No. 05-03-00072-CR.
Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Criminal Court No. 2, Dallas County, Texas, Trial Court Cause No. MA-02-16163-B. Affirmed.
Before Chief Justice THOMAS and Justices MOSELEY and O'NEILL.
Opinion By Justice MOSELEY
Joseph Paul Mallonee appeals the trial court's January 10, 2003 order denying his application for writ of habeas corpus. In a single point of error, appellant contends the trial court erred in not granting relief. We affirm.
Background
Appellant was charged with driving while intoxicated, second offense. During his trial, the State called Garland police officer Doug Mitchell to testify. On cross-examination, defense counsel asked Mitchell, "[The police report] doesn't say anything about lost the normal use of mental or physical faculties? Does it say it or not?" After a brief exchange to clarify which report counsel was referring to, Mitchell responded, "Yes, sir. It says, `driving while intoxicated, second offense, operates a motor vehicle in-.'" At that point, appellant requested a hearing outside the jury's presence and moved for a mistrial because Mitchell disclosed to the jury appellant's prior DWI conviction. The trial court granted a mistrial, but refused appellant's suggestion that double jeopardy would bar a retrial. The trial court's mistrial judgment expressly states: "no jeopardy shall attach and the case will stay on the docket so that it can be brought to trial at a later date." After entry of the mistrial judgment, appellant filed an "Application for writ of habeas corpus (Defendant special plea of former jeopardy, collateral estoppel under Fifth Amendment U.S.C.A., CCCP Art. 27.05, CCCP Art. 27.07, Texas Constitution)." In his application, appellant accused Mitchell of deliberately or recklessly crossing the line of legitimate adversarial testimony by divulging appellant's prior conviction. Appellant alleged Mitchell consciously disregarded the risk he would trigger a mistrial and disclosed the conviction in order to "materially improve his chances of obtaining a conviction" in a case where he was the arresting officer. Appellant asked the trial court to grant the writ and order the case dismissed on the ground jeopardy had attached pursuant to the Fifth Amendment. During a hearing on appellant's application, the trial court did not hear testimony, but it did take judicial notice of the contents of its file and listened to argument from counsel regarding the merits of the application. Appellant contended that Mitchell was acting as an arm of the prosecution and that Mitchell's statements were not responsive to appellant's cross-examination. The State responded that Mitchell made an honest mistake in answering to the best of his ability a question advanced by defense counsel. The State contended the mistrial was not caused by prosecutorial misconduct and, therefore, double jeopardy did not bar further prosecution. The trial court denied the writ and granted appellant permission to appeal the ruling. Jurisdiction
Before addressing the merits of the appeal, we first review our jurisdiction over the appeal. Appellant's application is styled as both a pretrial application for writ of habeas corpus and as a special plea. The State contends, correctly, that we have no jurisdiction to review the denial of a special plea. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App. 1991); Ex parte Walker, 813 S.W.2d 570, 571 (Tex.App.-Corpus Christi 1991, pet. ref'd). Therefore, to the extent appellant appeals the trial court's order denying his special plea, we dismiss this appeal for want of jurisdiction. The application also describes itself as an application for writ of habeas corpus pursuant to code of criminal procedure article 11.07. The prayer for relief asks the trial court to grant the "motion for Habeas Corpus" pursuant to the Fifth Amendment, and the verification refers to the application as an "Application for Writ of Habeas Corpus." During the hearing on the application, the trial judge referred to the application as both an application for writ of habeas corpus and a special plea of former jeopardy. At the conclusion of the hearing, the trial court denied "the Defendant's Writ of Habeas Corpus." After reviewing the record, we conclude the application is, at least in part, an application for a writ of habeas corpus, and not merely a special plea. There is a distinction between issuing a writ of habeas corpus and granting relief on the claims set forth in the writ application. Ex parte Hargett, 819 S.W.2d 866, 869 (Tex.Crim. App. 1991); Ex parte Bowers, 36 S.W.3d 926, 927 (Tex.App.-Dallas 2001, pet. ref'd). Regardless of whether the trial court grants or denies the writ, an applicant may appeal the trial court's decision only if the trial court rules upon the merits of the application for writ of habeas corpus. Hargett, 819 S.W.2d at 868-69; Bowers, 36 S.W.3d at 927. But see In re House, 65 S.W.3d 694, 695-96 (Tex.App.-Amarillo 2001, no pet.) (expressing view, in dicta, that the scheduling and convening of a hearing effectively grants the writ, thus rendering the resulting order appealable). In this case, the trial court denied appellant's application without expressly stating whether it was denying relief on the merits. However, the trial court restated the facts to the parties, took judicial notice of the file, and heard arguments on the merits of the application. After denying the application, the trial court granted appellant the right to appeal the trial court's ruling. On the facts presented, we conclude the trial court did, in fact, rule on the merits of appellant's application. Hargett, 819 S.W.2d at 868-69. See also Ex parte Pool, 71 S.W.3d 462, 465 (Tex.App.-Tyler 2002, no pet.) (concluding appellate court could exercise jurisdiction when trial court considered merits in denying writ and granted permission to appeal). Therefore, we conclude we have jurisdiction to review appellant's point of error. Standard of Review
Appellant bears the burden of proving the allegations in his application for writ of habeas corpus by a preponderance of the evidence. Ex parte Lafon, 977 S.W.2d 865, 867 (Tex.App.-Dallas 1998, no pet.). Ordinarily, we review the trial court's ruling on a writ application for an abuse of discretion. Id. In this case, however, because no testimony was taken at the habeas hearing and because the trial judge who heard the habeas application did not preside at trial, we conduct a de novo review. Ex parte Peralta, 87 S.W.3d 642, 645 (Tex.App.-San Antonio 2002, no pet.); Ex parte Wheeler, 61 S.W.2d 766, 770 (Tex.App.-Fort Worth 2001, pet. filed). Because appellant consented to the mistrial, the State is not barred from retrying him unless the mistrial resulted from prosecutorial misconduct. See Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996); Barnett v. State, 83 S.W.3d 810, 814 (Tex.App.-Texarkana 2002, no pet.). In determining whether the mistrial resulted from prosecutorial misconduct, we consider whether appellant chose to move for a mistrial "in response to ordinary reversible error to avoid conviction, appeal, reversal, and retrial" or whether he was forced to move for a mistrial because the prosecutor "deliberately or recklessly crossed the line between legitimate adversarial gamesmanship and manifestly improper methods" thus making the jury trial so unfair that the error was incurable by judicial admonishment. Ex parte Bauder, 974 S.W.2d 729, 732 (Tex.Crim.App. 1998). A prosecutor acts deliberately or recklessly in offering evidence if (1) the prosecutor believes the evidence materially improves the odds of conviction and the evidence's prejudicial effect cannot be cured by a judicial admonishment; or (2) the prosecutor was aware of, but consciously disregarded, either the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request or that his conduct was reasonably certain to cause a mistrial. State v. Lee, 15 S.W.3d 921, 925 (Tex.Crim.App. 2000). Discussion
In his sole point of error, appellant contends Mitchell the police officer, deliberately or recklessly crossed the line of legitimate adversarial testimony in order to increase the probability appellant would be convicted. Because Mitchell was a State's witness, appellant also contends, for the first time, that the prosecutor was aware of and consciously disregarded the risk of a mistrial in choosing not to object when Mitchell began reading his report during defense counsel's cross-examination. The State first responds appellant did not preserve his complaint for appeal because he did not raise the issue of the prosecutor's alleged misconduct in the trial court. See Tex. R. App. P. 33.1. An applicant's right to appeal the denial of relief on an application for writ of habeas corpus is limited to those matters properly raised in the application and addressed by the trial court. See Ex parte Tucker, 977 S.W.2d 713, 715 (Tex.App.-Fort Worth 1998), pet. dism'd per curiam, 3 S.W.3d 576 (Tex.Crim.App. 1999). Although appellant did not contend in the trial court that the prosecutor was responsible for Mitchell's testimony, the objection in the trial court-the disclosure of prohibited information regarding a prior conviction in order to improve the State's odds of winning a conviction-is the same complaint raised on appeal. Thus, we conclude appellant did not waive error. Cf. id. (allowing applicant to appeal bond conditions imposed after denial of habeas relief where habeas application complained about validity of bond conditions). Appellant contends a second trial should be barred because Mitchell deliberately or recklessly crossed the line of legitimate adversarial testimony. Appellant does not cite any authority applying Bauder to a witness's alleged misconduct, and he has, therefore, waived this portion of his argument. See Tex. R. App. P. 38.1(h); Price v. State, 15 S.W.3d 577, 578-79 (Tex.App.-Waco 2000, pet ref'd). Appellant further contends the experienced prosecutor had sufficient time to realize that "an objectionable event for which he was responsible" was occurring. Appellant contends the prosecutor should have objected as soon as Mitchell began to read from the police report. The State points out that Mitchell was responding to a question from the defense rather than from the prosecution. The State contends there is no evidence showing the prosecutor was aware or consciously disregarded a risk that Mitchell was about to reveal appellant's prior conviction to the jury. The State further contends there is no evidence showing the prosecutor intended to induce a mistrial. Finally, the State contends the trial court's denial of appellant's request that a retrial be barred shows the trial court implicitly found the mistrial was not the result of prosecutorial misconduct. We agree with the State. At the time he disclosed appellant's prior conviction by reading from the police report, Mitchell was responding to a question posed by the defense about the report's contents. Appellant cites no authority for the proposition that the prosecutor is responsible for a State witness's answers on cross-examination. Moreover, even if the prosecutor bore responsibility, we cannot conclude from the record that the prosecutor acted deliberately or recklessly in not objecting to Mitchell's answer. Mitchell's objectionable testimony occurred within the first five words he read from the report. The event occurred so quickly that the trial court did not even realize objectionable testimony had been given. The trial court had to ask the court reporter to read back that portion of Mitchell's testimony. Because the prosecutor did not offer the objectionable evidence and because there is no evidence showing the prosecutor acted either deliberately or recklessly in not objecting to the testimony, we conclude the mistrial did not result from prosecutorial misconduct. See Lee, 15 S.W.3d at 925. See also Stoker v. State, 788 S.W.2d 1, 14 (Tex.Crim. App. 1989) (no prosecutorial misconduct where witness gave unresponsive answer disclosing extraneous offense in response to prosecutor's legitimate question); Ex parte Bauder, 2 S.W.3d 376, 377-78 (Tex.App.-San Antonio 1999, pet ref'd) (finding no deliberate or reckless conduct by prosecutor where witness gave unexpected answer to prosecutor's question). We overrule appellant's sole point of error. We affirm the trial court's order denying appellant's application for writ of habeas corpus.