*1 any degree of prosecutorial any price” intentional “winning including intention- overreaching” which, al sabotage.21 “harassment or though intended to win a trial it would might constitutionally There not be a lose, probably by otherwise is covered the meaningful distinction between intentional- prong Jeopardy mistrial of the Double ly the “goading” requesting defendant into If into a “goading” Clause. successful mis- intentionally “sabotaging” a mistrial retrial, against trial results a bar right by the defendant’s to a trial fair “sabotage” not unsuccessful which results prosecutorial play foul when either results in a mistrial? It would that in both seem granted a mistrial for “manifest necessi- prosecutor instances the intended sub- ty.” only Supreme But the United States protections vert the the afforded Dou- question. Court can answer that Jeopardy reasonably ble Clause: a fair trial before the chosen factfinder.
It to me that seems this extension is no a “bright-line”
less of rule than set Kennedy.
out in Both require would the judge
trial prosecutor’s find that the manifestly
conduct was improper —com- specific with mitted “foul” intent19 avert CRUZATA, W. likely acquittal an otherwise from the cho- Applicant. sen factfinder.20 The difference is “goading” a “sabotaging” between or a It intent. seems to me that the issue in Appeals Kennedy concerned of the brightness the 2007. “bright-line” concerning prosecu- rule intent, “foul” tor’s not whether intent specifically making directed toward request a defendant mistrial toward poetically put by Judge Although
19.As Chief Gilbert of “it hurts the defendant Maryland Special Appeals, Court of this is prejudicial much to have blasts come foul, Gabriel,” specific intent to a trumpet angel commit United “hitting Nettl, (3d deliberate the belt" or the below Cir. States v. 121 F.2d “personal performed calculated foul” 1941), Kennedy double-jeopardy bar thought might in mind that the foul well plies prejudicial only when those blasts By borrowing be detected for what it is. valuable to subvert the defendant’s intended game analogy, from the of football for an right fairly have his fate decided specific we liken that force a intent to mis- dog knows the Just as a chosen factfinder. trial to defensive and delib- back’s wilful being being between kicked and difference erate interference with the offensive team’s over, must, judge under Ken- stumbled pass field down receiver. defense determine, objective nedy, from the by performing illegal knows act circumstances, prosecutor’s mis- whether the foul, probably that constitutes the intentionally belt” or “below the conduct caught penalized. and his team Neverthe- negligent. merely less, prefers penalty the offender to take the give up rather than the touchdown that Kennedy, 456 U.S. at S.Ct. 21. likely would the foul most occur were (stating that a rule examines the “that committed. manageable prosecutor intent of ... Md.App. Lee v. 423 A.2d (1980). apply”). standard to *2 Barraza, Paso, Appel- El
Manuel J. lant. Davis, Atty., Assistant District
John L. Paul, Aus- Paso, atty., El Matthew State’s tin, for State. J.,
HOLCOMB, opinion of delivered the KELLER, P.J., Court, and in which PRICE, WOMACK, JOHNSON, JJ., HERVEY, COCHRAN, joined. This post-conviction brought under Article 11.07 proceeding, Procedure, in of Criminal the Texas Code seeks which W. Cruzata applicant Number 20020D04349-243- Cause of El 1 in the Judicial District Court 243rd deny County. Paso requested. facts, as in the
The relevant reflected record, are as follows: On 3, jury County grand El an Paso charging an indictment returned with a Tex. indecency child. See 21.11(a)(1). July On Pen.Code the offense applicant pled guilty to plea bargain, charged, pursuant placed him on deferred- the trial court community for ten adjudication supervision art. Proc. Tex.Code Crim. 5(a). 42.12, § mo- filed a June adjudication with an proceed tion to had vio- alleging that he applicant’s guilt, community su- lated the conditions his September pervision. On the State’s hearing trial court held applicant en- hearing, motion. At the State’s plea tered an of “true” to open allegations. court accepted ap- quent The trial reassessment plicant’s plea, found he had violated both community supervi- conditions of his May 25, 2006, the trial court recom- sion, adjudicated guilt of primary deny mended that we habeas relief. In its offense, and assessed his *3 at findings law, of fact and conclusions of imprisonment for A seven few min- that, trial court appli- “[b]ecause concluded later, court, utes the trial after being re- cant could appealed the sentencing minded that had “a portion not, judgment, of his and he did he very history ... extensive of extraneous cannot complaint raise a regarding sen- offenses,” announced that it was “going to tencing for time in [an the first withdraw” its of assessment corpus.” for] writ of habeas hearing] “reset for sentencing [the 27, 2006, applicant’s appli- we ordered a later Applicant objected date.” to the cation filed for submission in and set order trial court’s withdrawal of its assessment that fifteen-year consider his claim punishment, of the trial but court over- “improper.” sentence is objection. ruled his outset, At we are confronted 8, 2004, On October the trial court held question whether applicant’s and, another hearing in this case after claim is cognizable corpus. in habeas Ha- hearing argument, reassessed applicant’s extraordinary beas remedy punishment at imprisonment for fifteen and is when there available is no years. Applicant asked the trial court for adequate remedy parte other at law. Ex
permission
from the reassess-
Townsend,
79, 81
137 S.W.3d
ment
punishment, apparently
in the be-
App.2004). Consequently,
25.2(a)(2)(B)
lief that Rule
of the Texas
may
to assert
not be used
claims that
Rules of Appellate
required
Procedure
could have
been asserted
permission.
such
respond-
court
Ibid.
ed
stating
permission
that
no
was
Nothing prevented applicant
required.1 Applicant filed no appeal.
pealing
fifteen-year
from his
sentence and
On September
applicant filed
asserting that it
improper.
was
See foot-
an application for writ of habeas
in
one,
Therefore,
supra.
note
court,
the trial
arguing inter alia that his
now assert
via habeas corpus.
that claim
fifteen-year
“improper.”
was
sentence
parte
assessed. 1979) the trial relief due to it is clear that trial court’s together, apply the law to in this case court’s failure actions Bravo, case); deny the requested *4 (Tex.Crim.App.1982) (granting S.W.2d improper of a relief due excusal KEASLER, J., result. concurred in the Russell, veniremember); Parte MEYERS, J., dissenting opinion. filed S.W.2d MEYERS, J., dissenting. improper due to admission of void Schuessler, conviction); Ex Parte prior dissenting in Ex my opinion I reiterate due to S.W.2d 852-53 (Tex.Crim. Parte jurisdiction). lack of App.2004). I’m not sure we still keep corpus the writ of habeas since we majority’s statement disagree I away whittling its uses. be used to corpus that habeas not Drake, raised In Ex Parte we that habe- assert claims that could have been stated writ corpus generally appeal. should not used to While the as extraordinary remedy, simply it is true re-litigate matters which were addressed in- claims appeal, on that habeas relief is limited to Schuessler, could have been App.1994), citing issues that appeal. More We should not raised direct recently corpus the fact that an issue was not raised have said use There- appeal procedural not be used to assert claims that direct as bar. fore, appeal. respectfully could have been I dissent. asserted direct Townsend, 137 implies at 81. This anything raised that could have been actually it direct —whether forbidden from habe- not—is now However, routinely corpus
as say that an for writ of habeas ROBERTS, Jr., Appellant, Lee Donnie is a better for us to review vehicle claims ineffective assistance counsel though claims raised on even could be The STATE Texas. what is the of habe- direct So writ days? for these newly evi- It is not discovered Appeals claims. assistance dence ineffective Goodman, In Ex we stated traditionally un- although