Thadis Garland Paul, III v. State

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).