Abdygapparova, Asel
PD-0916-15
| Tex. App. | Aug 6, 2015Background
- Appellant Asel Abdygapparova was originally tried and convicted of capital murder in the 175th District Court; the Fourth Court of Appeals reversed that conviction because of pervasive prosecutorial misconduct and judicial partiality and remanded for a new trial (Abdygapparova v. State).
- After remand the case was reassigned (moved to the 379th District Court); Abdygapparova entered a negotiated plea agreement with a 28-year cap and signed a certification acknowledging appellate issues raised by pretrial written motions.
- The trial court denied the appellant’s writ of habeas corpus/plea in bar and denied her request to dismiss court-appointed counsel; sentencing proceeded and the full 28-year term was imposed.
- Appellant filed a notice of appeal from the negotiated plea; the Fourth Court of Appeals later affirmed the judgment on June 4, 2015.
- This petition asks the Texas Court of Criminal Appeals to grant discretionary review and hold that retrial is barred by double jeopardy because the prior jury trial was structurally impaired by intentional prosecutorial misconduct and judicial partiality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retrial is barred by double jeopardy because the prior jury trial was structurally impaired by intentional prosecutorial misconduct and judicial partiality | Abdygapparova: prior trial was infected by pervasive, intentional prosecutorial misconduct and ex parte communications with the judge; the deprivation of a fair tribunal bars reprosecution | State: (implicit) remand and reprosecution were proper; appellant entered a negotiated plea and later appealed; Fourth Court affirmed the later conviction | Fourth Court previously reversed the original jury verdict for misconduct and partiality; after plea and sentencing on remand the Fourth Court affirmed the judgment (appellant petitions CCA for review seeking dismissal on double jeopardy grounds) |
Key Cases Cited
- Abdygapparova v. State, 243 S.W.3d 191 (Tex. App.—San Antonio 2007) (reversed original conviction due to prosecutorial misconduct and judicial partiality)
- Oregon v. Kennedy, 456 U.S. 667 (establishes protection of the right to have trial completed by the originally assigned tribunal)
- Benton v. Maryland, 395 U.S. 784 (applies double jeopardy protection to the states via Fourteenth Amendment)
- Crist v. Bretz, 437 U.S. 28 (jeopardy attaches when the jury is sworn)
- Dinitz v. United States, 424 U.S. 600 (double jeopardy protects against multiple prosecutions after conviction or acquittal)
- Green v. United States, 355 U.S. 184 (double jeopardy prevents repeated prosecutions that subject defendants to repeated ordeal)
- Neder v. United States, 527 U.S. 1 (discusses when structural errors undermine reliability of trial)
- Illinois v. Vitale, 447 U.S. 410 (identifies the three protections of the Double Jeopardy Clause)
- Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003) (discusses double jeopardy protections)
- Ex parte Little, 887 S.W.2d 62 (Tex. Crim. App. 1994) (jeopardy attachment rule in Texas)
- Pool v. Superior Court, 139 Ariz. 98 (1984) (retrial barred where prosecutorial conduct was intentional, prejudicial, and rendered trial structurally flawed)