No. 05-07-01125-CR
Opinion issued February 20, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. WX07-90016-I.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
AMOS L. MAZZANT, JUSTICE.
John James Aiken appeals the trial court's order denying the relief sought in his application for writ of habeas corpus to bar successive prosecution of aggravated sexual assault of a child younger than fourteen years. In one issue, appellant asserts reprosecution is barred by double jeopardy because appellant was goaded into moving for a mistrial due to prosecutorial misconduct. We affirm the trial court's order denying appellant the relief sought in his application for writ of habeas corpus.
Background
Appellant was charged with aggravated sexual assault of a child younger than fourteen years. During voir dire, the prosecutor stated, "if the Defendant does not testify for whatever reason, you're not going to hear from us in closing argument say, `You've got to find him guilty because the coward didn't take the stand.'" Appellant objected to the prosecutor's comment regarding whether appellant would testify, requested an instruction to disregard, and asked for a mistrial. The trial judge denied both requests. Appellant then objected to the State's characterization of appellant as a coward, which the trial judge sustained, instructing the jury panel to "disregard the last comment by [the prosecutor] concerning what you heard this argument cover. You cannot consider it for any purpose whatsoever." Appellant restated his motion for a mistrial, which was denied. Voir dire continued, but the trial judge recessed before voir dire was completed. During the recess, outside the presence of the venire, the trial judge stated he had reviewed the prosecutor's statements, and spoke with a briefing attorney, and decided that although he was not convinced error was committed, he would grant appellant a mistrial on a renewed objection. Appellant renewed his objection and it was granted. Trial was reset for July 10, 2006. Appellant filed an application for writ of habeas corpus requesting dismissal, arguing retrial is barred by double jeopardy. The prosecutor stated in his affidavit, which was attached as an exhibit to the State's response that he "completely misspoke" and "did not intend" to "intentionally cause a mistrial[.]" The trial judge, concluding "that although a prosecutor is reckless[,] it does not rise to the level of intent to cause a mistrial," found the State did not intend to cause a mistrial, and denied appellant the relief he requested in the application for writ of habeas corpus. Standard of Review and Applicable Law
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 court's ruling. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006). We afford almost total deference to the court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App. 2007). We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d at 819. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id. The Double Jeopardy Clauses of the United States and Texas Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. See U.S. Const. amend. V; Tex. Const. art. I, § 14. Where a double jeopardy claim is raised on the basis of prosecutorial misconduct, we review the prosecutor's actions under the standard enunciated in Oregon v. Kennedy, 456 U.S. 667 (1982). See Ex parte Lewis, 219 S.W.3d at 371. "[T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Kennedy, 456 U.S. at 679. Relief is appropriate "[o]nly where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial[.]" Kennedy, 456 U.S. at 676; see also Ex parte Lewis, 219 S.W.3d at 371. Analysis
Appellant argues reprosecution should be barred under federal or State double jeopardy protection due to prosecutorial misconduct because he was goaded into moving for a mistrial due to the prosecutor's statement referring to appellant as a coward and testifying in his own behalf. The State responds retrial is not barred by double jeopardy because the prosecutor was not intentionally trying to provoke a mistrial. The prosecutor's affidavit stated that he completely misspoke and did not intend to cause a mistrial. The trial judge found that the prosecutor's statement did not rise to the level of intent to cause a mistrial, and the State did not intend to cause a mistrial. See Kennedy, 456 U.S. at 670 (prosecutor referring to defendant as a "crook" during redirect examination of an expert witness); Ex parte Lewis, 219 S.W.3d at 337 (prosecutor's comment regarding defendant's post-arrest silence). Because the trial judge found "that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter for [double jeopardy] purposes[.]" Kennedy, 456 U.S. at 679. Appellant's point of error is overruled. Conclusion
In a cross-point, the State argues the appeal should be dismissed because the Rule 25.2 certification of appellant's right to appeal has not been submitted. See Tex. R. App. P. 25.2(d). The certification has been received indicating appellant's right to appeal, which is supported by the record. The State's cross-point is overruled. We affirm the trial court's order denying appellant the relief sought in his application for writ of habeas corpus.