AFFIRMED and Opinion Filed May 3, 2021 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-01389-CR EX PARTE CARL A LLEN WELCH On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 31,927 MEMORANDUM OPINION Before Chief Justice Burns and Justices Myers and Pedersen, III Opinion by Chief Justice Burns In Carl Allen Welch’s first trial for murder, the trial court d eclared a mistrial over appellant’s objection. Before a second trial could occur, appellant filed a pretrial application for writ of habeas corpus alleging a secon d prosecution for the same offense exposed him to double jeopardy. The trial court d enied relief and appellant now appeals the trial c ourt’s order. In his sole iss ue on appeal, appellant contends the trial court erred a nd abused its discretion in den ying habeas relief because he did not violate a motion in limine as urged by the S tate in seeking the mistrial, and the trial court and State erroneously placed upon him the burden to show there was no manifest nece ssity for a mistrial. We affirm

.–2– B ACKGROUND It is undisputed that appellant shot and killed Terry Cale. A ppellant claims he shot Cale in self-defense. The State indicted appellant for mu rder and the case was set for trial. The Pretrial Hearing and Order in Limine On August 16, 2019, the trial court conducted a pretrial hearin g. During the pretrial hearing, both sides presented motions in limine for th e trial court to consider. Among the disputed items in the defense motion, appellant reque sted the exclusion of hearsay statements made by anyone who would not be testifyin g at trial. When asked by the trial court why such an exclusion could not be add ressed by a hearsay objection, defense counsel explained, “I think I also don’t wan t any statements of what certain people are going to testify to in the opening of t he case—opening argument of the case, if they, in fact, don’t testify.” In den ying this portion of the defense motion in limine, the trial court explained: Isn’t the State, though—I mean, aren’t they allowed to make an opening statement where they summarize wh at they believe the evidence w ill be? I mean, let’s say that [the prosecutor] gets up and makes a statement about, “I think John Doe is going to say X, Y, and Z when he’s called to testify,” and then John Doe absconds. Did he vi olate this limine? Because, I mean, otherwise, I’m not going to be able t o—I can’t allow him to summarize his case in his opening statement, because we don’t actually know if somebody is actually going to testify.” Thereafter, the trial court cons idered the State’s motion in l imine Paragraph III (referred herein as Pa rt III), which provided:–3– The State files this Motion in L imine requesting the defense be required to request a hearing outside the p resence of the jury to determ ine the admissibility of evidence or testimony related to the issues de tailed below before attempting to admit such evidence or illicit [sic] such testimony:

. . . III. Any question of a witness intended to illicit [sic] eviden ce of past misconduct by the victim Terry Cale or a character trait of Ter ry Cale, regardless of whether the allege d conduct lead to an arrest or conviction. This request includes testimony or evidence that the victim was a member or former member of any organization commonly known as a “biker gang” or “motorcycle club.”
(emphasis added.) During the discussion of Part III, the trial court asked counsel why she opposed granting it: How are you hampered if you have to have a hearing first? The reason I say that is, because obviously we all know there are instance s that are described in paragraph 3, that might be admissible. There are many that are specifically inadmissible. I mean, again, why shouldn ’t the Court decide, “Yes, now that I have heard this much of the evid ence, that is admissible” or “it’s not admissible,” outside the prese nce of the jury instead of letting a question be asked and then ruling on an objection at that time. This is not something that is clearly admissible is what I am saying. . . . It just depends on the circumstances

. In response, counsel responded that a blanket prohibition or limine w ould be inappropriate because a defendant, under Rule 12 of the Texas Rules of Evidence, a defe ndant is entitled to introduce evidence of a pertinent character trai t of the victim of the crime by the accused. The trial court then reiterated that it would still need to det ermine whether the character trait was pertinen t. To which counsel replied: Well, and I believe, Your Honor, th at the character trait of . . . this deceased, having been a member of a biker gang or motorcycle cl ub is–4– relevant, because he was known as a violent member of a biker g ang or motorcycle club, and it goes dir ectly to the reputation of the deceased for violence and for, therefore, the reasonableness of my clien t’s fear and belief that self-defense was required. The trial court then ruled on Part III: All right. I am going to grant the limine, and you will be req uired to approach, but, of course, I ’m making no ruling on the ultimate admissibility of the information. I just need to hear exactly what it is you want to do before I allow it, because so many character tra its are not admissible, and so I just wa nt to make sure that I know wha t we’re doing before we do it in the presence of the jury. The trial court’s written Order on State’s Motion in Limine exp ressly states Part III is “GRANTED” without further elaboration. Opening Statements and the Hearing on Mistrial After the State delivered its opening statement, counsel began her opening statement by admitting appellant shot Cale. She told the jury the question for trial would be why it happened. Counsel then stated, “Now, you’re go ing to hear about Terry Cale. Mr. Cale had been a member of the motorcycle gang the Bandidos.” At that point, the State objected on the ground the defense had vi olated the Part III limine order. The trial court excused the jury and conducted a hearing. During the hearing outside the jury’s presence, the trial court accused counsel of violating the limine order by informing the jury that Cale w as a gang member. Counsel responded that the order only applied to witness testim ony and did not restrict her from discussing Cale’s motorcycle gang membership during opening–5– statement. After a brief discussion with counsel and the State , the trial court responded: I’m sorry, I’m not going to have that argument. There’s no ques tion that when I limine out a particular subject it cannot be argued in o pening statement without approaching the bench, period. I mean, I’m so rry, and I never would have said, nor did I, that I’m going to limit this questioning of witnesses and it’s not going to include other st atements made in the presence of the jury. I did not say it and that’s n ot how a limine works. The trial court asked the State for its position. The State arg ued counsel’s statement “violated if not the exact letter of that motion in l imine, that it violated the intent and the spirit of it.” The State requested for a mistri al and argued that whether to admit evidence showing Cale’s gang affiliation would be a ho tly contested trial issue. The trial court and the State agreed that evidence of C ale’s gang membership was particularly significant because, in the period after Cale’ s death but before trial, the Bandidos motorcycle club had fought a massive gun battle wi th a rival gang at the Twin Peaks restaurant in W aco, Texas. “The Twin Peaks Shoo tout,” as the trial court labeled it, had resulted in multiple deaths, numerous inj uries, over one hundred arrests, and had received extensive media publicity. The trial court granted the Stat e’s request for a mistrial, exp laining: The motion for mistrial is granted. State can defend it afterwa rds, but the motion for mistrial is granted on the grounds that while I do understand the argument that the limine said you can’t ask the witness or solicit any evidence, the Cour t believes that you can’t make a goodfaith argument at opening statem ent that the evidence is going to show something the Court has specifically said the Court is going to have a hearing outside the presence of the jury before it determines w hether–6– it’s admissible. State wants a mistrial, you can have it, but y ou’re going to have to defend it. After the trial court ruled, the State expressed misgivings abo ut the mistrial in light of the rules regarding d ouble jeopardy. The State reques ted the trial court withdraw its ruling and give the State five minutes to reconsid er whether to pursue a mistrial. The trial court ag reed and withdrew its ruling on the mistrial. When the trial court reconvened th e hearing, the State persiste d in requesting a mistrial and asked the trial court to make “certain findings or rulings.” The State explained that it thought the trial court could order a mistria l based on manifest necessity in this case because def ense counsel’s statement was inappropriate even without violating the motion in limine. The State contended th at less drastic alternatives would not cure the prejudice counsel’s comment cre ated. The State contended the issue of whether C ale was a motorcycle gang membe r would be a hotly contested issue at trial. The State also argued it had a good-faith belief that the information about Cale’s motorcycle gang membership would not b e admissible under rules of evidence 403 and 404 because of the publicity an d notoriety the Bandidos had acquired after Cale’s death because of the “Twin P eaks shootout in Waco, which resulted in the arrest of over a hundred people, th e indictment of over a hundred people, and a well publicized mistrial in McLennan C ounty, Texas . . . .” The State argued it would be hard to believe no one on the jury had heard about these subsequent events.–7– The State further explained th e publicity it was concerned abou t: Your Honor, the president, the vice-president and the national sergeantat-arms of the Bandidos motorcycle club were all convicted. Th e president and vice-president were sentenced to federal prison f or life. That was also in the news. The sergeant-at-arms testified agai nst the other two and received 15 years in federal prison. This all ha ppened after Terry Cale died. And as Your Honor is well aware, all of those prosecutions—I believe the Court is probably well aware, all of those prosecutions in McLennan County, Waco, fell apart after the fir st hung jury and mistrial against the Da llas chapter president, Jose Ca rrizal. Your Honor, this is information that has nothing to do with Ter ry Cale because he was dead before any of that stuff happened. And tha t makes the evidence greatly more prejudicial than it is probative, You r Honor, in this case. And so for that reason, I don’t believe the ment ioning it in the first ten seconds of opening statement by defense counsel i s something that can be unrung in this case. In response, counsel again conte nded she did not violate the tr ial court’s limine order. The trial court disa greed, but also “wish[ed] it were drafted differently.” Nevertheless, t he trial court continued: I do think that you just need to be held to the terms of the or der. And that order says that there should be no testimony elicited from witnesses or other evidence elicited that [ Cale] was a member of the Band idos or a motorcycle gang. What I really want you to focus on is how, having told you you cannot ask witnesses in the presence of this jury any questions about that without first obtaining a ruling from the Court, you could make an argument to the jury that you ha ve a good-faith belief the evid ence was going to show that he was a member of that gang. Counsel replied that the evidence would show Cale was a member of the Bandidos and had bragged about being an “enforcer” for the gang . Counsel explained the defense would ar gue appellant shot Cale in self-d efense and evidence–8– of Cale’s gang membership was r elevant and admissible under art icle 38.36 of the code of criminal procedure 1 because it showed the men’s r elationship and appellant’s “state of mind, the reasonableness of his fear, the character t raits of the defendant, whether the defendant was the first aggressor in terms of comin g at him at the house.” Counsel reiterated that the order in limine governed evidence a t trial and opening statement was not evidence. Counsel added that she fe lt it was her duty as a zealous advocate for her client to take advantage of the Stat e’s failure to draft an appropriately broad motion in limine covering the subject. Counsel admitted she did not know how the trial court would ru le on the issue, but contended she had the right under existing law to ad mit evidence regarding “specific prior acts of violen ce relative to the ultimate confr ontation” as part of appellant’s defense. The trial court requested counsel to expl ain how the admissibility of specific acts of violence could be interpreted to make gang membership admissible and whether she had any cases that stated being a member of a gang—subsequently revealed to be violent—would be admissib le. Counsel admitted she had no authority showing gang membership, in and o f itself, was admissible. Counsel never theless stated she was

1 Article 38.36 permits a murder defendant to offer testimony of relevant facts and circumstances surrounding the killing, the relationship between the accused a nd the deceased, and the condition of the mind of the accused at the time of the offense. See T EX

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. art. 38.36.–9– not planning to talk anything about Twin Peaks or any of the re st of that mess. . . . I ’m talking about what my client knew and was told by Terry Cale at that time, that he was an enforcer, that he took contra cts and knocked heads for the Bandidos. The trial court responded: “So you don’t have any case law t hat says that [Cale’s] members hip is admissible, which is what you told the jury, not that he had en gaged in specific acts of violence, but that he was a member. So you do n’t have anything that says his me mbership is admissible.” After some additional argument, t he trial court asked counsel: “But what you told the jury was not that Mr. Cale had told him, I’m a violent man, but he was a member of the Bandidos. And what I’m asking is what law, if any, suppor ts allowing that evidence in. ” Counsel responded that if Cale decided to associate with a gang , that association was relevant to hi s character and reputation. Coun sel indicated that she planned to admit into evidence re ports from the Department of J ustice identifying the Bandidos as one of “the big five criminal enterprise motorc ycle gangs” and to show Cale had a gang tattoo. The trial court then issued its r uling on the State’s request f or a mistrial: the Court has not been presented with any support for the idea that membership in a gang is admissible. The Court has been present ed with some evidence that specific act s of violence might be admissibl e. And again, the State has moved for a mistrial. The Court is going to grant it. And so the motion for mistrial is granted over the objecti on of the defendant.–10– After the State prompted the trial court to state on the recor d why there was a manifest necessity for a mistria l and why lesser steps were ins ufficient, the trial court continued: There is no way to now instruct the jury to disregard that this man was a member of the Bandidos. And a gain, the Court does note the g eneral common knowledge of the activitie s of the Bandidos since the de ath of Mr. Cale, and those are highly inflammatory. Court will note t hat even as far away as little old Greenville, Texas, the events in Waco , Texas, were widely reported in the Her ald Banner. There were photogra phs in the Herald Banner, which is our paper of record here in Hunt Co unty, Texas. Not just in the Dallas Morning News and the Waco Tribun e. I mean, it was everywhere for mont hs, on and off reporting about the activities of the Bandidos in W aco, Texas, and the shootout. A nd the trials and the convictions and a ll of it was widely reported an d those are all events that have arisen si nce the death of Mr. Cale. And so it was clearly highly inflammatory and the Court is goin g to find there is a manifest necessity, over the objection of the d efendant, to grant a mistrial. And I do gr ant a mistrial at this time. All right. Because, again, I’m not convinced—and the Court is n ot going to say I would not have allowed that evidence in, I don’t know, but I did say that before I allo wed any witness to testify abou t it or any evidence related to it, and that would include any tattoos on t he body of the deceased, any testimony from anybody that he was a member o r an enforcer or that he engaged in activities, unless they were spe cific acts of violence—the Court wanted the opportunity before that was br ought out in the presence of the jury to rule on that issue. And so, again, I understand the technical gap that exists betwe en the motion in limine and it not including opening statements. But again, I don’t know that there can be demonstrated a good-faith belief t hat that evidence was going to be presented to the jury. And so, again, on that basis, the manifest necessity and the st atement regarding his membership in a criminal gang that, again, I cann ot predict on the state of the argument and the evidence and wheth er there is additional case law of which I am not aware, that would make it–11– admissible. But I don’t believe that that standing alone is ad missible, which is why I asked for a hearing outside the presence of the jury so that I could make a determination whether it was or was not adm issible before it was introduced into evidence. The trial court went on to say that while the Waco shootout mig ht not be “general knowledge” in the comm unity, it was “incredibly widely reported.” The trial court observed that neith er side had conducted voir dire on the jury panel’s knowledge of the Waco shootings and that the trial court unders tood the State appeared to have not conducted voir dire on the shootings becau se of its understanding of the order in limine. The trial court reiterat ed that it considered defense counsel’s statement to the jury to be inappropriate and that it saw no alternative to a mistrial to fix the situation. The Court stat ed that holding defense counsel in contempt would not erase the statement from the jury ’s minds nor would an instruction to disregard the statement given the wide report ing of the events in Waco involving the Bandidos. The Court indicated that its ruli ng was based entirely on the statement that Cale was a member of the Bandidos motorcy cle club. The Habeas Proceeding On November 7, 2019, the trial court conducted a pretrial heari ng before the second trial was scheduled to be gin. During that pretrial hear ing, the trial court heard argument on appellant’s application for writ of habeas corpus. In pressing for habeas relief, counsel argued that she could only be held to the limin e order the trial court signed and not to a broader under standing that the issue of Cal e’s gang affiliation–12– was not to be mentioned before t he jury. Counsel brought up th at the trial court had said she should only be held to t he order as written. The tria l court responded that it had specifically told counsel during the pretrial hearing th at the matter was not to be brought up before the jury without approaching for a hearing first. Counsel responded that the trial court’s admonitions about not mentioni ng the issue went only to testimony from a witness. Counsel pointed out the tria l court had said before trial, in discussing the defense motion in limine, that the Sta te could summarize what it believed the testimony would be and even gave an example of the State summarizing evidence it might not be able to present. Counsel further noted that neither the Bandidos nor the eve nts at Twin Peaks were addresse d in the State’s motion in limine or the trial court’s order. Rather than relying on the written motion and limine order, the State argued the trial court had admonished both parties not to mention Cale ’s gang affiliation before the jury without first appr oaching the bench for a deter mination of admissibility. The State argued Cale’s gang membership would n ot be admissible because it constituted improper ch aracter impeachment that is a lmost never admissible unless the gang membership was a factor in the crime itself. Secondly, the State argued the evidence wa s inadmissible because it was p rejudicial. The State contended that given the great deference given to the trial cou rt to determine manifest necessity, the trial court made the right decision in declaring a mistrial. Lastly, the State argued that defense counsel did not give the trial court any case–13– authority showing the evidence would be admissible at the time the mistrial was declared. The Trial Court’s Ruling and Findings The trial court denied relief and issued ten pages of findings of fact and conclusions of law. The tr ial court found, in part: 4. Part III of the State’s motion in limine requested a hearing outside the jury's presence to determine the admissibility of testimony or evidence that the victim was a member or former member of any organization commonly known as a "biker gang'' or "motorcycle c lub” before a party attempted to admit such evidence. 5. The State’s written motion di d not expressly request a heari ng prior to a party mentioning the victim's alleged gang membership duri ng opening statement. 6. During the pre-trial hearing, the prosecuting attorney did n ot state his request for a hearing before the parties could offer evidence o f gang membership only applied to the testimony portion of the trial. 7. The Court orally granted the limine as to Part III. While do ing so, the Court said the following: “I’m going to grant the limine, and y ou will be required to approach, but, of course, I'm making no ruling o n the ultimate admissibility of the information. I just need to hear exactly what it is you want to do before I allow it, because so many ch aracter traits are not admissible, and so I just want to make sure that I know–14– what we’re doing before we do it in the presence of the jury.” Reporter’s Record (RR) Vol. 1 p. 21." 8. The Court’s oral ruling did not limit the hearing requiremen t to the testimony portion of the trial. 9. The Court later signed an order granting the State’s request under Part III. The trial court found that comments made during opening stateme nt, and particularly comments made at the beginning or end of opening statement, hav e a significant impact on the jury and a high likelihood of being remembered. The trial court found counsel’s comment about Cale’s gang membe rship “was timed and delivered to provide maximum impact upon the jury” an d, in context, was an attempt to impeach Cale’s char acter based on his membership in a motorcycle gang. The trial court found that because counsel did not reque st a hearing before the trial court before informing the jury of Cale’s gang membership , she had introduced a matter that was the subject of the trial court’s limine rulin g and did so in violation of the trial court’s pretrial ruling and admonishments. The tr ial court found counsel made the comment intentionally to try to exploit what she belie ved was a variance between the trial court’s “clear ruling and admonishments” and the written order. The trial court found it’s practice and procedure was to not li mit its limine rulings to cover only testimony and not ope ning statements, and that couns el’s experience with the trial court, coupled with the trial court’s pretrial ruling , made unreasonable counsel’s “claimed belief” that the trial court’s ruling applie d only to testimony.–15– The trial court found counsel’s c omment that Cale was a Bandido raised the potential for jury bias because, while the public and potential jurors in Hunt County, Texas had a negative view of moto rcycle gangs in general, the B andidos have a particularly bad reputation due to their involvement in well-pu blicized acts of violence including the “Twin Peaks shootout” in Waco which resu lted in multiple deaths, numerous arrests of motorcycle gang members, at least o ne trial, and repeated, lengthy coverage in lo cal and regional media. The tr ial court found the potential for bias from counsel’s comment was exacerbated becau se the notorious events involving the Bandidos o ccurred after Cale’s death. The trial court found counsel’s statement was so prejudicial and inflammatory that th e jury would almost certainly remember it for the duration of the trial even if it was not proved in evidence, and that lesser measures short of mistrial, such as a n instruction to disregard or holding counsel in contempt would not be sufficien t to erase the information from the jurors’ minds. In its conclusions of law, the tr ial court concluded appellant was not being subjected to double jeopardy. It cited the Supreme Court’s hol ding in Arizona v. Washington , 434 U.S. 497 (1978) as showing an improper opening statement can create manifest necessity for a m istrial. The trial court conc luded it could find no authority requiring that trial counsel’s statement expressly vi olate a limine order to justify a mistrial. The trial court concluded that in raising a claim of self-defense, appellant could introduce opinion or reputation evidence showin g the victim had a–16– violent character or showing prior specific acts of violence, b ut that mere membership in a motorcycle gang would be inadmissible to prove the victim’s violent character nor would it be a prior specific act of viole nce. The trial court further conclude d that membership in a criminal gang is considered highly inflammatory character evidence and is not ge nerally admissible unless it is relevant for some reason other than showing charac ter such as establishing motive, opportunity, plan, or intent. Even if rel evant, the trial court further concluded, the evidence would only be admissible if it passed a balancing test satisfying rule of evidence 403. The trial court further concluded counsel did not demonstrate in her opening statement or the mistrial hearin g that evidence of Cale’s gang membership was relevant or that it had sufficient p robative value to outweigh the extreme danger of unfair prejudice; thus, the tria l court concluded, counsel had not shown Cale’s membership in the Bandidos would h ave been admissible evidence for trial. The trial court concluded the double jeopardy bar did not apply and appellant could be retried because counsel had created a manifest necessi ty for mistrial by introducing to the jury seemingly inadmissible facts subject to the trial court’s order in limine, she could not explain how the facts would be admissi ble, and no less drastic remedy would correct t he wrongdoing and lessen the tain t of jury prejudice.–17– S TANDARD OF R EVIEW A defendant may file a pretrial application for writ of habeas corpus to allege a second prosecution for the same offense constitutes double je opardy. Ex parte
Robinson , 641 S.W.2d 552, 555 (Tex. Crim. App. 1982). An applicant for pretrial habeas relief must prove their claims by a preponderance of the evidence. See Kniatt
v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In reviewing a t rial court order denying habeas relief, we view the facts in the light mos t favorable to the trial court’s ruling, and we uphold the ruling absent an abuse of dis cretion. Id . The trial court, as fact finder, is the exclusive judge of witness credib ility. Ex parte Amezquita , 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We afford almost total deference to a trial court’s factual findings when the findings are based upon credibility and demeanor. Id . If, however, the trial c ourt’s determinations are questions of law, or else are mixed questions of law and fact t hat do not turn on an evaluation of witness credibility and demeanor, then we owe no deference to the trial court’s determinations a nd review them de novo. State v. Ambrose , 487 S.W.3d 587, 596–97 (Tex. Crim. App. 2016).
D OUBLE J EOPARDY A defendant may not be placed in legal jeopardy twice for the s ame offense.
See U.S. C ONST ., amends. V, XIV; Tex. Const, art. I, §14. In a jury trial, j eopardy attaches when the jury is empaneled and sworn in. Crist v. Bretz , 437 U.S. 28, 37– 38 (1978); State v. Proctor , 841 S.W.2d 1, 4 (Tex. Crim. App. 1992). After jeopardy–18– attaches, if the jury is discharged without reaching a verdict, double jeopardy will bar retrial unless either the def endant consents to a mistrial or a mistrial was declared because of manifest necessity. Ex parte Garrels , 559 S.W.3d 517, 522 (Tex. Crim. App. 2018). “Manifest necessity” for a mistrial exists in very extraordinar y and striking circumstances when there is a high degree of necessity for a mi strial. Ex parte
Fierro , 79 S.W.3d 54, 56 (Tex. Crim. App. 2002). There are no precis e rules and categories of circumstances for determining when manifest neces sity exists justifying a mistrial. Brown v. State , 907 S.W.2d 835, 839 (Tex . Crim. App. 1992). Manifest necessity exists when t he circumstances make it imposs ible for the jury to reach a fair verdict, when the trial is impossible to continue, or when continuing with trial would result in a verdict subject to automatic reversal o n appeal because of trial

error. Ex parte Garza , 337 S.W.3d 903, 909 (Tex. Crim. App. 2011). The defendant bears the initial bur den to prove the defendant i s being tried again after a mistrial was dec lared over the defendant’s object ion. Pierson v. State , 426 S.W.3d 763, 770 (Tex. Crim. A pp. 2014). Once the defendant has made this showing, the burden shifts to the State to show the trial court declared a mistrial as a matter of manifest necessity. Id

. A trial court abuses its discretion if it declares a mistrial because of manifest necessity without first considerin g lesser available alternatives and ruling them out. Id . The basis for the mistrial need not be reflected in the record. Id . When the trial court declares a mistrial due to an improper–19– comment by counsel in front of the jury, we accord the “highest degree of respect” to the trial court’s evaluation of the likely impact of the com ment on the jury’s impartiality. Id . On appeal, we review the record to determine whether the tri al court exercised sound discretio n in granting the mistrial. Id

. A NALYSIS In his sole issue, appellant contends the trial court abused it s discretion in not granting pretrial habeas relief because (1) counsel did not vio late the limine order, and (2) the trial court and the State erroneously placed on app ellant the burden of proof to show there was no manifest necessity for a mistrial. It is undisputed that a jury was empaneled, jeopardy had attached, and appellant did no t request or consent to the declaration of a mistrial. Thus, the issue to resolve o n appeal is whether counsel’s opening statement created a manifest necessity for a mistrial, either because appellant violated the lim ine order or for some other r eason. See Fierro , 79 S.W.3d at 56. Appellant contends there was no manifest necessity for a mistr ial because trial counsel’s statement did not violate the trial court’s limine or der, there was no manifest necessity for a mistrial, the information about Cale’s gang affiliation was admissible, and the trial court’ s cursory consideration of alte rnatives does not show a lesser action, such as an instru ction to disregard, would not have cured the error. Appellant further contends that many of the trial court’s findi ngs of fact are not–20– supported by the record and he urges the Court to conduct a de novo review of the record. The State responds that manifest necessity does not require the violation of a limine order. In this case, the State argues, trial counsel’s statement introduced inadmissible, inflammatory evidence to the jury, and the trial court considered less drastic alternatives, none of which would have cured the error. The State further contends trial counsel did viola te the limine order when consid ered in context. Manifest Necessity Contending that this appeal turns on whether trial counsel viol ated the motion and order in limine, appellant f irst argues trial counsel did n ot violate the terms of the State’s motion in limine or the trial court’s resulting lim ine order. Appellant points out that the State asked for a hearing only before “test imony or evidence” was elicited that Cale was a member or former member of a biker gan g or motorcycle club, and trial counsel’s opening statement was neither testimo ny nor evidence. Appellant points out the State d id not seek to expand its motio n in limine to include opening statements even after the discussion during the pretria l hearing in which appellant sought to limit certain information the State might s eek to provide during opening statement. Appellant points out that in response to it s motion in limine, the trial court denied appellant’s efforts to restrict the State’s opening statement,–21– indicating it thought the State had a right to explain its case , including what it thought the evidence at trial would show. The State responds that the trial court’s determination of whet her evidence or information is likely to result in jury bias is subject to grea t deference and rarely disturbed on appeal. The State contends the record shows both parties recognized the importance of the informati on about Cale’s motorcycle gang membership and it points to the trial court’s pretrial admonishment that the part ies were to approach and discuss the issue of admissibility before introducing the e vidence to the jury. The State contends the trial court correctly determined that th e gang membership evidence was inadmissible, defense counsel presented no argumen t that would allow for its admission, and even if admissible, its prejudice would outweigh its probative value under rule of evidence 404. The State argues the record shows the trial court considered and rejected less drastic alternatives before declar ing a mistrial. Finally, the State contends appellant did, in fact, violate the trial co urt’s limine order when one considers the purpose of a limine order. A defendant who raises an issue of self-defense in a murder cas e may introduce evidence showing the victim’s violent character, and such evidence may include opinion or reputation testimony to show the deceased ac ted in conformity with his violent nature. T EX

. R. E VID . 404(a)(2); Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Specific, violent acts of miscondu ct are admissible only if they are relevant for a purpose other than to show char acter conformity such–22– as the reasonableness of the def endant’s fear of danger or that the deceased was the first aggressor. T EX

. R. E VID . 404(b); Torres , 71 S.W.3d at 760. When proving a deceased was a first aggressor, specific, violent acts may be a dmissible to show the deceased’s intent, motive, or state of mind to be the first agg ressor. Torres , 71 S.W.3d at 760–61. However, befor e a specific act of violence b ecomes admissible to prove self-defense, there must be evidence of some violent o r aggressive act by the deceased that raises the issue of self-defense and that the specific extraneous conduct might explain. See id. at 761. As the trial court stated during the hearing on mistrial, evide nce that Cale was a gang member is not a specific, violent act of misconduct. Ev idence of gang membership is generally inadmissible because it attempts to con nect the individual to gangs in order to prove bad character. See Pondexter v. State , 942 S.W.2d 577, 584 (Tex. Crim. App. 1996). 2 Gang membership is considered highly inflammatory character evidence, but it may be relevant to prove bias, motiv e, intent, or to refute a defensive theory. See Barrientos v. State , 539 S.W.3d 482, 492 (Tex. App.— Houston [1st Dist.] 2017, no pet.) (holding gang membership is highly inflammatory) (quoting Galvez v. State , 962 S.W.2d 203, 206 (Tex. App.—Austin 1998, pet. ref'd) (“[G]ang membership is highly inflammatory ch aracter evidence

2 “We . . . do not now[] hold that evidence of a defendant's gan g affiliations is admissible as character evidence during the guilt/innocence phase of a trial. ” Pondexter , 942 S.W.2d at 584 n.2.–23– likely to cause an individual to be convicted for being a bad p erson apart from sufficient indicia of guilt rega rding this particular crime.”))

. In certain circumstances, eviden ce of gang membership may be re levant.
Barlow v. State , 175 S.W.3d 839, 843 (Tex. App.—Texarkana 2005, pet. ref’d). Even when relevant, however, it must also be determined whether the probative value of the evidence is outwei ghed by the danger of unfair pre judice. Id . at 844. As appellant contends, whether such evidence is admissible depe nds upon the circumstances. In this case, because appellant introduced Cale ’s gang membership to the jury at the beginning of trial before any evidence had b een admitted, there is insufficient evidence on the reco rd to determine whether or not there is a plausible basis for admitting the evidence. See Pierson , 426 S.W.3d at 771 (concluding trial court did not abuse its discretion in declaring mistrial where trial counsel hoped more than intended that objectionabl e question would lead to admissi ble evidence). Because it was unclear whether s uch evidence would be admissibl e or not, the trial court signed a limine orde r before trial that required th e parties to approach the bench before offering such evidence to the jury. 3 As appellant pointed out to the

3 In Norman v. State , the Texas Court of Criminal Appeals addressed motions in limi ne as follows: The purpose of a motion in limine is to prevent particular matters from coming before the jury. It is, in practice, a method of raising objection to an a rea of inquiry prior to the matter reaching the ears of the jury through a posed question, jury ar gument, or other means . As such, it is wider in scope than the sustaining of an objection made after the objectionable matter has been expressed

. However, it is also, by its nature, subject to reconsideration by the court throughout the course of the trial . This is because it may not be enforced to exclude properly admissible evidence.–24– trial court and again argues on appeal, the limine order was na rrowly drafted and did not expressly prohibit comments during opening statement inform ing the jury of Cale’s gang membership. Neverth eless, the record shows the tri al court and the parties understood the sensitiv ity of the matter, and that the issue of whether evidence of Cale’s gang membership was admissible would be a ho tly contested issue at trial. Counsel informed the trial court that she had done extensive research to argue for its admission. Counsel’s argument to the trial co urt that she considered it her duty as a zealous advocate to take advantage of the Stat e’s drafting mistake also shows her subjective understanding that the issue of Cale’ s gang membership was inflammatory and that she was trying to obtain an advantage over the State by mentioning it. In presenting his defense, an a ccused must comply with establis hed rules of procedure and evidence designed to assure both fairness and rel iability in the ascertainment of guilt and innocence. Chambers v. Mississippi , 410 U.S. 284, 302 (1973). The trial court interpre ted counsel’s comment as viola ting its limine ruling as reflected by the discussion during the pretrial hearing held one week before trial. By broaching the subject of Cale’s gang membership in opening a rgument, counsel deprived the trial court of the opportunity to determine whethe r the evidence was admissible as the trial unfolded. The trial court found manife st necessity existed to

Norman v. State , 523 S.W.2d 669, 671 (Tex. Crim. App. 1975). (emphasis added).–25– merit a mistrial because defense counsel’s statement created a circumstance whereby the jury could not disregard potentially inadmissible character evidence—suggesting a situation in which the jury could no longer reach a fair verd ict. See Ex parte Garza , 337 S.W.3d at 909.
In Arizona v. Washington , the United States Supreme Court upheld a trial court’s declaration of a mistria l due to improper argument by d efense counsel during opening statement. The Supreme Court explained that “compellin g institutional considerations” militate in favor of deferring to the trial cou rt’s evaluation of the significance of possible juror bias because the trial court has seen and heard the jurors during voir dire , is more familiar than the appellate court with the evidence and background of the case, and has had the opportunity to list en to the tone of the argument and observe the apparent reaction of the jurors. Arizona v. Washington , 434 U.S. 497, 513–14 (1978). In deciding whether to grant a mi strial, the trial court must temper its decision whether to abort the trial by consider ing the importance to the defendant of the constitutionally protected interest in con cluding the defendant’s case in one trial. Id . at 514. To ensure the trial court struck the right balance, a reviewing court must satisfy itself that the trial court exerci sed sound discretion and did not act irrationally or irresp onsibly in declaring a mistri al. Id

. In approving the trial court’s actions, the Supreme Court expla ined as follows: Defense counsel aired improper and highly prejudicial evidence before the jury, the possible impact of which the trial judge was in t he best position to assess. The trial judge did not act precipitately i n response–26– to the prosecutor's request for a mistrial. On the contrary, ev incing a concern for the possible double jeopardy consequences of an err oneous ruling, he gave both defense counsel and the prosecutor full op portunity to explain their positions on the propriety of a mistrial. We a re therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent' s interest in having the trial concluded in a single proceeding. Since he exercised “sound discretion” in handling the sensitive problem of possibl e juror bias created by the improper comment of defense counsel, the mi strial order is supported by the “high degree” of necessity which is r equired in a case of this kind. Neither party has a right to have his c ase decided by a jury which may be tainted by bias; in these circumstances, “the public's interest in fair trials designed to end in just judgem ents” must prevail over the defendant's “valued right” to have his trial c oncluded before the first jury impaneled.
Id . at 514–16

. The Supreme Court’s analysis in Arizona fits the circumstances in this case. It is apparent from the record that the trial court intended th e “particular matter” of Cale’s membership in a motorcycle gang to not be raised until t here was some evidentiary foundation laid. See Norman , 523 S.W.2d at 671. The trial court, at the time of defense counsel’s statement, had neither evidence upon which to base a decision of admissibility nor an opportunity to address the adm issibility of the statement’s anticipated evidence under its limine ruling. Face d with the prospect that the jury might have been prejudiced by counsel’s comment r evealing inflammatory and potentially inadmissible information that was the subject of the trial court’s limine ruling, the trial court convened a hearing where it allowed both sides to argue whether a mistrial should be declared. When the State had second thoughts about the mistrial, the trial court rescinded its ruli ng to allow the State time–27– to research the issue and reflect on the matter. The trial cou rt probed counsel about her grounds for believing the matter might be admissible and as ked her for any authority that would show gang membership, standing alone, is a dmissible. After prompting from the State, the trial court put on the record its reasons for believing why less drastic alternatives, such as instructing the jury not to consider the statement or holding counsel in contempt, would not be sufficie nt to remedy the inappropriate comment. Appellant contends the trial cou rt’s discussion of the alternat ives was cursory and did not occur until after the ruling had been made and the State pointed out the need for discussing alternatives . However, as th e record makes clear, the trial court conducted a lengthy hearing considering all aspects of the ruli ng. The trial court directly stated on the record its reasons for believing less dr astic alternatives would not work before it ultimately concluded the mistrial hearing. The record shows to our satisfaction that the trial court exercised sound discretio n and did not act irrationally or irresponsibly in declaring a mistrial. Id . at 514; see also Fierro , 79 S.W.3d at 56–57 (concluding trial court abused its discretion i n granting mistrial where record did not reflect any consideration of alternatives) ; Ex parte Bruce , 112 S.W.3d 635, 640–41 (Tex. App.—Fort Worth 2003, pet. dism’d as u ntimely) (affirming denial of habeas relie f where trial court granted mi strial after trial counsel made inflammatory, inadmissible remark during opening statement despite being admonished not to during pretrial hearing and in limine order).–28– Placement of the Burden to Show Manifest Necessity In the second part of his issue, appellant contends the trial c ourt placed the burden on him to show there was not a manifest necessity for a mistrial rather than properly placing the burden on the State. See Pierson , 426 S.W.3d at 770. As appellant notes in her brief, the trial court stated in its initial ruling that it would grant the State’s request for a mistrial, but the State w ould have to defend the decision. Thus, the record shows the trial court understood wh ich party bore the burden to establish manifest nec essity for the mistrial. Appel lant contends, however, that after the trial court granted the State a recess and the S tate returned to press its case for a mistrial, the trial court shifted the burden to appe llant to show that there was no manifest necessity for a mistrial rather than making the State prove there was a manifest necessity. We disagr ee with appellant’s assessment of the record. Counsel took the position that she could inform the jury of Cal e’s gang membership because doing so did not violate the limine order an d the information would be admissible during trial. In his appellate brief, appe llant reiterates that he is arguing self-defense and the reasonableness of his fear of t he victim, his belief that deadly force was immediately necessary, and his belief tha t the victim was about to attack him with deadly force “are all issues of consequence to be decided by the jury.” Appellant argues that his knowledge of Cale’s gang memb ership and tattoos and Cale’s bragging to him about being an enforcer who “took co ntracts and busted heads” for the Bandidos are relev ant and admissible for his sel f-defense claim.–29– The trial court questioned counsel about the basis for her posi tion and more specifically, about whether she had legal authority that would render the gang evidence admissible. The trial c ourt never wavered in its view that the evidence was inflammatory and prejudicial. The trial court’s discussion wit h counsel appears aimed at establishing whether there was any authority that woul d show her comment was a preview of admissible evidence the defense would place be fore the jury. Nothing in the discussion persuades us the trial court shifted the burden of proof to appellant to show there was not a manifest necessity for a mist rial. We overrule appellant’s sole issue on appeal.
Conclusion We conclude the trial court did not abuse its discretion in den ying appellant’s pretrial application for writ of habeas corpus seeking relief f rom double jeopardy. Accordingly, we affirm the trial court’s order denying relief o n appellant’s pretrial application for writ of habeas corpus seeking relief from doubl e jeopardy.

Do Not Publish T EX

. R. A PP

. P. 47.2(b) 191389F.U05 /Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE–30– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE CARL ALLEN WELCH

No. 05-19-01389-CR On Appeal from the 196th District Court, Hunt County, Texas Trial Court Cause No. 31,927. Opinion delivered by Chief Justice Burns. Justices Myers and Pedersen, III participating. Based on the Court’s opinion of this date, the order of the tr ial court denying relief on appellant’s pretrial a pplication for writ of habeas c orpus seeking relief from double jeopardy is AFFIRMED

. Judgment entered May 3, 2021