Opinion
NO. 01-17-00799-CR
11-29-2018
MARIO ALSICES TEJADA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No 1 Fort Bend County, Texas
Trial Court Case No. 16-CCR-187962
MEMORANDUM OPINION
Mario Tejada was charged with misdemeanor assault of his girlfriend. See TEX. PENAL CODE § 22.01(a), (b). The case proceeded to trial, but before the State began to present evidence, Tejada moved for a mistrial, which the trial court granted. Less than three weeks later, Tejada was retried, convicted, and sentenced to 62 days' confinement. On appeal, Tejada argues for the first time that his retrial was barred by double jeopardy. We hold that Tejada waived error by failing to timely make a double jeopardy objection in the trial court. Therefore, we affirm.
Background
Tejada was charged with assaulting his girlfriend. His case was called to trial on September 19, 2017, and a jury was empaneled and sworn that same day. The next morning, before the trial began, Tejada asked to address a preliminary matter concerning two disks produced by the State after the jury was sworn. Tejada said that he had tried to view the disks before arriving at court that morning but was unable to do so.
The trial court heard arguments from both sides about whether the disks' contents were subject to disclosure under the Michael Morton Act, TEX. CODE CRIM. PROC. art. 39.14, or Brady v. Maryland, 373 U.S. 83 (1963). The two disks were labeled "picts, interviews, D.V. checklist" and included evidence obtained during the investigation of a second domestic violence incident between Tejada and his girlfriend. This second incident occurred less than three weeks after the assault for which Tejada was charged in this case. After investigating the second incident, the district attorney's office decided not to file charges.
Tejada argued that the "untimely" production of the disks "was done in bad faith" and was a strategic attempt to "stifle [his] ability to defend" himself. The State responded that it did not have a duty to turn over evidence collected "in a completely separate case" involving "a completely separate incident." The State said that the evidence was provided as a "courtesy" and that, because Tejada was not entitled to the evidence in the first place, producing it the day before trial did not amount to misconduct. The trial court ordered a short recess to consider the parties' arguments.
During the recess, the State discovered that the prosecutor originally assigned to the case had provided copies of the two disks to Tejada in February 2017. Tejada reviewed the discovery compliance log and acknowledged that it indicated that he had received two disks more than six months earlier that purportedly contained the same information as the two disks in dispute. Tejada asked that he be given the opportunity to view the contents of the disputed disks before proceeding to trial. The trial court agreed and allowed Tejada to view the newly produced disks in court.
After briefly viewing their contents, Tejada confirmed that the newly produced copies "appear[ed] to match" the disks that were previously produced. But Tejada said he needed more time to view the contents of the two disks in their entirety to confirm that they contained no new information. The trial court found that the disks were "duplicate[s]" but declared a mistrial.
In declaring the mistrial, the trial court found that there was "no bad conduct or intentional misconduct" by the State. The trial court reasoned that the State's "mistaken belief" that the disks had not been produced "did not rise to the level of" prosecutorial misconduct but the resulting "confusion" warranted a mistrial. The trial court announced that it would reset the case, and the parties agreed to a new trial setting in October 10, 2017.
On October 10, 2017, the parties announced ready and selected a jury. No pretrial matters were raised. Testimony commenced the following day, and the jury ultimately convicted Tejada of assault and sentenced him to 62 days' confinement. Tejada appeals.
Double Jeopardy
In his sole issue, Tejada contends that his retrial was barred by double jeopardy. See U.S. CONST. amend. V; TEX. CONST. art. I, § 14; TEX. CODE CRIM. PROC. art. 1.10. Tejada did not make a double jeopardy objection in the trial court. Nevertheless, due to the fundamental nature of double jeopardy protections, Tejada may raise his double jeopardy claim for the first time on appeal if (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) enforcement of usual rules of procedural default would serve no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); Holcomb v. State, 445 S.W.3d 767, 776-77 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Thus, to determine whether error is preserved, we consider whether both elements have been satisfied.
First, we consider whether the undisputed facts show that a double jeopardy violation is clearly apparent on the face of the record. When a mistrial is granted based on prosecutorial misconduct, double jeopardy does not bar retrial unless the defendant shows that the prosecutor intended to provoke the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679 (1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). Thus, to satisfy the first element, Tejada must show that the State intended to provoke his mistrial motion by producing the two disks after the jury had been empaneled and sworn in the first trial.
The record shows that the State immediately and vigorously contested Tejada's accusation that the State violated Brady and the Michael Morton Act by failing to timely produce the two disks. The prosecutor even described Tejada's accusation as "offensive." Moreover, Tejada has not identified a reason for the State to have wanted a mistrial, and the record reflects none. We hold that, on this record, it is not clearly apparent from the undisputed facts that the State intended to provoke Tejada into moving for a mistrial.
Second, we consider whether enforcing the usual rules of procedural default would serve no legitimate state interests. The Court of Criminal Appeals has held that requiring a defendant to timely raise his double jeopardy claim in the trial court "serves legitimate state interests and is consistent with the underlying policies of the general rules of procedural default." Gonzalez, 8 S.W.3d at 645. The State "has a valid interest in avoiding problems which would interfere with its lawful prosecution of alleged crimes and in being able to research and prepare responses to claims of double jeopardy." Id. at 646 (quoting Casey v. State, 828 S.W.2d 214, 218 (Tex. App.—Amarillo 1992, no pet.)). The State "has a valid interest in being able to investigate and present any evidence which might exist that supports or controverts claims of double jeopardy in order that prosecutions continue when it is proper to do so." Id. And the State "has a valid interest in conserving valuable judicial time by not going through unnecessary trials when a double jeopardy claim is valid." Id. Thus, requiring Tejada to have timely objected on double jeopardy grounds serves legitimate state interests.
Because Tejada has failed to show that a double jeopardy violation is clearly apparent on the face of the record and that no legitimate state interest would be served by enforcing the usual rules of procedural default, we hold that Tejada waived error by failing to timely make a double jeopardy objection the trial court. We overrule Tejada's sole issue.
Conclusion
We affirm.
Harvey Brown
Justice Panel consists of Justices Keyes, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).