                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-13-00085-CR

EX PARTE JUAN ANTONIO
RODRIGUEZ




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      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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      Appellant Juan Antonio Rodriguez appeals the trial court’s denial of relief

on a pretrial writ of habeas corpus, through which he sought to jeopardy-bar a

retrial after his first trial ended in a mistrial granted on his own motion. We affirm.

      Appellant was brought to trial on two counts of indecency with a child.

After four of the State’s witnesses, including the complainant, had testified, the


      1
       See Tex. R. App. P. 47.4.
prosecutor asked the fifth witness, the investigating officer, about the progress of

the investigation. Specifically, the prosecutor asked what had happened with the

investigation after Appellant had been interviewed and the detective had

gathered all the paperwork for her investigation. To this, the detective replied,

“Well, I attempted to arrange a polygraph for the suspect.”                 The trial court

sustained Appellant’s objection, instructed the jury to “disregard the last

statement by th[e] witness” and, after specifically finding that there had been no

prosecutorial misconduct, granted Appellant’s motion for mistrial. On a pretrial

writ of habeas corpus, Appellant sought to bar retrial, citing the Bauder line of

cases.2 After a hearing in which the trial court reiterated its previous finding that

there had been no misconduct on the part of the State, the trial court denied

relief.3

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

review the evidence in the light most favorable to the trial court’s ruling. Ex Parte

Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007); Ex parte Bennett,

245 S.W.3d 616, 618 (Tex. App.––Fort Worth 2008, pet. ref’d). Generally, a trial

       2
       Ex parte Bauder, 974 S.W.2d 729 (Tex. Crim. App. 1998), overruled by Ex
parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)
       3
           Specifically, the trial court stated its reasoning as follows:

       [G]iven that the testimony is that the State had instructed the witness
       not to talk about the polygraph, that thus the State did not intend the
       result of their conduct or the resulting statement by the witness,
       which was to bring up the polygraph exam in the presence of the
       jury. And so the relief requested is denied.


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court’s decision denying habeas relief will be upheld absent an abuse of

discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).

      The double jeopardy provisions of the federal and Texas constitutions

protect a criminal defendant from repeated prosecutions for the same criminal

offense. U.S. Const. amend. V; Tex. Const. Art. I, § 14; Oregon v. Kennedy, 456

U.S. 667, 671, 102 S. Ct. 2083, 2087 (1982); Brown v. Ohio, 432 U.S. 161, 165,

97 S. Ct. 2221, 2225 (1977); Bennett, 245 S.W.3d at 618; Stephens v. State, 806

S.W.2d 812, 815 (Tex. Crim. App. 1990), cert. denied, 502 U.S. 929 (1991).

These provisions afford a criminal defendant a “valued right to have his trial

completed by a particular tribunal.” Kennedy, 456 U.S. at 671–72, 102 S. Ct. at

2087; Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837 (1949).            The

provisions generally are not violated when a criminal defendant deliberately

elects to “forgo his valued right to have his guilt or innocence determined before

the first trier of fact” by voluntarily moving for and receiving a mistrial.   See

Kennedy, 456 U.S. at 676, 97 S. Ct. at 2089. There is a narrow exception to this

general rule that occurs when the prosecution engages in conduct intended to

“provoke” or “goad” the defendant into moving for a mistrial. Id., 456 U.S. at

675–76, 679, 102 S. Ct. at 2089, 2091; Lewis, 219 S.W.3d at 371 (adopting

Kennedy standard for determining when to grant double jeopardy relief under

Texas constitution after a defense-requested mistrial and overruling Bauder,

which barred retrials under double jeopardy when the prosecutor was aware of

but consciously disregarded the risk that his conduct would require a mistrial at


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the defendant’s request); see also Masonheimer, 220 S.W.3d at 507 (stating that

appellee’s mistrial motions were necessitated primarily by the prosecution’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).

       Here, the trial court specifically found that the mistrial “was not based on

prosecutorial misconduct.” Having examined the record and after applying the

proper standard set out in Oregon v. Kennedy, as adopted by the court of

criminal appeals in Lewis, we hold that the trial court properly denied relief. At

the writ hearing, the prosecutor testified that she and her co-counsel met with the

investigating officer the Thursday before trial and during that meeting expressly

instructed her not to talk about a polygraph during trial.              Specifically, the

prosecutor testified as follows:

       It was in the conversation as she [the detective] was conducting her
       investigation, it came up. She was talking about needing to get a
       Spanish speaking polygrapher, couldn’t remember the name of the
       guy they used––usually used, and we just stopped her. I think it was
       actually [co-counsel] who stopped her and said it doesn’t matter, you
       can’t talk about it anyway. So it was one of those mutual
       conversations––it was the three of us in the room at that time, one of
       the mutual conversations we said, yeah, you know we can’t talk
       about that, right. She says, oh, okay. She acknowledges that and
       we move on.

              ....

              We had warned her not to talk about it. What was in her mind
       at the time, I honestly can’t answer. She told us later that she
       thought it was allowed, to talk about a polygraph but not the results.
       What we had told her in the pretrial meeting was, “You know we
       can’t talk about it; we just can’t talk about it. So what you’re going



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      into, knowing this Spanish speaking polygrapher, it didn’t matter
      because we can’t talk about it,” and she acknowledged that.

      The prosecutor also testified that when she asked the detective at trial

what she had done next in the investigation, she did not expect the answer to

include mention of a polygraph. Moreover, she testified that at no point during

her direct examination of the detective did she intend to provoke her to say

something that would cause a mistrial. Further, she testified that the prosecution

team felt “pretty good” about the case up to the point that the trial court granted a

mistrial and that no one had hoped that it would end in a mistrial.

      Under both the federal and state constitutions, retrial is barred only if the

prosecutor intentionally caused a mistrial. Kennedy, 456 U.S. at 675–76, 102 S.

Ct. at 2089; Bennett, 245 S.W.3d at 618–19; Lewis, 219 S.W.3d at 371. The

record in this case supports the trial court’s finding that the prosecution did not

engage in misconduct.       Thus, it supports the trial court’s ruling denying a

jeopardy bar based on prosecutorial misconduct. Accordingly, we affirm the trial

court’s order denying relief.

                                             /s/ Anne Gardner

                                             ANNE GARDNER
                                             JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 22, 2014


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