State v. Masonheimer

• Decision Date: 06 January 2005
• Docket Number: No. 11-03-00234-CR.,11-03-00234-CR.
• Citation: 154 S.W.3d 247
• Parties: STATE of Texas, Appellant, v. James S. MASONHEIMER, Appellee.
• Court: Texas Court of Appeals

154 S.W.3d 247

STATE of Texas, Appellant, v. James S. MASONHEIMER, Appellee.

No. 11-03-00234-CR.

Court of Appeals of Texas, Eastland.

January 6, 2005.

Rehearing Overruled February 17, 2005.

James Eidson, District Attorney, Patricia Dyer, Assistant Criminal Dist. Atty's Office, Abilene, for appellant.

Burt Lee Burnett, Burnett & Burke, W.L. (Tres) Burke, III, Burke & Burke, Britt H. Lindsey, Abilene, Robert T. Sherwin, Coby D. Smith, Brackett & Ellis, P.C., Fort Worth, for appellee.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

Opinion

TERRY McCALL, Justice.

James S. Masonheimer shot Gilbert "bo" Sanchez five times in the back with a .38 revolver, killing Sanchez outside the home of Masonheimer's daughter, Lucy Williams. The shooting occurred early one morning after the two were seen conversing. Masonheimer's first murder trial before a jury ended in a mistrial. He pleaded nolo contendere and waived a jury in his second trial. The second trial court also declared a mistrial and found that the State had acted recklessly in withholding Brady material.¹ We reverse the trial court's grant of a writ of habeas corpus because the court erred in granting the writ based on the double jeopardy rationale of Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App.1996)(Bauder I), and we remand for a retrial.

Background Facts

During a pretrial hearing before the first trial, Masonheimer's attorneys advised the court and the prosecution that they planned to show that Masonheimer shot Sanchez in self-defense and in defense of Lucy. TEX. PEN. CODE ANN. § 9.32 (Vernon 2003). Defense counsel argued that he was entitled to show past bad acts of Sanchez as evidence of why Lucy was "terrified" of Sanchez and why Masonheimer had a reasonable belief that use of deadly force was necessary that day. Defense counsel told the trial court that he planned to show that Lucy wanted to end her relationship with Sanchez; that Sanchez's behavior had grown increasingly aggressive toward Lucy due to his use of anabolic steroids; that Sanchez had grown increasingly jealous; that Sanchez had choked Lucy; that Sanchez had wiretapped her telephone; that Sanchez had made threats to kill Lucy and her family if she left him; and that Lucy had asked Masonheimer and his wife to stay with her the night before the shooting because Lucy was afraid of Sanchez.

Both trials were brief: the initial jury trial ended in a mistrial "in the interest of justice" after four witnesses; and the one-day second trial following Masonheimer's nolo contendere plea also ended in a mistrial. The second trial court declared a mistrial because the prosecution had withheld three pieces of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The three pieces of exculpatory evidence will be referred to as the Marshall statement, the Williams statement, and the Upchurch statement.

The second trial court found that the prosecution knew about the three pieces of exculpatory evidence before the first trial began and that all three should have been disclosed before the first trial. The Marshall statement was discovered by the defense during the first trial. The Williams statement was given to the defense during a pretrial conference prior to the second trial. Only the Upchurch oral statement was disclosed during the nolo contendere trial. Because the prosecution had engaged in a pattern of misconduct of withholding Brady material, the second trial court found that the conduct of the "State ... constituted reckless conduct." See Bauder, I, supra.

Masonheimer filed an application for writ of habeas corpus, contending that a retrial was barred by double jeopardy under Bauder I because of the prosecution's reckless conduct. The trial court agreed. The State's appeal from the granting of the writ of habeas corpus is now before us. We will uphold the trial court's decision unless it committed an abuse of discretion. State v. DeLeon, 971 S.W.2d 701 (Tex.App.-Amarillo 1998, pet'n ref'd).

Masonheimer received the Marshall and Williams statements in time to put them to effective use in the second trial.² The second trial court should have been concerned with only the effect of the Upchurch oral statement on the nolo contendere trial and the mens rea of the prosecutor in that trial. The Upchurch oral statement was made to the first prosecutor prior to the first trial; however, there is no evidence that the new lead prosecutor knew about the Upchurch statement and related information until he interviewed Johnny Lee Upchurch just prior to Upchurch's proposed testimony in the nolo contendere trial.

We hold that the trial court abused its discretion in granting the writ of habeas corpus. There was no evidence that the new lead prosecutor in the second trial acted intentionally, a critical mens rea under Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), or recklessly, a critical mens rea under Bauder I, to cause the trial court to declare the mistrial. Masonheimer could have withdrawn his "no contest" plea, entered a not guilty plea, and then tried his theory of self-defense before either the trial court or a jury. See Mendez v. State, 138 S.W.3d 334 (Tex.Cr.App.2004). He freely chose to ask for a mistrial. Ex parte Bauder, 974 S.W.2d 729 (Tex.Cr.App.1998)(Bauder II). A retrial of Masonheimer is not barred by double jeopardy. Therefore, we reverse and remand for a new trial.

The Initial Jury Trial

The first jury trial had barely begun when the defense discovered the first exculpatory evidence. The first witness, a neighbor, testified that he had seen Masonheimer and Sanchez sitting on the tailgate of Sanchez's truck as he drove by around 7:30 a.m. on his way to work. Timothy Dean Marshall, another neighbor, testified that he was working in his back yard, that he saw the first neighbor drive by Lucy's house, and that within five minutes he heard five shots that were not in rapid succession. When Marshall went into his front yard, he saw Sanchez going down by his truck. Marshall went inside, called 911, and then walked over to where Sanchez lay.

During cross-examination, defense counsel learned that Marshall had given a statement to the police which stated in part that "[Masonheimer] told me that the other man had threatened his daughter and it was either him or her." Because the prosecutor had not given the defense this exculpatory statement, defense counsel moved for a mistrial. The trial court denied the defense's motion, but gave the defense a continuance.

After granting the continuance, the trial court ordered the State to reexamine its file for exculpatory evidence. The court emphasized that, if the State had any doubts about whether evidence was exculpatory or not, then the State should submit it to the court in camera.

The trial court extended the continuance because of a death in the family of one of the prosecutors. The defense subsequently requested a mistrial, contending that the lengthy interruption of the trial (one week) might be prejudicial to Masonheimer's right to a fair trial. The State did not object, and the trial court declared a mistrial "[i]n the interest of justice." Because both Masonheimer and the State wanted a retrial as promptly as possible, the trial court had another judge appointed to hear the second trial.

Shortly after the first trial, the lead prosecutor left the district attorney's office to become a county court at law judge. His assistant during the first trial then became the lead prosecutor for the second trial.

At a pretrial conference prior to the second trial, defense counsel expressed his concern that all exculpatory evidence had not been provided by the State. Although the new lead prosecutor represented to the trial court that all exculpatory evidence had been provided, he agreed to provide defense counsel with a statement given by Billy Glenn Williams, Lucy's ex-husband. In that statement, Billy Williams related that Lucy had asked him to keep their children during the afternoon of the day before Sanchez was shot; that, when he called Lucy around 6 p.m., she "broke down and told me about the trouble she had been having with Bo"; that Billy told her to go to the police and get a restraining order; that Lucy told him that she thought Bo had put dirt in her car's gas tank; and that Lucy was upset when they finished the telephone conversation.

Masonheimer's counsel argues that this evidence should have been disclosed before the first trial for two reasons: (1) this evidence would help rebut any prosecution evidence showing that Sanchez was a peaceful man and (2) this evidence would help rebut any contention by the prosecution that Lucy's testimony concerning Sanchez's stalking behavior was recently fabricated to help her father develop a theory of self-defense. We agree that the Williams statement should have been disclosed to the defense before the first trial.

The Second Trial

In the second trial before another judge, Masonheimer pleaded nolo contendere to "intentionally and knowingly causing the death of Sanchez by shooting him with a handgun." See TEX. PEN. CODE ANN. § 19.02(b)(1) (Vernon 2003). The State waived the remaining paragraphs of the indictment. The trial court then carefully admonished Masonheimer of the consequences of his plea and his waiver of a jury. See TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp.2004-2005). The record reflects that Masonheimer voluntarily waived his right to plead "not guilty." See Mendez v. State, supra at 350. The legal effect of a nolo contendere plea is the same as that of a plea of guilty. TEX. CODE CRIM. PRO. ANN. art. 27.02 (Vernon 1989).

Masonheimer did not stipulate to any evidence. Therefore, the State was required to introduce evidence into the record showing the guilt of the defendant. TEX. CODE CRIM. PRO. ANN. art. 1.15 (Vernon Supp.2004-2005). But self-defense is a defense to prosecution...