                                   NO. 07-01-0286-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     JUNE 10, 2002

                          ______________________________


                       RUBY WASHINGTON HILL, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 43,516-E; HONORABLE ABE LOPEZ, JUDGE

                         _______________________________


Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Ruby Washington Hill brings this appeal from an order of the trial court

denying her application for writ of habeas corpus following a mistrial. By five issues,

appellant questions whether (1) jeopardy attached pursuant to Article 1, Section 14 of the

Texas Constitution when the trial court granted a mistrial due to the prosecutor’s violation

of a motion in limine, (2) the trial court properly granted a mistrial, (3) the prosecutor
intended to induce the mistrial by asking her about a prior 1985 conviction in violation of

a motion in limine, (4) the mistrial occurred as a result of the prosecutor’s conscious

disregard of the risk of asking her about a 1985 conviction in violation of a motion in limine,

and (5) the trial court’s ruling denying her application for a pretrial writ of habeas corpus

was “clearly erroneous.” Based upon the rationale expressed herein, we affirm.


       Appellant plead not guilty to the charge of burglary of a building. At a pretrial

conference, the trial court granted appellant’s motion in limine by which she requested that

the State not mention, allude to or refer to, in any manner, any prior convictions or alleged

violations of law or extraneous offenses in the jury’s presence and before the trial court’s

determination of relevancy of the suggested evidence. The record indicates that the

discussion on the motion in limine was off the record. After the State rested during the

guilt/innocence phase of the trial, appellant testified in her own defense. During direct

examination, appellant’s counsel did not “open the door” to evidence of or otherwise allude

to appellant’s prior conviction for manslaughter. However, during cross-examination by

Assistant District Attorney Martindale, the following exchange occurred:


       Q. Isn’t it true you were previously convicted of theft?

       A. Yes, sir.

       Q. Twice?

       A. I had to – I had to think about that, because it has been so long ago.
       Yes.


                                              2
Q. That’s true. And you’re also the same person convicted in the 181st
District Court in Cause No. 23,885-B for the offense of manslaughter, isn’t
that correct?

MR. McKINNEY: Your Honor, I’m going to object to that. That violates the
prior Motion in Limine.

THE COURT: Let me see you up here.

(At the bench, before the Court only:)

THE COURT: I think under 609 it’s admissible, Bill.

MR. McKINNEY: I have – I have a chance to be heard on that, Judge. You
know, for starters they’re in my Motion in Limine. Now, if you read – may we
argue this point outside of the presence of the jury?

(in open court:)

THE COURT: Jesse, if you will take the jury out, please.

(Jury retired from the courtroom).

THE COURT: All right, Mr. McKinney.

MR. McKINNEY: Number one, Judge, under 609-A, I’m entitled under my
Motion in Limine to have a ruling on the probative value whether it’s more
prejudicial than it is or probative on the issue of theft. Not only under 609-A,
but 609-B. And that was the sole purpose of the Motion in Limine was to
have a ruling by the Court on the probative value versus the prejudicial affect
of it. He had opened the door in violation of the Motion in Limine.

MR. MARTINDALE: Your Honor, I believe if you will go back and recall the
pretrial hearing when the Court asked me if I agreed to the Motion in Limine,
I said, yes, Your Honor, with the exception of impeachment information. And
the Court said that was fine.

MR. McKINNEY: Your Honor, under the rule I’m entitled to a ruling on that.

THE COURT: When did the manslaughter conviction of this incident occur:


                                       3
MR. MARTINDALE: The conviction date is the 12th of August of 1995 (sic).
She was sentenced to seven years confinement, Your Honor. Excuse me,
1985. I’m sorry.

MR. McKINNEY: Yeah. Thank you, Counsel.

MR. MARTINDALE: Don’t mention it, Mr. McKinney.

THE COURT: All right. I’ll grant your motion, Mr. McKinney. What is it you
want to do? I’ll instruct the jury to disregard that last –

MR. McKINNEY: Okay. And then I’m going to move for a mistrial, Your
Honor.

THE COURT: Overruled.

MR. McKINNEY: Well, I would like – I would like to – all right. What
instruction are going to give, Judge?

THE COURT: Just tell them to disregard the last question and the last – the
last question she didn’t answer.

MR. MARTINDALE: So, I’m prohibited in going into that matter?

THE COURT: Yes. We should have had a hearing on that anyway, Mr.
Martindale. And it’s time barred anyway by time limitations.

Bring the jury in, Jesse.

THE BAILIFF: Judge, she needed a break.

THE COURT: Mr. McKinney, do you have anything else?

MR. McKINNEY: Well, let me – let me make sure I understand where we are
at, Your Honor. The uh – I made my objection. My objection to the
statement that, are you the same person who was convicted of manslaughter
in 1985, at which point I objected because it violated the Motion in Limine.
It did not give me an opportunity to have the Court determine whether or not
– even if it was admissible, whether it was more prejudicial than it was
probative. If I understand correctly, the Court has denied my – or overruled
my objection.

                                     4
THE COURT: All right. I’m going to sustain the objection.

MR. McKINNEY: Your Honor, the – at this time uh - I would ask the Court uh
– to instruct the jury not to consider it for any purpose, and it’s my intention
to move for a mistrial, because once the skunk’s in the box, I can’t remove
the stink.

THE COURT: All right, I’m granting your Motion for a Mistrial.

MR. McKINNEY: Thank you, Your Honor.

MR. MARTINDALE: Your Honor, when Mr. McKinney urged his Motion in
Limine yesterday morning, as I recall the Court specifically asked me if I had
any objections to it. My response to the court was, Your Honor, except for
the purposes of impeachment, I have no objection. And the Court said fine,
as I recall it. Therefore, I don’t see, based on that decision from the Court,
how I was limited from going into that particular issue by his Motion in
Limine.

THE COURT: AS long as you complied with Rule 609, which you did not.
You told me that conviction is over ten years old, did you not? It’s a 1985
conviction.

MR. MARTINDALE: That is correct, Your Honor.

THE COURT: All right. Jesse, bring the jury in.

MR. McKINNEY: May she stepped [sic step] down?

THE COURT: Yes.

(Jury seated.)

THE COURT: You may be seated. Ladies and gentlemen, I am going to
discharge you as jurors from the trial of this case. I am releasing you from
all the instructions that I have previously given you. If you just hand your
tags to Mr. Salazar, you’re free to go. Thank you for your jury service. I
apologize if we have caused you any inconvenience. Thank you.

(Jury released.)


                                       5
       (Reporter then released exhibits to the State.)

       THE COURT: Counsel, I have a jury panel coming in at 1:30. I expect you
       to be ready.

       MR. McKINNEY: Your Honor, uh –

       THE COURT: If you have other arrangements cancel them.

       MR. McKINNEY: Your Honor, uh – well, the uh – my intention is to file a writ
       of habeas corpus alleging pretrial – not pretrial, but alleging prosecutorial
       misconduct. I would like to go back to my office, I’ll prepare it immediately,
       and I would like to have a hearing on it before we do that.

       THE COURT: Be ready at 1:30, Mr. McKinney.

       MR. McKINNEY: Okay.

       (Recess.)


When counsel returned at 1:30, appellant presented her application for writ of habeas

corpus.


       Appellant called the State’s attorney as a witness. His examination demonstrated

that Mr. Martindale is an experienced prosecutor and was aware of the trial court’s order

granting the motion in limine; however, he testified that according to his recollection, the

court order did not limit use of prior offenses for impeachment purposes.               After

consideration, the trial court denied the application for writ of habeas corpus on the

grounds of double jeopardy. When the State stipulated that appellant was entitled to

appeal the court’s denial of the application, the court announced a final recess.



                                             6
       Restating appellant’s five issues, she questions whether (1) jeopardy attached

pursuant to Article 1, Section 14 of the Texas Constitution when the trial court granted a

mistrial due to the prosecutor’s violation of a motion in limine, (2) the trial court properly

granted a mistrial, (3) the prosecutor intended to induce the mistrial by asking her about

a prior 1985 conviction in violation of a motion in limine, (4) the mistrial occurred as a

result of the prosecutor’s conscious disregard of the risk of asking her about a 1985

conviction in violation of a motion in limine, and (5) the trial court’s ruling denying her

application for a pretrial writ of habeas corpus was “clearly erroneous.” We need not

consider appellant’s second issue because she concedes that the trial court properly

granted her motion for mistrial and the State acknowledges that after Bauder II1 the

propriety of the mistrial is not a consideration in resolving a double jeopardy argument.

Accordingly, we will consider appellant’s remaining issues simultaneously; but first, we set

forth the appropriate standard of review.


                                   Standard of Review


       In reviewing trial court rulings, an appellate court must determine the amount of

deference which is appropriately given to the ruling at issue. Appellate courts either give

almost total deference to trial court rulings, or review the rulings de novo, depending on



       1
       After its initial decision in Ex Parte Bauder, 921 S.W.2d 696 (Tex.Cr.App. 1996),
the Court had a second opportunity to consider when a mistrial implicates double jeopardy.
Bauder v. State, 974 S.W.2d 729 (Tex.Cr.App. 1998).

                                              7
the basis of the decision being challenged. Where, as here a reporter’s record of the

hearing on the application for writ of habeas corpus is presented, almost total deference

is given to the (1) trial court’s determinations of historical facts with support in the record,

(2) fact determinations involving an evaluation of credibility or demeanor, and (3) rulings

on questions involving application of law to fact (also known as mixed questions of law and

fact) if the resolution of those ultimate questions turns on an evaluation of credibility and

demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997) (en banc). This level

of appellate deference is referred to as a review for abuse of discretion. Id. Mixed

questions of law and fact not falling within the foregoing categories may be reviewed de

novo by the appellate court. Id. De novo review does not embody the abuse of discretion

standard of review. Id. Even when conducting a de novo review, however, an appellate

court affords appropriate deference (abuse of discretion) to the trial court’s findings on

subsidiary factual questions. Id.


       Generally, the denial of habeas corpus relief is within the discretion of the court

considering the habeas petition. Ex Parte Pipkin, 935 S.W.2d 213, 215 (Tex.App.--

Amarillo 1996, pet. ref’d). On appeal, the ruling of such court will be upheld unless its

ruling is an abuse of discretion. State v. DeLeon, 971 S.W.2d 701, 705 (Tex.App.--

Amarillo 1998, pet. ref’d). The ruling of the court considering the habeas petition will be

upheld if it is correct on any theory of law. Id. Accordingly, we will review the trial court’s




                                               8
order to determine if its decision is clearly erroneous. Ex Parte May, 852 S.W.2d 3, 5

(Tex.App.--Dallas 1993, pet. ref’d).


       Before Bauder II, 974 S.W.2d at 731, the granting of a defendant’s motion for

mistrial did not implicate a claim of double jeopardy baring retrial, see Crawford v. State,

703 S.W.2d 655 (Tex.Cr.App. 1986), except when the prosecutor caused the defendant

to move for mistrial. Id. at 662; Ex Parte May, 852 S.W.2d at 4. After Bauder II, the

questions presented are:


       •      whether the defendant’s motion for mistrial was a choice made in
              response to ordinary reversible error in order to avoid conviction,
              appeal, reversal and retrial; or, on the other hand,


       •      was the defendant required to move for mistrial because the
              prosecutor deliberately or recklessly crossed “the line between
              legitimate adversary gamesmanship and manifestly improper
              methods” that rendered trial before the jury unfair to such a degree
              that no judicial admonishment could have cured it?


974 S.W.2d at 732. (Emphasis added). The opinion does not define “ordinary reversible

error,” however, where, as here, the trial court granted a mistrial for violation of a motion

in limine, we do not consider the error to be “ordinary reversible error, ” i.e., inadvertently

admitted hearsay evidence, otherwise         orders granting motions in limine would be

rendered meaningless and produce a waste of judicial resources by the granting of

mistrials.



                                              9
       Similarly, Bauder II does not provide any guidelines or instruction to assist us or the

trial court in determining when the prosecutor deliberately or recklessly crosses “the line

between legitimate adversary gamesmanship and manifestly improper methods,” that

render judicial admonishment to the jury futile. Here, at the hearing on appellant’s

application, the prosecutor testified that according to his recollection, when the motion in

limine was considered, the order did not prohibit use of the evidence for purposes of

impeachment. However, the record shows that the motion and the court’s remarks were

off the record and the order granting the motion does not specifically address the use of

prior convictions for purposes of impeachment. Also, the record does not demonstrate

whether the prosecutor’s recollection was supported by the record or whether his reference

to appellant’s prior conviction was deliberate or reckless. Therefore, according almost

total deference to the trial court’s ruling, we are unable to hold that the trial court abused

its discretion in denying appellant’s application for writ of habeas corpus. We have not

overlooked Ex Parte Wheeler, 61 S.W.3d 766 (Tex.App.--Fort Worth 2001, pet. filed Feb.

26, 2002), relied on by appellant; however, it is not controlling because we have been

provided with a record of the hearing in the trial court when the application for writ of

habeas corpus was presented, and the same judge who heard the application presided

over appellant’s trial. Issues one, three, four and five are overruled and we need not

consider issue two.


       Accordingly, the judgment of the trial court is affirmed.


                                             10
           Don H. Reavis
             Justice


Publish.




            11
