Opinion
NUMBER 13-19-00312-CR
08-06-2020
PAOLA MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellant Paola Martinez was charged with murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02. After an initial mistrial, the trial court denied her pretrial petition for writ of habeas corpus in which she argued retrial was barred by double jeopardy. By two issues, Martinez argues that the trial court erred in denying the writ because: (1) the introduction of an altered police report was intentional conduct aimed at goading Martinez into asking for a mistrial so the State could avoid acquittal; and (2) the prosecutorial team purposefully failed to produce Brady material with the goal of provoking Martinez into requesting a mistrial, with the intention of avoiding acquittal. See Brady v. Maryland, 373 U.S. 83, 87 (1963). We affirm.
I. BACKGROUND
In April 2017, Martinez was indicted with murder. See TEX. PENAL CODE ANN. § 19.02. The indictment alleged that Martinez stabbed and killed Alejandro Ramirez with a knife. Jury trial began in April 2019. Brownsville Police Officer Jesus Martin Luna Sr. was called by the State to testify. He recounted that on January 24, 2017, he was dispatched to Chachalaca Park concerning a murder suspect. When he arrived at the park, a woman approached Luna and informed him that there was a woman "acting kind of weird over by a tree." Luna testified he found Martinez sitting near a tree "laughing to herself." Luna described her laugh as "calm, cold, collected" and "nothing out of the ordinary." Martinez requested to talk with the trial court outside of the jury's presence to discuss discrepancies between the report Luna was testifying from at court to refresh his memory and the report Martinez had received in pre-trial discovery. In the original report, Luna stated that he "heard the suspect laughing in a sinister manner." However, the report Luna was reading from at trial simply stated that Luna heard Martinez "laughing to herself." The original report also described Martinez's laugh as "weird," but that description was omitted in the modified report. Luna initially denied having any knowledge as to how this discrepancy arose between the reports. However, Luna eventually conceded that he had spoken to the detective "and the detective told [him] to take that out because that's not good."
Martinez moved for a mistrial based on the altered reports, which the trial court granted. Martinez argued that the retrial was barred by double jeopardy because the State goaded her into requesting a mistrial so as to avoid an acquittal. In May 2019, the trial court held a hearing on Martinez's pretrial writ of habeas corpus. See U.S. CONST. amend. V. At the hearing, Luna clarified that Patrol Sergeant Maria Alvarez Garcia suggested that he remove the words "sinister" and "weird" from the original report because they were too "subjective." Martinez's habeas petition also complained of three distinct Brady violations: (1) the State never produced the recording of Martinez's phone conversations from jail with her family members on the night of the murder in which Martinez spoke of the voices in her head; (2) the 911 call from Martinez's pastor, in which the pastor described Martinez as having bipolar and schizophrenic disorders, was only produced after the jury was selected; and (3) after the jury was seated, the State produced a series of photographs depicting writing found on Martinez's bedroom walls.
The trial court denied Martinez's writ. In its subsequently issued findings of fact and conclusions of law, the trial court concluded:
There has been no credible evidence that the State engaged in any activities designed to goad the defense into requesting a mistrial. Nor does the Court find that the State undertook any course of action to force a mistrial because of concerns that the jury would acquit the defendant.This interlocutory appeal followed. See Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (noting that "the denial of relief on a pretrial writ of habeas corpus may be appealed immediately"); Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (noting that pretrial habeas relief is available for double jeopardy claims).
II. INTENTIONAL CONDUCT AIMED AT PROVOKING A MISTRIAL
In her first issue, Martinez argues that the altering of the police report was conduct intended to provoke or goad her into requesting a mistrial. In her second issue, Martinez argues that the prosecutorial team's failure to produce Brady material was also intentional conduct to provoke Martinez into requesting a mistrial, with the aim of avoiding acquittal.
A. Standard of Review and Applicable Law
We generally review a trial court's decision to grant or deny habeas corpus relief for an abuse of discretion. Ex parte Montano, 451 S.W.3d 874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Additionally,
[o]ur review of a trial court's habeas corpus ruling should be based upon the court's application of the law to the facts. In reviewing the trial court's ruling, we view the facts in the light most favorable to the ruling, and we afford almost total deference to the trial court's determination of historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility. We afford the same amount of deference to the trial court's rulings on "application of law to fact questions" that involve an evaluation of credibility. If resolution of those ultimate questions turns on an application of legal standards, we review those determinations de novo.State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (internal citations omitted).
A pre-trial writ of habeas corpus is only appropriate in very limited circumstances. See Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). One such instance occurs when the State intentionally provokes the defendant into moving for a mistrial. See Ex parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007) (holding that a "retrial after a defense-requested mistrial is jeopardy-barred only when the prosecutorial conduct giving rise to the successful motion for a mistrial was intended to provoke [or goad] the defendant into moving for a mistrial."). The State's actions must amount to intentional conduct; mere negligence will not suffice. See id. The Court of Criminal Appeals of Texas has set forth a non-exhaustive list to help determine if a prosecutor's conduct amounts to intentional goading:
1. Was the misconduct a reaction to abort a trial that was 'going badly for the State?' In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal?Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
2. Was the misconduct repeated despite admonitions from the trial court?
3. Did the prosecutor provide a reasonable, 'good faith' explanation for the conduct?
4. Was the conduct 'clearly erroneous'?
5. Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety?
6. Were the prosecutor's actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional . . . misconduct?
B. Analysis
1. Altered Report
At the writ hearing, the trial court concluded that the prosecutors representing the State did not engage in intentional conduct to provoke Martinez into requesting a mistrial. Luna testified that he had changed the report at the suggestion of his police supervisor. The prosecutors representing the State had no influence in requesting the change. Luna testified that on the day of trial, he printed out a report from the police station, which is on a separate system than the one used by the prosecutors. When the trial court questioned the prosecutors as to how a discrepancy could have arose between the records, both prosecutors responded that they were unaware that such a discrepancy existed and they were uncertain how such a discrepancy developed. In other words, the record does not demonstrate that the prosecutors themselves had actual knowledge of a different report and acted intentionally to provoke a mistrial.
Nevertheless, Martinez invites us on appeal to impute the conduct of Luna to the prosecution team. We decline to do so. Martinez cites two cases to support the proposition of imputing Luna's actions to the prosecutorial team. See Masonheimer, 220 S.W.3d at 506; see also State v. Mutei, No. 08-15-00056-CR, 2017 WL 542025, at *6 (Tex. App.—El Paso Feb. 10, 2017, pet. ref'd) (not designated for publication). In Masonheimer, the court agreed with the appellant that to determine whether intentional prosecutorial conduct occurred to provoke a mistrial, we must analyze the mens rea of the "entire prosecutorial team." See 220 S.W.3d at 506. Thus, the court in that case decided that it needed to analyze the conduct of the lead prosecutor from the first trial in addition to the new lead prosecutor. See id. But Masonheimer is silent as to whether a non-prosecutor may be considered part of the prosecutorial team. See id.
Mutei, the other case cited by Martinez, simply acknowledges that a non-prosecutor's conduct was attributed to the State in at least one case. See Mutei, 2017 WL 542025, at *6 (citing Ex parte Roberson, 455 S.W.3d 257, 260 (Tex. App.—Fort Worth 2015, pet. ref'd)). However, in Ex parte Roberson, the State conceded on appeal that it was responsible for the investigator's conduct, and so the Fort Worth Court of Appeals imputed the investigator's conduct of speaking improperly with veniremen to the State. See Roberson, 455 S.W.3d at 260. By contrast, in the present case, the State does not concede the point; to the contrary, the State argues that Luna was not a part of the prosecutorial team. Additionally, we note that other courts of appeals have generally found that a witness's conduct cannot be imputed to the prosecution absent a finding that the prosecutor had advance notice that the witness intended to engage in the misconduct. See Washington v. State, 326 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Ex parte Washington, 168 S.W.3d 227, 238 (Tex. App.—Fort Worth 2005, no pet.). There is no evidence in the record suggesting that the prosecutors had advance notice that Luna was going to testify using an altered record.
In summary, Martinez has not demonstrated that Luna's conduct should be imputed to the prosecutorial team. See Masonheimer, 220 S.W.3d at 506. And the record shows no intentional misconduct by the prosecutors in presenting the altered report to provoke Martinez into requesting a mistrial, perpetrated with the specific intent of avoiding acquittal. See Washington, 326 S.W.3d at 706. Thus, viewing the evidence in the light most favorable to the trial court's ruling, we find no abuse of discretion. See Ex parte Roberson, 455 S.W.3d at 260. We overrule Martinez's first issue.
2. Brady Material
As part of her second issue, Martinez first argues that the trial court used the wrong standard in making its decision. The trial court stated as follows in its conclusions of law:
There has been no credible evidence that the State engaged in any activities designed to goad the defense into requesting a mistrial. Nor does the Court find that the State undertook any course of action to force a mistrial because of concerns that the jury would acquit the defendant.(emphasis added). According to Martinez, by using the phrase "to force a mistrial," the trial court added an additional mens rea element to the Masonheimer standard. See 220 S.W.3d at 507. However, we find that this language is functionally equivalent to the language in Masonheimer. See id. The standard seeks to determine whether the misconduct was intentional and whether it was performed with the ultimate goal of avoiding an acquittal. See id. We conclude that the trial court did not improperly add an extra condition.
In the remainder of her second issue, Martinez argues that the prosecutorial team purposefully failed to produce Brady material with the goal of avoiding acquittal. Martinez argues that the altered report discussed above was itself Brady material that the prosecutorial team should have discovered and produced to Martinez. See Brady, 373 U.S. at 87 (holding that due process is violated when the State fails to disclose material evidence favorable to the defendant). In addition, Martinez complains that the prosecution purposefully failed to produce: (1) Martinez's phone conversations from jail; (2) the 911 call from Martinez's pastor; and (3) the series of photographs depicting the writing from Martinez's bedroom walls. We will analyze the prosecutor's conduct in failing to disclose the alleged Brady material under the Wheeler factors. Ex parte Wheeler, 203 S.W.3d at 324.
a. First Factor
The first factor asks whether the misconduct was a reaction to abort a trial that was "going badly for the State." Id. "In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal?" Id. Nothing in the record suggests that the failure to produce the Brady material was a reaction by the State to abandon a trial that was going poorly. See id. Luna was the first person to testify at trial and the only thing he had testified about at this point was that he had been called to the scene. When Martinez requested a mistrial, the jury knew almost nothing about the case outside of what was conveyed during opening statements. Viewing the evidence in favor of the trial court's decision, it did not reasonably appear that Martinez would likely obtain an acquittal. See id. This factor strongly favors the State.
b. Second Factor
Under the second factor, we ask whether the misconduct was repeated despite admonitions from the trial court. See id. Although Martinez alleges that the State failed to produce several pieces of Brady material, there is no evidence that the "prosecutors repeatedly engaged in any misconduct in defiance of the trial court's admonitions to the contrary." This factor does not suggest intentional conduct aimed at avoiding acquittal.
c. Third Factor
The third factor has us consider whether the prosecutor provided a reasonable, 'good faith' explanation for the conduct. See Ex parte Wheeler, 203 S.W.3d at 324. Here, the prosecutors indicated that they were uncertain how a discrepancy arose. When asked how this happened, one prosecutor responded, "I wouldn't be able to answer that question because I don't have access to the [police's] system," while the other prosecutor simply replied, "Your Honor, I have no idea." The other Brady material was not discussed in much detail at the hearing below, and the trial court did not focus on it. Therefore, on the record before us, this factor as a whole does not suggest intentional conduct aimed at provoking Martinez into requesting a mistrial to avoid acquittal.
d. Fourth, Fifth, and Sixth Factors
The fourth, fifth, and sixth factors ask whether the conduct was clearly erroneous, whether there was a legally or factually plausible basis for the conduct despite its ultimate impropriety, and whether the prosecutor's actions leading up to the mistrial were more consistent with inadvertence or intentional misconduct. See id. Martinez argues that the failure to produce the Brady material was clearly erroneous; however, she does not cite any cases for this proposition. Meanwhile, even though the State admits that the alteration of the report was improper, the State argues that whether the conduct was clearly erroneous depends on whether the alteration would tend to negate the evidence of guilt. Though the altered police report deleted the words "sinister" and "weird" in reference to Martinez at the time of her arrest, the alterations do not tend to negate any evidence of Martinez's guilt for the underlying murder. Martinez has failed to demonstrate how this misconduct was clearly erroneous. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (holding that an applicant seeking habeas corpus relief must prove his claim by a preponderance of the evidence).
Thus, when we look at all of the Wheeler factors together, the prosecutors' act of failing to produce Brady material does not constitute intentional conduct intended to provoke Martinez into requesting a mistrial so that the State could avoid acquittal. After reviewing the evidence in the light most favorable to the trial court's rulings, we find no abuse of discretion. See Ex Parte Roberson, 455 S.W.3d at 260. We overrule Martinez's second issue.
III. CONCLUSION
We affirm the trial court's judgment.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 6th day of August, 2020.