                                  MEMORANDUM OPINION
                                          No. 04-11-00093-CR

                                  Ex Parte Asel ABDYGAPPAROVA

                       From the 379th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2001CR4918A
                                Honorable Ron Rangel, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 7, 2011

AFFIRMED

           Asel Abdygapparova appeals the denial of habeas corpus relief. In her application, she

contends that double jeopardy protections prevent the State from trying her a second time on a

charge of capital murder after her initial conviction was reversed by this court. We affirm the

trial court’s order.

                                              BACKGROUND

           Abdygapparova was convicted of capital murder by a jury, and a life sentence was

imposed. Abdygapparova v. State, 243 S.W.3d 191, 195 (Tex. App.—San Antonio 2007, pet.

ref’d).     On appeal, this court reversed the conviction, holding the trial court, precluded

Abdygapparova from receiving a fair trial and violated her due process rights by engaging in ex
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parte communications with the prosecutor during the trial.          Id. at 208-10.    The case was

remanded for a new trial. Id. at 210.

                                          DISCUSSION

       Abdygapparova filed an application for a writ of habeas corpus in the trial court,

challenging the State’s right to try her a second time.         In her application and on appeal,

Abdygapparova incorrectly characterizes this court’s previous opinion as holding prosecutorial

misconduct occurred in the original trial and formed a basis for the reversal. Based on this

misperception, Abdygapparova cites to Oregon v. Kennedy, 456 U.S. 667 (1982), and Ex parte

Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007), as authority for her contention

that retrial is barred by double jeopardy protections.           However, neither case supports

Abdygapparova’s argument that she is afforded double jeopardy protections when she

successfully obtained a new trial based on the absence of an impartial judge.

       In Oregon v. Kennedy, the court addressed the issue of when the Double Jeopardy Clause

bars a retrial when the first trial is terminated by a defendant’s request for a mistrial. 456 U.S. at

672-73. In doing so, the court reiterated two general rules: 1) when a defendant moves for a

mistrial, the Double Jeopardy Clause is usually no bar to retrial, and 2) if a defendant

successfully appeals on a point upon which a mistrial should have been, but was not granted, the

Double Jeopardy Clause does not bar a retrial. Id. at 673, 676. The court stressed that the

exception to these general rules is narrow. Id. at 673. The court held double jeopardy protection

was extended only to cases where a mistrial was granted due to prosecutorial misconduct that

was intended to “goad” the defendant into requesting the mistrial. Id. at 673-76.

       In Masonheimer, the defendant had been subjected to two previous trials, each of which

was terminated by a defense-requested mistrial because the prosecution failed to produce Brady



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material. The defendant was granted habeas corpus relief and the Court of Criminal Appeals

affirmed. Id. at 506, 508-09. In doing so, it did not rely on the express holding in Oregon v.

Kennedy that the applicant must demonstrate the prosecutor engaged in conduct with the intent to

provoke the defense to request a mistrial. Rather, the majority examined cases cited with

approval in Oregon v. Kennedy in which relief had been granted because the prosecution acted

with intent to avoid a probable acquittal. Id. at 507-08. Ultimately, the court stated:

               Keeping in mind that we are required to view the evidence in the light
       most favorable to the trial court’s ruling that prosecuting appellee a third time is
       jeopardy-barred, we are constrained to decide that the extensive portions of the
       record set out in this opinion support a finding that appellee’s mistrial motions
       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. Under Oregon v. Kennedy,
       this deliberate conduct, accompanied by this specific mens rea, bars a retrial.

Id. (footnote omitted).

       Neither Kennedy nor Masonheimer alters the traditional rule that double jeopardy does

not bar a retrial when a defendant successfully reverses a conviction on appeal. See Montana v.

Hall, 481 U.S. 400, 402 (1987); Ex parte Mitchell, 977 S.W.2d 575, 579-81 (Tex. Crim. App.

1997), cert. denied, 525 U.S. 873 (1998). 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 Lewis, 219 S.W.3d 335, 336 (Tex. Crim. App. 2007); Masonheimer, 220 S.W.3d at 507-

08.

       Abdygapparova urges this court to fashion a new remedy when, as in this case, the trial

court’s bias might have prevented it from granting a mistrial for prosecutorial misconduct if

properly requested, thus depriving Abdygapparova of the protections afforded under Oregon v.

Kennedy. We decline to do so. Under the Oregon v. Kennedy standard, a defendant is required


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to prove the State acted with intent to avoid a probable acquittal.              456 U.S. at 679.

Abdygapparova offers no evidence such was the prosecutor’s intent in this case. Furthermore,

the protections afforded by double jeopardy are “neither another form of due process protection

ensuring the propriety of the criminal trial nor a means to protect against outrageous government

conduct.” Ex parte Lewis, 219 S.W.3d 335, 358 (Tex. Crim. App. 2007) (quoting People v.

Batts, 68 P.3d 357, 377 n. 23 (Cal. 2003), cert. denied, 540 U.S. 1185 (2004)).

       We affirm the trial court’s order denying habeas corpus relief.


                                                     Steven C. Hilbig, Justice

DO NOT PUBLISH




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