Mitchell v. State

• Decision Date: 11 September 1996
• Docket Number: No. 12-96-00211-CR,12-96-00211-CR
• Citation: 963 S.W.2d 532
• Parties: Andrew Lee MITCHELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 532

963 S.W.2d 532

Andrew Lee MITCHELL, Appellant, v. The STATE of Texas, Appellee.

No. 12-96-00211-CR.

Court of Appeals of Texas,

Tyler.

Sept. 11, 1996.

David L. Botsford, Austin, for appellant.

Edward J. Marty, Tyler, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

PER CURIAM.

This appeal arises from the trial court's order of July 11, 1996 denying Appellant, Andrew Lee Mitchell, the relief sought in his pretrial petition for writ of habeas corpus ("Petition"). In that Petition, Appellant asserted six different grounds that he believed barred his retrial. After a three-day pretrial hearing on Appellant's Petition and other pending motions, the trial court granted the writ but denied the Petition. The trial judge made no findings of fact or conclusions of law in support of her ruling. Thereafter, pursuant to TEX.R.APP. P. 44, Appellant appealed the trial court's denial of his petition raising seven points of error. We will affirm.

I. BACKGROUND

In December of 1979, Keith Wills was found shot to death in his fireworks stand; a cigar box containing from $100 to $150 in cash was also missing from the stand. ¹ In January of 1980, when questioned about unrelated matters, Edward Earl Owens confessed to being at the murder scene of Keith Wills. Thereafter, Tony Mitchell, Appellant's son, also admitted his presence at the murder scene, and he implicated his father as the gunman. The State granted Owens immunity, and promised Mitchell 10 years' probation.

During a three-day trial, both Owens and Mitchell testified as accomplice witnesses. According to their testimony, the shooting took place at approximately 8:30 p.m. on the night of December 26th. Evidence also showed that Appellant was in Tyler at the Alfreda Motel at approximately 10:00 p.m. using heroin bought with the proceeds from the robbery of the fireworks stand. Because the victim's time of death was not established by the pathologist and because no testimony conflicted with the accomplices' account as to time of death, the State's theory of the case was that the murder was committed before 10:00 p.m. At the conclusion of the trial, Appellant was convicted of capital murder and sentenced to death. He appealed, and the Court of Criminal Appeals affirmed the conviction concluding that the evidence was sufficient to corroborate the accomplice witnesses' testimony. Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1431, 79 L.Ed.2d 755 (1984).

Several years later, Mitchell sought post conviction habeas corpus relief raising approximately 124 claims for relief. The Court of Criminal Appeals remanded the case to the 241st District Court of Smith County for an evidentiary hearing, which was ultimately conducted in 1989. At that hearing, it was established that two persons, game warden Ralph East and Deputy Kelly Stroud of the Smith County Sheriff's Office, had both given statements that they had seen a person sitting in the fireworks stand watching television after 10:00 p.m. on the night in question. ² From the 1989 hearing, it was then determined that the East and Stroud statements had never been turned over to the Smith County District Attorney's office or to the defense. Thus, based on findings from that 1989 hearing, the Court of Criminal Appeals granted Appellant's 115th claim for relief. Ex parte Mitchell, 853 S.W.2d 1 (Tex.Cr.App.1993), cert. denied, 510 U.S. 864, 114 S.Ct. 183, 126 L.Ed.2d 142. In so doing, the court concluded that suppression of these two exculpatory statements following the defendant's motion for disclosure of all exculpatory evidence in the State's possession "created a probability sufficient to undermine the confidence in the outcome of the instant trial. [citation omitted] Applicant's right to due process by virtue of the Due Process Clause of the Fourteenth Amendment, was violated by the non-disclosure of this evidence." Mitchell, 853 S.W.2d at 6. As a result of this decision, Appellant's conviction was vacated, and he was remanded back to the Smith County Sheriff's custody to answer the indictment. Id.

Appellant's retrial has been scheduled for September 12, 1996. During preparation for pretrial matters in July of 1996, Assistant District Attorney David Dobbs found in the State's file, a page of handwritten notes from Mike Patterson, the prosecutor at the first trial in 1981. Those notes revealed that prior to the first trial, Patterson did have knowledge of Ralph East's statement that East had seen the victim alive after midnight on the night in question. Additionally at the July 1996 hearing, Frank Henderson, the Smith County Assistant District Attorney who participated in the 1989 evidentiary hearing, testified that he had no recollection "now" of having remembered seeing Patterson's note regarding Ralph East back at the 1989 hearing. Henderson further admitted that despite Judge Tunnell's order that the State's file from the first trial be sealed and forwarded to the Court of Criminal Appeals, the State had not done so. On cross-examination, however, Henderson stated that in 1989, he was the person who found Kelly Stroud's report and after discussing it with District Attorney Jack Skeen, he had turned that report over to the defense. He further stated that he had never intentionally withheld any information from the defense during that 1989 hearing.

Hunter Brush, the District Attorney at the time of the first trial, was questioned with regard to the Stroud-East statements and other matters surrounding the first trial. He, however, had no recollection of any significant details. In fact, he did not appear to remember that he had actually participated in the first trial. Brush, however, did testify that if he had known of the Stroud-East statements, he would have pursued indictments against Owens and Tony Mitchell.

Walter Woodhull, an investigator for the Smith County Sheriff's office at the time of Wills' death, ³ testified that Dr. Gonzalez, the pathologist, had refused to perform tests that Woodhull had requested, which would have determined the time of Wills' death. Woodhull testified that during the autopsy, he noticed that Gonzalez was not performing these tests, and he questioned Gonzalez about it. With respect to that confrontation, he testified:

We argued at the time, but not very much, because he was the boss in that room ... He just kind of blew it off and said we don't do that. And I informed him that where I had come from, all of the coroners did do that. But he said they didn't do it here, and that was it.

Woodhull also testified to a variety of omissions in his investigation of the Wills' shooting, which by his own admission, were not good investigative procedure. On cross-examination, however, he stated that none of these procedures were intentionally omitted to deprive Appellant of a fair trial.

Chantal Woodhull was also an investigator with the Smith County Sheriff's Office at the time of Wills' death. At the July 1996 hearing, she testified that she had had a typed copy of Kelly Stroud's statement and that she had discussed the content of that statement with Jim Walker, and possibly Mike Patterson, the two prosecutors in the Mitchell case.

Following two additional witnesses, the pathologist, V.G. Gonzalez, testified that during the autopsy, he was never asked to conduct a test to determine the time of Keith Wills' death. He further stated that had such a test been requested, it would have been conducted. He further stated that he had never, in any case, refused to conduct a test to determine time of death.

This significant additional testimony introduced at the 1996 hearing was considered by the trial court at the time she denied the merits of Appellant's Petition.

II. PREFACE TO APPELLANT'S ARGUMENTS ON APPEAL

On appeal, Appellant asks this Court to overturn the trial court's denial of his Petition and enter an order barring his re-prosecution for the shooting death of Keith Wills. In support of his appeal, Appellant presents six points of error, which he claims bar his retrial. ⁴ The first four points of error have as their foundation the Double Jeopardy Clauses of the Texas and United States Constitutions, while points five and six stem from the state and federal Due Process/Due Course of Law Clauses.

In Appellant's 70 page brief, he devotes extensive time to the facts giving rise to his jeopardy and due process claims. Because, however, we believe that the resolution of his points of error do not turn on facts, but upon interpretation of existing law, we will not devote significant time to a discussion of the facts before us. Instead, for purposes of addressing Appellant's points of error, we will assume without deciding that as a result of the July 1996, pretrial hearing in this case, intentional prosecutorial misconduct was shown.

III. APPELLANT'S STATE AND FEDERAL DOUBLE JEOPARDY CLAIMS

A. STANDARD OF REVIEW

Citing U.S. v. Arreola-Ramos, Appellant asserts that in the pretrial habeas corpus context, the standard of review of a double jeopardy claim is de novo. 60 F.3d 188 (5th Cir.1995). In that case, the court stated: "Double jeopardy raises a legal issue of constitutional dimensions; we review de novo the denial of a motion to dismiss on double jeopardy grounds." Id. at 191. Although the State has not challenged this federal standard of review, in Texas, we note that an appeal from the denial of pretrial habeas corpus relief sought on double jeopardy grounds must be reviewed under the "clearly erroneous" standard of review. Ex parte May, 852 S.W.2d 3 (Tex.App.--Dallas 1993, pet. ref'd). In May, the court stated:

We look to the record to see if the record leaves us with the definite and firm conviction that the trial court made a mistake. [citation omitted] The clearly erroneous standard accords great deference to the trial court's findings and conclusions. This is so because the trial court bases its rulings in part...