Petition for Writ of Certiorari — Noah Espada, Petitioner v. Texas

No. - - - - - - -

INTHE

SUPREl\1E COURT OF THE UNITED STATES

NOAH ESPADA- PETITIONER

vs.

STATE OF TEXAS -RESPONDENT

On Petition for Writ of Certiorari to

the Fourth Court of Appeals

for San Antonio, Texas

APPENDIX

Michael C. Gross,

Counsel of Record

1524 North Alamo Street

San Antonio, Texas 78215

(210) 354-1919

(210) 354-1920 Fax

TABLE OF CONTENTS

APPENDIX

Opinion by Fourth Court of Appeals, San Antonio, Texas . . . . . . . . . . . . . . . . . A

Order of379th Judicial District Court, Bexar County, Texas ............... B

Denial of motion for rehearing by Fourth Court of Appeals . . . . . . . . . . . . . . . . C

Refusal of petition for discretionary review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D

APPENDIX A

https://advance.lexis.com/documentprint/documentprintclick/?pd...

Lexis Advance®

Research

Document: Ex parte Espada, 565 S.W.3d 326

_ _ ____

........... ·-······...................................._

.... ........................... ................................... ............__., __ ., ..,, ..~.~---... -

- --

Ex parte Espada, 565 S.W.3d 326

Copy Citation

Court of Appeals of Texas, Fourth District, San Antonio

July 18, 2018, Delivered; July 18, 2018, Filed

No. 04-17-00509-CR

Reporter

565 S.W.3d 326 * I 2018 Tex . App. LEXI S 5431 ** I 2018 WL 3440724

EX PARTE Noah ESPADA

Subsequent History: Petition for discretionary review refused by Ex parte Espada, 201 9 Tex .

Crim. App. LEXIS 121 (Tex. Crim . App ., Feb . 6, 2019 )

Prior History: [** 1 ] From the 379th Judicial District Court, Bexar County, Texas. Trial Court

No. 2004CR3638. Honorable Ron Range! ...,,, Judge Presiding.

Espada v. St ate, 2008 Tex. Crim. Ap p. Unpub. LEXIS 806 (Tex . Cr im . App., Nov. 5, 2008)

Disposition: AFFIRMED.

Core Terms

inmate, fight, jail, trial court, double jeopardy, parte, cell, future dangerousness, perjured

testimony, cellmate, jeopardy, same offense, resigned, retrial, guard, capital murder,

punishments, writ of habeas corpus, punishment phase, apartment, mistrial, killed, false

testimony, personnel file, suspension, pre-trial, Appeals, facing , Post-Conviction, prosecution's

I of 11

5/2/2019, 11:25 AM

https://advance.lexis.com/documentprint/documentprintclick/?pd...

Case Summary

Overview

HOLDINGS: [1]-The court properly denied the writ of habeas corpus; although defendant

successfully prevailed in having his first conviction set aside after proving the State relied

on perjured testimony, whether the jail guard's personnel file constituted Brady material,

and whether the State was obligated to provide such material to defense counsel, did not

affect jeopardy under U.S. Const . a mends . V, XIV and Tex. Const, art. I, § 14.

Outcome

Order affirmed.

►

LexisNexis@ Head notes

·········••»••·· ··---········-···· ·-~--·············•«•--·--- -

- - - - - - · · ······························· ~-- --·--····

Counsel: For APPELL.Jl,NT: Michael C. Gross ...., Gross & Esparza, P. L.L. C. ..,,., San Antonio, TX.

For APPELLEE: Enrico Va ldez....-, San Antonio, TX.

Judges: Opinion by: Pat ricia 0 . Al varez -.,, Justice. Sitting: Ka ren Angelin i ....-, Justice,

Marialyn Ba rnard..,,., Justice, Patricia 0 . Alvarez ..., Justice.

Opinion by: Patricia 0. Alvarez...-

Opinion

[*327] AFFIRMED

Appellant Noah Espada appeals an order denying his application for pre-trial [*328] writ of

habeas corpus. On appeal, Espada argues the State's attempt to relitigate the question of future

dangerousness is a violation of the Double Jeopardy Clause after the punishment phase of his

first trial was overturned based on perjured testimony. We affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal addresses the trial court's denial of Espada's application for pre-trial writ of habeas

2 of 11

5/2/2019, 11:25 AM

https://advance.lexis.com/documentprint/documentprintclick/?pd...

corpus. During the habeas proceeding, Espada alleged the trial court's grant of a new

punishment hearing on his capital murder conviction was barred by double jeopardy.

Because the facts developed in the guilt-innocence and original punishment phase provide

necessary background to understand the appellate issues, [**2] a brief summary of the original

proceedings is set forth below.

A. Capital Murder Trial-August 2005

1. Guilt-Innocence Phase

Noah Espada was charged and found guilty by a Bexar County jury of capital murder of Luke

Scott and Sandra Ramos. Espada v. State, AP-75,219, 2008 Tex. Crim. App. Unpub. LEXIS 806,

2008 WL 4809235 {Tex. Crim. App. Nov. 5, 2008) (not designated for publication). Espada was

working at a nightclub and experienced regular problems with his manager, Luke Scott. 2008

Tex. Crim. App. Unpub. LEXIS 806, [WL] at *1. Espada was fired on February 14, 2004. Id.

Two weeks later, Espada followed Scott to his apartment complex. Id. Espada climbed onto the

balcony of what he thought was Scott's apartment; however, the apartment was occupied by

Sandra Ramos, who did not know Scott. Id. Ramos tried for half-an-hour to convince Espada to

spare her life, but Espada "didn't want to get caLght." Id. He "hit Ramos on the back of her head

with the butt of his handgun, and then bound her hands and legs with tape." Id. The testimony

revealed that before Espada left the apartment, Ramos regained consciousness. Id. Espada

"placed a plastic trash bag over her head and tightened it. Id. [He] then took Ramos's truck key

and left her apartment while she was still alive" and struggling to breathe. Id.

A few days later, Espada returned to the apartment complex, [**3] entered Scott's apartment

through the balcony, and waited for Scott to return home. Id. When Scott entered the

apartment, Espada shot him three times with a .45 revolver. Id. The third shot was to the back

of Scott's head as he tried to flee. Id. Espada "took Scott's car keys, watch, hand-held computer,

and wallet, and then drove away in Scott's car." Id.

The jury returned a guilty verdict for the capital murder of Luke Scott and Sandra Ramos.

2. Punishment Phase

For purposes of this opinion, we focus on the punishment testimony of two witnesses: (1) the

Bexar County jail guard, Christopher Nieto, whose testimony the trial court described as, "at the

very least, misleading;" and (2) the State's expert forensic psychiatrist, Dr. Richard Coons.

a. Christopher Nieto

Christopher Nieto, a Bexar County jail guard during the time Espada was in custody and awaiting

trial, was called by the State regarding several illegal acts Espada committed while in Bexar

County custody. At the time of trial, however, Nieto no longer worked for the Bexar County

Sheriff's Office. He explained that he

. .. lent my vehicle out to my brother-in-law [and he] was doing some bad thlngs

he wasn't supposed to be doing. [**4] He brought my vehicle back and he left a

joint in there. I went to work. They [*329] had a random search of vehicles. My

vehicle came up dirty. After that, they called me out. I had to take a uri ne test and

I had to take a polygraph test. Everything came back negative.

3 of 11

5/2/2019, 11:25 AM

https://advance.lexis.com/docurnentprint/documentprintclick/?pd...

The fact of the matter was that they found half a joint in there. And after that, I

resigned.

Nieto reiterated that he never failed a urinalysis test, his brother signed an affidavit the joint

was his, and that Nieto resigned to avoid disciplinary actions.

Nieto testified that on April 27, 2004, and the following day, April 28, 2004, during inspections of

Espada's cell, Nieto located contraband-Xanax pills-in Espada's bunk. Nieto also testified that

on April 28, 2004, he witnessed Espada exit his cell, and instead of turning left to walk to the

stairs, Espada "immediately turned to his right and basically attacked [another inmate] with a

closed fist; started t hrowing punches at his upper body and torso. 11 Nieto described Espada as

the aggressor, and that the other inmate "had to protect himself."

Lastly, Nieto testified that on one occasion the intercom in Espada's cell was inadvertently left on

when Espada's cellmate asked for [**5] a Tylenol, and Nieto overheard Espada bragging to his

cellmate about the killing of one of his victims and that Espada left her gasping for air.

b. Dr. Richard Coons

The State also callecl expert Dr. Richard Coons, a forensic psychiatrist, to testify regarding future

dangerousness. Dr. Coons testified that Espada would probably commit criminal acts of violence

that would constitute a continuing threat to society. He further ident ified certain evidence as

particularly important in his determination. First, Dr. Coons testified, "There's fighting in the jail

with another inmate. And it's a bad sign that someone would be violent during-awaiting trial for

capital murder knowing there's an issue of future dangerousness in the offing." Dr. Coons also

noted that Espada's murder was planned, he followed it, and when an innocent individual was in

his way, he killed her for the sole pu'rpose of covering his tracks. "And apparently ... bragging

[about it]." Dr. Coons grouped these behaviors as a strong indication of Espada's "lack of

personal control," a poor conscience, and no remorse.

c. State's Closing Arqument

During the State's closing, the prosecutor argued the evidence supported beyond a

reasonable [**6] doubt that Espada represented a future danger. Espada was in jail, facing the

death penalty, "[h]e knows he's got to keep his nose clean. And 40 days after he's in jail, he

attacks another inmate." The prosecutor continued, "That, ladies and gentlemen, is an act of

violence. [Espada's] already answered your questioned beyond a reasonable doubt; not only by

what he did to [the victims], but what he's done when he's been locked up."

The jury answered "yes" to the future dangerous special issue and "no" to the mitigating

circumstances special issue. Based on the jury's findings, the trial court sentenced Espada to

death.

The Court of Criminal Appeals affirmed the conviction. Espada, 2008 Tex. Crim. App . Un pub.

LEXIS 806, 2008 WL 4809235, a t *19 .

ESPADA GRANTED N:ew PUNISHMENT HEARING

Espada filed an application for post-conviction writ of habeas corpus in July of 2007. On June 6,

2012, Espada was granted a hearing on his application.

4 of 11

5/2/2019, 11:25 AM

https ://advance .lexis .com/docurnentprint/documentprintclick:/?pd ...

A. Application for Post-Conviction Writ of Habeas Corpus: Transcripts from December

13, 2012 and January 16, 2013

The hearing was held on November 12, 2012, December 13, 2012, and January 16, [*330]

2013. The relevant testimony focused on whether (1) the State suppressed exculpatory and

impeachment evidence in violation of Espada's right [**7] to due process under Brady; and (2)

the State knowingly presented perjured testimony. Because Espada's argument focuses on the

State's duty to learn the reason for Nieto's resignation and the actual facts behind the fight in

which Espada was involved, the drugs in Espada's cell, and Espada's alleged confession, we

provide a more detailed summary of the testimony in question.

1. Evidence Presented at Habeas Hearing

a. Christopher Nieto

After failing to appear at the first setting, Nieto did ultimately appear pursuant to subpoena. The

trial court's findings described that after confirming everything he testified to at the trial was

true and correct, "Nieto's credibility then began to unravel." Nieto acknowledged he forgot about

the bong and the several plastic baggies in his veh icle, one with a small amount of residue.

Nieto denied knowledge of any investigation of him for trafficking drugs into the jail; however,

he admitted that on the day he resigned, an inmate accused him of trafficking cocaine in the jail.

He also understood the officers were looking for something during the search of his vehicle, "but

he claimed '[t]hey didn't tell me what."' He clarified that although his testimony [**8] appears

to suggest he passed the urine and polygraph tests, what he meant was that he was waiting to

be called for the tests so that everything would come out negative . But Nieto acknowledged that

neither test was ever scheduled or administered.

Nieto was also presented with an order of suspension he received based on an incident on March

28, 2004, wherein Nieto made aggressive and threatening physical contact with Espada,

grabbed him and spoke to him in an antagonistic and arrogant manner, ultimately issuing the

"veiled threat" about being "the bad ass who killed two people." Nieto denied the incident

occurred and claimed the suspension was the result of a dispute between Nieto and another

officer. Nieto felt the other officer was too lenient with the inmates and the other officer felt

Nieto was "too much of an ass with the inmates." Nieto admitted signing off on the report, but

asserted his suspension was for entering the other officer's unit without authorization, not for

anything said to Espada. The Bexar County Sheriff's Officer chief who conducted the hearing

testified that Nieto admitted everything in the suspension order and did not "deny any of the

allegations." Nieto also [**9] denied setting up the fight between Espada and the other inmate.

As proof of such, Nieto testified at great length regarding who opens the doors on any given day

and which inmates are released during a given hour.

Nieto acknowledged being convicted of a state jail felony, theft over $1,500, on August 23,

2010. Nieto testified he did not know his brother-in-law's contact information and refused to

provide his sister's contact information. When asked to produce his cellphone, Nieto claimed the

cellphone was at home. Nieto's counsel informed the trial court that the cellphone was in the

custody of Nieto's girlfriend, who was standing outside the courtroom. Nieto's testimony was

halted when he asked to stop questioning and to speak to his counsel.

b. other Officers and Inmates

The K-9 officer testified that she was instructed to walk around Nieto's vehide with her K-9. The

dog alerted and ult imately located a plastic baggy with marijuana, a bong, and other plastic

bags, but [*331] not a joint. Nieto's Bexar County Probation Officer testified that Elite

5 of 11

5/2/2019, 11:25 AM

··--·----·--·----- -- ---------~-----

-

-

https://advance.lexis.com/docwnentprint/documentprintclick/?pd...

Counseling's assessment of Nieto read, "Cannabis dependent, cocaine abuse, negative learned

behaviors, dishonesty, manipulativeness, denial o~ treatment [**10] needs, underemployment,

lack of impulse control."

Espada's cellmate was also called during the habeas hearing. His cellmate testified that he never

asked for Tylenol and that Nieto planted the drugs in their cell. Regarding the fight, the cell mate

testified that he observed the other inmate, with Espada in a choke hold, telling Espada, "that's

what you get for killing a girl." The inmate further alleged that Nieto rushed to the stairs, but did

not initiate the alarm which would have warned the other guards. As Nieto approached the

stairs, he yelled at Espada and the other inmate to get on the floor and both inmates complied.

Nieto then ran down the stairs, closing food tray doors so that "no one could look through them

and witness what was happening." As Nieto apprcached Espada, the cellmate testified that

"Nieto Jumped in the air and came down with his knee on [Espada's] back. [Espada] was not

resisting at that time." Another inmate echoed EsJada's cellmate's version of the fight. He also

described Espada as weighing no more than 120 pounds, while the other inmate weighed about

230 pounds. This inmate tried to warn Espada when he heard Nieto joking and telling people to

"[g]et ready [**11] for the show."

Finally, the other inmate involved in the fight testified that Nieto asked him to fight Espada.

Nieto arranged for both inmates to have the same recreation time and then told him to "make it

look good," and "just don't go too overboard with him," and '"smash on him, you know." When

Nieto saw Espada leaving his cell, Nieto would say, "dead man walking," and told him that he

was going to "f-k ... over" Espada at trial. At the end of the fight, Espada's blood was

everywhere; the. inmate tried to throw Espada over the railing, but Nieto stopped him and told

him "just get out of the way." He confirmed that rJieto jumped on Espada's back and neck and

that Espada did not n:sist. In exchange for beating up Espada, the inmate claimed he received

extras including Xanax pills, extra day room time, and phone privileges.

A Bexar County Sheriff's deputy testified that the day after the fight, he was relocating Espada

and a calm Espada told him, "he had to get [the other inmate] first because [the other inmate

had] been talking shit about him and saying that he's a little bitch." The jail guard who opened

the cell doors on the day in question testified that he saw the two inmates exit [**12] their

cells, come together, and begin to fight. According to the guard, Espada was the aggressor and

the other inmate hit back. He denied the presence of significant blood or that the other inmate

attempted to throw Espada over the rail.

c. State Prosecutor

The prosecutor testified that he was an attorney with the Bexar County District Attorney's Office

for twenty-two years and had tried fifteen capital murder cases, approximately half of which

were death penalty cases. When the decision is rrade to seek the death penalty, a prosecutor

must seek out other evidence that supports or mitigates against the death penalty. "One of the

places a prosecutor looks for evidence of future dangerousness is the jail." The jail records

generally provide evidence of "any incident reports or failure to follow rules, or contraband

violations, or getting in fights, or fighting with jailers, that might help to prove future

dangerousness."

He remembered seeing the report about the fight between Espada and the other (*332]

inmate and the quote from Espada, "It's all true." The prosecutor testified that he never saw

anything before trial that conflicted with Espada's acknowledgement of his involvement and

taking credit [** 13] for the fight and the Xanax in his cell. He also never saw anything to

suggest that Nieto was lying about overhearing Espada bragging, finding the Xanax in Espada's

cell, or the fight. The prosecutor further explainec that because Nieto was no longer with the

Bexar County Sheriff's Office, he was more difficult to locate and he was not able t o speak to

him prior to jury selection. In fact, the prosecutor met Nieto just before the punishment phase

began; he spoke to him in a conference room for approximately fifteen minutes, immediately

before Nieto was called to testify.

During their meeting, Nieto acknowledged to the prosecutor that his brother -in- law left a

marijuana joint in Nieto's vehicle and the joint was found during a random search of the

employee vehicles. Nfeto claimed he was going to be reprimanded or punished and decided to

resign to avoid the punishment. When asked whether "it seem[ed] odd to you that [ Nieto]

6 of 11

5/2/2019, 11:25 AM

https://advance.lexis.com/documentprint/documentprintclick/?pd...

resigned after everything came back negative?" The prosecutor explained that the first time he

spoke to Nieto was on the day of his testimony, shortly before taking the stand. In fact, Nieto's

testimony that he passed the polygraph and urine tests, was the first time [**14] the

prosecutor was aware the tests were administered to Nieto. The jail guard's resignation did not

strike the prosecutor as odd because "[i]t's not the most prestigious job in the world." Nothing

about their conversation "set-off red flags" and it is unfortunately not uncommon for former jail

guards to resign because of potential marijuana JSe. Nieto's version of events still matched the

reports in the State's possession, and each of the reports appeared to be acknowledged as true

by Espada. "Nieto seemed truthful and perfectly credible to him at the time."

The prosecutor also testified that he did not know Nieto was under FBI investigation or the White

Collar Crime division of the Bexar County District Attorney's Office. The defense asked Nieto

about the FBI investigation, Nieto denied it, and the defense did not pursue it any further. The

prosecutor further explained that, as part of the trial division, he did not have access to or

knowledge of cases being investigated by or presented to the grand jury by the White Collar

Crime division. He never talked to anyone or discussed Nieto with the White Collar Crime

division. The prosecutor also testified that he never requested or obtained (**15] Nieto's

personnel file from the Sheriff's Office or internal affairs, but is not his practice to do so.

The prosecutor further testified that he had a "really good working relationship" with both

defense counsel; they both knew the case and were focused on punishment. The prosecutor

acknowledged never speaking to either inmate or knowing that the inmate involved in the fight

was ready to testify that he fought Espada at Nieto's request. Espada's cellmate also testified

that he never asked Nieto for Tylenol, which is how Nieto claimed to overhear Espada bragging

about the killing.

The prosecutor was presented with a copy of Nieto's internal affairs file and his personnel file,

which the prosecutor had never obtained from tJ-e Sheriff's Office. Contained within the

personnel file was the notice of proposed suspension dated April 14, 2004, over eleven months

before jury selection in Espada's capital murder case. There was further testimony that Nieto

was suspended for "walking up to Noah Espada, grabbing him by the shirt and saying, You're

the badass who killed two people, you better hope that I don't work here on Sunday-on

Saturday." The [*3'.33] prosecutor denied knowing that at the time of trial [**15] Nieto had

been investigated at a grand jury proceeding by the White Collar division of the Bexar County

District Attorney's Office.

During cross-examination, the prosecutor explained that he always requested that his

investigator check the jail Jogs, incident reports, or anything similar from the jailers to determine

whether there was any contraband or fights. He -eiterated that neither before or during the trial

did he have any information, formal or informal, that there was any reason to call the Nieto jail

logs into question. He further testified that the fact that Espada's cell mate might testify

favorably to Espada was also not unusual and did not give him reason to suspect Nieto's

testimony. Although there were other incident reports made at the jail, the prosecutor explained

that he generally only brings in the "main guy" if possible. In this case, that was Nieto.

2. Trial Court's Findings

On October 8, 2014, the trial court filed a 132-page Findings of Fact, Conclusions of Law,

Recommendations, and Order to the Texas Court of Criminal Appeals. The trial court made

several findings, including:

• "the State did not withhold exculpatory evidence or knowingly present false

testimony," [**17)

• "trial counsel was not ineffective for failing to discover the information concerning

Nieto before trial,"

• "Nieto presented false testimony,"

• Nieto's "false testimony was 'more likely than not the tipping point' on the issue

of future dangerousness," and

7 of 11

5/2/2019, 11 :25 AM

https ://advance.lexis .com/docwnentprint/documentprintclick/?pd...

• Espada "established by a preponderance of the evidence that Nieto's false

testimony was material to the jury's finding of future dangerousness."

See Ex parte Espada , No. WR- 79,108-01 , 20 15 Tex. Cri m. App. Unpu b. LEXIS 463, 2015 WL

404 0778, at *2 (Tex. Crim. App . Jul y 1, 201 5) (per curiam) (not designated for publication).

Based on its findings, the trial court recommended the Texas Court of Criminal Appeals grant

Espada a new punishment hearing. Id. The Espada Court granted relief with respect to the

allegations of material false testimony and remanded the cause for a new punishment hearing.

Id.

Prior to jury selection for the new punishment hearing, Espada filed a pre-trial writ of habeas

corpus alleging the State's failure to disclose exculpatory evidence about Nieto was a violation of

Espada's right to due process.

B. Pre-Trial Writ of Habeas Corpus

Espada filed his pre-trial writ on May 5, 2017. At the hearing, held on June 7, 2017, defense

counsel argued it was "unfair" for Espada to have to defend against the State's [**18] seeking

of the death penalty for several reasons: (1) the impossibility of explaining to the jury where

Espada has been for the last twelve or thirteen years; (2) the State cannot use Espada's being

locked up on death row as reason for Espada's lack of violence during last twelve or thirteen

years; (3) State should have known "there's somet hing fishy" about Nieto; and (4) the State

bore the burden to obtain the information about Nieto and provide it to the defense and failed to

do so. Espada argued the State thus could not "seek death in this case under the grounds of

double jeopardy and estoppel."

The trial court denied t he writ and this appeal ensued.

[*334] DOUBLEJEOPARDY

A. Standard of Review

HN1-:; "An applicant seeking habeas corpus relief must prove his claim by a preponderance of

the evidence." Ex parte Cruz, 350 S.W.3d 166 , 167 (Tex . App .- San Anton io 2011, orig.

proceedi ng) . When reviewing a trial court's ruling on an application for habeas corpus, an

appellate court reviews the evidence in the light most favorable to the trial court's ruling, and

upholds the ruling absent an abuse of discretion. See id. ; Knia tt v. S tate, 206 S. W.3d 657, 664

(Tex. Cri m . App . 2006) .

B. Arguments of the Parties

Espada contends that regardless of whether the prosecutor knew about the allegations, the

evidence was in the State's possession, the evidence [** 19] was favorable t o Espada and

material to punishment-a clear Brady violation. The evidence was in the jailer's personnel file at

the Sheriff's Office, in an internal affairs file at the Sheriff's Office, and the Bexar County District

Attorney's White Collar Crime Unit had presented evidence to the grand jury concerning the jail

guard in question. Because the testimony "was more likely than not the tipping point that

persuaded the jury to find that [Espada] was a future danger," Espada argues the prosecutor's

8 of 11

5/2/2019, 11 :25 AM

https://advance.lexis.com/documentprint/documentprintclick/?pd...

misconduct resulted in Espada's exposure to double jeopardy on the finding of future

dangerousness. Espada argues the State is barred from retrying the issue of future

dangerousness and is therefore barred from resentencing Espada to a death sentence.

The State counters that constitutional proscription against double jeopardy provides three types

of protection against duplicative prosecutions: 1) protection against a second prosecution for the

same offense after an acquittal; 2) protection against a second prosecution for the same offense

following a conviction; and 3) protection against multiple punishments for the same offense. See

Speights v. State, 464 S.W.3d 719, 722 (Tex. Crim. App. 2015). Espada's punishment phase

retrial does not violate [**20] any of these protections. He was not acquitted of the offense, he

is not being prosecuted again for the same offense, and he is not facing multiple punishments

for that offense. Rather,. Espada is facing a new punishment as a result of relief granted in a

post-conviction habeas proceeding. The Court of Criminal Appeals set aside the prior sentence

and specifically remanded the case back to the trial court for "a new punishment hearing."

C. Double Jeopardy !Post-Conviction

HN2'fl Generally, a defendant in a criminal case may not be put in jeopardy by the State twice

for the same offense. U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 14; see also Pierson v.

State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014). Double jeopardy generally "does not

prevent the government from retrying a defendant who succeeds in getting his first conviction

set aside, through direct appeal or collateral attack, because of some error in the proceedings

leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285 1 102 L. Ed. 2d 265

(1988); accord Ex parte Davis, 957 S.W.2d 9, 12 (Tex. Crim. App. 1997). "[I]f a conviction is

reversed because the evidence is legally insufficient to convict, retrial is barred because, for

double jeopardy purposes, thls is equivalent to a judgment of acquittal." Ex parte Davis, 957

S.W.2d at 12 (citing United States v. Doyle, 121 F.3d 1078, 1083 (7th Cir. 1997)).

In Agurs, the United States Supreme Court further defined the scope of Brady violations. United

States v. Agurs, 427 U.S. 97, 103 1 96 S. Ct. 2392, 49 L. Ed. 2d [*335] 342 (1976). HN3"'ii

The Court discussed three types of violations [**21] that fell within the scope of Brady: (1)

perjured testimony; (2) specific requests; and (3) general requests. Id. at 103-07. First, the

Court described undisclosed exculpatory evidence demonstrating the prosecution's case included

perjured testimony, and the prosecution knew or should have known of the perjury. Id. at 103.

This type of violation, the Court stated, is fundamentally unfair and violates due process. Id.

Thus, a conviction based on knowingly perjured testimony must be set aside if there is any

reasonable likelihood t he testimony could have affected the judgment of the jury. Id. Indeed,

this type of violation "involve[s] a corruption of the truth-seeking function of the trial process."

id. at 104.

Many Texas courts follow Agurs when a Brady violation results from evidence disclosed after trial

that "demonstrates that the prosecution's case includes perjured testimon~and that the

prosecution knew, or should have known, of the perjury." Id. at 103. HN4+ A person commits

perjury if "he makes a false statement under oath or swears to the truth of a false statement

previously made and the statement is required or authorized by law to be made under oath."

TEX . PENAL CODE ANN . § 37.02 (West 2016).

Because Nieto's testimony was clearly a false statement, [**22] intended to deceive the State

and the jurors, we conclude this case falls within the purview of Agurs. See Agurs, 427 U.S. at

103. As the State argues, Espada proved the State relied on perjured testimony. After the

habeas hearing, the trial court determine<:i the testimony was relevant, material, and admissible

and granted a new trial on punishment. HNs"'-1 If the trial proceeds to a verdict, the defendant is

convicted, and that conviction is later set aside due to a procedural error-and not for lack of

evidence-double jeopardy does not bar a retrial. Compare Ex parte Davis, 957 S.W.2d 9, 15

(Tex. Crim. App. 1997) (holding that jeopardy does not apply to bar a retrial where defendant's

conviction is reversed on appeal due to prosecutorial misconduct); Ex parte Legrand, 291

S.W.3d 31, 40-41 (Tex. App.-Houston [14th Dist.] 2009, pet ref'd) (holding that jeopardy does

not apply to bar retrial where defendant's motion for new trial is granted due to prosecutorial

misconduct) with Speights, 464 S. W.3d at 722 (providing double jeopardy protects against

second prosecution for the same offense after an acquittal or following conviction or multiple

punishment for same offense).

9 of 11

5/2/2019, 11:25 AM

https ://advance.lexis .com/documentprint/documentprintclick/?pd...

Espada was not acquitted of capital murder. See Espada, 2008 WL 408235. The Court of

Criminal Appeal found the jury relied on perjured testimony in the punishment phase and

granted a new trial as to punishment-that is not the same as an [**23J.. acquittal. See Ex parte

Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997) (concluding HN6½ reversal not based on

sufficiency provides "continuing jeopardy"). Espada is not being punished for the same offense,

nor facing multiple punishments for that offense. Cf. Speights, 464 S.W.3d at 722. Instead,

Espada is facing a new punishment hearing at which the State must present evidence to support

the sentence it seeks. See Davis, 957 S.W.2d at 15; Legrand, 291 .S.W.3d at 40-41.

HN'T'i When, as in this case, the matter is tried to a conclusion, and the jury is provided an

opportunity to render a verdict, the concerns of a prosecutor goading a mistrial are not present.

Cf. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 72 L Ed. 2d 416 (1982) (barring

retrial where defendant demonstrated prosecutor's misconduct "intended to 'goad' the defendant

into moving for a mistrial[.]"); [*336] accord Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim.

App. 2007). The distinction is clear. The Kennedy concern deprives a defendant of the

opportunity for a jury to find the defendant not guilty. It takes the case away from the jury

before the jury can find in favor of a defendant, thus the temptation for a prosecutor to

potentially act less scrupulously. It is the Kennedy scenario when the prosecutor's Brady

violation results in a mistrial that triggers double jeopardy protections. See Ex parte. Lewis, 219

S.W.3d at 358 (concluding defendant's valued right to complete his trial before the first jury

would be a "hollow [ **24] shell" if retrial were permitted after prosecution intentionally

precipitated a mistrial); see also Kennedy, 456 U.S. at 673.

CONCLUSION

Here, Espada was not deprived of the right to one jury; Espada's "first jury" completed the trial

to the end. Because the case was completed to verdict, whether Christopher Nieto'·s personnel

file constituted Brady material, and whether the State was obligated to provide such material to

Espada's defense counsel, does not affect jeopardy in this case. Because the information came

to light after Espada's conviction, the information never raised the issue of a mistrial. As

explained above, the scenario about which Espada complains is HN8"'fl when a mistrial is goaded

by the prosecutor, then Brady does in fact trigger double jeopardy to bar a retrial. See Ex parte

Davis, 957 s. W.2d at 15.

After proving the State relied on perjured testimony, Espada successfully prevailed in having his

first conviction set aside. Based on these facts, howev~ double jeopardy does not prevent the

government from retrying Espada. See id. at 14 (HN9"t "It has long been the law that where a

defendant's due process rights have been violated to the extent that he has been denied a fair

trial, the proper remedy is reversal of his conviction and remand of [**25] the cause to the trial

court for further proceedings."). The trial court therefore properly denied relief and we overrule

Espada's sole issue on appeal.

Patricia 0 . Alvarez..,,., Justice

PUBLISH

Content Type: Cases

Terms: noah w/5 espada

Narrow By: Court: Texas

Date and Time: May 02, 2019 12:25:37 p.m. EDT

lOofU

5/2/2019, 11:25 AM

https://advance.lexis.com/documentprint/documentprintclick/?pd...

Ir LexisNexts~

About

Lexis Nexis®

Privacy

Policy

Terms&

Conditions

Sign

Out

Copyright

©2019

Lexis Nexis.

All rights

@_ RELX Group~

reserved.

11 of 11

5/2/2019, 11 :25 AM

. ..

- ··- - - · · ·- --

-

---

APPENDIXB

- -

· -

···---

·· -

-

-

.IIIIIIIH

... ....

CAUSE NO. 2004..CR-3638

THE STATE OF TEXAS

§

§

§

§

§

V.

NOAHESPADA

IN THE DISTRICT COURT OF

BEXAR COUNTY, TEXAS

379TH JUDICIAL DISTRlCT

ORDER

The Writ ofHabeas Corpus Seeking Relief from Double Jeopardy is hereby:

✓

GRANTED and the State of Texas is prohibited from again seeking a

death sentence in this case.

DENIBD.

SIGNED ON THIS THE

7 ?)'C; day of~-'-"--~----• 2017.

APPENDIXC

·· ·-·-··· · ·---··

····- ···· ·· ···· - - -

FILE COPY

jfourtb <!Court of ~ppealii

~an ~ntonto, 'QCexas

November 1, 2018

No. 04-17-00509-CR

Ex Parte Noah ESPADA,

Appellant

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2004CR3638

Honorable Ron Rangel, Judge ·Presiding

ORDER

Sitting:

Karen Angelini, Justice

Marialyn Barnard, Justice

Patricia 0. Alvarez, Justice

Appellant Noah Espada's Motion for Rehearing, filed on September 14, 2018, is

DENIED.

~c:DbAA--2

Patricia 0. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said

court on thi~ 1st day of November, 2018.

KE

Clerk of Court

APPENDIXD

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS .FILE COPY

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

~~~ilX

tP.1 ~~~·~:~: ·-- -,

ff/''~, :5:i·;~,f~ .~t~~;i:~

2/6/2019

fl?H \0-?. .( tr,;\:\

COA No. 04-17-00509-CR

1

ESPADA, EX PARTE NOAH

PD-1256-18

On this day, the Appellant's pe!i.~ibR,fdY gj.s {reftbnary review has been refused.

JUDGE HERVEY, JUDGE RIC~~ooi6~1it'.iKND JUDGE YEARY DID NOT

PARTICIPATE

Deana Williamson, Clerk

1

~jrSl~r!&ij ifoJe;f3s3a

4TH COURT OF APPEALS CLERK

KEITH HOTTLE

300 DOLOROSA, THIRD FLOOR

SAN ANTONIO, TX 78205-3037

* DELIVERED VIA E-MAIL *