                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00249-CR

                                   EX PARTE COBY STEWART

                     From the County Court at Law No. 15, Bexar County, Texas
                                      Trial Court No. 486896
                          The Honorable Robert Behrens, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: April 4, 2018

AFFIRMED

           Coby Stewart appeals from the trial court’s denial of his request for habeas corpus relief

barring a retrial in his DWI case. Stewart asserts the State’s intentional misconduct forced him to

move for the mistrial; therefore, retrial is barred by double jeopardy. We affirm the trial court’s

order.

                                            BACKGROUND

           Stewart was arrested and charged with driving while intoxicated with a blood alcohol

content of 0.15 or higher. Stewart’s blood was drawn by a nurse at the Bexar County Central

Magistrate, who subsequently left Bexar County employment. Stewart filed a pre-trial motion for

discovery seeking the State’s compliance with its duty of disclosure under article 39.14 of the Code
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of Criminal Procedure, including the disclosure of any expert witnesses per article 39.14(b). TEX.

CODE CRIM. PROC. ANN. art. 39.14 (West Supp. 2017).

        Nine months later, Stewart appeared for his twelfth trial setting and announced ready for

trial. Before the jury was sworn, Stewart’s defense counsel informed the trial court that she had

not received a witness list from the State and would be moving to exclude any expert witness

testimony offered by the State. The trial court’s file also did not contain a State’s witness list. The

State then produced a file-stamped witness list from its work-product file that it represented was

faxed to defense counsel several months earlier. Stewart’s counsel disputed receiving the fax and

the State’s confirmation sheet did not list counsel’s fax number, referring to it as “unknown.” The

witness list identified the nurse as “Elva Villarreal, Licensed Vocational Nurse, Bexar County

Central Magistrate” and provided that address. After an in-camera inspection of the State’s work-

product file, performed at defense counsel’s request, the prosecutors revealed that Ms. Villarreal

was no longer employed by Bexar County and they had not had any contact with her for several

months. After defense counsel renewed her objection to the lack of notice, the prosecutors stated

they did not intend to call the nurse as a witness and planned to present the blood evidence through

the toxicologist. However, the trial court indicated that it would require the nurse to testify before

it would admit the blood draw evidence. 1 At that time, the prosecutors admitted they did have Ms.

Villarreal’s current contact information and would attempt to contact her to appear for trial the

next day. The nurse’s current contact information was not disclosed to the defense at that time.

The jury was selected and sworn, and opening statements were presented.




1
  The trial court later acknowledged it was incorrect in stating the blood draw evidence was not admissible without
the nurse’s testimony. See State v. Guzman, 439 S.W.3d 482, 488-89 (Tex. App.—San Antonio 2014, no pet.).
However, that mistake is not relevant to the appellate issue before this court.

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       The next morning, before any evidence was presented, Stewart’s counsel renewed the

objection to admission of the blood evidence due to the lack of notice concerning Ms. Villarreal

as a potential witness and the State’s subsequent failure to disclose the potentially exculpatory

impeachment material that she no longer worked for Bexar County. Stewart also objected to the

State’s failure to amend the witness list to update Ms. Villarreal’s contact information and disclose

her departure from Bexar County in violation of its continuing duty to disclose. One of the

prosecutors stated she personally learned just the day before that Ms. Villarreal no longer worked

for Bexar County. The prosecutor stated she obtained Ms. Villarreal’s cell phone number and

email from “a list of contact information” and successfully contacted her. After a lengthy

discussion, the trial court stated it was not going to exclude the blood evidence and inquired of

defense counsel “what remedy are you asking for?” and “are you asking for a mistrial?” Stewart’s

counsel replied, “yes,” and the court granted the mistrial. At that time, the prosecutor gave defense

counsel the email address for Ms. Villarreal. The trial court ordered the State to also obtain her

address and provide it to defense counsel.

       When the case was re-set for trial, Stewart filed a pre-trial petition for writ of habeas corpus

asserting that retrial was barred under the Double Jeopardy Clause. U.S. CONST. amends. V, XIV;

TEX. CONST. art. I, § 14. Stewart argued retrial was barred because it was the State’s intentional

misconduct, i.e., nondisclosure of material witness information, that forced him to request a

mistrial. After a non-evidentiary hearing on the habeas, the same trial court found, based on its

recollection of the events, caselaw, and arguments of counsel, that there was not “any intentional

misconduct on the State’s part as far as the witness in the case, Ms. Elva Villarreal, they didn’t

have any intent to call her.” Stewart perfected this appeal of the trial court’s order denying habeas

corpus relief.



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                                            ANALYSIS

Habeas Corpus Standard of Review

       “An applicant seeking habeas corpus relief must prove his claim by a preponderance of the

evidence.”   Ex parte Cruz, 350 S.W.3d 166, 167 (Tex. App.—San Antonio 2011, orig.

proceeding). When reviewing a trial court’s ruling on an application for habeas corpus, an

appellate court reviews the evidence in the light most favorable to the trial court’s ruling, and

upholds the ruling absent an abuse of discretion. Id.

Applicable Double Jeopardy Law

       Generally, a defendant in a criminal case may not be put in jeopardy by the State twice for

the same offense. U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 14; see also Pierson v. State,

426 S.W.3d 763, 769 (Tex. Crim. App. 2014). Because a defendant has a right to have the jury

empaneled and sworn in his case to try it, the protection provided to defendants under the Double

Jeopardy Clause attaches after the jury is sworn. Pierson, 426 S.W.3d at 769. Absent exceptional

circumstances that show the prosecutor intentionally provoked a mistrial, the Double Jeopardy

Clause is not violated if the trial ends prematurely. Id. at 770. The United States Supreme Court

has explained that when the defendant is the party requesting the mistrial, the Double Jeopardy

Clause generally does not bar the State from trying the defendant again. Oregon v. Kennedy, 456

U.S. 667, 672, (1982). A retrial may be barred by double jeopardy, however, if the defendant

presents objective facts and circumstances to demonstrate that the prosecutor’s misconduct in the

case occurred because the prosecutor “intended to ‘goad’ the defendant into moving for a

mistrial[.]” Kennedy, 456 U.S. at 676.

       In 2007, the Texas Court of Criminal Appeals held that the standard announced in Oregon

v. Kennedy for review of double jeopardy claims after a defense-requested mistrial also applies to

such double jeopardy claims under the Texas Constitution. Ex parte Lewis, 219 S.W.3d 335, 371
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(Tex. Crim. App. 2007). Thus, whether the claim is raised under the United States constitution or

the Texas constitution, or both, a reviewing court must determine whether a defendant successfully

moved for a mistrial because the prosecutor “engaged in conduct that was ‘intended to provoke

the defendant into moving for a mistrial.’” Id. at 336 (citing Kennedy, 456 U.S. at 679). In

Kennedy, the Supreme Court stressed that such a degree of prosecutorial misconduct presents a

narrow exception to the general rule that retrial is not barred when the mistrial was granted at the

defendant’s request. Kennedy, 456 U.S. at 673. The Supreme Court explained, “prosecutorial

conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial

on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to

subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76. In adopting the

Kennedy standard, the Texas Court of Criminal Appeals overruled its prior precedent interpreting

the Texas constitution’s double jeopardy provision to also cover “reckless” conduct by the

prosecution. Ex parte Lewis, 219 S.W.3d at 337, 371 (overruling Ex parte Bauder, 974 S.W.2d

729 (Tex. Crim. App. 1998), and remanding to trial court for consideration under Kennedy

standard).

           In another case decided during the same term as Ex parte Lewis, the Texas Court of

Criminal Appeals discussed the Kennedy standard in the context of nondisclosure of Brady

material. 2 See Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007). In that case, the

defendant was granted a mistrial in his two previous trials based on the prosecution’s failure to

disclose Brady material. Before the third trial setting, the defendant filed a pre-trial habeas corpus

application claiming double jeopardy barred the retrial. The trial court granted habeas relief,

finding that jeopardy had attached in the prior trials and retrial was barred by double jeopardy; the



2
    Brady v. Maryland, 373 U.S. 83 (1963).

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trial court made no finding as to whether the prosecution intended to provoke a mistrial. Id. at

505. On review, the Court of Criminal Appeals looked to cases cited with approval in Kennedy in

which habeas relief had been granted because the prosecution acted with intent to avoid a probable

acquittal. See id. at 507-08. Applying that analysis to the facts before it, the Masonheimer opinion

held that, viewing the evidence in the light most favorable to the trial court’s ruling, the record

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

the State’s ‘intentional’ failure to disclose exculpatory evidence that was available prior to

appellee’s first trial with the specific intent to avoid the possibility of an acquittal.” Id. The court

concluded, “[u]nder Oregon v. Kennedy, this deliberate conduct, accompanied by this specific

mens rea, bars a retrial.” Id.

        Based on the Court of Criminal Appeals’s application of the Kennedy standard in Ex parte

Lewis and Ex parte Masonheimer, we have described the double jeopardy analysis as follows, “[a]

retrial is not barred by double jeopardy unless the prosecutor engaged in the conduct with the intent

to provoke the defense to request a mistrial or the prosecutor intentionally engaged in the conduct

with the intent to avoid an acquittal.” Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San

Antonio 2011, orig. proceeding) (internal citations omitted).

        The habeas applicant has the burden to provide the court with a record sufficient to prove

his allegations by a preponderance of the evidence. Ex parte Coleman, 350 S.W.3d at 160; Ex

parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005). In the habeas proceeding, the

trial court may take judicial notice of earlier proceedings before the same judge and involving the

same parties. Coleman, 350 S.W.3d at 160. “Appellate review of the [trial] court’s ruling is not

limited to the evidence adduced at the habeas hearing, but may include the record as it existed

before the trial court at the time of the hearing.” Id. The appellate court will reverse the ruling

only if the record shows the trial court abused its discretion based on the decision it made when
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ruling on the defendant’s application seeking habeas relief. Ex parte Wheeler, 203 S.W.3d 317,

319-20 (Tex. Crim. App. 2006). Stewart argues in his brief for application of a de novo standard

of review to “the issue of intentionality on the part of the State,” asserting that intent is a legal

question based on the facts contained in the record and does not turn on credibility. See, e.g.,

Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (when there is no dispute about

the material historical facts reflected in the record, an appellate court may review the legal

significance of the undisputed facts de novo). However, the issue of the prosecutor’s intent is

necessarily a fact question to be determined, in this context, from the circumstances and objective

facts contained in the record. Ex parte Coleman, 350 S.W.3d at 160.

       In Wheeler, the court provided a list of non-exclusive factors to be considered when

determining whether the prosecutor’s misconduct goaded or provoked the defendant into

requesting a mistrial:

       1) Was the misconduct a reaction to abort a trial that was “going badly for the
       State?” In other words, at the time that the prosecutor acted, did it reasonably
       appear that the defendant would likely obtain an acquittal?

       2) Was the misconduct repeated despite admonitions from the trial court?

       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
       ultimate impropriety?

       6) Were the prosecutor's actions leading up to the mistrial consistent with
       inadvertence, lack of judgment, or negligence, or were they consistent with
       intentional . . . misconduct?

Wheeler, 203 S.W.3d at 323-24 (modified to delete “reckless” from the sixth factor per Ex parte

Lewis); see also State v. Rushing, No. 09-16-00423-CR, 2017 WL 4182316, at *6 (Tex. App.—

Beaumont Sept. 20, 2017, pet. filed).
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Application of the Law

        A distinction must be made between the prosecution’s intentional failure to disclose Brady

material or engagement in other misconduct that led to the remedy of a mistrial, and the specific

intent necessary to bar a retrial, i.e., intent to provoke a mistrial to subvert double jeopardy

protections or to avoid a possible acquittal. Ex parte Coleman, 350 S.W.3d at 160-61. “Double

jeopardy ‘is neither another form of due process protection ensuring the propriety of the criminal

trial nor a means to protect against outrageous government conduct.’” Id. (quoting Ex parte Lewis,

219 S.W.3d at 358). Here, the mistrial cured the due process violation stemming from the State’s

violation of its continuing duty of disclosure under article 39.14, Code of Criminal Procedure and

Brady. Id. at 160 (“The impropriety of the prosecutor’s response was remedied by the mistrial.”).

        The relevant issue here is whether Stewart met his burden to prove the State committed the

due process violation, i.e., engaged in the misconduct, with the specific intent (1) to provoke him

into moving for a mistrial to subvert the protections of the Double Jeopardy Clause, or (2) to avoid

the possibility of an acquittal. In making this determination, we review the entire record, including

the habeas evidence and the trial record, and view the evidence in the light most favorable to the

trial court’s finding that the State did not have the specific intent necessary to bar retrial. Id.

        The State argues there is nothing in the record to indicate its prosecutors had the requisite

intent when they failed to disclose the material evidence, to wit: the current contact information

for Ms. Villareal, the former Bexar County nurse who drew Stewart’s blood. The State contends

its prosecutors could not have withheld the information about the nurse’s employment and contact

information with the intent to avoid an acquittal because no evidence had been presented at the




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time of the mistrial; therefore, it could not be said the trial was not going well for the State. 3

Further, the State asserts the record does not support a finding that it intended to subvert Stewart’s

double jeopardy rights because it shows the prosecutors did not originally intend to call the nurse

to testify, and only changed its trial strategy after the trial court indicated it would require the

nurse’s testimony for admission of the blood draw evidence. This contention is supported by the

record, as detailed above. At the time of the mistrial, the trial court had already reversed its ruling

that the nurse’s testimony was necessary for admission of the blood draw evidence. Nevertheless,

the State disclosed the nurse’s change in employment and provided her contact information to

defense counsel at that time, late but prior to commencement of the State’s case-in-chief. In

addition, as the State points out, Stewart’s counsel never requested a continuance during the

discussions about Ms. Villarreal’s contact information and availability as a witness. In other

words, Stewart had a lesser remedy that he chose not to use, i.e., a motion for continuance, instead

of a mistrial.

        Stewart argues the record shows the State engaged in the type of “intentional strategic

gamesmanship” that article 39.14 seeks to avoid because the State had the nurse’s updated

information in its work-product file, but failed to amend its witness list before trial. Stewart asserts

that if his attorneys had timely received the nurse’s updated information, they would have

contacted her before trial and investigated whether she complied with the required procedures for

the blood draw. As evidence of the required intent to subvert double jeopardy or avoid an acquittal,

Stewart cites to the circumstances showing the prosecutors initially stated they had lost contact




3
  The State seems to suggest in its brief that jeopardy had not yet attached. However, jeopardy had attached because
the jury had been sworn. See Downum v. United States, 372 U.S. 734, 735-36 (1963); Hill v. State, 90 S.W.3d 308,
313 (Tex. Crim. App. 2002).

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with the nurse, but then located her cell phone number and email address in their file and were

able to successfully contact her that day.

        Viewing the record in the light most favorable to the trial court’s ruling, as we must, we

conclude the State’s misconduct in failing to timely disclose the change in Ms. Villarreal’s

employment and update her contact information was not committed with the specific intent to

provoke a mistrial to subvert double jeopardy or avoid an acquittal. See Ex parte Coleman, 350

S.W.3d at 160. Stewart has not carried his burden to show that the State engaged in this

misconduct with the intent to goad him into moving for a mistrial. See id. Therefore, we hold the

trial court did not abuse its discretion in denying Stewart’s petition for habeas corpus relief barring

his retrial.

                                             CONCLUSION

        Based on the foregoing reasons, we overrule Stewart’s issue on appeal and affirm the trial

court’s order denying habeas corpus relief.

                                                    Rebeca C. Martinez, Justice

DO NOT PUBLISH




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