Affirmed and Opinion filed December 22, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-01072-CR
                               NO. 14-15-01073-CR

                      THE STATE OF TEXAS, Appellant
                                         V.

                    ROBERT JOSEPH YETMAN, Appellee

                   On Appeal from the 176th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1473046 & 1490556

                                 OPINION
      In this appeal, we consider whether the trial court abused its discretion in
granting a criminal defendant’s application for pretrial habeas-corpus relief. The
trial court held that the constitutional prohibition against double jeopardy bars the
defendant’s retrial following a mistrial because the prosecutor, seeking to avoid an
acquittal, goaded the defense into requesting the mistrial. We affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND

      Appellee Robert Joseph Yetman was indicted for indecency with a child.
Appellee was accused of touching the genitalia of a seven-year old boy at
Memorial Hermann Hospital, where appellee worked as a medical doctor and the
boy was a patient.

       The complainant had suffered an asthma attack while in the care of an aunt.
The aunt initially took the complainant to an emergency care center.            After
learning the complainant would be transferred to Memorial Hermann Hospital, the
aunt arranged for a family friend to accompany the complainant so that the aunt
could return home to care for the complainant’s siblings, who also were in the
aunt’s charge while the children’s mother was out of town.            The following
morning, the aunt came to the hospital and the family friend left.

      That morning appellee was making rounds at Memorial Hermann Hospital
with medical residents. Appellee entered the complainant’s hospital room
sometime around 8:00 a.m., accompanied by at least three residents. According to
appellee and a resident who watched appellee examine the complainant, appellee
performed a normal exam and did not touch the complainant’s genitalia. Appellee
later asked that a social worker evaluate the complainant before the complainant’s
discharge. Appellee left the hospital at 11:37 a.m.

      There was a period of time that morning when the complainant was in his
hospital room unaccompanied by a relative or family friend. The aunt told police
the complainant was unaccompanied from 7:00 a.m. until 9:00 a.m., but the aunt
testified at trial that she may have arrived at the hospital later than she originally
indicated.

      At some point after the aunt returned to the hospital, the complainant went to


                                          2
the restroom and the aunt checked on him because he seemed to be taking a long
time. The complainant told his aunt that his penis was hurting. When the aunt
asked why, the complainant told her that “some guy” came in and touched it.
Upon further questioning from the aunt, the complainant stated that the man who
touched his penis had gray hair and was wearing a white coat. The complainant
demonstrated the way the man touched his penis by jerking a napkin twice. The
aunt looked at the complainant’s penis and did not notice anything unusual. The
aunt then contacted the complainant’s nurse, who examined the complainant’s
penis and noticed some reddening. The nurse informed the resident on call, Dr.
Carmelita Taylor. Dr. Taylor did not notice any injuries to the complainant’s
penis.      Dr. Taylor telephoned appellee and updated appellee as to the
complainant’s medical status, and also informed appellee of the complainant’s
allegations. Appellee asked Dr. Taylor if the complainant could be discharged and
Dr. Taylor advised that the complainant could be discharged after meeting with a
social worker. A social worker met with the complainant later that afternoon and
the complainant was discharged in the evening.

         The complainant’s mother returned from her trip later that night and the aunt
went home. The next morning, the complainant told his mother about the incident
at the hospital.      The complainant’s mother took the complainant to Texas
Children’s Hospital, where a sexual assault nurse examiner examined the
complainant. The nurse noted that the complainant had two wounds on his penis.
The penis looked red and swollen, and had nail marks. The complainant’s mother
took the complainant to the police station. After questioning, the complainant
eventually identified appellee as the individual who had touched him.             The
complainant also was taken to the Children’s Assessment Center, where Susan
Odhiambo interviewed him. According to Odhiambo, the complainant disclosed


                                           3
things to her and showed her things using his body. Dr. Marcella Donaruma
examined the complainant at the Children’s Assessment Center and noted the
injuries on the complainant’s penis. The complainant described appellee as the
individual who touched his penis.

       Appellee was charged with indecency with a child. Appellee pled “not
guilty.” A two-week jury trial followed. In the final minutes of the State’s final
argument to the jury, the prosecutor made statements that twice prompted
appellee’s counsel to object and move for a mistrial. The first time the trial court
sustained the objection, instructed the jury to disregard the prosecutor’s statements,
and admonished the prosecutor. But, the trial court declined to grant a mistrial.
Immediately, the prosecutor made another statement that drew an objection from
appellee. Again, appellee moved for a mistrial. This time the trial court granted it.

       Appellee then filed an application for pretrial writ habeas-corpus relief1 on
the ground that the constitutional prohibition against double jeopardy barred retrial.
The trial court granted the habeas-corpus relief. The State, as appellant, now
challenges the trial court’s ruling.

                                   ISSUE AND ANALYSIS

       In a single issue the State asserts the trial court abused its discretion in
granting appellee’s pretrial writ of habeas corpus. Generally, a criminal defendant
may not be put in jeopardy by the State twice for the same offense. U.S. Const.
amend. V; Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014). In cases
tried by a jury, a defendant is placed in jeopardy when the jury is empaneled and

1
 Appellee’s double-jeopardy claim is a proper subject for pretrial habeas-corpus relief because
delaying appellate review of a double-jeopardy claim prejudices an accused’s guarantee against
being twice put to trial for the same offense. See Ex parte Watkins, 73 S.W.3d 264, 273 (Tex.
Crim. App. 2002).


                                              4
sworn, and “because jeopardy attaches before the judgment becomes final, the
constitutional protection also embraces the defendant’s ‘valued right to have his
trial completed by a particular tribunal.’” Id. (quoting Arizona v. Washington, 434
U.S. 497, 504, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)).              Despite the general
prohibition against jeopardy-barred trials, there are two exceptions in which a
criminal defendant may be tried again without violating double-jeopardy principles
when the prosecution ends prematurely as the result of a mistrial: (1) the defendant
consents to a retrial, or (2) there was a manifest necessity to grant a mistrial. Id. at
769–70.

      When a defendant requests a mistrial, the defendant has elected to terminate
the proceedings against him and the double-jeopardy clause generally does not bar
retrial. Oregon v. Kennedy, 456 U.S. 667, 672–73, 102 S.Ct. 2083, 2088, 72
L.Ed.3d 416 (1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)
(adopting the standard articulated in Oregon v. Kennedy for determining when to
grant double jeopardy relief after a defense-requested mistrial). But, even where a
defendant moves for mistrial, there is a narrow exception to the rule that the
Double Jeopardy Clause is no bar to retrial where the prosecutor’s actions giving
rise to the motion for mistrial were done “to goad the [defendant] into requesting a
mistrial.” Oregon, 456 U.S. at 672–73, 102 S.Ct. at 2088 (quoting United States v.
Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976)).

      When a trial court grants a pretrial application for habeas corpus on this
ground, the reviewing court must determine whether the record supports the trial
court’s ruling that any further prosecution of the appellee is jeopardy-barred under
the Oregon v. Kennedy standard. Ex parte Masonheimer, 220 S.W.3d 494, 506
(Tex. Crim. App. 2007). Because the appellee won in the trial court, we view the
evidence in the light most favorable to the trial court’s ruling and we are to uphold

                                           5
the ruling absent an abuse of discretion. Id. When a trial court makes explicit
findings of facts, the appellate court determines whether the evidence (viewed in
the light most favorable to the trial court’s ruling) supports these fact findings.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

      The Court of Criminal Appeals, in Ex parte Wheeler, 203 S.W.3d 317 (Tex.
Crim. App. 2006), set out the following non-exclusive factors to assist the trial
court when assessing the prosecutor’s state of mind:

      (1) Was the misconduct an attempt to abort a trial that was going
      badly for the State? Put another way, at the time the prosecutor acted,
      did it reasonably appear that the defendant would likely obtain an
      acquittal?
      (2) Was the misconduct repeated despite the trial court's admonitions?
      (3) Did the prosecutor provide a reasonable, “good faith” explanation
      for the conduct?
      (4) Was the conduct “clearly erroneous”?
      (5) Was there a legally or factually plausible basis for the conduct
      despite its impropriety?
      (6) Were the prosecutor’s actions leading up to the mistrial consistent
      with inadvertence, lack of judgment, or negligence, or were they
      intentional?
See id at 323–24. Using the Wheeler factors as our guide, we consider the record
evidence.

      Trial Testimony

      At trial, the State introduced evidence from the complainant’s mother, the
mother’s partner, and the complainant’s aunt regarding the details of the
complainant’s hospital stay and allegations against appellee. The complainant
testified that appellee came into his room, did not listen to his heart or lungs, but
“touched me inappropriately . . . in my privates.” The complainant testified that
appellee “jiggle[ed]” the complainant’s private part and that made the complainant
                                         6
feel sad and uncomfortable. According to the complainant, his penis stung after
the incident. The complainant testified that “Robert Yetman” had touched him and
explained that the source of his knowledge came from reading the doctor’s name
badge. On cross-examination, the complainant clarified that his penis burned when
he went to the bathroom, but it otherwise was fine, although he also testified that
he got scabs from the doctor “playing with his private parts” and that the scabs
bled. The complainant denied telling a nurse or another doctor about the incident
and also denied that anyone at the hospital looked at his penis. The complainant
maintained that appellee came into his room just one time while the complainant
was at the hospital.      Officer Sharee Waters testified that throughout her
investigation, the complainant maintained appellee came into his room, alone, a
single time.

      The sexual assault nurse examiner testified that the complainant would not
give details about the incident but said his injuries occurred while he was at the
hospital for an asthma attack. The sexual assault nurse examiner acknowledged
that the complainant’s wounds could have been caused by his soiled underwear or
a zipper injury. Dr. Donaruma did not ask the complainant about the cause of his
injuries, but she examined his penis and noticed the injuries. She testified that the
training of pediatric residents is erratic, so the resident and nurse may have missed
the injury. Like the sexual assault nurse examiner, Dr. Donaruma acknowledged
that the injuries were consistent with a zipper injury, though she noted that the
complainant had not mentioned a zipper injury. The mother’s partner testified that
the complainant’s penis was itchy and she and the mother saw the complainant
scratching his penis.

      Dr. Christina Dang testified that she admitted the complainant to the
hospital, took his history, and conducted a physical exam in the middle of the

                                         7
night. The following morning, Dr. Dang made hospital rounds with appellee. Dr.
Dang explained the rounds are the process of reviewing patient treatment with the
attending physician, in this case appellee, and the rest of the treating team. Dr.
Dang’s team included herself, another supervising resident, and an intern. Dr.
Dang testified that rounds usually took between two and three hours. According to
Dr. Dang, it takes about ten to fifteen minutes to “round” on an individual patient,
although the timing can vary depending on the complexity of the patient’s medical
condition. She also testified that the night before had been particularly busy.

      Dr. Dang stated that she was with appellee the entire time he conducted
rounds, including appellee’s visit to the complainant’s room. Dr. Dang’s trial
testimony was corroborated by her notes and an order she placed at 8:01 a.m. for
the complainant to be evaluated by a social worker. Dr. Dang testified that the
team went into the complainant’s room, appellee performed an exam, the team
discussed the treatment plan, and then moved to the next patient.            Dr. Dang
testified that appellee did not perform a genital exam on the complainant.

        Dr. Dang testified that she and appellee “rounded” on the complainant and
determined the complainant should be discharged the following evening or early
the next morning as long as the patient was cleared by a social worker. Dr. Dang
explained the rationale for getting the social-worker clearance, noting her concern
that the complainant was at the hospital with an adult that did not know anything
about the child’s medical history and that the child was staying with an aunt and
they were not able to control the child’s asthma at home because they could not
find the child’s inhaler.

      Dr. Thao Nguyen testified that he rounded with appellee on the morning in
question. According to Dr. Nguyen, the shortest amount of time an attending
physician could complete an assessment on a patient would be between ten and

                                          8
fifteen minutes. When pressed on whether a doctor could assess a child without a
parent present any faster, Dr. Nguyen stated that the shortest amount of time a
round could be conducted would be five minutes. Dr. Nguyen testified that on the
weekend, appellee likely would have rounded with two different teams, one after
the other. Dr. Nguyen and Dr. Dang were part of the first team. Based on the
medical records, Dr. Nguyen testified that he must have rounded on the
complainant, but he did not remember the round.

      Dr. Annie Joleen Kayanickupuram testified that she rounded with Dr.
Nguyen, Dr. Dang, and appellee that morning as well.          Dr. Kayanickupuram
testified that she was present when appellee visited the complainant, that she stood
at the threshold of the doorway, and watched the exam. Dr. Kayanickupuram
testified that appellee examined the complainant’s lungs and that there was nothing
remarkable about the exam. Dr. Kayanickupuram also confirmed the names of the
patients her team saw that day and testified that she and the other residents were
with appellee the entire time he conducted rounds.

      Dr. Rebecca Girardet, a child-abuse pediatrician, testified that she did not
think the complainant’s allegations made sense. According to Dr. Girardet, the
complainant’s initial statements were complaints of pain in his penis that he
associated with the doctor. The complainant initially tugged on his pants in the
first mention of the matter. Dr. Girardet explained that the final description of the
way the doctor moved his hand around the complainant’s penis would be
impossible given the size of the complainant’s penis. The explanation made sense
for an adult, but not a seven-year-old child. Dr. Girardet testified that in her
opinion she did not think the complainant’s injuries and statements indicated abuse
occurred.

      Dr. Girardet did not believe the complainant was consciously lying, but that

                                         9
something irritated his penis that day, he associated the pain with the doctor, and
his account of what happened might have evolved under the influence of well-
meaning adults asking leading questions. According to Dr. Girardet, neither the
complainant’s description of burning pain during urination, nor the scabs that later
could be seen on his penis were consistent with the nature of contact the
complainant alleged. Dr. Girardet also testified that if appellee had caused the
injuries later observed on appellant’s penis, those injuries would have been visible
to the complainant’s aunt, the nurse, and the resident who examined the
complainant. But, none of the three mentioned any injuries. The State cross-
examined Dr. Girardet, noting that she normally testified for the State, and
suggesting that if the person accused of sexual abuse had been a janitor rather than
appellee (a doctor), Dr. Girardet would be testifying for the State. Dr. Girardet
testified that she did not believe in the merits of the State’s case in this instance
and that she would not put her reputation on the line for appellee.

      Appellee testified in detail regarding his activities on the morning in
question. Computer records showed appellee logged onto a hospital computer
between 7:19 a.m. and 7:26 a.m. Appellee explained that he arrived at the hospital
and then “signed off” on the patients admitted the previous night. Computer
records showed appellee logged back onto the hospital computer from 10:03 a.m.
until 10:24 a.m. and then again from 10:32 a.m. until 11:15 a.m. Appellee then left
the building and exited the parking garage. Appellee testified that between 10:24
a.m. and 10:32 a.m., he was responding to an emergency situation, tending to a
patient who was potentially dying. Appellee’s testimony about that patient was
confirmed by the patient’s medical records and testimony from a hospital resident,
Dr. Jian Azimi-Bolurian, who was on the second team that rounded with appellee
that morning.


                                         10
       Relying on medical records and his memory, appellee testified about each
patient he visited that morning and the medical care each patient received.
Appellee rounded on fifteen patients that morning and was able to reconstruct the
order in which he saw the patients. At 9:10 a.m., there was a record showing that
appellee ordered a dermatology consult on the sixth patient out of the fifteen.
Appellee explained that the initial patients took longer for rounds than the
remaining patients, some of the patients were newly admitted and the team spent a
lot of time with one patient who had been diagnosed with diabetes the night before.
Appellee testified that he saw the remaining nine patients between 9:10 a.m. and
10:03 a.m., at which point he finished rounds and logged onto the computer to
begin writing patient notes.

       Appellee testified that he did not return to the complainant’s room. Appellee
denied ever touching the complainant’s genitalia. In addition, appellee presented
the testimony of multiple character witnesses and evidence that the complainant’s
mother had retained a personal-injury lawyer who had sent a letter to Memorial
Hermann Hospital threatening to bring a civil lawsuit. The mother’s attorney
stated that it was in the best interests of the attorney’s clients and the hospital to
“put this matter behind them as soon as possible,” and that the client would initiate
a civil lawsuit “if justice is not served.”

       The Complainant’s Home Life

       The State asked each witness, including appellee, why they did not report
the complainant’s allegations. Appellee explained that he expected the allegation
to be addressed by the social worker when the social worker visited the
complainant. Appellee was asked why he thought the consult with the social
worker was necessary and whether he heard any testimony that made him worry
about the complainant’s family life. Appellee explained that he was concerned

                                              11
because he had received conflicting statements about the complainant’s mother’s
whereabouts. In addition, appellee was concerned that the complainant had come
to the hospital because the family could not find the child’s medication. Appellee
also testified that “[the complainant’s] therapy was completely backwards. He was
not on steroids at all. He was using Albuterol far too often, which is potentially
life threatening, especially in an African American child.” Appellee explained that
use of the drug Albuterol in an African American child is especially dangerous
because:

       lots of use of Albuterol in African American children is associated
      with a higher incidence, a higher chance of [th]em having some heart
      arrhythmias, so we try to avoid both long acting steroids – Albuterol
      is a short acting beta, what we call beta agonist. We try to avoid using
      a lot of those in African American children.
      And then there’s another form that are called a long acting beta
      agonist, and we avoid those at all costs in African Americans because
      there’s a higher chance of having an arrhythmia in the heart that will
      cause them to go into heart flutter and die.

      Appellee explained that the frequency with which the complainant was using
Albuterol was not enough to cause him to have a heart arrhythmia, but under that
therapy, the complainant was suffering asthma attacks every one to two weeks,
which is something appellee explained “nobody should have to experience.”
Appellee explained that the complainant would be symptomless if he were using
steroids. Dr. K. Smith agreed the complainant had not been receiving ideal therapy
for asthma. Dr. Smith explained that Albuterol is a “rescue drug” in an asthma
patient that is used only in the middle of an attack. Dr. Smith testified that children
should be on steroids because if a child uses the rescue drug frequently, it can stop
working and the patient can die.




                                          12
       Closing Argument

       In closing argument, the State argued that in addition to rounding on the
complainant, the appellee entered the complainant’s room a second time at some
point between 9:30 a.m. and 10:03 a.m. The State then asked the jury to imagine
what the complainant’s mother has gone through to pursue this case.                The
prosecutor explained that the defense wanted the jury to think the complainant’s
mother concocted the complainant’s story, but, according to the prosecutor, this
was a difficult case to take on — “it’s like David and Goliath in here. Goliath
being all this, all of the lawyers, the general counsel, the defendant and his friends
with their accolades and their accomplishments and their positions of power that
they hold.” In rebuttal, the prosecutor characterized the defense in the following
way:

       What you heard from the defendant was five hours of him telling you
       how important he is. He made every opportunity to try to trash and
       bash that family and that child, blurting out things that weren’t even in
       evidence. To try and make you think that they are less than him. That
       you can’t believe them because they’re less than, because he’s not
       being taken care of correct, because African American children
       shouldn’t be on Albuterol.
At this statement the gallery spontaneously erupted, prompting the trial court to
admonish the spectators.       Appellee’s counsel objected to the prosecutor’s
statements. The trial court sustained the objection, instructed the jury to disregard
the comment, and denied appellee’s mistrial motion. Immediately after the trial
court denied appellee’s mistrial motion, the prosecutor stated, “You see what [the
complainant’s] up against?” Appellee objected. The trial court sustained the
objection and instructed the jury to disregard the comment. The appellee then
moved for mistrial, which the trial court granted.



                                          13
      Application for Pretrial Writ of Habeas Corpus

      Following the mistrial, appellee filed an application for habeas-corpus relief
in which he alleged that jeopardy should attach to the trial because the prosecutor
goaded the defense into requesting a mistrial to avoid an acquittal. In support of
his application for pretrial habeas-corpus relief, appellee attached affidavits from
jurors. Juror Rathe stated in his affidavit that during closing arguments, after
individuals in the gallery made inarticulable comments, he heard prosecutor
Johnson reply, “it’s because he’s black.” Rathe stated that he was offended that
the State introduced race into the closing arguments. According to Rathe, the
evidence did not show appellee committed the offense. Rathe stated that after the
trial court declared a mistrial, the jurors took an informal straw poll of all the
jurors, including the alternates, at a time when only the jurors were present. In the
straw poll, there were thirteen “not guilty” votes and one possibly “guilty” vote.
The juror who said “possibly” stated that the juror wanted to look at two pieces of
evidence to make sure, for the juror’s own peace of mind, that appellee was not
guilty. The juror did not want to convict appellee, and the juror stated that the
juror easily could have been persuaded to vote “not guilty.” Rathe thought that the
jury would have found appellee “not guilty.”

      Juror Carl submitted an affidavit stating that she felt she had “seen a full
courtroom farce play out.” She thought appellee was not guilty. Carl believed
something terrible happened to the complainant, but the police conducted a flawed
investigation.   According to Carl, appellee established a solid timeline,
corroborated by many witnesses, proving appellee was never alone with the
complainant. Carl was frustrated that the State “appealed to our baser instincts.”
Carl stated that during closing arguments, the prosecutor twisted appellee’s words
in an attempt to imply that appellee was racist. Carl felt that “The State of Texas

                                         14
treated me, as a juror, like an idiot.”

      Juror Levy also submitted an affidavit in which she stated that she was angry
and did not feel that appellee had been proven guilty. According to Levy, she felt
the complainant’s testimony was rehearsed and that his injuries were caused by his
“filthy underwear.” Levy stated that the “prosecution went to some really low
levels to try and prove their case and did not even come close.” Levy believed the
complainant’s mother was trying to extort money from the hospital. Levy felt that
the State’s closing arguments were racist and said she could not believe the
prosecutor had a job at the District Attorney’s office.

      In addition to the jurors’ affidavits, appellee also submitted affidavits from
individuals sitting in the gallery during the State’s closing argument.          One
spectator stated that she heard the prosecutor say that appellee chose to molest the
complainant because he was poor and black. Another stated that she saw several
jurors frown, shake their heads, and drop their jaws in disbelief during the
prosecutor’s rebuttal argument.

      In response to appellee’s application for writ of habeas corpus, the State
argued that the prosecutor’s reference to the complainant’s race was a reference to
appellee’s testimony in which appellee stated that the complainant should not have
been prescribed Albuterol because of his race.            According to the State, the
prosecutor’s question about “what the complainant was up against” was a reference
to the inappropriate outburst from the gallery.       The State contended that the
prosecutor did not make this argument because the trial had gone poorly or because
appellee’s acquittal was imminent.

      In support of its position, the State submitted the affidavit of the prosecutor
who made the objectionable statements. The prosecutor stated she was anxious to
finish the lengthy, tedious trial, and that she believed that the State’s witnesses
                                          15
came across as credible. According to Johnson, she did not want the complainant
or his family to be forced to endure another trial. She stated that she mentioned
race only once, while summarizing appellee’s testimony, and that she did not
engage in intentional misconduct designed to goad the defense into requesting a
mistrial.

       Johnson’s co-counsel also submitted an affidavit in which she stated that she
did not expect the judge to grant a mistrial, noting that after she entered into a line
of forbidden questioning during trial about sexually explicit material purportedly
found on appellee’s computer, she did not bring the subject up again. According to
co-counsel, on the day of the mistrial, she and Johnson were tired and emotionally
spent. She stated that they had no idea what the jurors were thinking because the
jurors had been poker-faced throughout trial.

       The Trial Court’s Order

       In granting appellee’s application for pretrial habeas-corpus relief, the trial
court concluded that jeopardy had attached because the State intentionally
attempted to goad appellee into moving for a mistrial so that the State could avoid
an acquittal.    The trial court made eighty-one fact findings, including the
following:

       • During its closing argument, the prosecutor argued by inference that
       the complainant’s race was a factor in his “victimization” and this
       statement was not supported by the evidence.
       • The prosecutor’s comment provoked gasps of shock and audible
       comments of disapproval from some members of the audience. The
       jurors also appeared shocked or surprised by the prosecutor’s
       statements.
       • The prosecutor’s attitude and provocative sidebar comments
       displayed open and obvious contempt for the Court’s rulings.
       • The prosecutor’s arguments and remarks demonstrated that she was

                                          16
      unwilling to limit the scope of her statements to permissible areas of
      jury argument.
      • The prosecutor’s pattern of inappropriate conduct and improper
      argument shows her behavior was intentional and deliberate.
      • The prosecutor intentionally engaged in conduct that forced defense
      counsel to move for mistrial.
      • Ms. Johnson knew that her final comment would force the defense
      counsel to request a mistrial in order to preserve error.
      • In the face of an impending acquittal, the timing of Ms. Johnson’s
      improper conduct demonstrates her intent to force the Court to order a
      mistrial.
      • The prosecutor failed to credibly explain her improper statements
      and behavior.
      • The prosecutor provided the court with a factually plausible basis for
      her first improper argument; however, she failed to address her second
      improper statement and inappropriate conduct.
      • The court does not believe Ms. Johnson’s statements to the jury were
      made in the heat of battle or were the result of Ms. Johnson having a
      momentary lapse in judgment.
      • Ms. Johnson’s conduct was designed to force the Defense to ask the
      Court to order a mistrial rather than allow the case to go to the jury
      and risk a judgment of acquittal.
      • The tone and inflection of Ms. Johnson’s argument intimated that
      the complainant was victimized because he was African American or
      that the defendant thought the complainant was “less than” (sic)
      because the complainant was African American.
      • The defendant testified on his own behalf and provided a detailed
      account of his time and actions on the day in question.
      • After a long and difficult two-week jury trial, Prosecutor Johnson,
      intentionally engaged in conduct designed to force the court to grant a
      mistrial of this case.
      A. The State’s comments merited objection.

      While conceding that the prosecutor’s second comment, “You see what [the
complainant’s] up against?” was inappropriate, the State argues that the prosecutor

                                        17
could not have intended to solicit a mistrial because her first line of argument was
a proper response to the defendant “chastising” the complainant’s home life. The
State also argues that appellee injected race into the proceedings, and the
prosecutor’s argument was an appropriate response.

      While the State was entitled to respond to appellee’s testimony about why he
placed orders to have a social worker evaluate the complainant’s home life, the
trial court found that the prosecutor implied the complainant’s race “was a factor in
his victimization.” See, e.g., McCleskey v. Kemp, 481 U.S. 279, 309 n.30, 107
S.Ct. 1756, 1770 n. 30, 95 L.Ed.2d 262 (1987) (noting that the United States
Constitution prohibits racially biased prosecutorial arguments). Reviewing the
record, we cannot say that the trial court’s findings are not supported. Appellee
testified that there was a medical reason the complainant should not be on
Albuterol—namely that its use was associated with heart arrhythmias and could be
dangerous.

      But, even if the prosecutor’s initial argument had been proper, the State
concedes that the comment that led to the mistrial was improper. See Stahl v.
State, 749 S.W.2d 826, 828–32 (Tex. Crim. App. 1988) (holding references to
outburst constituted harmful error).          The prosecutor made this comment
immediately after the trial court sustained an objection to the prosecutor’s
arguments. The trial court found that the prosecutor made sidebar comments in
front of the jury, displaying open and obvious contempt for the trial court’s rulings
and that the prosecutor impugned the dignity of the court. Affiants providing
statements in the habeas record stated that the sidebar comments were a more
direct statement that either appellee or defense counsel is racist.        The next
statement the prosecutor made, “You see what [the complainant’s] up against?”
came with an arm gesture that the trial court found suggested the trial court was

                                         18
biased against the complainant. This escalation came on the heels of a sustained
objection and an admonition from the trial court to “disregard the last comment by
the prosecutor.”

      The trial court found that the prosecutor was an experienced attorney who
knew, before she made the final comment, that the comment was improper and that
the defense would have to object and ask for a mistrial to preserve error. Given the
events that had just transpired, the record supports the conclusion that the
prosecutor knew her comment was improper and that the defendant’s objection
likely would be sustained. Even if the prosecutor’s initial commentary had been
appropriate, the record supports the trial court’s finding that the prosecutor knew,
when she made the second comment, that the remark was improper, that the trial
court would sustain the objection, and that appellee would be forced to request a
mistrial to preserve error. See Ex parte Masonheimer, 220 S.W.3d at 506.

      B. The record supports the trial court’s findings.

      The State argues that the trial court improperly relied on a pattern of conduct
that included actions taken by the other prosecutor to support the trial court’s
findings. In particular, the State argues that the record does not contain legally
sufficient evidence to support the trial court’s twenty-eighth, thirty-fourth, and
eighty-first findings of fact. The trial court’s twenty-eighth finding is “[i]n the face
of an impending judgment of acquittal, the timing of Ms. Johnson’s improper
conduct demonstrates her intent to force the Court to order a mistrial . . . .” The
trial court’s thirty-fourth finding is “Ms. Johnson’s behavior was designed to force
the Defense to ask the Court to order a mistrial rather than allow the case to go to
the jury and risk a judgment of acquittal,” and the trial court’s eighty-first finding
is after a long and difficult two week jury trial, the prosecutor “intentionally
engaged in conduct designed to force the Court to grant a mistrial in this case.”

                                          19
      These findings address the prosecutor’s state of mind. Keeping in mind that
appellate judges might not reach the same conclusion on a cold record that one
might reach if one had been sitting as a trial judge, we must consider whether the
trial court’s finding is supported by the record. See Ex parte Wheeler, 203 S.W.3d
at 324. Thus, we now assess the trial court’s ruling in light of the Wheeler factors.

      1. Was the misconduct an attempt to abort a trial that was going badly for
         the State?
      We must consider whether, at the time the prosecutor acted, it reasonably
appeared that the defendant likely would obtain an acquittal. The trial court made
findings that the State called witnesses who had accompanied appellee on hospital
rounds the day of the alleged incident and those witnesses believed appellee had
not committed the offense. The trial court found that presenting these witnesses
was damaging to the State’s theory of the case. The trial court also found that
appellee testified, denied committing the offense, and provided a detailed account
of his time and actions on the day in question. These findings are supported by the
record.

      The State’s primary witness, the complainant, was consistent in testifying
that appellee came into his hospital room only one time and did not perform a
medical exam. Appellee and two residents testified that appellee performed a
normal medical exam on the complainant during rounds.              Appellee presented
expert testimony that the complainant inadvertently could have come to testify that
appellee touched him inappropriately after having been asked leading questions
over and over by well-meaning adults. Furthermore, appellee presented evidence
that the complainant’s injuries were inconsistent with the alleged misconduct and
that the injuries did not occur until after the complainant left the hospital.

      The aunt told the police that the complainant was unaccompanied in his


                                           20
hospital room from 7:00 a.m. until 9:00 a.m. The record established appellee did
not enter the complainant’s room during that timeframe except during rounds,
when he was accompanied by a team of residents. In closing arguments, the
prosecutor argued that appellee entered the complainant’s room a second time,
contrary to the complainant’s testimony, between 9:30 a.m. and 10:03 a.m., a time
the aunt told police she was present in the room. Several witnesses testified that
appellee would not have been able to sneak into the complainant’s room during
rounds and appellee presented evidence that he saw the sixth patient out of fifteen
at 9:10 a.m. Several witnesses testified that the fastest they could round on a
patient would be about five minutes. This evidence supported appellee’s testimony
that he did not go back into the complainant’s room between rounds and entering
patient notes on the computer.

      The State did not provide a significant challenge to appellee’s evidence
about where he was at different points in time on the morning of the alleged
incident.   Instead, the State attempted to impugn appellee’s character, asking
impermissible questions that violated an order in limine and attempting to paint
appellee as arrogant and self-important. Although the prosecutor filed an affidavit
stating that she did not think trial was going poorly, her closing argument
suggested that the complainant and the State faced an uphill battle in securing a
conviction. The “David vs. Goliath” theme of the prosecutor’s closing argument
provides some insight into her mental state at that point in trial.

      The juror affidavits confirm that those jurors felt the trial was going poorly
for the State. One juror recounted that an informal straw poll after the mistrial
showed thirteen of the fourteen jurors thought appellee was not guilty, with one
juror undecided, but leaning toward a “not guilty” vote. More importantly, the
jurors were not nuanced in their view of the trial. They were critical of the

                                           21
prosecutor’s tactics. One called the trial a farce.

      2. Was the misconduct repeated despite the trial court's admonitions?
      The trial court found that it properly admonished the prosecutor after the
prosecutor made her initial commentary. But, the trial court found that instead of
complying with the trial court’s order, the prosecutor intentionally and
inappropriately complained to the jury about the court and the audience. The
prosecutor made a comment that the trial court found showed the prosecutor
believed the defense and the audience were biased against the complainant. Then,
after the trial court’s warning, the prosecutor made another statement to the same
effect, implying that the trial court’s ruling on the prosecutor’s initial comment
demonstrated the truth of the first remark.

      3. Did the prosecutor provide a reasonable, “good faith” explanation for
         the conduct?
      The trial court found that the prosecutor did not provide a credible
explanation for her improper behavior. The prosecutor submitted an affidavit in
which she stated that the theme of her closing was “David v. Goliath,” the nine-
year-old complainant versus the well-respected and accomplished pediatrician.
The prosecutor pointed out that the defense had presented evidence that the
complainant’s mother falsely accused appellee in an attempt to get money from
Memorial Hermann Hospital. Additionally, the defense had presented evidence
that provided an unflattering portrait of the complainant’s family. The prosecutor
noted that the defendant had called the complainant’s account and history
“sketchy” and stated that “socially, it was, you know, a mess.” The prosecutor
stated that during direct examination, appellee made statements and judgments
about the complainant’s home life. The prosecutor stated that she believed the
defense attempted to place the complainant’s family in a bad light to show they
were not credible witnesses. The prosecutor explained that she was summarizing
                                          22
appellee’s testimony concerning the complainant’s medication regime and that
appellee testified the complainant was not being taken care of correctly because
African American children should not be on Albuterol.

      Although different individuals could view the prosecutor’s affidavit
differently, as the finder of fact, the trial court was entitled to discredit the
prosecutor’s affidavit statements.

      4. Was the conduct “clearly erroneous”?

      The State argues that the prosecutor’s commentary on appellee’s testimony
about the complainant’s family was permissible, but the State acknowledges that
the prosecutor’s follow-up “you see what he’s up against” statement was
impermissible. See Stahl, 749 S.W.2d at 828–32.

      5. Was there a legally or factually plausible basis for the conduct despite
         its impropriety?
      The trial court found that the prosecutor gave a legally or factually plausible
basis for the commentary on appellee’s testimony about the complainant’s family,
but the prosecutor failed to address her second improper statement and improper
conduct. In her affidavit, the prosecutor stated that her second improper statement
was an argument to further her theme of “David v. Goliath.” But not all statements
that could further a particular theme are permissible arguments, so even if the
statement expounded on the prosecutor’s theme, that does not explain why the
prosecutor thought the statement had a legally or factually plausible basis.

      6. Were the prosecutor's actions leading up to the mistrial consistent with
         inadvertence, lack of judgment, or negligence, or were they
         intentional?
      The trial court found that the prosecutor’s actions were intentional.
Although different people might reach different conclusions about the prosecutor’s
intent, the trial court’s determination that the prosecutor’s actions were intentional
                                         23
is supported by the record. The record shows that after the prosecutor’s first
improper statement, the jurors looked shocked.          The habeas record contains
evidence that the jurors had their mouths agape and appeared stunned.
Furthermore, immediately after the trial court sustained an objection, the
prosecutor re-engaged in making the same type of statement.

      After analyzing the trial court’s findings in light of the non-exclusive factors
the Court of Criminal Appeals has suggested the trial court might consider in
determining the prosecutor’s intent, we conclude the trial court’s findings are
supported by sufficient evidence. See Ex parte Wheeler, 203 S.W.3d at 323–24;
Ex parte Masonheimer, 220 S.W.3d at 506.

      C. The trial court’s findings support its conclusion.

      The State argues that the trial court’s findings do not support its conclusion
that jeopardy should attach to appellee’s current trial because the trial court made
conclusions that the State intentionally and deliberately engaged in an
inappropriate pattern of conduct so as to force defense counsel to move for
mistrial. The State argues that some of the trial court’s fact findings related to the
pattern of conduct are not evidence of the prosecutor’s intent to goad defense
counsel into moving for a mistrial to avoid an acquittal. Many of the findings the
State references bear on the way trial was progressing and how the prosecutor may
have felt about the outcome. For example, one inference the trial court could have
drawn from behavior that the trial court found was improper is that the State
resorted to those tactics in light of a difficult trial. But, even if some of the trial
court’s findings are extraneous, the trial court made sufficient findings to support
its conclusion that jeopardy should attach.

      Jeopardy should attach if the prosecutor’s actions giving rise to the motion
for mistrial were done “to goad the defendant into requesting a mistrial.” Oregon,
                                          24
456 U.S. at 672–73, 102 S.Ct. at 2088. The trial court made specific findings that
trial was going poorly for the State and those findings support an inference that the
prosecutor was aware trial was going poorly for the State and appellee might be
acquitted.   The trial court made findings that the prosecutor’s conduct was
intentional. The trial court found that as an experienced criminal attorney, the
prosecutor knew her conduct was improper before she committed it and also knew
that appellee would have to request a mistrial to preserve error on any complaint
about the conduct. Moreover, the conduct came on the heels of other improper
behavior that led to a sustained objection and a jury instruction. The first improper
conduct caused a reaction in the courtroom and the habeas record suggests the
jurors were shocked by the prosecutor’s behavior. The prosecutor saw the jurors’
reactions to her first improper argument, and although the prosecutor stated that
she did not feel the trial was going poorly, the trial court could have discounted
that statement, particularly in light of the trial record. The trial judge was present
throughout the two-week trial and she was in the best position to evaluate the
prosecutor’s intent.




                                         25
      After reviewing the record and considering the non-exclusive factors the
Court of Criminal Appeals has suggested may help a trial court determine a
prosecutor’s intent, we conclude that the trial court did not abuse its discretion in
granting appellee’s request for pretrial habeas-corpus relief.        See Ex parte
Masonheimer, 220 S.W.3d at 506. Therefore, we overrule the state’s sole issue
and affirm the trial court’s order.




                                       /s/    Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Brown.
Publish — TEX. R. APP. P. 47.2(b).




                                         26
