Ex Parte Maldonado

Full title: EX PARTE JOSE I. MALDONADO

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

Date published: Feb 11, 2004

No. 04-03-00135-CR (Tex. App. Feb. 11, 2004)

Opinion

No. 04-03-00135-CR.

Delivered and Filed: February 11, 2004. DO NOT PUBLISH.

Appeal from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 723385, Honorable Michael Mery, Judge Presiding. Affirmed.

Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice.

MEMORANDUM OPINION

Opinion by: CATHERINE STONE, Justice.

Jose Maldonado was charged with the offense of driving while intoxicated. Before his trial, the court granted Maldonado's motion to suppress the results of his breath test. The case proceeded to trial on Maldonado's not guilty plea. During the State's case in chief, the trial court granted a mistrial and discharged the jury. Maldonado filed an application for writ of habeas corpus seeking to avoid retrial on the basis of double jeopardy. Following a hearing, the trial court denied Maldonado the relief he sought. This appeal followed. In two issues, Maldonado contends the trial court erred in denying him habeas corpus relief because the prosecutor's intentional or reckless conduct caused the mistrial, thereby violating his rights under the Texas and United States Constitutions. We affirm.

Background

During its case in chief, the State called Maldonado's arresting officer, Officer John Ray Saenz. Officer Saenz testified he stopped Maldonado for speeding. Upon stopping Maldonado, Officer Saenz stated he noticed that Maldonado had bloodshot, watery eyes. He also detected the smell of alcohol on Maldonado's breath. Officer Saenz explained that when he ordered Maldonado to exit his vehicle for field sobriety tests, a bottle of malt liquor fell onto the highway. Officer Saenz testified he administered various field sobriety tests to Maldonado, including a Horizontal Gaze Nystagmus test ("HGN"). After explaining what the HGN test is, how it is performed, and what clues he looks for when administering an HGN, Officer Saenz testified he observed involuntary jerking in Maldonado's eyes. Moreover, he stated Maldonado exhibited all six of the clues that signify intoxication. When the State asked Officer Saenz "And what do these clues tell you?," defense counsel objected, complaining the question was too broad under Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994).¹ Without ruling on the objection, the court asked the State to rephrase its question. The State responded by asking the officer whether he believed that as a result of the HGN test Maldonado was intoxicated. The officer answered affirmatively, and the State followed up with a clarification question asking whether the officer's answer was based on the number of clues he had observed. Once again the officer answered affirmatively. When the State asked Officer Saenz "Why? Why is that?," defense counsel again objected, complaining the question was too broad under Emerson. The trial court did not rule on counsel's objection, and the State immediately rephrased its question: "Without giving any numbers in regard to this, why do you believe the defendant was intoxicated. . . .?" Officer Saenz, without any objections from defense counsel, answered "if I have six clues of HGN I feel as a police officer and due to the many arrests that I have made that the driver is intoxicated." Next, Officer Saenz testified regarding the second field sobriety test he administered, the walk and turn test. Again, Officer Saenz stated he was trained to look for six clues during this test. According to Officer Saenz, Maldonado exhibited three of these six clues. The State then asked Officer Saenz whether the results of Maldonado's walk and turn test indicated that Maldonado was "only half intoxicated." When Officer Saenz answered negatively, the State asked the officer, "So how does this work then?" Officer Saenz replied:

I am looking for a total amount of clues. And in this particular time — at this particular time when he was arrested, the clues were six, four and four, were six clues of HGN and four clues of walk and — and four clues of the other. But that was when the B.A.C. was .10.

Defense counsel immediately moved for a mistrial because counsel believed Officer Saenz's answer concerned the results of Maldonado's breath test, which the trial court suppressed before trial. Counsel further argued for a mistrial because he also believed Officer Saenz erroneously attempted to correlate Maldonado's performance on the HGN test to a precise blood alcohol concentration in violation of Emerson. The State, however, argued:

[M]y interpretation of what [Officer Saenz] just stated, he was referred to what the actual law was at the time as a .10 versus .08. These officers are taught to look through different amount of clues when a — on field sobriety tests when the level changes. At a .08 which is what the standard is now, they look for more or less clues depending on the legislator — or actually what they are taught in the academy. I truly believe, he was told several times not to mention anything about any breath test. And I am truly under the belief that he was referring to what the law was at the time, that the standard was .10 versus a .08. It happens to be that the defendant did blow a .104 and a .124. Yes, a .124. But I don't really honestly believe that is at all what this witness was making any reference to.

The trial court nevertheless granted Maldonado a mistrial. Maldonado thereafter filed an application for writ of habeas corpus on double jeopardy grounds seeking to avoid a retrial. At the habeas corpus hearing, Maldonado called prosecutor Ashley Botard to testify. Botard testified she and Laura Burton were the prosecutors involved in Maldonado's first trial. Botard testified the trial court suppressed the results of Maldonado's breath test before trial. Due to the trial court's suppression ruling, Botard advised Officer Saenz before trial not to refer to the results of Maldonado's breath test while testifying. Botard added that she believed the suppression of Maldonado's breath test results was ultimately beneficial to the State because the results were ".104 and .124, right within the range of tolerance." Botard acknowledged at the habeas hearing that she was aware Emerson prohibited witnesses from correlating a defendant's performance on an HGN test to a precise blood alcohol concentration. According to Botard, she did not remember whether she discussed Emerson with Officer Saenz. Botard stated she advised her co-prosecutor, Laura Burton, to admonish Officer Saenz during trial not to testify to Maldonado's precise blood alcohol concentration. Botard explained she made the recommendation to her partner to ensure Officer Saenz did not violate Emerson. Next, Maldonado called prosecutor Laura Burton to testify. Burton testified she had been a prosecutor for four months and had participated in two DWI trials prior to Maldonado's trial. In preparation for Maldonado's trial, Burton stated she reviewed sample predicate questions compiled by the district attorney's office as well as a predicate manual created by TDCAA because she had never questioned a witness on the issue of field sobriety testing. Burton also stated she prepared for her examination of Officer Saenz by discussing her trial tactics with co-prosecutor Botard before trial. Burton testified she told Officer Saenz before trial that the court had suppressed Maldonado's breath test results, and advised him not to mention the following: what a breath test is; that Maldonado gave a breath specimen; or the results of Maldonado's breath test. According to Burton, Officer Saenz appeared to understand, and indicated to her that he would not make any breath test reference during his testimony. Like co-prosecutor Botard, Burton acknowledged that she is familiar with the Emerson case. Burton testified she believed Emerson stands for the proposition that an officer can testify about the results of an HGN test as long as he also testifies he is trained to perform such test. Burton noted that she did not know whether Emerson prohibits a witness from quantifying a defendant's blood alcohol concentration based on his HGN test. She further explained she did not know defense counsel's objections to her examination of Officer Saenz were really complaints that the officer should not quantify Maldonado's blood alcohol concentration based on the results of the HGN test. Burton explained that when she asked the question that led to the mistrial, she wanted Officer Saenz to testify that he did not need to observe all of the clues on a field sobriety test to conclude the person is intoxicated and that "half the number of clues" does not mean the person is "only half intoxicated." Burton emphasized she never intended for Officer Saenz to quantify Maldonado's blood alcohol concentration at trial. She stated she merely wanted Officer Saenz to testify along the lines of "based on my training, my experience, based on what I've been taught, this is what I've seen an intoxicated — the number of clues an intoxicated person would have." Burton maintained she did not intend for her question to be a general "throw-it-out-there" question for Officer Saenz. Finally, Maldonado called Officer Saenz to testify. Officer Saenz testified he did talk to the State about Maldonado's breath test results prior to giving his testimony. He testified that during his conversation with the State, he learned that he could neither mention that Maldonado gave a breath specimen nor mention that Maldonado's breath test indicated his blood alcohol concentration was in the range of .104 to .124. According to Officer Saenz, he discussed the topic of field sobriety tests with the State before trial; however, the issue of whether he could use an HGN score to predict a person's blood alcohol concentration was never discussed. With respect to the admonishment Burton gave him during trial not to "us[e] any numbers," Officer Saenz explained he interpreted Burton's admonishment to mean that he was not to predict Maldonado's blood alcohol concentration based on his HGN score. As to the question and answer that led to the mistrial, Officer Saenz explained he believed the State's question referred to whether he believed Maldonado was intoxicated and could be arrested based on the totality of the clues he observed on each of the field sobriety tests he administered to Maldonado. Officer Saenz maintained his reference to .10 during trial was not a reference to Maldonado's blood alcohol concentration; rather, it was a reference to the legal limits for blood alcohol concentration at the time of his training. Officer Saenz explained that when he conducts field sobriety tests, he is looking for a certain number of clues to signify intoxication. When the legal limit for a person's blood alcohol concentration was .10, Officer Saenz stated he looked for six clues on the HGN test, four clues on the walk and turn test, and four clues on the one-leg stand test to signify intoxication. Now that the legal limit for a person's blood alcohol concentration is .08, he explained he can conclude a person is intoxicated with fewer clues than in the past. At the close of the writ hearing, the trial court determined Officer Saenz was not testifying about Maldonado's blood alcohol concentration when he referred to a blood alcohol concentration of .10 during trial; rather, the officer was referring to the state of the law at the time of Maldonado's offense. The court concluded the State did not violate a motion in limine or a motion to suppress because the State's witness never referred to the suppressed breath test scores of .104 and .124. The court further stated:

I still feel my ruling on the defense's request for a mistrial was proper because I could not risk that any juror could have thought that. I couldn't risk that even though that's not the BAC . . . Now, had the BAC been literally .10 in this case, it might present a different set of facts. But that was not the BAC. I do not find that the testimony to the jury was that his BAC was that. All I find is there was a risk on such a grave issue that one or more jurors could have interpreted it that way and there was no way that I could allow that to proceed. Further, I do not find that the questions, general though they were and inartful though they were, were reckless. And I do not find that they were designed in any way to elicit that answer. And finally, [Officer Saenz's] answer was so nonresponsive . . . So, I deny the relief requested.

Standard of Review

When reviewing a trial court's decision to grant or deny relief on a writ of habeas corpus, an appellate court should afford almost total deference to the trial 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. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003). An appellate court affords the same amount of deference to the trial court's ruling on "application of law to fact questions" if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, if the resolution of those ultimate questions does not depend upon credibility or demeanor, the court reviews the determination de novo. Id. Absent a clear abuse of discretion, we must uphold the trial court's habeas corpus ruling. Id.

Double Jeopardy

The double jeopardy clauses of both article 1, section 14 of the Texas Constitution and the Fifth Amendment to the United States Constitution "`protect a criminal defendant from repeated prosecutions for the same offense.'" Id. at 810 (citing Oregon v. Kennedy, 456 U.S. 667, 671 (1982)); Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). Double jeopardy principles, however, do not prohibit "multiple trials of a single criminal charge if the 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. Under the federal standard, the critical inquiry is whether a prosecutor intended to goad the defendant into asking for a mistrial. Id. at 811. By contrast, under the Texas standard, which provides defendants added protection, "a prosecutor must at least be aware that his manifestly improper misconduct is likely to result in a mistrial, but he nonetheless consciously ignores that likelihood and commits the misconduct." Id. at 816. Under either standard, the prosecutor's mens rea is pivotal. Id. In Ex parte Peterson, the court of criminal appeals offered the following three-part analysis to assist trial and appellate courts analyzing double jeopardy mistrial claims: "(1) Did manifestly improper prosecutorial misconduct provoke the mistrial?<sup>2</sup> (2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard?<sup>3</sup> and (3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial ( Kennedy standard) or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial ( Bauder standard)?"<sup>4</sup> For double jeopardy to bar retrial, it is not enough that the prosecutor's incurably prejudicial misconduct was the result of inadvertence, sloppiness, or simple negligence. Id. at 817. Moreover, in determining whether the prosecutor acted intentionally or recklessly, the reviewing court must take into account the appropriate substantive law. State v. Lee, 15 S.W.3d 921, 924 (Tex.Crim.App. 2000). As long as the prosecutor has a legitimate view of the law or facts, even if the view is ultimately incorrect, his actions cannot be considered intentional or reckless misconduct. Id. at 924-25. In a habeas corpus proceeding, the applicant bears the burden to prove by a preponderance of the evidence that a retrial is barred by double jeopardy. Peterson, 117 S.W.3d at 818. The applicant must present sufficient evidence on each of the prongs of the above three-part analysis to meet his burden. Id. In his two issues, Maldonado contends the trial court erred in denying him habeas corpus relief because the prosecutor's intentional or reckless conduct caused the mistrial, thereby violating his rights under the Texas and United States Constitutions. To both issues, the State responds that the trial court did not err because the prosecutor's conduct was not "manifestly improper." We agree with the State. The record reflects that the State made an effort to make sure Officer Saenz knew not to give a numerical value to Madonado's blood alcohol concentration. The record also indicates that the State did not intentionally flout any known rules or laws during its examination of Officer Saenz. The record further reflects that the State did not deliberately attempt to avoid an order of the trial court. At worst, the record shows the State exercised poor judgment in the wording of its questions to Officer Saenz. Based on the circumstances, we cannot say the trial court erred by concluding the State's conduct was not "manifestly improper." We therefore overrule both of Maldonado's appellate issues. See id. at 816 n. 55 ("If the prosecutor's conduct . . . was not `manifestly improper,' then the double jeopardy inquiry ends at this first stage.").

Conclusion

We conclude Maldonado has not met his burden under Ex parte Peterson, as he failed to demonstrate the trial court abused its discretion in determining the State's conduct was not "manifestly improper." Consequently, we hold double jeopardy does not bar retrial of Maldonado's case. The order of the trial court is therefore affirmed.