Affirmed and Opinion Filed April 10, 2015




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-15-00047-CR

                           EX PARTE BRODEY GARRETT DUKE

                       On Appeal from the County Court at Law No. 2
                                  Grayson County, Texas
                            Trial Court Cause No. 2014-2-0848

                               MEMORANDUM OPINION
                          Before Justices Bridges, Fillmore, and Brown
                                   Opinion by Justice Bridges

       Brodey Garrett Duke appeals the trial court’s order denying him the relief sought by his

pretrial application for writ of habeas corpus. In a single issue, appellant contends the trial court

erred in denying relief because double jeopardy bars retrial after a defense-requested mistrial was

granted. We affirm the trial court’s order.

                                           BACKGROUND

       On May 29, 2011, appellant was arrested for evading arrest in a boat, which occurred on

May 28, 2011. He was subsequently charged with the offense by information. The State

provided appellant’s trial counsel with discovery on January 5, 2012 in accordance with their

agreement. A jury trial began on May 22, 2013. During testimony outside the presence of the

jury, Game Warden Randolph McGee stated he pursued a speeding boat driven by appellant.

McGee described an audio CD he had brought to the trial court that contained the radio traffic
exchanged during the chase of appellant’s boat. McGee testified he had obtained the recording

the morning of the trial. He explained that his first request to the Grayson County Sheriff’s

Office for the recording went unanswered. He made a second request, and received the CD on

the morning of trial. McGee testified that when he produced the CD to the prosecutor before the

trial began, he was told to “hold on to it, it was not going to be used.” When questioned about

the CD by the trial court, the prosecutor stated he had not listened to the CD and did not know

whether or not it contained exculpatory evidence. Appellant’s trial counsel moved both for a

mistrial and to dismiss the case. The trial court initially overruled the motions, then recessed the

proceedings to give the parties a chance to listen to the CD. When the proceedings resumed, the

trial court reopened defense counsel’s motion for mistrial and granted that motion on the grounds

of prosecutorial misconduct. The trial court denied the motion to dismiss on the grounds of

double jeopardy.

        On July 21, 2014, the Grayson County District Attorney’s Office refiled the evading

arrest case against appellant. On January 7, 2015, appellant filed a pretrial application for writ of

habeas corpus asserting that retrial was barred by double jeopardy due to prosecutorial

misconduct for failure to disclose exculpatory evidence. After a hearing, the trial court denied

appellant relief.

                                         APPLICABLE LAW

        The  double  jeopardy  provisions of the federal and Texas constitutions protect a citizen

from repeated attempts at prosecution for the same criminal offense.    Ex parte  Wheeler,  203

S.W.3d 317, 322 (Tex.  Crim.  App.  2006).  The   double  jeopardy  provisions prohibit a retrial of a

case after the defendant requests and is granted a mistrial only if the prosecution intentionally

commits manifestly improper conduct with the intent to provoke that mistrial.    See  Oregon v.



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Kennedy,  456 U.S. 667, 672–73 (1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App.

2007).  We review the trial court’s ruling on a  pretrial  writ  of  habeas  corpus  for an abuse of

discretion.   Ex parte  Wheeler, 203 S.W.3d 317, 322 (Tex. Crim. App. 2006). In conducting this

review, we determine whether manifestly improper prosecutorial misconduct provoked the

mistrial; whether the mistrial was required because the prejudice produced from that misconduct

could not be cured by an instruction to disregard; and whether the prosecutor engaged in that

conduct with the intent to goad the defendant into requesting a mistrial. Id. at 323–24.

       In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the

facts in the light most favorable to the trial judge’s ruling. Ex parte Peterson, 117 S.W.3d 804,

819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219

S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial court’s ruling absent an abuse of

discretion. Id. In conducting our review, we afford almost total deference to the judge’s

determination of the historical facts that are supported by the record, especially when the facts

are based on an evaluation of credibility and demeanor. Id. We afford the same amount of

deference to the trial judge’s application of the law to the facts, if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate

question turns on an application of legal standards, we review the determination de novo. Id.

       An applicant for habeas corpus relief must prove his claims by a preponderance of the

evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The applicant also

bears the burden of ensuring that a sufficient record is presented to show error requiring reversal

on appeal. See Ex parte Chandler, 182 S.W.3d 350, 353 n. 2 (Tex. Crim. App. 2005); Ex parte

Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993).




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                                              ANALYSIS

       In a single issue, appellant contends the trial court erred in concluding the State’s failure

to produce the audiotape of the officers’ transmission during the pursuit did not require dismissal

of the case and that double jeopardy does not bar a retrial. Appellant asserts he is being

subjected to “multiple harassing prosecutions,” and because the trial court found the evidence

withheld by the State was “exculpatory,” it should have granted the relief sought. Appellant

asserts he established the State intentionally provoked appellant into requesting a mistrial, and

that double jeopardy now bars retrial. The State responds that the trial court did not abuse its

discretion in denying habeas corpus relief.

       The record shows McGee brought the CD to the trial court on the date he was scheduled

to testify. When he told the prosecutor about its existence, he was told to “hang on to it.” The

trial court questioned McGee and the prosecutor about the details of when the audiotape’s

existence was known, when it was produced, and whether the prosecutor had listened to it. The

trial court recessed the proceedings to give trial counsel time to review the material. Counsel

stated on the record that he believed exculpatory evidence was contained on the CD. The trial

court granted counsel’s motion for mistrial, but denied counsel’s motion to dismiss based upon

double jeopardy because counsel had not shown that the prosecutor’s conduct was intentional or

caused counsel to move for mistrial.

       The record shows no prosecutorial misconduct intended to goad appellant into requesting

a mistrial. See Kennedy, 456 U.S. at 679; Ex parte Lewis, 219 S.W.3d at 371. Thus, appellant

has not carried his burden to show that the State’s reprosecution of him is barred by double

jeopardy. See Kniatt, 206 S.W.3d at 664.




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       We conclude the trial court did not abuse its discretion in denying appellant the relief

sought by his application for writ of habeas corpus. We overrule appellant’s issue.

       We affirm the trial court’s order denying the relief sought by the pretrial application for

writ of habeas corpus.


Do Not Publish
Tex. R. App. P. 47

150047F.U05                                           /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE




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                                  Court of Appeals
                           Fifth District of Texas at Dallas

                                         JUDGMENT


EX PARTE BRODEY GARRETT DUKE                           Appeal from the County Court at Law
                                                       No. 2 of Grayson County, Texas (Tr.Ct.No.
No. 05-15-00047-CR                                     2014-2-0848).
                                                       Opinion delivered by Justice Bridges,
                                                       Justices Fillmore and Brown participating.



        Based on the Court’s opinion of this date, the trial court’s order denying the relief sought
by the pre-trial application for writ of habeas corpus is AFFIRMED.



       Judgment entered April 10, 2015.




 




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