pleading and does not prove itself.”).  Nor are they supported in the trial
transcript. See State v. Ybarra, 942
S.W.2d 35, 36–37 (Tex. App.—Corpus Christi 1996, pet. dism’d) (explaining that
review of habeas corpus proceeding is not limited to testimony and evidence
adduced at the hearing, but includes the record as it existed before the trial
court at the habeas hearing); see also Ex
parte Turner, 612 S.W.2d 611, 612 (Tex. Crim. App. 1981) (holding that
trial judge who presided over revocation of probation hearing and habeas corpus
action could properly take judicial notice of evidence presented in revocation
of probation hearing during habeas corpus action at which State offered no
other evidence).
In Ex parte Washington, the Fort
Worth Court of Appeals declined to hold that the state of mind of the
prosecution’s complaining witness could be imputed to the State to preclude
further prosecution pursuant to the federal and state double jeopardy clauses.[1]  168 S.W.3d 227, 237–38 (Tex. App.—Fort Worth
2005, no pet.).  Appellant argues that Washington is distinguishable from this
case because, there, the State did not have advanced notice that its
complaining witness would give inadmissible testimony.  Appellant asserts that the State
had notice of Mr. Ahmed’s state of mind before his offensive conduct.  We disagree. 

Here, the
evidence, when viewed in favor of the trial court’s ruling, supports a finding
that Mr. Ahmed’s outburst in front of the jury is not attributable to the State’s
action or inaction.  The record also
supports a finding that the State could not have anticipated the outburst.  Most significantly, the record shows no
intentional prosecutorial misconduct either to provoke appellant to move for a
mistrial or to avoid appellant’s acquittal. 
See Lewis, 219 S.W.3d at 336; Masonheimer, 220 S.W.3d at 507.  In short, the record does not support
appellant’s claim that the State’s re-prosecution of him is jeopardy barred
under the federal and state constitutions.
We hold
that the trial court properly exercised its discretion when it denied appellant’s
pre-conviction application for writ of habeas corpus.
We overrule
appellant’s three issues.
 
 
 
 
 
 
Conclusion
We affirm
the judgment of the trial court denying appellant’s request for habeas corpus
relief.
 
Laura Carter Higley
Justice
 
Panel consists of Justices Keyes, Higley, and Bland.
Publish.  Tex. R. App. P. 47.2(b).




[1]           The Washington
court noted that every “federal or state court that has addressed the issue
of whether a witness’s state of mind should be attributed to the prosecution
for the purposes of Fifth Amendment analysis has rejected such imputation.”  Ex parte
Washington, 168 S.W.3d 227, 238 n.3 (Tex. App.—Fort Worth 2005, no pet.). (citing, inter alia, United States v. Ford, 17 F.3d 1100,
1103 (8th Cir. 1994); United States ex.
rel. Clauser v. McCevers, 731 F.2d 423, 431 (7th Cir. 1984); United States v. Green, 636 F.2d 925,
928–29 (4th Cir. 1980); State v. Barnes,
222 Ga. App. 875, 476 S.E.2d 646, 647 (1996); People v. Walker, 308 Ill. App.3d 435, 241 Ill. Dec. 842, 720
N.E.2d 297, 299–301 (1999), appeal denied,
189 Ill.2d 678, 246 Ill. Dec. 921, 731 N.E.2d 770 (2000); State v. Wittsell, 275 Kan. 442, 66 P.3d 831, 837–39 (2003); Commonwealth v. Deloney, 20 S.W.3d 471,
474–75 (Ky. 2000); Commonwealth v.
Mitchell, 488 Pa. 75, 410 A.2d 1232, 1237 (1980); State v. Hopson, 113 Wash.2d 273, 778 P.2d 1014, 1018–19 (1989); State v. Clements, 175 W.Va. 463, 334
S.E.2d 600, 604–05 (1985)). 
 


