DEFENDANT’S MOTION FOR WRIT OF HABEAS CORPUS

No.29, 433

THESTATE OF TEXAS, ) IN THE 13thDISTRICT

) COURT

Plaintiff, )

) NAVARRO COUNTY,TEXAS

v. )

)

GWENDOLYNXXX, )

)

Defendant . )

)

DEFENDANT’SMOTION FOR WRIT OF HABEAS CORPUS[1]

Defendant, Gwendolyn XXX, hereby moves this Court togrant her a writ of habeas corpus barring further prosecution in this casebased upon the Double Jeopardy Clause of the United States Constitution and theTexas Constitution. In support ofthis motion, Ms. XXX sets forth the following facts and argument.

I. BACKGROUND

As the Court is well aware, the Court previouslydeclared a mistrial in this prosecution based upon the violation of a motion inlimine by the state’s case agent, Bertha Zaidle. In declaring the mistrial, theCourt acknowledged that it was doing so “on a sua sponte basis.” See Transcript of June 2,2005 hearing (“Tr.”) (attached hereto as Attachment A) at 20. (“[T]he Court will grant a mistrialbased on what the Court believes is a knowing or at any rate a recklessdisregard for this Court’s orders with respect to particular testimony.”). Significantly, in granting the suasponte mistrial, the Court acknowledgedthat it was not doing so out of amanifest necessity:

Iam not sure whether the testimony of the witness was so injurious that it couldnot be cured by an instructions. Ithink certainly it might be, at the sametime I do believe that the testimony of the witness in direct violation of theCourt’s order is serious enough that a mistrial should be granted in this case.

Id. (emphasis added).

Indeed,in arguing against the declaration of a mistrial, the defense noted that theviolation of the Court’s order by Zaidle “could be solved in a differentway.” Id. at 18. One suggestion urged by the defense was that the prosecution proceed butthat the jury be instructed that Zaidle had disregarded the Court’s pretrialorder and that the Court was considering contempt proceedings againstZaidle. Id. at 11.

II.DISCUSSION

The case law in Texas is very clear regarding acourt’s sua sponte declaration of a mistrial. “As a general rule, after a jury hasbeen impaneled and sworn, thus placing the defendant in jeopardy, doublejeopardy bars a re-trial if the jury is discharged without reaching averdict.” Ex Parte Fierro, 79 S.W.3d 54, 56 (Tex. Crim. App. 2002). Nevertheless, this rule does not apply“where manifest necessity exists to declare a mistrial.” Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 839).

Asnoted recently by the Texas Court of Criminal Appeals:

Althoughthe Supreme Court has not set forth precise circumstances in which manifestnecessity exists, a trial judge's discretion to declare a mistrial based onmanifest necessity is limited to "very extraordinary and strikingcircumstances." Manifestnecessity exists when the circumstances render it impossible to arrive at afair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversedon appeal because of trial error.

The judgeis required to consider and rule out "less drastic alternatives"before granting a mistrial. Thejudge must review the alternatives and choose the one which best preserves thedefendant's "right to have his trial completed before a particulartribunal." The judge need notexpressly state his reasons in the record as long as the basis for his rulingis adequately disclosed by the record. When a trial judge grants a mistrial despite the availability of a lessdrastic alternative, there is no manifest necessity and he abuses hisdiscretion.

Hillv. State, 90 S.W.3d 308, 313 (Tex. Crim.App. 2002) (emphasis added) (citations omitted). See also, Fierro, 79 S.W.2d at 56 (“There must be a ‘high degree’ ofnecessity that the trial come to an end.” (citation omitted)).

Here,the Court itself acknowledged that “manifest necessity” did not exist when it stated that Zaidle’s disregard of thepretrial order could “certainly” be solved by “an instruction.” See Tr. at 20. Moreover, as noted above, defense counsel suggested alternatives todeclaring a mistrial that clearly could have allowed the trial to goforward. In short, it was not “impossible to continue with trial.”[2]

III. CONCLUSION

Precedent indicates that, given the fact that theprevious trial ended when the Court declared a mistrial sua sponteand that this mistrial was not the result of “manifest necessity,” any furtherprosecution of Ms. XXX would be barred by double jeopardy protections. Consequently, the writ of habeas corpusshould issue and the indictment against Ms. XXX should be dismissed withprejudice.[3]

Respectfullysubmitted,

F.Clinton Broden

Tx.Bar 24001495

Broden& Mickelsen

2707Hibernia

Dallas,Texas 75204

214-720-9552

214-720-9594(facsimile)

CERTIFICATEOF SERVICE

I,F. Clinton Broden, do hereby certify that, on February 27, 2006, I caused a copy of the foregoingdocument to be delivered by facsimile on the Navarro County District Attorney’sOffice at 300 West Third Avenue, Corsicana, Texas 75110.

F.Clinton Broden

No.29, 433

THESTATE OF TEXAS, ) IN THE 13th DISTRICT

) COURT

Plaintiff, )

) NAVARRO COUNTY,

v. ) TEXAS

)

GWENDOLYNXXX, )

)

Defendant . )

)

ORDER

Uponconsideration of Defendant’s Motion for Writ of Habeas Corpus, said motion isthis ____ day of March, 2006 GRANTED.

TheCourt FINDS that it previously granted a mistrial in this case sua sponte. TheCourt further FINDS that the mistrial was not supported by “manifestnecessity.” The Court furtherfinds that further prosection in this case would be barred by the DoubleJeopardy Clause of the United States Constitution and the TexasConstitution. Based upon thesefindings, it is

ORDEREDthe State of Texas is prohibited from further prosecuting Gwendolyn XXX basedupon the instant indictment.

FURTHERORDERED that the indictment against Gwendolyn XXX is hereby dismissed withprejudice.

________________________________

JOHNH. JACKSON

JUDGE,13TH JUDICIAL DISTRICT

[1] Apretrial motion for writ of habeas corpus is the mechanism to be utilized inseeking relief from the exposure to double jeopardy. See Ex Parte Robinson,641 S.W.2d 552 (Tex. Crim. App. 1982)

[2] Itis true that the defense originally requested a mistrial. Nevertheless, this request was onlymade after Zaidle testified that she had not been shown the Court’s order onthe Motion In Limine. See Tr. at 12-13. (Counsel requests mistrial because, based upon Zaidle’s testimony,“jeopardy would have attached....”); Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996) (TexasConstitution precludes retrial if the prosecutor should have known that his/herconduct might provoke a mistrial.); State v. Cabrera, 24 S.W.3d 528 (Tex. App.--Corpus Christi 2000, pet.ref’d) (Retrial was precluded when state knowingly or recklessly causedviolation of motion in limine).

Despitean obligation to correct perjurious testimony on Zaidle’s part, then AssistantDistrict Attorney Amanda Doan did not immediately correct Zaidle’s testimony toclaim that Zailde had been told of the Court’s order, but, instead, alloweddefense counsel to proceed to request the mistrial. See Dugganv. State, 778 S.W.2d 465, 468 (Tex. Crim.App. 1989) (“The prosecutor's constitutional duty to correct known falseevidence is well established both in law and in the professional regulationswhich govern prosecutorial conduct.”) Nevertheless, when the state finally did correct Zaidle’s perjurioustestimony so as to eliminate jeopardy having attached due to prosecutorialmisconduct, the defense immediately withdrew its mistrial motion. See Tr. at 14-15, 17-18. In any event, the Court acknowledged that it allowed thedefense to withdraw its mistrial request and was declaring a mistrial suasponte. Id. at 18-20.

[3] Forpurposes of this pleading, Ms. XXX assumes that Zaidle was informed as to theCourt’s order and that the prosecution did not “cause” the mistrial. Nevertheless, in the event the Courtwas to rule that the mistrial resulted from a “manifest necessity,” Ms. XXXreserves the right to argue that the mistrial was caused by the state.