COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00582-CR

EX PARTE BYRIAS ROBERSON

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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

TRIAL COURT NO. 58017-E

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DISSENTING OPINION

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I must respectfully dissent from the majority opinion because I believe 

appellate courts are obligated to admit that the emperor is wearing no clothes, no 

matter how popular the emperor might be.

Unlike trial judges, who primarily see only the conduct in the courtrooms

over which they preside, appellate courts are presented with records from other 

courts in that county as well as other courts in other counties within that appellate 

district. Appellate judges are in a better position than trial judges to see patterns 

of conduct. Consequently, appellate judges have an obligation to speak up when 
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observed patterns show a course of conduct at odds with constitutional 

mandates and fundamental fairness.

The trial court granted Appellant Byrias Roberson’s motion for mistrial as a 

result of a conversation between the prosecutor’s investigator and a member of 

the jury after jeopardy had attached. After a second prosecution began, 

Appellant filed his application for writ of habeas corpus in the trial court, alleging 

that denial of habeas corpus relief would result in double jeopardy. In his prayer, 

Appellant asked the trial court to grant his application, issue the writ, conduct a 

hearing on the merits prior to trial, grant relief discharging him from restraint, and 

dismiss the prosecution.

The trial court set the matter for hearing on its merits, issued a ruling 

denying relief after the hearing, and certified Appellant’s right to appeal.

The majority holds that the record supports the trial court’s conclusion that 

Investigator Donnie Cavinder made an honest mistake. Respectfully, although 

the Texas Court of Criminal Appeals has abandoned Bauder1and returned to a 

standard requiring proof that the prosecution intended to cause a mistrial,2 when 

the record shows such a total disregard for rules of trial and pretrial conduct that 

mistrial is mandated, it is difficult to understand how an objective observer can 

conclude that such conduct can be called “just an honest mistake.” At some 

 

1Ex parte Bauder, 974 S.W.2d 729 (Tex. Crim. App. 1998), overruled by Ex 

parte Lewis, 219 S.W.3d 335, 371 (Tex. 2007).

2

Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014).
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point, appellate courts must hold that the conduct is so egregious that the party 

cannot avoid its consequences.

Appellant made appropriate pretrial requests to discover prior acts of 

misconduct that the State intended to use. No such discovery was provided by 

the State. Then Appellant filed motions in limine regarding extraneous acts of 

misconduct. The trial court heard the motions the day voir dire began. The 

prosecutor admitted that she anticipated

testimony in this case regarding the officer’s entry into the home. If 

defense counsel intends to challenge the legality of that entry, I 

would like the opportunity to question some of the State’s witnesses 

regarding a prior encounter between the defendant and these 

witnesses about and regarding a disturbance call. He had 

barricaded himself and his family inside his home. The SWAT team 

was called to get him out of the home. Two of the members of the 

SWAT team are witnesses in this case. This prior incident between 

the defendant and these officers is important for several reasons. It 

goes to their familiarity with the defendant, their ability to 

identify him on the date of the offense. It’s part of how they 

recognized him on the date of the offense. It also goes to 

their state of mind on the date of the offense, goes to why 

gang task force officers were asked to serve these warrants 

on the defendant, and also goes to their reason to believe 

that the defendant lived in this particular residence.

When the trial court asked for his response, defense counsel replied,

“Well, Your Honor, we’ve asked or requested notice of any bad acts or 

convictions, and we haven’t received any of those.” The record reflects that 

Appellant had requested that notice at least as early as September 2012. His 

motion in limine was heard August 21, 2013. The trial judge responded,

Well, let’s do it this way. I’ll go ahead and sustain or grant on 

this limine that y’all will approach, and then we would get into exactly 

what the officers could or could not go into. Without hearing them, 
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I’d be inclined to say they might have had previous contact or 

something like that that’s how they recognized. But to go any further 

might be a problem. But we’ll discuss that. So I’ll go ahead and 

grant that limine on that ground. Make sure you come up before you 

start with them.

The lawyers selected the jury, and the jury was seated and sworn and 

heard Appellant plead not guilty before the trial judge adjourned the proceedings 

and released the jury.

Cavinder was present in the courtroom during voir dire but claimed that he 

left the courtroom before the jury was seated. The record reflects that the trial 

judge gave the following instruction to the venire during the time Cavinder said 

he was in the courtroom:

To avoid looking like you are friendly with one side of 

the case, do not mingle or talk with the lawyers, the witnesses, the 

parties, or any other person who might be connected with or 

interested in the case. Do not remain within the hearing of anyone 

who might be discussing the case. These persons have to 

follow these same instructions as you . . . .

Cavinder was introduced to the venire as the investigator for the prosecution.

Both the State and the defense agree that Cavinder went personally to the 

judge, along with the prosecutors, to inform the judge that he had spoken with a 

juror, Eileen Vale. Both Cavinder and Vale testified about their encounter. Both 

agreed that Cavinder had approached Vale in the hallway outside the courtroom. 

That is, it was an intentional encounter on Cavinder’s part, and it was not caused 

by anyone else’s actions. Cavinder testified that he believed that Vale was a 

member of the venire who had been released from jury service, a Ms. Steele.
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The record, however, clearly shows that Steele was not released from jury 

service until Vale was sworn as a juror. Steele was not excused for cause or for 

any other reason. She was released only because she was not chosen as a 

juror. It was only the seating of the jury that showed Steele’s release. Cavinder 

could not have known Steele was released without also knowing that Vale had 

been seated as a juror. Indeed, when each side had submitted its strikes, the 

trial judge seated each juror by name. When he reached Vale, he called her 

name and then asked if he had pronounced it correctly. That is, Vale was 

singled out by name. Then the trial judge said,

If each member of the jury will please stand and raise their right 

hand for me.

(The jury was sworn)

All right. Thank you. Be seated, please. All right. That’s our 

lucky six. For everybody else who’s here on the panel, I spoke 

with the district clerk, and me releasing you here today here in just 

a couple minutes will end your service for the week. . . .

. . . .

(Remaining jury panel exits courtroom)

Vale informed Cavinder that he was mistaken about her identity, and he 

appeared to recognize his error. According to both Vale and Cavinder, they 

continued to speak, even after he realized that she was not Steele. That is, 

Cavinder continued his conversation with juror Vale after realizing and admitting 

that she was not the venire member who had been excused. They agreed that 

he spoke with her about her game warden experience. Vale, however, disagreed 
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with Cavinder’s representation that he did not discuss the case at bar. 

Specifically, Vale testified,

JUROR VALE: From what I remember, he—he kind of 

made a comment about—I’m trying to—because I was

heading down the stairs and he was telling me and then saying 

about—I’m trying to remember. Let me just—I just said it was okay, 

but we stopped the conversation right there because he didn’t 

realize that at point I was a juror, a selected juror, I guess.

THE COURT: You don’t remember? We just have to 

be very specific.

JUROR VALE: I know.

THE COURT: Because it pertains to this case.

JUROR VALE: Right.

THE COURT: You’re sure his question or comment 

pertained to this particular case?

JUROR VALE: He just said—uh, I think he said, “You 

were struck, but then we got you on” or something, or 

something to that effect, which I think—which I think—it 

didn’t—I mean, to me, it didn’t—I kinda said, okay, 

whatever. I’m going to leave right now. [Emphasis added.]

Clearly, Vale believed that Cavinder was talking about the case at bar 

when he said that she had been struck but “we” managed to get her “back on.” It 

is difficult to understand how Vale could have believed anything else. And it is 

difficult to understand why Cavinder would have told a venire member who had 

been excused that she had been struck but “we” managed to get her “back on.”

The conscientious trial judge, who can only be commended for his 

handling of this situation, was concerned about the appearance of impropriety:

What I’m dealing with now is something that would—whether there 

was any—and I’m not saying there was any intention on it; I’m not 
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saying who said what. However, what remains is the appearance. 

And the appearance that there was in her, at least in her mind, from 

her testimony—I mean that’s—[DEFENSE COUNSEL] stated

correctly. That’s exactly what I heard.

And I want both sides to have a fair trial. And with that 

appearance that there was some influence with regard to 

that juror, I am left with no option except granting a mistrial. 

There is no way it can be remedied. And I—I know y’all 

have—we have been through a rough day yesterday. And I 

apologize that that work is for naught. And I’m not casting fault on 

Investigator Cavinder at all. I understand that was an honest

mistake. I completely believe that he believed he was

speaking to Ms. Steele.

However, it’s that appearance that we just cannot get 

by in this matter. So for that reason, I’m going to grant a 

mistrial. Now, we’ll talk later whether double jeopardy has 

attached. I don’t think it has . . . . [Emphasis added.]

He had no alternative but to grant a mistrial. The positive result of the 

mistrial for the State was that its notice of intent to use extraneous acts of 

misconduct against Appellant became timely and those extraneous acts became 

admissible.

The rule is well established that the knowledge of one part of the 

prosecution team is imputed to all members of the prosecution team.3

The prosecutors were aware that the venire member with whom Cavinder 

improperly spoke had been sworn as a juror. The record casts doubt on 

 

3Ex parte Adams, 768 S.W.2d 281, 291–92 (Tex. Crim. App. 1989) 

(holding that “as a part of the investigating team [the Dallas police officer’s] 

knowledge of [the witness’s] lack of identification at the lineup and his assistance

to her” was imputed to the prosecutor); see also Rubalcado v. State, 424 S.W.3d

560, 574 (Tex. Crim. App. 2014) (imputing knowledge of one county’s law 

enforcement to the law enforcement of another county).
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Cavinder’s testimony concerning his own knowledge. The trial judge singled 

Vale out when swearing in the jury, asking if he had pronounced her name 

correctly. Further, the record shows that Vale was chosen and sworn as a juror 

before Steele was released with the other members of the venire who were not 

chosen for the jury. It is therefore difficult to understand how Cavinder could 

have known that Steele was not chosen as a juror but did not know that Vale was 

selected as a juror.

The Vale’s testimony concerning the improper conversation with Cavinder 

also indicated his awareness that she had been chosen as a juror. Specifically, 

she stated that he had told her that she had been struck but had also told her, 

“[T]hen we got you on.” Even Cavinder admitted that he continued to speak with 

her after he realized that she was not the venire member who had been released 

from jury service. If we give total deference to the determinations of the trial 

judge, we must conclude that when Cavinder first approached Vale, he believed 

that she was Steele. If he was aware that Steele had not been chosen for the 

jury, he had to be aware that Vale was, either as a result of his own observation 

or as a result of the imputed knowledge of the prosecuting attorneys. By his own 

admission, he remembered that Vale was the one who had gone to game 

warden school. Yet he continued to speak with her.

After hearing only Cavinder’s admissions, the trial judge did not yet believe 

that there was reason to declare a mistrial. After hearing Vale’s testimony, 

however, he concluded that the trial could not continue. Implicitly, the trial judge 
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believed her testimony, including the statement that Cavinder told her that she 

had been struck, but “we got you on.”

Given the record before us, it is impossible to conclude that Cavinder was 

unaware that Vale had been chosen for the jury at the time they spoke and he 

realized she was not Steele. This knowledge means that there is no justification 

for the conversation. The mistrial was caused by an improper communication by 

a member of the prosecution team with a juror. The trial judge properly granted 

the mistrial because of the influence of that conversation on a juror. For the 

same reason, the trial judge should have granted Appellant’s requested habeas 

relief.

The prosecution did not provide mandated discovery to the defense. The 

trial judge ruled that the notice of extraneous acts of misconduct that the State

intended to offer into evidence was untimely and that the evidence, presumably, 

were inadmissible. Perhaps the decision to withhold discovery was a trial tactic. 

If so, failing to comply with discovery mandated by rule, statute, or court order 

renders that evidence inadmissible at trial. The Texas Court of Criminal Appeals 

has held

Rule 404(b) literally conditions the admissibility of other-crimes 

evidence on the State’s compliance with the notice provision of Rule 

404(b). . . .

Since the notice requirement of Rule 404(b) is a rule of 

evidence admissibility, then it is error to admit Rule 404(b) evidence 
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when the State has not complied with the notice provision of Rule 

404(b).4

When the trial judge suggested that would be his ruling, the State clearly 

benefitted from the mistrial caused by Cavinder’s actions. That is, the time delay 

between the mistrial and future trial setting erased the notice and admissibility 

issues.

Case law instructs us that double jeopardy prohibitions bar retrial when the 

prosecution intends to cause a mistrial.5 The Masonheimer court held that the 

prosecution’s hiding of Brady material to avoid an acquittal was sufficiently 

egregious conduct to bar retrial after the trial court was forced to grant a mistrial 

because this prosecutorial misconduct was discovered.6

Case law does not explain how we are to determine motive when it is an 

investigator and not prosecutors who commits the misconduct, and misconduct it 

certainly was. There are only two reasons an experienced investigator would tell 

a member of the jury that she had been struck but the prosecution had managed 

to get her back onto the jury: either he was attempting to cause a mistrial or he 

was attempting to deprive the defendant of a fair trial by an impartial jury. In light 

of the fact that the State had failed to disclose prior bad acts it fully intended to 

use at trial, despite Appellant’s timely request for disclosure, and in light of the 

 

4Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005).

5Ex parte Masonheimer, 220 S.W.3d 494, 509 n.21 (Tex. Crim. App. 

2007).

6

Id. at 507–08.
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trial court’s statement that those bad acts would probably not be admitted before 

the jury because of the failure to disclose them, it is impossible to say that the 

mistrial did not benefit the State.

The conscious decision of the State to withhold such mandated discovery 

is particularly disturbing in light of its similar decisions in Dabney v. State,

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Pitman v. State,

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and Juarez v. State.

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To hold that retrial is not barred by double jeopardy is to condone and 

encourage such conduct. We have an obligation to both the bench and the bar 

to hold, as the trial court did when granting the mistrial, that ignoring courtordered or statutorily- or rule-mandated discovery is not acceptable trial strategy. 

I would therefore reverse the order of the trial court denying habeas relief and 

remand this cause to the trial court with instructions to grant Appellant’s 

requested habeas relief and enter an order of dismissal. Because the majority 

does not, I respectfully dissent.

 

7No. 02-12-00530-CR, 2014 WL 5307178, at *7–9 (Tex. App.—Fort Worth 

Oct. 16, 2014, pet. filed) (mem. op., not designated for publication).

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372 S.W.3d 261, 268–70 (Tex. App.—Fort Worth 2012, pet. ref’d).

9No. 02-08-00167-CR, 2009 WL 1564926, at *1 & n.2 (Tex. App.—Fort 

Worth June 4, 2009, no pet.) (mem. op., not designated for publication).
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/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PUBLISH

DELIVERED: January 8, 2015