      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00118-CR




                                    Ex parte Joseph Martinez




      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
       NO. CR-03-787-HC, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Joseph Martinez’s first trial for aggravated assault in Hays County cause number CR-

03-787 ended in a mistrial on his motion. In this habeas corpus proceeding, Martinez seeks to bar

his retrial on double jeopardy grounds. See U.S. Const. amend. V; Tex. Const. art. I, § 14; see also

Ex parte Robinson, 641 S.W.2d 552, 554-55 (Tex. Crim. App. 1982). The district court denied

relief, and we will affirm the order.

               When a trial ends in a mistrial on the defendant’s motion, double jeopardy principles

forbid a second trial if: (1) the mistrial motion was provoked by manifestly improper prosecutorial

misconduct, (2) the mistrial was required because the prejudice resulting from the misconduct could

not be cured by an instruction, and (3) the prosecutor either intended to goad the defense into

requesting a mistrial or consciously disregarded a substantial risk that a mistrial would be required.

Ex parte Peterson, 117 S.W.3d 804, 816-17 (Tex. Crim. App. 2003) (citing Oregon v. Kennedy, 456

U.S. 667, 676 (1982), and Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996)). The
burden is on the habeas corpus applicant to prove all three elements by a preponderance of the

evidence. Id. at 818. We review the trial court’s ruling for an abuse of discretion, deferring to that

court’s express or implied findings of fact but reviewing de novo mixed questions of law and fact

that do not depend on credibility and demeanor. Id. at 819.

                Martinez offered no evidence at the hearing below, being content to rely on the record

from the first trial. The court denied relief after hearing argument from both parties and without

making express findings.

                The record from the first trial is part of the habeas corpus record.1 Before trial began,

the court granted a motion in limine prohibiting the introduction of extraneous crime or misconduct

evidence without first obtaining a ruling on its admissibility outside the jury’s presence. The State’s

first witness was the police officer who responded to the complainant’s report of an assault by her

boyfriend, whom she identified as Martinez. The officer was asked by the prosecutor, “Do you recall

whether during your conversations with [the complainant] whether or not she told you a knife was

involved in the assault?” He answered, “[She] didn’t tell me a knife had been involved in this

assault.” The prosecutor continued, “Okay. She told you about being hit?” The officer replied, “She

told me—she told me previously that her boyfriend had been—had been incarcerated.” The defense

objected and moved for a mistrial, urging that the witness had been instructed regarding the terms

of the motion in limine and had deliberately violated it. The court found no bad faith on the part of

the officer, but granted the mistrial after determining that an instruction would not cure the prejudice.




    1
     The trial was before the Honorable Charles R. Ramsay, who also signed the written order
denying habeas corpus relief. The habeas corpus hearing was held before the Honorable Fred Moore.

                                                   2
               Martinez has failed to prove the first element of his double jeopardy claim. The

prosecutor’s question, “She told you about being hit?” was not calculated to adduce evidence of an

extraneous crime or act of misconduct and could have been answered with a simple “yes” or “no.”

The question cannot be deemed manifestly improper merely because the witness gave a

nonresponsive, objectionable answer. The officer’s nonresponsive answer was completely consistent

with inadvertence.

               In the absence of a showing of manifestly improper prosecutorial misconduct, the

district court’s denial of relief was not an abuse of discretion and is affirmed.




                                               __________________________________________

                                               Bea Ann Smith, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: November 17, 2005

Do Not Publish




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