Ex parte Martinez

• Decision Date: 31 July 2018
• Docket Number: No. 04-17-00280-CR,04-17-00280-CR
• Citation: 560 S.W.3d 681
• Parties: EX PARTE Miguel MARTINEZ
• Court: Texas Court of Appeals

560 S.W.3d 681

EX PARTE Miguel MARTINEZ

No. 04-17-00280-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: July 31, 2018

Discretionary Review Refused December 5, 2018

Lauren Scott, Nicholas A. LaHood, for The State of Texas.

Joe D. Gonzales, Mark Stevens, San Antonio, Christian David Henricksen, for Appellant.

Sitting: Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice

OPINION

Opinion by: Marialyn Barnard, Justice

This is an appeal from the habeas court’s order denying appellant Miguel Martinez’s application for writ of habeas corpus. On appeal, Martinez contends the habeas court erred in denying his application because double jeopardy bars any attempt by the State to retry him for murder following the trial court’s grant of a mistrial. We affirm the trial court’s order.

BACKGROUND

Investigation, Pre-Indictment, Indictment Phases

On January 11, 2015, San Antonio police were dispatched to a scene following a report of "possible shots fired." Upon arrival, authorities found Laura Carter sitting in the driver’s seat of her vehicle, a Honda Accord. She was sitting in the front seat with her hands in her pockets and her feet crossed. She was pronounced dead at the scene. It was later determined Carter died as a result of multiple gunshots to the head.

As a result of their investigation, law enforcement officials came to believe the murder had been committed by Martinez. Ultimately, authorities arrested Martinez for Carter’s murder. Law enforcement authorities continued the murder investigation after Martinez’s arrest. In March 2015, law enforcement completed the "prosecution guide," which was approximately fifty pages in length. The prosecution guide is prepared in its entirety by law enforcement; no part of the guide is prepared by the District Attorney’s Office. The guide generally includes initial offense reports, witness statements, discs of interviews, etc. It is used by prosecutors "to figure out the nuts and bolts of the case."

The prosecution guide was turned over to Jason Goss, first-chair prosecutor in the 437th District Court, which had been assigned to handle the case. Goss testified that around the end of the work day on March 8, 2015, he gave the prosecution guide to the second-chair prosecutor in the 437th District Court to review. According to Goss, she was to review the guide to assist him in preparation for presenting the case to the grand jury. Goss did not believe she took the guide home with her, stating, "It would be unusual for her to do that." The next morning—sometime before 9:15 a.m.—the second-chair prosecutor returned the guide to Goss, informing him that she had read the guide and did not believe she could continue on the case. When Goss queried her as to why, she advised she had a "one-night stand" or "one-time sexual encounter" three years earlier with Gregory Dalton, who was listed in the prosecution guide as a witness. The second-chair prosecutor told Goss she did not even know the man’s real name, but recognized him from his photograph and nickname, Vegas. Goss asked whether she had any contact with Dalton since the initial encounter and she said, "no, it was one night."

Goss agreed and immediately removed her from the case, replacing her with the third-chair prosecutor. He instructed her to have nothing further to do with the case—specifically explaining she was not permitted to communicate with anyone about the case. She stated she understood. At her request, Goss agreed to avoid disclosing the details of her removal if possible.

Goss subsequently explained to the habeas court that he believed the second-chair prosecutor had a "conflict" that precluded her further participation in the matter. As a result of the "conflict," Goss removed her from the case, then went to the court advocate and without explaining the details, advised the advocate that the second-chair prosecutor was conflicted out of the case and there was to be no communication with her about it. Goss stated he constructed a "firewall" in the office to prevent the second-chair prosecutor from having anything to do with the case. Goss believed this action "ended" the matter and he did not think about it again. He explained he had the file the entire time and the second-chair prosecutor "didn't have anything to do with this case."

When asked what he felt the conflict was, Goss replied that he had come from a smaller county in which it seemed as if someone in the prosecutor’s office always seemed to know a defendant or witness. In his former office, they would simply remove the conflicted person and wall them off from the matter. Goss admitted he would not want someone who knew a witness—like the second-chair prosecutor—questioning him or her because it might affect his or her objectivity. They might react favorably or unfavorably with the witness, and the existence of a personal relationship might have the appearance of impropriety. However, Goss specifically testified that at the time of the disclosure, he "knew that what she had told me was not—was not exculpatory, mitigating or relevant so—as far as—as far as to the facts of this case or to trying this case." Thus, he "felt like the issue had been dealt with on my level as the supervisor." Goss never spoke to the second-chair prosecutor again about the matter.

Goss, with the assistance of the third-chair prosecutor, presented the matter to the grand jury. On April 14, 2015, the grand jury indicted Martinez for the murder of Carter.

Pre-Trial Phase

In preparation for Martinez’s February 7, 2017 trial, Goss and District Attorney Nicholas LaHood interviewed Gregory Dalton on January 31, 2017. During the interview, Dalton revealed additional information he had not previously disclosed to law enforcement. The revelations by Dalton prompted Goss to prepare an amended Brady notice in response to a motion previously filed by Martinez and granted by the trial court requesting disclosure of materials within the purview of Brady v. Maryland . See 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the amended notice, which was emailed to the defense on February 1, 2017, Goss fully disclosed the new information provided by Dalton. Goss explained at the habeas hearing that he filed the amended Brady notice because the information revealed by Dalton during the interview showed his willingness to participate in a sexual assault of the victim and in her subsequent murder. Goss stated this information fell within the confines of Brady because it could be used to impeach Dalton’s credibility as a witness.

Goss did not disclose any information about the prior encounter between Dalton and the second-chair prosecutor. He explained he did not believe the "one-time sexual encounter" between the second-chair prosecutor and Dalton fell within the disclosure mandates of Brady . Goss maintained that position during the habeas hearing. However, Goss admitted he was sufficiently concerned to bring others from the District Attorney’s Office into the loop. Goss explained that he "kind of [got] an idea of what the defensive theory might be" with regard to Dalton and his encounter with the second-chair prosecutor. Accordingly, Goss disclosed the encounter between the second-chair prosecutor and Dalton to LaHood. Goss testified at the habeas hearing that LaHood’s initial reaction was the same as his—this was not mitigating, exculpatory, or impeachment evidence that needed to be disclosed to the defense.

LaHood contacted the chief of the appellate division, Enrico Valdez, that same evening. According to LaHood, Valdez advised that it did not seem "like information that needs to be disclosed," but he wanted an opportunity to research the issue and speak to Patrick Ballantyne, chief of the office’s Ethical Disclosure Unit. A couple of days later—on February 2 or 3, 2017, Valdez informed LaHood that he and Ballantyne had researched the issue and believed the encounter between the second-chair prosecutor and Dalton "was not information that was required to be disclosed and that we did not have to disclose it." They suggested, however, that if Goss and LaHood wanted to take additional action with regard to the issue—"in an abundance of caution"—they might consider disclosing to the trial court in camera. LaHood could not remember if he spoke to Goss about what he learned from Valdez, but he assumed Goss was speaking to Valdez and Ballantyne too. He did not ask Goss to make an in camera disclosure to the trial court. LaHood stated he was not concerned about providing the information to Goss because "it wasn't like we thought this was a—you know, a critical point for the—for the trial."

On February 7, 2017, during pretrial motions just prior to voir dire, Goss signed a discovery acknowledgment pursuant to article 39.14(i) of the Texas Code of Criminal Procedure. Article 39.14(i) requires the State to "electronically record or otherwise document any document, item, or other information provided to the defendant" during discovery. TEX. CODE CRIM. PROC. ANN. art. 39.14(i) (West Supp. 2017). As Martinez points out, there was nothing in the disclosure about the one-time encounter between the second-chair prosecutor and Dalton, thereby establishing the State had not disclosed to the defense information regarding the encounter. Under article 39.14(i), the acknowledgment is merely a statement of what was provided by the State during discovery. As the one-time encounter had not been disclosed, it would not have been listed in the article 39.14(i) acknowledgment.

Trial Phase—Multiple In-Chambers Hearings

The parties began voir dire on the scheduled trial date—February 7, 2017. A jury was selected, but not sworn. Proceedings were recessed and the jury left, instructed to return the next day. The next morning, before the jury was sworn, Goss filed a "Motion for Ex Parte Communication and In Camera Consideration of Potential Conflict Issue." The motion was presented to the trial court and a...