ACCEPTED 03-15-00586-CR 7353653 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/13/2015 2:39:06 PM JEFFREY D. KYLE CLERK No. 03-15-00586-CR
In the FILED IN 3rd COURT OF APPEALS COURT OF APPEALS AUSTIN, TEXAS For the 10/13/2015 2:39:06 PM THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE at Austin Clerk ______________________________________
On Appeal from the 368th Judicial District Court of Williamson County, Texas Cause Number 13-0826-K277 ______________________________________
CRISPIN JAMES HARMEL, Appellant v. THE STATE OF TEXAS, Appellee _____________________________________
APPELLANT’S BRIEF _____________________________________
Counsel for Appellant KRISTEN JERNIGAN Crispin James Harmel ATTORNEY AT LAW STATE BAR NUMBER 90001898 207 S. AUSTIN AVE. GEORGETOWN, TEXAS 78626 (512) 904-0123 (512) 931-3650 (FAX) Kristen@txcrimapp.com
ORAL ARGUMENT REQUESTED IDENTIFICATION OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the names of all interested parties is provided below so the members of this Honorable Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of this case.
Appellant:
Crispin James Harmel
Counsel for Appellant:
Ryan Deck (at trial) Scott Magee (at trial) 107 N. Lampasas 107 N. Lampasas Round Rock, Texas 78664 Round Rock, Texas 78664
Kristen Jernigan (on appeal) 207 S. Austin Ave. Georgetown, Texas 78626
Counsel for Appellee, The State of Texas:
Jana Duty Williamson County District Attorney Mark Brunner Brent Webster Assistant District Attorneys 405 Martin Luther King Georgetown, Texas 78626
Trial Court Judge:
The Honorable Rick J. Kennon
ii TABLE OF CONTENTS
IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The trial court abused its discretion in denying Appellant’s Pre-trial Application for Habeas Corpus Relief because the prosecutor’s conduct in provoking a request for mistrial in this case was intentional.
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
iii INDEX OF AUTHORITIES
CASES
Abney v. United States, 431 U.S. 651 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007) . . . . . . . . . . . . .21, 23, 25
Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007) . . . . . . .23, 24, 25
Ex parte Pierson, 426 S.W.3d 763 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . 21
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) . . . . . . . . . . . . . .21, 23
Ex parte Watkins, 73 S.W.3d 264 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . 19
Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . 20
Headrick v. State, 988 S.W.2d 226 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . 19
Oregon v. Kennedy, 456 U.S. 667 (1982) . . . . . . . . . . . . . . . . . . . . . . .21, 23, 24, 25
Sandifer v. State, 233 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2007) . . . . . .20, 21, 22, 24, 25
STATUTES AND RULES
TEX. R. APP. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
TEX. R. APP. P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
iv STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39.1, Appellant requests oral
argument in this case.
v No. 03-15-00586-CR
In the COURT OF APPEALS For the THIRD SUPREME JUDICIAL DISTRICT at Austin ______________________________________
On Appeal from the 368th Judicial District Court of Williamson County, Texas Cause Number 13-0826-K277 ______________________________________
CRISPIN JAMES HARMEL, Appellant v. THE STATE OF TEXAS, Appellee _____________________________________
STATEMENT OF THE CASE
On May 9, 2013, Appellant was indicted for the offenses of capital murder,
aggravated kidnaping, and aggravated robbery. (CR: 9-10). The State
proceeded to trial on that indictment and on April 28, 2014, trial began. (CR:
359-71). On May 7, 2014, the trial court granted a mistrial after it was discovered
Appellant and his counsel were not provided with the means to view timestamps
on a Walmart surveillance videotape. (CR: 382). On March 4, 2015, Appellant
was re-indicted for capital murder. (CR: 426). On March 18, 2015, Appellant
1 filed a Pre-Trial Motion for Writ of Habeas Corpus and Request for Hearing.
(CR: 436-516). In his motion, Appellant argued that his protection against
Double Jeopardy would be violated if he were to be re-tried because the State’s
conduct in provoking the request for mistrial during the original trial was
intentional. (CR: 436-516). A hearing was held, after which, the trial court
entered findings of fact and conclusions of law denying Appellant’s pre-trial claim
for habeas corpus relief. (CR: 890). The Court’s findings of fact and
conclusions of law were signed on September 10, 2015. (CR: 890). Appellant
timely filed Notice of Appeal the next day, September 11, 2015. (CR: 891).
This appeal results.
STATEMENT OF FACTS
Original Trial
In the original trial, the defense was predicated primarily on a surveillance
video obtained from a Walmart security camera. (CR: 456, 499-500). The
video that was provided to the defense, when played on the player provided by the
State, did not show timestamps and based on trial counsels’ review of the video,
there were thirteen hours of surveillance. (CR: 438). Based on that assumption,
trial counsel argued that Applicant could not have been with the victim at the time
the alleged offense in this case occurred. (CR: 438). Prior to trial, on April 13,
2 2014, counsel made a request in writing for a time-stamped copy of the video
based on indications in the offense report that a time-stamped copy existed. (CR:
503). The District Attorney, Jana Duty, replied on that same date that the video
that she had and that she gave a copy to trial counsel, “is not time stamped.” (CR:
505). She continued, “I would like a time stamped copy myself, but that is not
what I was given.” (CR: 507). On April 14, 2014, Ms. Duty sent a follow-up
email indicating that Detective Pando of the Cedar Park Police Department
“brought over another copy of the Wal-Mart videos and none of them are time
stamped.” (CR: 507).
At trial, defense counsel focused their opening statement and
cross-examination of the State’s witnesses based on the copy of the video they
received that did not contain timestamps. (CR: 456, 502). Detective Larry
Bond, the sponsoring witness of the video was called to testify and during his
testimony the State produced a video that contained timestamps. (CR: 456).
Defense Counsel objected and pointed out the unfairness of attacking Appellant’s
defense with evidence it requested, but was not provided. (CR: 503-04). The
State represented to the Court that representatives of the State had learned to play
the video with new software on Friday, May 3, 2013, but despite this fact, they
never informed trial counsel of their discovery and played the video with
3 timestamps on Monday, May 7, 2013 before the jury. (CR: 454-56, 490-91).
When confronted with the fact that the State never produced a time-stamped copy
of the video, First Assistant District Attorney Mark Brunner stated that he
referenced the March player (the proprietary software used to view timestamps on
the Walmart surveillance video) during Bond’s direct testimony and that “It’s only
after I did some damage to their lovely cross that we’re upset.” (CR: 479). The
Court stated “I’m not going to fault the Defense for the delay of trying to figure out
where we are right now. I’m not going to fault them for that.” (CR: 479).
As for Duty, she stated on the record, “For the past year, I’ve been working
on the same system that he has. I’ve also been very frustrated by not having this.
I have sent e-mails to Detective Pando, hey, there’s a reference to time-stamps.
He’s like, when it downloads onto the disc, that we give you, that’s how it
downloads. Sorry. That’s the way you’ve got it. We weren’t purposefully
hiding anything.” (CR: 500-01). However, in a telling exchange, after the Court
indicated its concern that the defense did not have the ability to prepare a defense,
Brunner stated, “Your Honor, had they come to us pre-trial and said, Hey, we can’t
open this up. You’re talking about time-stamps here, and there is this player, it’s
not working. We go on the March System, we can’t get online because we’re not
law enforcement. We could have had this hearing two, three months ago. And I
4 would have said, ‘I’ll bend whatever copyright rules I need to bend for you,
gentlemen, I’ll get you that player.’” (CR: 477). The trial court had to point out
to Brunner that according to Brunner’s version of events, “But you didn’t know
then.” (CR: 477).
When discussing the prejudice to Appellant, Defense Counsel stated that he
was ill-prepared based on the State’s presentation of a previously requested, but
not produced piece of evidence, that deprived Appellant of a fair trial. (CR: 486).
Counsel continued that the State’s re-direct of Detective Bond unfairly made the
defense “look bad.” (CR: 486). To which Brunner replied, “Your Honor, it’s
part of my job to make them look [bad]. That’s what trial is for.” (CR: 486).
Because of the surprise and obvious prejudice to the defense, trial counsel
requested a mistrial, which the court granted. (CR: 454-62, 473). At the time,
the mistrial was granted without prejudice because, despite the State’s failure to
inform Appellant of the existence of software to view timestamps on the Walmart
video, there did not, at the time, appear to be any other misconduct on the part of
the State. (CR: 473-74).
Hearing on Appellant’s Double Jeopardy Writ
During the hearing on Application’s Pre-Trial Petition for Writ of Habeas
Corpus Relief, Duty agreed that prior to trial, lead defense counsel, Ryan Deck,
5 sent an email request for a “time-stamped version of the video [Walmart
surveillance video].” (RR7: 100). Duty acknowledged that Detective Dailey’s
offense report in this case used the word “time-stamp” but stated that she never
asked Detective Dailey about time-stamps. (RR7: 101-02). Duty stated that
instead of speaking to Detective Dailey, who specifically referenced timestamps in
his report, she asked Detective Pando about obtaining a time-stamped copy of the
video. (RR7: 102). However, Duty then admitted that she told Deck (lead
counsel) that she did, in fact, intend to speak to Detective Dailey. (RR7: 115).
Duty admitted further that in his request for a time-stamped copy of the video,
Deck even referenced Detective Dailey’s report from September 9, 2009, that
refers to “timestamps.” (RR7: 116). Duty admitted that at some point prior to
trial, it was decided that Detective Bond was going to be called to testify at trial
about a timeline of events for the night of the alleged offense in this case. (RR7:
105-06). Duty testified that she did not ask Detective Bond about timestamps
because she did not know “what that meant.” (RR7: 106). Duty stated that she
was watching a different player and did not know what a timestamp was. (RR7:
114-15). Duty testified that it was the practice of her office for discovery requests
to go through the prosecutor and not through the detectives assigned to the case.
(RR7: 117-19). Duty stated that during trial, she directed her trial team, including
6 Mark Brunner, Paul Davis, and Detective Bond to figure out the “time issue.”
(RR7: 122-23). Duty agreed that the timeline was a “huge part of the defense.”
(RR7: 123). She testified later on cross-examination that the Walmart
surveillance video was “key to this case.” (RR7: 179). Duty testified that when
Defense Counsel asked her for the information regarding timestamps, she did not
bother to figure it out, but during trial, she decided it was important. (RR7:
124-25). Duty testified that it took “all weekend” for her trial team to “figure
out” how to play the timestamps. (RR7: 126). Duty was confronted with the
testimony of her employees, Mark Brunner and Paul Davis, who both stated that
they “figured it out” on either Thursday or Friday of the first week of trial. (RR7:
128-29). While agreeing Brunner and Davis were telling the truth, and that she
attached Davis’s affidavit to a pleading, Ms. Duty stated again that she
remembered it being Monday that the timestamp issue was resolved. (RR7: 129).
When asked if she spoke to Brunner or Davis over the weekend, Duty then
changed her answer and said it might have been Sunday “that they said, We
figured this out.” (RR7: 130). Duty stated that even though the timestamp issue
was a “Code Red” over the weekend, she did not speak to her trial team until
Sunday night. (RR7: 130-31). Duty testified that she learned the timestamp
“dilemma” was solved by playing the Walmart surveillance video on a different
7 player, not by playing different videos. (RR7: 131). Duty testified that she
remembered Defense Counsel had asked about the timestamps but did not tell him
about how to play the video with timestamps once the State resolved the issue.
(RR7: 131-32). Duty explained her failure to tell the defense about the software
player to show the timestamps by stating that if the State could figure it out, the
defense should have, “And after the way [she] was treated throughout that entire
trial, [she] really didn’t feel very magnanimous.” (RR7: 132). Duty agreed that
the State had a “very big advantage” in knowing how to play the Walmart
surveillance video and that she knew the defense did not know how to play the
video with timestamps. (RR7: 137). Duty stated that she had a discussion with
her trial team and that they “all had the same opinion” that it was not the State’s
job to teach the defense how to play the video with timestamps. (RR7: 137).
Duty continued that she did not tell the defense how to play the video with
timestamps because the State “earned it.” (RR7: 138). Duty then admitted that
she willfully withheld the fact that the timestamps were embedded on the disc but
had to be played with a specific player. (RR7: 139-40). Duty agreed that her
former investigator, Royger Harris, filed a sworn affidavit stating that he and Duty
watched the time-stamped video together. (RR7: 140). Duty testified that she
initially refuted Harris’s statement saying it was “not possible” until it was
8 revealed through a forensic investigation of her computer that the program to
watch the video with timestamps was on her computer. (RR7: 140-42). Duty
then admitted that prior to trial she watched the video with timestamps on her
computer. (RR7: 142, 147, 149). Duty admitted further that inconsistent
statements can be an indication of guilt. (RR7: 144). Duty agreed that if the
State had turned over evidence, but information included within that evidence was
encrypted or hidden, the State should provide the defense with the means to view
that information. (RR7: 168-69). Duty agreed further that she had a duty to tell
the defense how to view the timestamps on the video once she learned how to view
them. (RR7: 170). Duty reiterated her stance that prior to trial, she did not
know what a “timestamp” was even though she was asked about timestamps by the
defense and had actually watched the video with timestamps prior to trial. (RR7:
172). Duty stated that this case has become personal and that defense counsel
was not wrong for investigating the double jeopardy issue since the defense now
knows that Duty watched the video with timestamps prior to trial and the software
to watch the video with timestamps was on her computer all along. (RR7: 174).
Duty stated that she never would have sent her computer to be analyzed if she
knew the software was on her computer. (RR7: 174). On cross-examination by
Brunner, Duty stated that she learned that in order to watch the timestamps on the
9 Walmart video surveillance, one either had to use a seven year-old laptop computer
or a software player that was proprietary to law enforcement. (RR7: 192-93).
Duty agreed that defense counsel came to the State and requested timestamps but
the State “gave them some bad information.” (RR7: 194). Duty acknowledged
that her conduct resulted in the mistrial in the original trial in this case and that the
trial judge was disappointed in the State’s choice not to inform the defense once
the State figured out how to play the timestamps. (RR7: 195). Duty admitted
that Defense Counsel asked her many times for a copy of the video with
timestamps. (RR7: 198). Duty stated that the Defense came to the State for a
solution in watching the video with timestamps but the State could not help.
(RR7: 199). Duty characterized the situation as “Blind leading the blind.”
(RR7: 199). Duty agreed that over the weekend in the first trial, the State learned
how to play the timestamps for the jury “and show it to them in a smooth manner,
not just allude to it, but display it for them.” (RR7: 201). Duty stated that she
did not feel obligated to tell the Defense how to view the timestamps on the video
because “if we can figure it out, they can figure it out,” because the Defense had a
computer expert,1 and because “[defense counsel] acted so horribly to me during
1 The Defense’s computer expert was appointed to review computer data, not analyze surveillance video, which is a completely separate science. Further, because at the time of trial, the State had affirmatively stated there was not a time-stamped copy of the video, there would be no reason for an expert to review the video. (CR: 879); (RR8: 97, 104-05).
10 the first trial, that I just – I didn’t even want to speak to them.” (RR7: 201).
Duty agreed that when the timestamps were shown to the jury, the Defense
“basically had no more case left.” (RR7: 209). Duty testified that had she
discovered how to play the timestamps on the video prior to trial, she would have
disclosed that information to Deck because they were on a “friendly… working
basis” at that time. (RR7: 212-13). Duty testified that she is now “paying the
price for not being nice” and that she did not share the information regarding how
to play the timestamps on the video during the weekend of the first trial. (RR7:
215). Duty tried to explain away her conduct by stating that when the mistrial
was declared, it was requested by the defense and the defense, at that time, did not
allege any prosecutorial misconduct. (RR7: 216). On re-direct examination,
Duty agreed that at the time of the mistrial, the Defense was not aware that Duty
had actually watched the video with timestamps on her computer with the correct
player prior to trial. (RR7: 220).
Detective Ricky Pando testified that he was the lead detective in this case
and testified at the previous trial. (RR7: 232). Detective Pando stated that prior
to trial, Duty contacted him and asked for “time-stamps” on the video. (RR7:
233). Detective Pando agreed that Detective Dailey’s report dated September 9,
2009, referenced “time-stamp,” but Detective Pando never asked Detective Dailey
11 about a time-stamped copy of the video. (RR7: 235). Detective Pando also
agreed that Detective Dailey’s report from September 10, 2009, listed specific
times and that Detective Dailey got those times “from the video.” (RR7: 236).
Detective Pando testified that when he watched the Walmart surveillance video
prior to trial, he was able to see timestamps. (RR7: 237). Despite this fact,
when asked if he shared that information with Duty, all Detective Pando said to her
was “you’ve got what I’ve got,” but he did not remember if he told her verbally, by
email, or in a text message. (RR7: 237-38, 241-42). Detective Pando admitted
that Duty asked him for a time-stamped video and he took her the videos that he
had. (RR7: 240). Duty never contacted him again to explain that she still could
not see the timestamps on the video. (RR7: 241, 246-47). Detective Pando
testified that Detective Dailey also had the ability to view the timestamps on the
video prior to trial. (RR7: 242). Detective Pando showed Detective Bond how
to watch the timestamps on the video prior to trial. (RR7: 243). Detective
Pando then stated several times that he did not know for sure what Duty meant by
a “timestamp.” (RR7: 247-49). When pressed repeatedly, Detective Pando was
forced to admit that as a lead detective, he actually did know what a timestamp was
and that he knew what Duty was talking about. (RR7: 249). Detective Pando
stated that when Duty contacted him she stated that the Defense was having trouble
12 viewing the timestamps, not that Duty was having trouble. (RR7: 257).
Detective Pando stated that he watched the Walmart surveillance video with
timestamps more than twenty times prior to trial and prior to Duty telling him the
Defense was having trouble viewing the video with timestamps. (RR7: 262).
Detective Pando testified that prior to trial, Detective Bond was having trouble
viewing the video, so he “reached underneath [his] desk” and pulled out a laptop
and said “[h]ere, you shouldn’t have any trouble viewing it with this.” (RR7:
268). Detective Pando agreed he could have helped someone if they had come to
him and said they were having trouble watching the video with timestamps.
(RR7: 270).
Detective Larry Bond testified that he had a conversation with Detective
Pando prior to trial in which Detective Pando related that the Defense in this case
was asking for another copy of the video because the one they had was not
working. (RR7: 272). Detective Bond testified that Duty never asked him about
timestamps. (RR2: 273-74). Detective Bond stated that he was able to view
timestamps on the Walmart surveillance video in 2009. (RR2: 274-75). Prior to
trial, Detective Bond had trouble viewing the video, so he asked Detective Pando
for help. (RR7: 279). Detective Pando indicated he could watch the video on
his computer and did not say “You got what I got.” (RR7: 280). Ultimately,
13 Detective Pando gave Detective Bond a laptop and Detective Bond was able to
play the video with timestamps. (RR7: 281). Detective Bond stated that on the
Friday of the first trial, he had a conversation with Brunner about timestamps being
embedded in the discs. (RR7: 278). Over the weekend, Detective Bond,
Brunner, and Davis discussed how to play the video with timestamps in front of the
jury, but at the least, were able to see the timestamps on the video on Friday.
(RR7: 295-98). The following Monday, during trial, Detective Bond “Google’d”
the March Video System and found a player that would play all previous players.
(RR7: 297). Detective Bond testified that prior to trial when he played the video
on Windows Media Player, he knew immediately it was not the same video he had
watched with timestamps. (RR7: 304).
Detective Christopher Dailey testified that he originally watched the
Walmart surveillance video with timestamps in 2009. (RR8: 8-9). Detective
Dailey did not watch the video again prior to trial and never watched the video
with anyone from the District Attorney’s Office. (RR8: 10-11). Detective
Dailey knew all along that the timestamps were embedded in the discs that
contained the video. (RR8: 11). Every time Detective Dailey watched the
video, he did so on a laptop at the Cedar Park Police Department. (RR8: 13).
Detective Dailey testified that it was well-known at the Police Department that in
14 order to play Walmart surveillance video properly, one had to use the laptop.
(RR8: 13). Detective Dailey testified that he never met with the prosecutors in
this case to prepare for trial. (RR8: 15).
Detective Pando was re-called and admitted that if Duty told him she was
having trouble watching the video with timestamps, rather than the Defense, he
would have shown her how to watch the video with timestamps with the laptop
from the Cedar Park Police Department. (RR8: 20-21). When Detective Pando
was confronted with the fact that he and Duty both initially testified that they did
not know what a timestamp was, and was asked if they colluded to testify
similarly, Detective Pando answered that he did not “understand what ‘collusion’
means.” (RR8: 22). Detective Pando was asked who he talked to “about [his]
testimony or testifying in general.” Detective Pando replied, “Mr. Brunner.”
(RR8: 23). When asked if he spoke to anyone else, and specifically if “anyone
helped [him] with testimony or [his] testifying,” Detective Pando replied, “No.”
(RR8: 23-24). The Defense passed Detective Pando. (RR2: 24). The trial
court then intervened and informed the Defense that the Courtroom had been used
by Detective Pando and someone “to get him to be a better public speaker.”
(RR8: 24). Finally, after many more questions, Detective Pando admitted that a
public speaking coach helped him prepare for the retrial in this case and
15 specifically, “discussed about what [his] answers were.” (RR8: 27). Detective
Pando stated that Vicki Vickers, the Office Manager for the District Attorney’s
Office, recommended the public speaking coach. (RR8: 29).
Sergeant John Rowe of the Round Rock Police Department testified that as a
certified computer forensics examiner, he was asked by Royger Harris, then an
investigator with the Williamson County District Attorney’s Office, to analyze a
portion of the Walmart surveillance video in the present case. (RR8: 38). When
Harris brought Sergeant Rowe the video, he also brought a list of timestamps and
asked Sergeant Rowe to enhance a portion of the video based on those timestamps.
(RR8: 39-40). When Sergeant Rowe reviewed the video, it showed timestamps.
(RR8: 40-41). Sergeant Rowe advised that it takes a specific player and specific
software to watch the video with timestamps and that the software is proprietary.
(RR8: 41).
Detective Feliciano Acevedo of the Round Rock Police Department testified
that he analyzed Duty’s computer and found the March Systems Player, which is
used to watch timestamps on Walmart surveillance videos, on her computer.
(RR8: 64). Detective Acevedo testified that his analysis also showed that the
player was opened three times in 2013. (RR8: 67). Further, the desktop
shortcuts to the player had since been deleted. (RR8: 68). Detective Acevedo
16 explained that those who are not particularly “tech savvy,” would think the entire
program would be deleted off the computer if the shortcut were deleted, but that
that is not, in fact, the case. (RR8: 68-69).
Duty was re-called and testified that on April 13, 2014, she received an
email from lead defense counsel, Mr. Deck that read, “I’m wondering if there’s a
time-stamped version of the videos. If there is, I’d like a time-stamped version of
the videos.” (RR8: 96-97). Duty testified that she replied, “I’d like a
time-stamped copy myself” and would contact Detective Dailey. (RR8: 97).
Duty then replied later that “Detective Pando brought over another copy of the
Walmart videos and none of them are time-stamped.” (RR8: 104-05). Duty was
confronted with her prior testimony that she did not know what a timestamp was
prior to trial and agreed that by asking for a “time-stamped copy,” and stating that
“none of them are time-stamped,” it could be inferred that she knew what a
timestamp was. (RR8: 104-05). Duty was also confronted with an email from
April 16, 2014, in which she told Deck that there was video footage from an
establishment called “Fast Eddie’s” and that “All the footage is time-stamped.
The time-stamps show that they got to Fast Eddie’s just before 10:00 p.m.”
(RR8: 123). Duty agreed that this also reflects someone who knows what a
timestamp is. (RR8: 123). Duty agreed that she never told Detective Pando that
17 she needed time-stamps and only told him the Defense wanted them. (RR8: 107).
Duty was asked, based on Detective Bond’s testimony, that if, at one point in time,
the only way to watch the video with timestamps was on an old laptop belonging to
the Cedar Park Police Department, which was in the sole possession of the State,
the State had an ethical obligation to inform the defense of that fact. (RR8: 109).
Duty responded, “I was not part of that. I was not part of that.” (RR8: 109).
Duty was then asked if Brunner knew how to view the timestamps on the video
and the only way to view them was through a computer in the sole possession of
the State, did Brunner have an obligation to inform the defense of that fact.
(RR8: 110). Duty responded, “If that was the only way to view that information,
then, yes, we would have needed to tell you that.” (RR8: 110-11). Duty agreed
that if she were in Brunner’s shoes and knew on Thursday or Friday of the first
trial that the only way to view the timestamps on the video was with Cedar Park’s
laptop, she would have told the defense. (RR8: 111).
ISSUE PRESENTED
Whether the trial court abused its discretion in denying Appellant’s Pre-trial
Application for Habeas Corpus Relief where the prosecutor’s conduct in willfully
withholding evidence and provoking a request for mistrial was undisputedly
intentional.
18 SUMMARY OF THE ARGUMENT
Appellant’s point of error should be sustained because the record is clear
that the State’s conduct in provoking the request for mistrial in the original trial of
this case was intentional. Therefore, the trial court abused its discretion in
denying Appellant’s request for pre-trial habeas corpus relief based on double
jeopardy grounds. Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).
ARGUMENT & AUTHORITIES
I. Pre-trial Appeal of Claim of Double Jeopardy
As a preliminary matter, it is well-settled that an accused may apply for a
pre-trial writ of habeas corpus on double jeopardy grounds and appeal the denial of
habeas corpus relief pre-trial. Ex parte Watkins, 73 S.W.3d 264, 273-74 (Tex.
Crim. App. 2002); Headrick v. State, 988 S.W.2d 226, 228 (Tex. Crim. App.
1999). In Abney v. United States, the United States Supreme Court observed that
the preferred procedural vehicle for review of a double jeopardy claim was a
pretrial writ of habeas corpus because:
The rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on appeal following final judgment, as the Government suggests. However, the Court has long recognized that the Double Jeopardy Clause protects an individual against more than
19 being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.
Abney v. United States, 431 U.S. 651, 660-61 (1977). A double jeopardy
complaint, preserved at the trial court level, as is the case here, is properly
preserved for appeal. See Gonzalez v. State, 8 S.W.3d 640, 644 (Tex. Crim.
App. 2000). A trial court’s ruling on a pre-trial application for habeas corpus
relief based on double jeopardy grounds is reviewed under an abuse of discretion
standard. Sandifer v. State, 233 S.W.3d 1, 3 (Tex. App.—Houston [1st Dist.]
2007).
II. Re-trial is barred where the State’s conduct in provoking a request for a mistrial is intentional.
It is well-settled that the Fifth Amendment’s Double Jeopardy Clause
protects a criminal defendant from repeated prosecutions for the same offense.
Oregon v. Kennedy, 456 U.S. 667, 671 (1982). In Oregon v. Kennedy, the
Supreme Court held that intentional conduct on the part of the State that provokes
a defense motion for mistrial bars retrial. Id. at 674.
The Texas Court of Criminal Appeals adopted the holding in Oregon v.
Kennedy and held that generally, when a trial court grants a mistrial at a
defendant’s request, double jeopardy does not bar a retrial. Ex parte Peterson,
117 S.W.3d 804, 815 (Tex. Crim. App. 2003), overruled in part on other grounds
20 Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). However, double
jeopardy bars a retrial where the prosecutor’s conduct was intentional in provoking
the request for a mistrial. Id.
In determining whether the State intended to provoke the defense into
moving for a mistrial, the Court should consider “the objective facts and
circumstances of the prosecutor’s conduct and the events which led to that
conduct.” Ex parte Peterson, 117 S.W.3d at 815; Ex parte Lewis, 219 S.W.3d at
371. The standard set forth in Oregon v. Kennedy, and adopted by Ex parte
Lewis, is the standard to be applied in the present case and is the standard currently
applied by the Texas Court of Criminal Appeals in analyzing double jeopardy
cases in the mistrial context. See Ex parte Pierson, 426 S.W.3d 763, 768 n.5
(Tex. Crim. App. 2014); Sandifer v. State, 233 S.W.3d 1, 3 (Tex. App.—Houston
[1st Dist.] 2007).
In its findings of fact and conclusions of law, the trial court detailed Duty’s
willful and intentional misconduct in withholding evidence in this case.
Specifically, it is undisputed that Duty knew about the timestamps on the Walmart
video because she watched them prior to trial on her own computer. Duty then
willfully withheld that evidence because she “didn’t feel very magnanimous.”
Knowing the State had a “very big advantage” in being able to play the Walmart
21 surveillance video, she consciously chose to withhold that information from the
defense, despite repeated requests in writing for that evidence. Duty even
admitted that she had a duty to turn over the evidence to the defense but did not.
The Court found that “the State’s admitted decision to withhold the means to
view timestamps on the Walmart surveillance video was intentional and provoked
the Defense’s request for a mistrial in this case.” (CR: 889). The Court found
further that “by Ms. Duty’s own admission, her decision not to disclose to the
Defense the means for playing timestamps on the Walmart surveillance video was
intentional” and that “Ms. Duty was aware of, and watched, the Walmart
surveillance video with timestamps prior to trial but did not disclose this fact to the
Defense.” (CR: 887). The Court then concluded, “Ms. Duty’s conduct in this
case, in which she withheld evidence, repeatedly violated Court orders, expressed
bias against the Defendant and his Counsel, has been intentional and willful.”2
(CR: 887).
2 It is important to note, as the trial court did, that Ms. Duty’s conduct in this case includes repeated violations of a gag order which have since resulted in a finding of Contempt of Court. (CR: 884-86). In addition, Ms. Duty showed a video to the prosecutors in her office which was produced by her husband, that depicts images of lead defense counsel, Ryan Deck, and Appellant. (CR: 885). When the images are shown, one can hear a voice over of a woman, presumably Ms. Duty, saying “Fuck Ryan Deck” and “Fuck you too, [Appellant].” (CR: 885). Moreover, the video, filmed largely in the District Attorney’s Office with Ms. Duty’s permission, mocks sitting District Court Judges. (CR: 885).
22 Further, the trial court agreed that the standard set forth in Oregon v.
Kennedy and Ex parte Lewis is the standard to applied in the present case and in
analyzing double jeopardy claims in the mistrial context. (CR: 889). Despite
these findings and conclusions, the trial court then, inexplicably concluded:
It is unknown to the Court why Ms. Duty intentionally and willfully withheld the means to view timestamps on the Walmart Surveillance video other than from Ms. Duty’s statement that ‘[defense counsel] acted so horribly to me during the first trial, that I just – I didn’t even want to speak to them.” (RR1: 202). The Court does not approve of this conduct or the reason for it. However, the Court finds no evidence that Ms. Duty intended to goad a mistrial or avoid an acquittal.
(CR: 889).
The Court’s conclusion contradicts its own, voluminous findings of Duty’s
intentional and willful misconduct which provoked the request for a mistrial in this
case. “[T]he objective facts and circumstances of the prosecutor’s conduct and
the events which led to that conduct” bear that out without question. Ex parte
Peterson, 117 S.W.3d at 815; Ex parte Lewis, 219 S.W.3d at 371. The Court’s
finding even contradicts its own conclusion that “the State’s admitted decision to
withhold the means to view timestamps on the Walmart surveillance video was
intentional and provoked the Defense’s request for a mistrial in this case.” (CR:
889).
23 It appears that although the Court acknowledged the standard set out in
Oregon v. Kennedy and Ex parte Lewis, the Court actually mistakenly relied upon
Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007). There, the
Court held that the standard enunciated in Oregon v. Kennedy barred retrial “under
the unique circumstances of that case” because the State had intentionally failed to
disclose exculpatory evidence with the specific intent to avoid the possibility of an
acquittal. See Sandifer v. State, 233 S.W.3d 1, 3 (Tex. App.—Houston [1st Dist.]
2007), citing Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007). “The
Masonheimer court reasoned that ‘in a case like this, a defendant suffers the same
harm as when the State intentionally “goads” or provokes the defendant into
moving for a mistrial.’” Id. The holding in Masonheimer was specific to the
facts of that case and did not add to the requirements set forth in Oregon v.
Kennedy and Ex parte Lewis. Id.
The facts in Masonheimer showed that, in addition to intentionally
provoking a request for a mistrial, the State intentionally withheld exculpatory
evidence and purposefully sought to avoid an acquittal. Ex parte Masonheimer,
220 S.W.3d at 501. The fact that those additional circumstances occurred in
Masonheimer does not change the standard set fort in Oregon v. Kennedy and
adopted by Ex parte Lewis. As Justice Meyers explained in his dissent in
24 Masonheimer:
My reading of Oregon v. Kennedy is that if the State’s intentional actions goad the defendant into requesting a mistrial, then retrial is jeopardy-barred. Rather than considering whether the State actually wanted a mistrial, we look to see if the improper conduct of the State was intentional. In most cases, the circumstances leading a defendant to request a mistrial are accidental, such as a State's witness blurting out unelicited, inadmissible testimony. However, if we look at the State’s actions and see that the prosecutors are intentionally doing things that they should anticipate would lead a judge to grant a mistrial if the defendant requested one, then it does not matter whether the State actually wanted a mistrial. The prosecutors may say that they did not want a mistrial, but if their actions were intentional rather than accidental or careless, and they should have known that a mistrial would be granted, then the Oregon v. Kennedy standard is met and retrial is jeopardy-barred. Rather than trying to determine the subjective intent of the prosecutor, we can objectively look at the actions of the State to determine if the actions were intentional.
Ex parte Masonheimer, 220 S.W.3d 494, 509-10 (Tex. Crim. App. 2007).
Quite simply, there is no added requirement that a defendant be required to
elicit a confession from the State that it “goaded” the defense into requesting a
mistrial or to show the prosecutor was trying to avoid an acquittal. See Ex parte
Lewis, 219 S.W.3d at 371. The circumstances in Masonheimer were simply facts
that occurred in addition to intentional conduct which provoked a request for a
mistrial.
Appellant is only required to show the State acted intentionally in provoking
the request for mistrial in this case. See Ex parte Lewis, 219 S.W.3d at 371.
25 This fact is largely undisputed by Duty’s own admissions. According to the trial
court’s findings, the Appellant made the required showing by stating “The Court
concludes that the State’s admitted decision to withhold the means to view
timestamps on the Walmart surveillance video was intentional and provoked the
Defense’s request for a mistrial in this case.” (CR: 889). Because Appellant
made the required showing to bar re-trial of this case, the trial court abused its
discretion in denying habeas corpus relief. See Sandifer v. State, 233 S.W.3d at 3.
Accordingly, Appellant’s point of error should be sustained.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that this Court reverse the trial court’s denial of habeas corpus relief in this case.
Respectfully submitted,
_____”/s/” Kristen Jernigan_______ KRISTEN JERNIGAN State Bar Number 90001898 207 S. Austin Ave. Georgetown, Texas 78626 (512) 904-0123 (512) 931-3650 (fax) Kristen@txcrimapp.com
26 CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Appellant’s Brief has been emailed to the Williamson County District
Attorney’s Office to the following addresses: jduty@wilco.org,
mbrunner@wilco.org and bwebster@wilco.org on October 13, 2015.
________”/s/” Kristen Jernigan__________ Kristen Jernigan
CERTIFICATE OF WORD COUNT
The undersigned hereby certifies that the foregoing document consists of
7,185 words in compliance with Texas Rule of Appellate Procedure 9.4.