                                 NO. 12-12-00352-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

CHARLES MICHAEL WALKER,                          §            APPEAL FROM THE 8TH
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §           RAINS COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Charles Michael Walker appeals from the trial court’s denial of relief on his pretrial
application for a writ of habeas corpus. In one issue, Appellant argues that retrial on six counts of
indecency with a child is barred by the constitutional prohibition against double jeopardy because
the mistrial that ended the first trial was a result of prosecutorial misconduct. We affirm.


                                          BACKGROUND
       In August 2012, Appellant pleaded not guilty to six counts of indecency with a child. The
complaining witness was his stepdaughter. She had confided in a friend about Appellant’s
actions and that friend was the State’s first witness at trial.      The witness related that the
complaining witness had told her of the indecency in 2010. On cross examination, Appellant’s
counsel asked her about emails the two women had exchanged on this subject. Counsel showed
the emails to the witness and had her acknowledge that they were dated November 2011. On
redirect examination, the State offered the emails into evidence. Appellant’s counsel objected on
the basis that the emails were hearsay, that they were “bolstering,” and that the probative value of
the evidence was outweighed by the prejudicial effect. However, counsel did not state what the
prejudicial effect was. The trial court overruled Appellant’s objections.
          A very serious prejudicial effect that had not been brought to the court’s attention
immediately presented itself when the State asked the witness to read the emails. In the email
exchange that was read to the jury, the complaining witness wrote that she had learned that she
“wasn’t the only one” and that her “dad” had gone to jail “because [she was] not the only one he’s
done this to.” Upon the reading of these words, Appellant’s counsel objected, asked for a hearing
outside the presence of the jury, and moved for a mistrial. After some discussion, the trial court
granted the motion for a mistrial. During the course of the discussion, Appellant’s counsel stated
that she “doubt[ed] that there was prosecutorial misconduct due to the fact that [the State’s
attorney] did seem genuinely surprised.” The trial court made a finding that there was not
prosecutorial misconduct and noted that “the State looked as surprised as I was when that came
into evidence as the witness read it . . . .”
          Following the trial, Appellant sought to prevent a second trial arguing that the mistrial was
a result of prosecutorial misconduct and that double jeopardy barred retrial.1 The trial court held a
hearing and denied relief. This appeal followed.


                                                DOUBLE JEOPARDY
          In one issue, Appellant argues that a retrial is barred because the State deliberately or
recklessly caused a mistrial that ended the first trial.
Standard of Review and Applicable Law
          The Fifth Amendment to the U.S. Constitution contains a Double Jeopardy Clause, which
provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of
life or limb.”         U.S. CONST. amend. V.           Jeopardy attaches in a jury trial when the jury is
empaneled and sworn. Hill v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). But a trial that
ends in a mistrial is not a former jeopardy if it occurs with the defendant’s consent or because of a
“manifest necessity.” Id. (citing Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 2088,
72 L. Ed. 2d 416 (1982)). An exception to the rule exists when the State engages in conduct
“intended to provoke the defendant into moving for a mistrial.” See Oregon, 456 U.S. at 676,

          1
              Counsel made additional arguments in an effort to avoid a retrial. Those arguments are not advanced on
appeal.
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679, 102 S. Ct. at 2091; Ex parte Masonheimer, 220 S.W.3d 494, 506 (Tex. Crim. App. 2007).
         In such a case, a trial that ends in a mistrial sought by the defense can be a former jeopardy.
See Oregon, 456 U.S. at 679, 102 S. Ct. at 2091 (“[We hold] that the circumstances under which
such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to
those cases in which the conduct giving rise to the successful motion for a mistrial was intended to
provoke the defendant into moving for a mistrial.”).
         Generally, we review a trial court’s decision to grant or deny relief on a writ of habeas
corpus for abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
We review the facts in the light most favorable to the trial court’s ruling.                          See Ex parte
Masonheimer, 220 S.W.3d at 507. We review wholly legal conclusions de novo. See Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
Analysis
         Appellant argues that the State provoked2 him into seeking a mistrial in this case and that
he, therefore, may not be tried again on these charges. Appellant argues that we may conclude the
State provoked the mistrial because the State abandoned several counts the day of the trial and
because two additional charges were filed the day of trial. Additionally, Appellant asserts that it
was clear that the “trial would be hard fought by both sides” and that it is “certainly possible,
indeed likely, that the State realized that the defendant had a theory of the case which [sic] had not
been anticipated.” Appellant also notes that while the attorney for the State initially said that
additional witnesses would testify to being touched inappropriately by Appellant, that assertion
was not repeated.
         The filing and abandoning of charges is not conclusive evidence of any kind of intent to
sabotage the trial. We agree with Appellant that it appeared the trial would be hard fought.

         2
           Appellant asserts that the State intentionally or recklessly caused the mistrial. In Bauder v. State, 921
S.W.2d 696, 699 (Tex. Crim. App. 1996), the court of criminal appeals interpreted the double jeopardy provision of
the Texas Constitution to protect against "reckless" conduct by a prosecutor. Specifically, the court held retrial would
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.” Appellant did not make a claim in the trial
court based on the Texas Constitution, and the court of criminal appeals has specifically overruled the part of the
Bauder case that protects a defendant against reckless conduct by the prosecutor. See Ex parte Lewis, 219 S.W.3d
335, 337 (Tex. Crim. App. 2007) (“We granted review to reexamine Bauder’s holding. We conclude that Bauder
should be overruled and that the proper rule under the Texas Constitution is the rule articulated by the United States
Supreme Court in Oregon v. Kennedy.”). Accordingly, we will evaluate the State’s actions in this case in terms of
intentional conduct.
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Appellant’s counsel began her opening argument by saying “we’re going to come out guns
blazing,” and proceeded to aggressively attack the assertions made by the State in its opening
statement. But the State’s offering of the emails was hardly evidence that the State blanched
before counsel’s aggressive charge.      Indeed, the State’s attorney appeared to be under the
impression that Appellant’s counsel had committed a tactical blunder in her opening statement by
opening the door to evidence of other inappropriate touchings or assaults. And the State did not
launch the exhibit as a harpoon. Appellant’s counsel cross examined the State’s first witness, a
friend of the complaining witness, about the time frame surrounding the complaining witness’s
statements to her concerning Appellant’s actions. The witness stated that they had also discussed
the actions in an email, and Appellant’s counsel had her look at printouts of the emails to establish
the date they were sent.
       Only then did the State offer the emails. Appellant’s counsel made numerous objections,
and the State offered the evidence only after the trial court ruled that the exhibit was admissible.
Later the prosecutor would state that he had offered the emails for a reason other than to admit
evidence of the extraneous offenses committed by Appellant, although he believed that evidence
of the extraneous offenses was admissible.
       It is not difficult to believe that the prosecutor overlooked the information about the
extraneous allegations in the series of emails for a simple reason: Appellant’s counsel also
overlooked it. Appellant’s counsel made a number of objections to the exhibit, but she never
stated, beyond a general Texas Rule of Evidence 403 objection, that the emails contained evidence
of inadmissible and extraneous offenses. Indeed, Appellant’s counsel forthrightly stated that the
prosecutor “did seem genuinely surprised” when the allegations were read and that she doubted
there was prosecutorial misconduct. Furthermore, at argument on Appellant’s motion, counsel
conceded that “it was very clear that [the prosecutor] did not want a mistrial” because he wanted
the evidence to be admitted.
       The trial court found that there was not prosecutorial misconduct immediately after it
granted the motion for a mistrial. And the trial court overruled Appellant’s request to bar a retrial
because of prosecutorial misconduct. The trial court’s conclusion that the State did not commit
misconduct by provoking Appellant into seeking a mistrial is supported by the record and by the
statements of Appellant’s counsel. It is reasonable to conclude that the offering of the evidence
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addressing extraneous misconduct was inadvertent and was not intended to goad or provoke
Appellant into seeking a mistrial. We overrule Appellant's sole issue.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.


                                                                SAM GRIFFITH
                                                                   Justice


Opinion delivered June 12, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             JUNE 12, 2013


                                         NO. 12-12-00352-CR


                                CHARLES MICHAEL WALKER,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                              Appeal from the 8th Judicial District Court
                              of Rains County, Texas. (Tr.Ct.No. 5267)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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