In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-24-00178-CR ___________________________
EX PARTE JORGE VALENZUELA
On Appeal from the 271st District Court Wise County, Texas Trial Court No. CR24490
Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
Appellant Jorge Valenzuela was indicted for the offense of indecency with a
child by sexual contact. See Tex. Penal Code Ann. § 21.11. His jury trial for that
offense ended in a mistrial “based upon the misconduct of the lead attorney for the
State.” Valenzuela then filed an application for writ of habeas corpus asserting that his
double-jeopardy rights would be violated by a retrial. After hearing the application,
the trial court denied it. This appeal followed.
In a single issue, Valenzuela contends that the trial court abused its discretion
by denying habeas relief because the State’s misconduct was calculated to avoid an
acquittal. We disagree and affirm the trial court’s denial of habeas relief.
I. Background
Valenzuela was a family friend of the complainants, sisters Michelle and Amy.1
On the night of the alleged offense, he entered the complainants’ bedroom and began
rubbing Amy’s back. He then put his hand underneath Michelle’s pants and rubbed
her vagina. Michelle pushed his hand away, and he put his hand underneath Amy’s
pants and touched her “on [her] butt.” He stopped touching the complainants when
The indictment alleged that Valenzuela had “knowingly engage[d] in sexual 1
contact with [Michelle] by touching the genitals of [Michelle], a child younger than 17 years of age.” Additionally, the State alleged an extraneous offense committed against Amy, who was also under the age of 17. Thus, we refer to both Michelle and Amy as complainants.
To protect the complainants’ identities, we use aliases for them and for their family members. See Tex. R. App. P. 9.8 cmt.; 2nd Tex. App. (Fort Worth) Loc. R. 7; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2 his wife entered the bedroom. Later that night, the complainants told their mother
what Valenzuela had done, and the police were called.
A. Valenzuela’s Trial
At trial, Valenzuela was represented by attorney Courtney Miller. The State was
represented by assistant district attorney John “Jay” Lapham.
During the State’s opening statement, Lapham told the jury the facts of the
case and the anticipated evidence and testimony. He described the underlying
investigation, the forensic interviews of the complainants, and the physical evidence
that had been collected. Specifically, the investigators collected the underwear that had
been worn by the complainants during the alleged offense and placed them in
separate evidence bags. Samples of Valenzuela’s DNA and the complainants’ DNA
were also collected and compared to DNA found on the underwear.
Lapham explained that Allison Conway, the defense’s DNA analysis expert,
would testify that there had not been any bodily fluids on the underwear and that the
case involved “touch DNA.” Lapham told the jury that, while Valenzuela’s DNA had
not been located on the underwear, Conway would testify that “the absence of that
DNA does not mean that [Valenzuela] never touched those girls. . . . It just means his
DNA was not located.”
During its case in chief, the State called seven witnesses: the complainants’
mother as the outcry witness, the complainants, their older sister, the forensic
interviewer who interviewed the complainants the day after the alleged offense, the
3 police investigator assigned to the case, and a therapist who treated the complainants
after the alleged offense. The State also offered a video of Michelle’s forensic
interview, which was admitted and played for the jury.
During the State’s case, Valenzuela moved for a mistrial twice—once in
response to hearsay testimony from the complainants’ mother and again after the trial
court sua sponte excused a juror under Article 36.29 of the Texas Code of Criminal
Procedure. The trial court denied both requests. After the State rested, Valenzuela
told the trial court that he would be presenting defense evidence. He did not move for
a directed verdict.
Valenzuela called Conway as his first witness. Conway testified about her
expertise in DNA analysis and the general process of testing evidence, including
testing specifically for male or female DNA. She also explained the difference
between DNA derived from bodily fluids and DNA that is transferred from a
person’s skin cells, or “touch DNA.” Regarding her involvement in this case, Conway
explained that she had been given DNA samples from the complainants and from
Valenzuela and that she had performed a DNA analysis of the complainants’
underwear. She testified that no identifiable DNA profile had been developed; that no
male DNA had been detected on either pair of underwear; that a major female DNA
contributor—likely each of the complainants—had been detected on each respective
4 pair of underwear; and that a minor, unknown female DNA contributor 2 had been
detected on one pair of underwear but not the other.
During Conway’s testimony, Valenzuela offered, and the trial court admitted,
photographs of the evidence bags containing the complainants’ underwear. The
photographs showed that each evidence bag also contained a rubber glove that had
been turned inside out. Other than confirming that Conway had tested the underwear
for DNA, Valenzuela did not question her further about the photographs.
Lapham questioned Conway on cross-examination. He asked Conway if she
had tested the complainants’ underwear in their entirety or if she had tested only
specific areas, and she responded that she had tested only certain areas of the
underwear. She did not detect any male DNA on the areas tested. Lapham presented
Conway with a hypothetical scenario in which a person’s DNA may not be detected
when the person touched only the skin under the underwear, and Conway confirmed
that such a scenario was possible but that she “d[id]n’t know specifically what
happened in this case.” She acknowledged that it is “difficult to develop a DNA
profile when there’s not much DNA present.”
Lapham also questioned Conway about the photographs that had been
admitted on direct examination. He asked Conway if the rubber gloves in the
evidence bags had come from the evidence lab, and Conway responded that they had
2 The use of “minor” here does not refer to the age of the DNA contributor but to the quantity of DNA present in a mixed DNA profile.
5 not. When he attempted to clarify whether the police officers who had collected the
evidence had used the gloves and dropped them into the bags, Conway testified that it
was possible but that she did not know if the gloves had been used or not. The
following exchange then occurred:
[MR. LAPHAM:] Okay. So if there was a -- a male that wore those gloves and had -- you probably won’t know whether, you know, depending on how the glove fit, if it was snug or not snug --
MS. MILLER: I’m going to object to speculation on this whole line of evidence -- this whole line of questioning. It’s a whole lot of ifs and buts, candy and nuts.
MR. LAPHAM: This is what an expert’s for, Your Honor. I get to ask these questions here in cross-examination.
THE COURT: I understand. But does -- do the -- do you think the gloves have something to do with the prosecution of this case?
MR. LAPHAM: Well, from a standpoint that they have contaminated these particular underwear, another male, and that no other male profile was developed based on somebody wearing gloves and dropping those gloves in the same sack with these underwear.
MS. MILLER: Your Honor, I’m going to object to State’s counsel saying anything’s been contaminated. There’s been absolutely no evidence of that, none, and no male DNA found whatsoever. In fact, I’m going to ask for a mistrial at this point in time.
THE COURT: Well, I’m going to deny the request for mistrial.
After the trial court denied the mistrial, it gave Lapham an opportunity to make his
point, if any, regarding the gloves. Miller requested a jury instruction to disregard any
comments by Lapham about contamination, and the trial court instructed the jury
accordingly.
6 Lapham continued his line of questioning about the gloves, asking Conway if it
had been the proper procedure to place a glove and underwear in the same evidence
bag. Conway testified that the items should have been packaged separately. She
explained, “I don’t know why the gloves are there. We didn’t put them there.”
Lapham then asked, with no objection from Miller, if cross-contamination would be a
concern when other items are placed in an evidence bag. Conway responded that
“[t]here could be a transfer between items if they’re touching each other.” She further
explained that “[i]f there were skin cells present on the glove, it’s possible they could
[have] be[en] transferred to the underwear if they [had been] touching.” At that point,
Lapham asked, “And, hypothetically, if there was a male that was wearing those
particular gloves, then that -- you would expect that profile potentially to show up in
your DNA testing, correct?” Miller objected to this question, and the trial court
excused the jury from the courtroom.
Outside the presence of the jury, Miller asserted that the State was “deliberately
misleading the jury and putting in improper evidence.” She then read from the police
report, which stated that an investigator had “obtained [the complainants’] clothing
for evidentiary purposes,” that he had “followed FBI DNA collections procedures,”
and that he had instructed the complainants’ mother to “place the clothing into a
paper evidence bag, then remove the gloves utilized in collecting the clothing.” Miller
told the trial court that there had been “no man’s glove” touching the evidence, only
“female[’s] gloves.” Lapham argued that the investigator had not followed the
7 appropriate evidence-collection protocol because “you cannot put a glove from
someone else’s hands inside an item that’s being tested. It’s cross-contamination.” He
claimed that he had “no idea” who had worn those gloves.
Explaining why he pursued the line of questioning, Lapham told the trial court,
[M]y point is there’s another pair of gloves -- there’s a pair of gloves that have been in this bag since 2022 when this offense happened, rummaging around in here, and it -- there is a possibility that that particular glove could have left DNA, and it’s been in there now for a year. And so there was no profile found there, so it is not surprising that the Defendant’s brief touch of the child would not leave any DNA either?
When pressed further by the trial court, Lapham admitted that he had not read the
police report in preparation for trial. He asserted that he had not anticipated that the
DNA “was going to be a big issue” until Conway testified that the gloves had not
come from the lab, which, according to Lapham, made it more probable that the
evidence had been contaminated. He argued, “My point is[,] yes, there was no DNA
found, but there’s a glove in there with potentially skin cells that are rubbing up
against the[] underwear and that wasn’t found either.” Valenzuela moved for a mistrial
again, and the trial court denied it.
After the trial court denied the mistrial, Miller requested to call the investigator
to “get him . . . to testify about the actual process and that he never touched that
glove.” Lapham indicated that the State had no objection to the request. Miller told
the trial court that she had no way of contacting the investigator and that she needed
help in doing so, and the trial court responded, “I’m not going to do that. . . . I don’t
8 understand why . . . that should be necessary.” Miller then requested to read the police
report to the jury, and Lapham objected, stating that it would go to the weight of the
evidence and that “[t]he jury can give whatever weight that they choose to give to
whether they think that there’s some cross-contamination with regard[] to this
evidence.” At that, the trial court “[c]hanged [its] mind” and decided to grant
Valenzuela’s mistrial over the State’s objection.
B. The Habeas Hearing
The trial court also presided over the subsequent habeas hearing, the tone of
which bordered on hostile, with the attorneys making passive-aggressive comments,
speaking over each other, and repeatedly interrupting the judge. At one point during
the hearing, the judge had to remind the attorneys to “maintain their civility,” stating
that the hearing was a “professional” proceeding, “not a personal one.”
Over the State’s objection, Miller called Lapham to testify at the hearing.
Attempting to point out weaknesses in the State’s case, she asked Lapham whether
certain testimony from the complainants had “surprise[d]” him, suggesting that there
had been inconsistencies in their testimonies. Lapham responded that when children
testify about something that happened to them two years before trial, inconsistencies
are not surprising. He asserted that any inconsistencies in the complainants’
testimonies had been no different than in any other case in which a child victim
testifies.
9 Regarding the evidence collection, Lapham asserted that the police report had
been “unclear” as to who wore the gloves contained in the evidence bags. He
acknowledged, however, that the officers’ body-camera footage from the investigation
showed that the complainants’ mother had worn the gloves, which he claimed to have
realized only when he watched the video footage after trial. When confronted with his
statement about a male wearing the gloves, Lapham testified that it had been an “error
on [his] part . . . based upon [Miller’s] direct examination.”3 He claimed that he had
believed the gloves belonged to the lab until Conway testified otherwise. He admitted
that he had not reviewed the relevant portions of the police report and body-camera
footage pertaining to the evidence collection and that his statement that a male had
worn the gloves had been “incorrect.”3 He continued to assert, however, that the
evidence had been contaminated, “whether it was [from] male or female,” because the
gloves should not have been placed inside the evidence bags with the underwear.
3 This testimony was in response to Miller’s attempt to get Lapham to agree that he had made a “false statement” in front of the jury. In her attempt, she identified the following statements by Lapham during Conway’s cross-examination: “if there was a male that wore those gloves” and “they have contaminated these particular underwear, another male.” In the context of the entire exchange that occurred in front of the jury, Lapham’s statements could be construed as hypothetical questions posed to an expert witness. See Tex. R. Evid. 702. But in conceding that the statements—which were not presented to him in the context of the entire exchange— were an “error” or “incorrect,” Lapham apparently believed that the statements were construed by the jury as an assertion that a male had worn the gloves. For purposes of our analysis, we will assume the latter construction of the statements as Lapham did.
10 Lapham explained the “basis” for his cross-examination questions—the issue
of who had collected the underwear did not become a focus of the trial until Miller
raised it with Conway on direct examination and offered the photographs of the
evidence bags containing the underwear and the gloves. According to Lapham, while
Miller initially created the impression that a male police officer had collected the
evidence,4 she later presented a defensive theory that focused on the lack of male
DNA—consequently, the lack of Valenzuela’s DNA—on the underwear. In response,
Lapham’s cross-examination questions were, according to him, intended to establish
that the evidence had been contaminated and that the lack of Valenzuela’s DNA on
the underwear would not have been surprising and would not have meant that he did
not touch the complainants. Lapham explained that the inside-out gloves had
probably transferred “skin cells” to the underwear, noting that the minor female
DNA contributor had not been identified and confirming that that DNA had been
found on one pair of underwear but not the other.
Lapham asserted that he had tried thirty to fifty child-victim cases as a
prosecutor and that he had not had any reason to believe that this case would have
resulted in Valenzuela’s acquittal. At the close of the State’s evidence, he had been
“ready and willing” to submit the State’s case to the jury for a verdict. He told the trial
4 During Miller’s cross-examination of the investigator, she asked if the male officer who had responded to the complainants’ house after the alleged offense was the person who had collected the complainants’ clothing, and the investigator responded affirmatively. She then asked several questions about the “chain of custody collecting the evidence and taking it to the police department.”
11 court that the morning of Conway’s testimony, he had prepared for consideration and
provided Miller with a copy of the trial court’s charge.
Lapham testified that he had “strenuously” opposed a mistrial. He expressed
that, for the complainants, having to testify in court had been a traumatic experience.
He explained that the complainants had been crying in the courtroom and that he
initially was not sure whether one of the complainants would even testify. Because of
the effect that the trial had had on the complainants, he did not want to retry the case
and have to put them back on the stand.
During closing arguments, the trial court asked Miller if she could provide any
case law “like . . . whatever happened in this case,” distinguishing cases in which the
prosecution “may or may not have been trying to get a mistrial” from cases in which
the prosecution “was actually trying to get a mistrial.” Miller responded that she had
not found any cases involving “a misstatement of evidence.” The State’s attorney then
argued that even if Lapham had misstated the evidence, he did not do so with the
specific intent to force Valenzuela to move for a mistrial. The trial court apparently
agreed and denied habeas relief.
Valenzuela timely appealed.
II. Standard of Review
Pretrial habeas relief is an “extraordinary remedy.” Ex parte Ellis, 309 S.W.3d
71, 79 (Tex. Crim App. 2010). It is reserved for cases in which resolution of a legal
issue in the applicant’s favor must result in the applicant’s immediate release. Ex parte
12 Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017). Thus, an applicant may seek
pretrial habeas relief “only in very limited circumstances.” Ex parte Smith, 178 S.W.3d
797, 801 (Tex. Crim. App. 2005). One such “limited circumstance” is when, as here,
an applicant alleges that double jeopardy has been violated. See Ex parte Weise, 55
S.W.3d 617, 619 (Tex. Crim. App. 2001).
We review the trial court’s ruling on a pretrial writ of habeas corpus for an
abuse of discretion. Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016,
pet. ref’d). We view the evidence in the light most favorable to the trial court’s ruling
and uphold it absent an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324
(Tex. Crim. App. 2006). In our review, “we must ‘defer to implied factual findings
supported by the record.’” Ex parte Shires, 508 S.W.3d 856, 860 (Tex. App.—Fort
Worth 2016, no pet.) (quoting Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d)). If resolving the ultimate question turns on
applying legal standards, we review the trial court’s determination de novo. Paxton,
493 S.W.3d at 297.
Here, the trial court made no explicit fact findings, and Valenzuela did not
request express findings of fact and conclusions of law. Thus, we infer the necessary
fact findings to support the trial court’s ruling if they are supported by the record. See
Shires, 508 S.W.3d at 860.
13 III. Applicable Law
The Fifth Amendment of the United States Constitution provides that no
person shall have life or limb twice put in jeopardy for the same offense. U.S. Const.
amend. V. Generally, this provision—the Double Jeopardy Clause—protects against
(1) a second prosecution for the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple punishments for the same
offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ramos v. State,
636 S.W.3d 646, 651 (Tex. Crim. App. 2021).
A second prosecution for the same offense after a mistrial generally is not
precluded by double jeopardy if the defendant requested the mistrial. See United States
v. Dinitz, 424 U.S. 600, 607, 96 S. Ct. 1075, 1079–80 (1976); Wheeler, 203 S.W.3d at
322. However, a second prosecution is jeopardy-barred if the prosecutor’s conduct
giving rise to the defendant’s motion was intended to provoke the defendant into
moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 673, 102 S. Ct. 2083, 2088
(1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007) (adopting the
Kennedy standard as a matter of state constitutional law); see also Ex parte Masonheimer,
220 S.W.3d 494, 507–09 (Tex. Crim. App. 2007) (applying Kennedy to the State’s
“intentional” failure to disclose exculpatory evidence). Thus, a retrial is barred only
when the prosecution acted with the specific intent to “goad” the defendant into
requesting the mistrial or with the specific intent to avoid an acquittal. Masonheimer,
220 S.W.3d at 507–09; Ex parte Floyd, No. 02-22-00004-CR, 2022 WL 2753400, at *4
14 (Tex. App.—Fort Worth July 14, 2022, pet. ref’d) (mem. op., not designated for
publication).
The Court of Criminal Appeals has set out a nonexclusive list of objective
factors for courts to consider in assessing the prosecutor’s state of mind: (1) Was the
misconduct an attempt to abort a trial that was going badly for the State? Put another
way, at the time the prosecutor acted, did it reasonably appear that the defendant
would likely obtain an acquittal? (2) Was the misconduct repeated despite the trial
court’s admonishments? (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 impropriety? (6) Were the
prosecutor’s actions leading up to the mistrial consistent with inadvertence, lack of
judgment, or negligence, or were they intentional? Wheeler, 203 S.W.3d at 324; see
Ex parte Roberson, 455 S.W.3d 257, 260 n.1 (Tex. App.—Fort Worth 2015, pet. ref’d)
(noting Wheeler was subsequently limited to intentional conduct). “The analysis of
these factors is intended ‘[t]o differentiate the kind of intentional goading conduct
which invokes the Double Jeopardy Clause from the inevitable mistakes made during
a rough and tumble trial.’” Ex parte Watson, No. 01-19-00637-CR, 2020 WL 7517453,
at *6 (Tex. App.—Houston [1st Dist.] Dec. 22, 2020, no pet.) (mem. op., not
designated for publication) (quoting Ex parte Ahn, No. 08-14-00082-CR, 2015 WL
4940053, at *5 (Tex. App.—El Paso Aug. 19, 2015, no pet.) (not designated for
publication)).
15 A habeas applicant bears the burden to prove his claim by a preponderance of
the evidence. See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013);
Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005).
IV. Analysis
Valenzuela acknowledges that barring retrial due to prosecutorial misconduct is
an “exceedingly rare” exception to the general rule. Nevertheless, he contends that the
trial court abused its discretion by denying habeas relief because the State acted
intentionally to avoid an acquittal. We disagree.
A. First Wheeler Factor
Valenzuela argues that at the time the trial court granted a mistrial, “there was a
reasonable probability” that the jury would have acquitted him. The record indicates
that the State’s case was not as weak as Valenzuela suggests:
• Both complainants testified and described what Valenzuela had done to them. Michelle explicitly testified that Valenzuela’s hand touched her where she “pee[s]” from.
• The complainants’ mother testified about what she recalled from the night of the alleged offense and about the complainants’ outcry statements. She described what Valenzuela had done to the complainants as it had been relayed to her by the complainants themselves immediately after it happened.
• The forensic interviewer described the interview process and testified generally about the complainants’ interviews. She explained that the complainants were able to provide specific details about how Valenzuela had touched them, including sensory and peripheral details.
• The jury viewed the video of Michelle’s forensic interview, in which she described to the interviewer exactly when, where, and how Valenzuela had
16 touched her. For example, she explicitly stated that he had touched her “private part” from where she “pees.”
• The investigator testified about his investigation of the alleged offense and explained his probable cause to arrest Valenzuela.
• The therapist testified generally about the complainants’ therapy sessions and why they needed therapy. She also testified about the type of trauma that the complainants experienced as a result of what Valenzuela had done to them.
This evidence establishes a convincing case against Valenzuela. Thus, it does not
reasonably appear that Valenzuela was likely to obtain an acquittal.
Most of Valenzuela’s appellate argument on this Wheeler factor focuses on the
alleged inconsistencies in the complainants’ testimonies. 5 Even if these inconsistencies
were as significant as Valenzuela suggests, the jury heard the details of the alleged
offense not only from the complainants but also from the complainants’ mother and
the forensic interviewer—to whom the complainants described what Valenzuela had
done to them immediately after or within a day of the alleged offense. And the jury
5 Valenzuela points out that on direct examination, the complainants testified that they had been in bed trying to go to sleep when Valenzuela entered their bedroom, but on cross-examination, Michelle “admitted” that they had only been pretending to go to sleep. This, according to Valenzuela, proves that he had only been “playing with the girls.” He also points to Michelle’s direct-examination testimony that she had been lying on her back during the alleged offense and to her cross- examination testimony that she had been lying on her stomach, arguing that the position of Michelle’s body “carries great weight in determining the truth of her allegations.” And the fact that Michelle did not use the word “vagina” at trial was, according to Valenzuela, the “[m]ost significant[]” inconsistency. As for Amy, Valenzuela asserts that, contrary to her outcry, she testified that he had touched her only near her tailbone. But Amy explicitly testified that he had touched her “on [her] butt . . . near [her] tailbone.”
17 viewed Michelle’s forensic interview firsthand. Lapham explained that inconsistencies
in a child victim’s testimony are generally not surprising when the child victim testifies
about an event that occurred years prior. He opined that the inconsistencies in this
case had been no different than in any other case with a child victim. The trial court
was entitled to believe that Lapham had not been concerned about any inconsistencies
in the complainants’ testimonies and that the inconsistencies had not hurt the State’s
case.
Moreover, Valenzuela moved for a mistrial four times throughout the trial for
three different reasons, suggesting that it was Valenzuela—not the State—who had
concerns about the jury’s verdict. See United States v. Wharton, 320 F.3d 526, 532 (5th
Cir. 2003) (reaching same conclusion when defendant moved for mistrial four times).
While Valenzuela asserts on appeal that “[t]he defense began its case with the
reasonable expectation that the law would require the jury to acquit,” his failure to
request a directed verdict after the State rested suggests that the defense had no such
expectation. See id.
According to Lapham, “[o]verall, the case went well for the State.” He had “felt
good about the State’s case” and had had “every expectation that the [j]ury would
ultimately find [Valenzuela] guilty.” And he objected to the mistrial. The trial court
could have reasonably concluded that Lapham’s misconduct was not an attempt to
abort trial. See Wheeler, 203 S.W.3d at 330 (“From all appearances, the prosecutor
could well have thought that the trial was going fine.”).
18 B. Second Wheeler Factor
Valenzuela argues that Lapham “repeated his attempts . . . to mislead the jury
with false information such that the defense requested a mistrial twice.” The record
indicates that Lapham repeated his cross-examination question about a male having
worn the gloves and contaminated the evidence only once—with apparent permission
from the trial court.
After the trial court denied Valenzuela’s third request for a mistrial, it gave
Lapham the opportunity to try again: “Mr. Lapham, in order to make the most of the
time and the economy of in front of this jury, if you have a real point to make with
the gloves, then I want you to make it right now, okay?” Lapham then asked Conway
about the proper procedure for evidence collection and whether it had been followed
in this case with the gloves and underwear. A few questions later, he specifically asked
about concerns of cross-contamination. Miller did not object to any of these
questions. When Conway testified that skin cells could have been transferred from the
gloves to the underwear, Lapham asked his hypothetical question about a male having
worn the gloves. That question elicited an objection from Miller. At that point, the
jury was excused from the courtroom and did not return until the trial court granted
the mistrial.
The trial court granted the mistrial after Lapham argued—outside the presence
of the jury—that the jury could “give whatever weight . . . to whether they think that
there’s some cross-contamination with regards to this evidence.” According to
19 Valenzuela, the trial court granted the mistrial because it “became apparent” that
Lapham intended to “make such an irrelevant and misleading argument again to the
jury.” Even if Valenzuela were correct about the trial court’s reasoning, the fact
remains that Lapham repeated the misconduct only once before the jury was excused.
Cf. id. at 328 (“[A] single violation of a motion in limine is insufficient to show
repeated, willful violations made despite judicial admonitions.”).
C. Third through Fifth Wheeler Factors
Valenzuela contends that the trial court did not find Lapham’s explanation for
his conduct to be credible or in good faith, citing the trial judge’s comments at trial.
The same trial judge, however, presided over the habeas hearing and, in denying
habeas relief, could have determined that Lapham had provided a good-faith
explanation for his conduct, that the conduct was not clearly erroneous, and that there
had been a factually plausible basis for the conduct. See id. at 331 (“The trial judge saw
the prosecutor and could judge his credibility and integrity . . . .”).
Lapham explained that “[t]he purpose of the cross-examination was to expose
the contamination of the [complainants’] underwear by the rubber gloves.”
Specifically, he intended to illustrate that the gloves, which presumably contained
DNA, had contaminated the underwear, yet no DNA profile had been identified and
the minor female DNA contributor had been detected in only one evidence bag,
thereby establishing that touch DNA does not always result in collectible evidence.
Lapham asserted that, had the trial court not granted the mistrial, he would have
20 asked Conway whether, in her expert opinion, the lack of Valenzuela’s DNA
conclusively established that he had not touched the complainants or their underwear.
Conway’s answer, according to Lapham, would have been, “No.” Notably, he told the
jury just as much in his opening statement. According to the State, this would have
effectively rebutted the defense’s theory that the lack of Valenzuela’s DNA on the
underwear meant that he had not touched the complainants.
Conway’s testimony supported Lapham’s explanation. She testified that the
evidence had not been collected properly and that skin cells could have transferred
from the gloves to the underwear, which supported Lapham’s theory that the
evidence had, in fact, been contaminated. Indeed, he repeatedly explained that his
cross-examination was intended to expose the contamination in order to rebut
Valenzuela’s defensive theory regarding the lack of his DNA on the underwear.
While the area of inquiry in support of Lapham’s theory may have been
appropriate, albeit poorly executed, the specific statements about a male having worn
the gloves were not. But nowhere in the record does it indicate that Lapham did not
sincerely, though mistakenly, believe that a male may have worn the gloves. He
asserted that the police report was “unclear” as to who had collected the evidence, but
because he did not believe that the issue of who had collected the underwear would
be a focus of the trial, he had not reviewed the police report or the body-camera
footage pertaining to the evidence collection. Lapham ultimately acknowledged that
no male DNA had been found on the underwear and that his statements about a male
21 having worn the gloves had been “incorrect” and “an error on [his] part.” He
maintained that he had “d[one] the best [he] could.” The trial court could have
concluded that Lapham’s being wrong about the gloves did not mean that he intended
to cause a mistrial. See id. at 329 (“The prosecutor may have misheard the witness or
confused the testimony . . . , but that does not make him either [willful] or reckless.”).
The trial court could have found that Lapham provided a reasonable, good-
faith explanation for his conduct; that such conduct, while based in part on an
incorrect understanding of the evidence, was not clearly erroneous; and that there was
a factually plausible basis for the conduct. See id. at 330 (“We cannot disagree with the
trial judge’s implicit conclusion that [the prosecutor’s cross-examination]
question . . . was asked in good faith, albeit an impetuous . . . question.”).
D. Sixth Wheeler Factor
Valenzuela argues that “[t]hroughout trial, [Lapham] acted contrary to the rules
and principles of law” and that he was “determined to prejudice the jury with
inadmissible evidence” because there was not enough evidence to convict. As
discussed above, the State’s evidence established a convincing case against Valenzuela.
Moreover, much like the habeas hearing, both the State and the defense attorneys
were zealous advocates and clashed throughout trial.6 That Lapham advocated
For example, “object” or “objection” appear in the trial record at least one 6
hundred times.
22 zealously for the State does not establish that he intended to cause a mistrial. See id.
(deferring to trial court’s fact finding in “hotly contested trial”).
As for Lapham’s actions leading up to the mistrial, the trial court could have
concluded that Lapham’s cross-examination constituted a lack of judgment or
negligence: in other words, Lapham believed that Conway had raised an issue about
who had collected the evidence—incorrectly thinking that a male may have worn the
gloves—and that his cross-examination would provide the jury with the full picture,
i.e., that the lack of Valenzuela’s DNA should not be surprising. Such lack of
judgment or negligence was properly remedied by the mistrial and does not bar a
retrial. See Lewis, 219 S.W.3d at 358 (stating double jeopardy is not “a means to protect
against outrageous government conduct”); Ex parte Coleman, 350 S.W.3d 155, 160
(Tex. App.—San Antonio 2011, no pet.) (“The impropriety of the prosecutor’s [cross-
examination] was remedied by the mistrial.”); cf. Kennedy, 456 U.S. at 679, 102 S. Ct. at
2091 (holding prosecutor, who referred to defendant as a “crook” in front of the jury,
did not intend to cause a mistrial); Ex parte Aiken, No. 05-07-01125-CR, 2008 WL
444484, at *2 (Tex. App.—Dallas Feb. 20, 2008, pet. ref’d) (mem. op., not designated
for publication) (affirming denial of habeas relief where prosecutor’s statement—
calling defendant a “coward” and commenting on his decision to testify on his own
behalf—did not rise to level of intent to cause mistrial).
23 V. Conclusion
Viewing the evidence in the light most favorable to the trial court’s ruling, we
cannot say that the prosecution engaged in conduct specifically intended to provoke
or “goad” Valenzuela into moving for a mistrial. Thus, the trial court did not abuse its
discretion by denying habeas relief.
We affirm the trial court’s order denying relief on Valenzuela’s application for
writ of habeas corpus.
/s/ Wade Birdwell
Wade Birdwell Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: June 5, 2025