Ex Parte Garza

Full title: EX PARTE MAURO GARZA, JR

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: May 26, 2004

No. 04-02-00903-CR (Tex. App. May. 26, 2004)

Opinion

No. 04-02-00903-CR

Delivered and Filed: May 26, 2004. DO NOT PUBLISH.

Appeal from the 79th Judicial District Court, Jim Wells County, Texas, Trial Court No. 02-08-10948-CR, Honorable Ricardo H. Garcia, Judge Presiding. Affirmed.

Sitting: Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.

MEMORANDUM OPINION

PAUL W. GREEN, Justice.

Mauro Garza, Jr., was charged with the murder of Jose Trevino and three additional counts of aggravated assault. All four charges were being tried in one proceeding. During the third day of the State's case in chief, the trial court declared a mistrial. Garza argues a second trial would subject him to double jeopardy because the mistrial was necessitated by the prosecution's intentional or reckless misconduct. The trial court found no prosecutorial misconduct. We affirm the trial court's denial of habeas corpus relief.

Background

Before trial began, the State requested that the three aggravated assault victims, all members of the deceased victim's family, be allowed to remain in the courtroom after their testimony.¹ Over defense objections, the trial court agreed. On the third day of trial, two of the jurors reported to the bailiff that members of the audience were whispering, staring at the jury, and pointing their fingers at the jury. The jurors identified one of the victim witnesses, Jesus Trevino, as a person who was staring. The other person who allegedly whispered and pointed at the jury was later identified as the mother of another witness. The prosecutor informed the judge that this second person was not expected to testify. The jurors did not hear the whispered conversations nor did they hear any threats. The gestures were not threatening, only pointing, but one juror reported that he thought the stares were threatening. The jurors described themselves as being uncomfortable. The trial judge noted that observers were entitled to stare or look at the jury but he was troubled by the pointing. The trial judge was also concerned that the jurors had discussed the situation among themselves before they brought their complaint to the bailiff. The defendant's motion for mistrial was granted, and the trial court admonished members of both families that no further misconduct would be tolerated in the retrial.

Scope and Standard of Review

We review a trial court's decision to grant or deny relief on a writ of habeas corpus for abuse of discretion, affording "almost total deference to the trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor." Ex parte Peterson, 117 S.W.3d 804, 819 n. 7 (Tex.Crim. App. 2003); Ex parte Maldonado, 04-03-00135-CR, 2004 WL 239699, at *4 (Tex. App.-San Antonio Feb. 11, 2004, no pet.) (not designated for publication). When considering whether a criminal defendant's second prosecution may subject him to double jeopardy in violation of the Fifth Amendment and of Art. 1, section 14 of the Texas Constitution, we must determine whether the defendant's first trial "resulted in a mistrial that: (1) was justified under the manifest necessity doctrine; or (2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial." Peterson, 117 S.W.3d at 810-11. If prosecutorial misconduct is implicated, we apply the three step analysis set out by the Court of Criminal Appeals:

1) Did manifestly improper prosecutorial misconduct provoke the mistrial?²

2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard?

3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial ( Kennedy standard)³ or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial ( Bauder standard)?⁴

Peterson, 117 S.W.3d at 816-17. The defendant bears the burden to produce sufficient evidence to prove each prong of the analysis by a preponderance of the evidence. Id. at 818.

Analysis

Garza claims that the prosecution acted intentionally or with conscious disregard for the risk of a mistrial when it asked the Court for permission for the three victim witnesses to remain in the courtroom after their testimony. The record reflects that the prosecutor knew there was a continuing feud between the Garza and Trevino families. Garza argues the prosecutor must have known the animosity between the families would inevitably lead to disruption by the victim witnesses if they were allowed to remain in the courtroom. The jurors testified that the finger pointing did not begin until the morning of the day the mistrial was declared. No one overheard the whispered conversations, nor did they know why the audience members were pointing at the jury.⁵ The jurors also said the prosecution would not have been able to see the whispering or pointing because it was behind them. Neither the state's investigator nor any of the law enforcement officers in the courtroom noticed any whispering or finger pointing. At the hearing on the writ of habeas corpus, the prosecutor testified he had dealt with the Trevino family in court on other occasions and had never had a problem. He did not anticipate that they would be disruptive.⁶ Giving deference to the trial court's determination of the facts, we hold the record supports the trial court's finding that no prosecutorial misconduct occurred. Garza failed to prove the first element of the Peterson three part test for prosecutorial misconduct. We affirm the trial court's order denying habeas corpus relief.