Thadis Garland Paul, III v. State

• Court: Court of Appeals of Texas
• Decided: February 2, 2012
• Docket: 01-11-00954-CR
• Status: Published

Opinion

Opinion issued February 2, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00954-CR

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Thadis Garland Paul, III, Appellant

V.

The State of Texas, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Case No. 1304865

MEMORANDUM OPINION

          Thadis Garland Paul, III, has been charged with murder. The State seeks to try him a second time after a mistrial was declared in the first proceeding. Paul contends that, because the State intentionally provoked the mistrial by failing to disclose exculpatory evidence, a retrial violates the double jeopardy clauses of the federal and state constitutions and a writ of habeas corpus should issue. In this appeal, he challenges the trial court’s denial of his request for habeas relief. See Tex. R. App. P. 31. Because we hold that a second prosecution is not jeopardy-barred, we affirm. 

Background

          Paul was brought to trial on an indictment alleging that he shot and killed a man outside of a Houston-area apartment. The State rested after five days of testimony. Paul then elected to testify and claimed for the first time that he shot the complainant in self defense; previously, he claimed not to have been at the crime scene on the night the complainant died. The State attempted to impeach Paul with prior statements in which he denied any involvement in the complainant’s death, including a telephone conversation he had with Monique Johnwell, a witness for the State, which the police recorded and transcribed. In that conversation, Paul told Johnwell that he was not at the apartment complex when the murder occurred. Paul’s attorneys objected that they had not been provided a copy of the recording or transcript and that the evidence was exculpatory. The trial court declared a mistrial on Paul’s request, and Paul filed a pretrial application for a writ of habeas corpus based on double jeopardy.

Paul’s habeas application urges that the murder charges cannot be prosecuted further because the mistrial “was provoked primarily by the State’s intentional failure to disclose exculpatory evidence.” The State opposed the application and provided the trial court with the affidavits of three prosecutors who worked on the case: Jessica Estrada, Jamie Burns, and Tiffany Johnson. Estrada, the lead trial prosecutor, explained that she did not know the defense was unaware of the recording. She was unable to find written documentation that notice and a copy of the recording had been provided to the defense in her file, but two of the prosecutors who previously worked on the file, Tiffany Johnson and Lisa Collins, informed Estrada that they believed the defense was provided copies of all of Paul’s recorded statements. Estrada stated that she did not “intentionally fail to disclose the recorded conversation between [Paul] and Monique Johnwell to provoke or goad [Paul] into moving for a mistrial to avoid an acquittal.”   

Estrada also testified to Paul’s allegation of intentional misconduct at the evidentiary hearing on his habeas application. She testified that she inherited Paul’s case from another prosecutor after the file was readied for trial. She explained that a transcript of the recording had been maintained in the State’s “open file.” According to Estrada, when a file is “open,” its non-privileged contents are available to defense counsel for inspection. Estrada testified that she did not place transcript in any separate file for privileged materials, so it remained in the “open file” for review by Paul’s attorneys. Because the State’s records indicated that Paul’s attorneys had viewed the file, Estrada believed Paul’s attorneys had been provided everything to which they were entitled in discovery. She acknowledged, however, that a failure to produce the recording or transcript would violate the trial court’s discovery order requiring the State to disclose all recordings made by Paul.  

Estrada also testified that she believed Paul’s defense was mistaken identity, not self-defense. Accordingly, she did not present the transcript of the recording during the State’s case-in-chief because it was cumulative of other statements in which Paul denied having been present at the crime scene, including his own statements to police and in jail correspondence. The conversation between Paul and Johnwell only became relevant as impeachment evidence when Paul admitted to being present and shooting the complainant. Estrada was confident that the State presented sufficient evidence during its case-in-chief to secure a conviction, and she did not want a mistrial. Her confidence in the State’s case was affirmed in conversations with jurors, who indicated to Estrada after the mistrial that they had planned to convict.

Jamie Burns, another prosecutor whom Estrada asked to assist her at trial, and Johnson, the prosecutor from whom Estrada inherited the file, confirmed by affidavit Estrada’s testimony about the State’s open file. Burns stated that, although he was not the primary prosecutor and had never met with Paul’s attorneys regarding discovery in this case, he was aware that the district attorney’s office “always had an open file policy and [he] had no reason to believe this case was handled any differently. There was nothing to suggest that this phone call had not been seen or heard by the defense attorneys or that it was being kept from them in any way.” Burns denied having intentionally kept the recording from the defense. Johnson recalled creating a folder for all items relevant to Johnwell’s testimony and placing the CD and transcript of the conversation between Paul and Johnwell in the folder. The Johnwell folder was placed in the State’s open file. Johnson likewise denied having intentionally failed to disclose the recording. She further explained that “the recorded conversation between [Paul] and Monique Johnwell did not contain any unknown exculpatory material and based on [Paul’s] assertions throughout the investigation and his attorneys’ throughout the prosecution that he wasn’t there when the Complainant was shot and killed, therefore, [she] didn’t believe this piece of evidence to be an important disclosure.”  

Both of Paul’s trial attorneys testified in support of the habeas application. Lance Hamm testified that he reviewed the State’s file. The file contained other evidence in which Paul claimed not to have been at the crime scene, including “jail mail,” the offense report, and other recorded conversations between Paul and investigating officers. But the recorded conversation between Paul and Johnwell was never provided to the defense. Certain facts led Hamm to believe that the State’s failure to disclose the recording was intentional, including that the officer who directed Johnwell in making the recording was not listed on the offense report. Also, when asked during cross-examination whether he had recorded any conversations between Paul and Johnwell, the State’s lead investigator answered that he had not done so; neither the investigator nor the State, however, clarified that other investigating officers had made such a recording.

Given the potential defense of mistaken identity, Hamm believed Paul’s recorded denial of involvement in the complainant’s death was exculpatory. Hamm testified that, if he had known a recording of the conversation between Paul and Johnwell existed, he might not have permitted Paul’s testimony. Hamm suggested that Estrada used the recording to provoke a mistrial because she could not rebut Paul’s self-defense theory. According to Hamm, most of the jurors he talked to following the mistrial indicated they would have acquitted Paul. 

Wilvin Carter, Paul’s second attorney, testified that he reviewed the State’s file on five or six occasions, but never came across any recording or transcript of the conversation between Paul and Johnwell. Although he acknowledged that Paul’s testimony about acting in self-defense could be impeached with other evidence, Carter testified that, until he learned of the recording, he believed the defense’s case was airtight. Estrada’s last minute disclosure of the recording “changed the whole dynamic . . . of the case.” After considering this and all of the other testimony and evidence presented at the hearing, the trial court denied Paul’s request for habeas relief.

Standard of Review

          The decision to grant or deny an application for writ of habeas corpus rests within the trial court’s discretion; we review the trial court’s decision for an abuse of that discretion. Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex. Crim. App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex. App.—Houston [1st Dist. 2010, no pet.). We view the facts in the light most favorable to the trial court’s ruling and defer to the trial court’s implied factual findings that are supported by the record. Wheeler, 203 S.W.3d at 325-26; Washington, 326 S.W.3d at 704. 

Double Jeopardy

          Paul argues that, to avoid an acquittal, the State intentionally goaded him into requesting a mistrial by failing to disclose the recording of his conversation with Johnwell, and that a second trial is jeopardy-barred by the federal and state constitutions. See U.S. Const. amend. V (providing “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”); Tex. Const. art. I, § 14 (“No person, for the same offense, shall be put twice in jeopardy of life or liberty.”). The double-jeopardy provisions guarantee that a criminal defendant will not be subject to repeated attempts at prosecution for the same offense. See Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 2087 (1982); Wheeler, 203 S.W.3d at 322; Ex parte Legrand, 291 S.W.3d 31, 36 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). A second trial ordinarily is not jeopardy-barred when a trial court grants a defendant’s motion for mistrial. See Kennedy, 456 U.S. at 676, 102 S. Ct. at 2089; see also Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). But there is a narrow exception to this rule: a defendant may raise the bar of double jeopardy when the prosecutor’s conduct giving rise to his motion was intended to “goad” the defendant into moving for a mistrial or to avoid the possibility of an acquittal. See Kennedy, 456 U.S. at 676, 102 S. Ct. at 2089; Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007) (adopting Kennedy as matter of state constitutional law); see also Ex parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007). 

The evidence, when viewed in the light most favorable to the trial court’s ruling, supports the denial of habeas relief. At the time Paul requested a mistrial, the State had presented the testimony of fifteen witnesses and rested its case-in-chief. The lead prosecutor believed the State’s case was strong enough to secure a conviction; she did not want a mistrial. Whether the State intentionally failed to disclose the recording of Paul’s conversation with Johnwell was disputed. Each of the prosecutors who worked on the case file expressly denied having intentionally withheld the recording from the defense. Estrada and Johnson, the two prosecutors with the most familiarity with the file, testified that the recording and transcript of the conversation was in a file made available to the defense for review. Paul’s defense attorneys, however, denied that fact. They testified that they were never provided a copy of the recording or transcript and that such failure was intentional on the part of the State because the State had no way to rebut Paul’s declaration that he shot the complainant in self-defense. Accordingly, the trial court’s denial of Paul’s habeas application—particularly as that ruling reflects a finding that the prosecutors did not intentionally fail to disclose the recording or goad Paul into requesting a mistrial—was based on an evaluation of the credibility and demeanor of the witnesses, and we must defer to the trial court’s ruling. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). On this record, a retrial is not jeopardy-barred under either the federal or state constitution. See Kennedy, 456 U.S. at 676, 102 S. Ct. at 2089.

Conclusion

          Because the record supports the denial of Paul’s pretrial application for a writ of habeas corpus, we affirm the trial court’s judgment.

                                                                   Harvey Brown

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish.  Tex. R. App. P. 47.2(b).