COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE:

JAMES EDWARD HILLIARD. 

 

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No. 08-22-00179-CR

Appeal from the 

210th Judicial District Court

of El Paso County, Texas 

(TC# 20190D00815 and 20220D02996) 

O P I N I O N 

Appellant, James Edward Hilliard, appeals the trial court’s order jointly denying his 

amended application for a pretrial writ of habeas corpus and his motion to dismiss based on claims 

of double jeopardy and prosecutorial vindictiveness, respectively. On appeal, Hilliard contends the 

trial court abused its discretion by denying his claim for relief. Finding no error, we affirm.

I. BACKGROUND

On February 27, 2019, the State charged Hilliard by indictment with one count of 

indecency with a child by sexual contact in cause number 20190D00815. A jury trial was originally 

scheduled for February 14, 2020. But Hilliard filed a motion for continuance to investigate and 

pursue discovery, which the trial court granted. The jury trial was reset, on special setting, for 

March 17 and 18, 2022. Days before, however, the State moved for a continuance due to its 
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complaining witness and others being out of town and unavailable for trial. The State informed the 

trial court that defense counsel indicated they were ready to proceed on the specially set dates. The 

trial court granted the State a continuance. Trial was reset for special setting jury trial on May 5

and 6, 2022, with backup dates on May 19 and 20, 2022. The State next filed a second motion for 

continuance on May 2, 2022. The State asserted as grounds that it had only recently learned of 

new facts from its complaining witness, identified in the motion as J.C., and such information led

to paternity testing of J.C.’s first child.

1 The State asserted the testing could hinder the outcome 

of the proceeding for both the State and the defense. The trial court denied the State’s motion. 

Trial began on May 9, 2022. Prior to trial, the trial court had granted in part Hilliard’s

motion in limine as to evidence described in the State’s notice of extraneous offenses and its notice 

of statements alleging conduct not otherwise alleged in the indictment. As its first witness, the 

State presented testimony from O.A.W.2

, its complaining witness, who was then 37 years old. She 

described that she lived in El Paso until she was roughly eight years old. Before moving from the 

city, she recalled she had first lived at her grandmother’s house, then at an apartment where her 

mother frequently re-decorated her bedroom, and finally they moved into a ranch-style home. She 

testified that her mother died when she was 12 years old. She never knew her biological father. 

She described that she was raised by Hilliard, who was her stepfather. He was the only father figure 

of her childhood. She identified him in the courtroom. 

1 At the hearing, the State argued to the trial court that J.C. was considered a second complainant who could add 

credibility to the complainant named in the indictment. Defense counsel objected arguing the second witness was not 

relevant to the case given she would not be called as a witness in the case. 

2 Because the complaining witness was a minor at the time the offense was committed, we use her initials, for privacy 

protection. See TEX. R. APP. P. 9.10(a)(3).
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The prosecutor asked O.A.W. about her memories of when she lived in the apartment in El 

Paso. For the most part, she recalled that she loved books and Barbies. She spent most of her time 

with her mother. When asked about things she did with her stepfather, O.A.W. said she tried to 

limit her time with Hilliard. When asked why, she said, “So we -- my dad would do this thing 

called cleaning, essentially.” She remembered it became an issue of when she went to the bathroom 

by herself, he would claim that she had not properly wiped herself and he would check her 

underwear. The State followed her testimony asking her at what age she was when this 

circumstance occurred. O.A.W. testified she was five or six. Hilliard then objected on the basis 

that her testimony fell outside the date range of the indictment. The trial court overruled Hilliard’s 

objection and his request for a mistrial. As O.A.W.’s testimony continued she provided details 

about what Hilliard would do to her. When she exited the restroom, he led her to her bedroom or, 

in some instances, the living room. He asked her to bring with her a roll of toilet paper and baby 

oil. After he removed her underwear, he would bend her over the middle of her bed, face down. 

Hilliard then rubbed the baby oil in between her butt cheeks, took out his penis, and rubbed it up 

and down where he had applied baby oil. O.A.W. said she felt the pressure of him pushing his 

penis up and down and he would try to insert it into her butt. 

Hilliard objected again and moved for a mistrial. At a bench conference, Hilliard argued 

that O.A.W.’s testimony clearly described an extraneous offense, and not conduct alleged by the 

indictment. The State disagreed, arguing no violation of the in-limine order had occurred, that the 

witness’s mention of penetration was not intentionally elicited by the State, and that the extraneous 

offense was admissible as part of the same criminal episode. After hearing argument outside the 

presence of the jury, the trial court granted Hilliard’s motion for mistrial without prejudice. The 
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trial court noted the State’s notice of extraneous offenses had expressly stated there were no 

allegations of penetration or ejaculation. 

On August 17, 2022, the State filed a notice to vacate its prior notice of extraneous offenses, 

bad acts, and habitual offense, which had been filed on February 6, 2020. The following day, in 

cause number 20220D02996, the State reindicted Hilliard on eight felony counts of aggravated 

sexual assault of a child. Hilliard next filed a pretrial application for writ of habeas corpus alleging 

he had already been prosecuted under the prior indictment and the Double-Jeopardy Clause of the 

5th Amendment of the United States Constitution, through the 14th Amendment of the United 

States Constitution, prohibited a re-prosecution. Within his writ application, Hilliard also asserted 

a claim of intentional prosecutorial misconduct. 

In cause number 20190D00815, the State moved to dismiss the indecency with a child by 

sexual contact indictment based on the case having been refiled under cause number

20220D02996. Next, Hilliard separately filed both a motion to dismiss cause number 

20220D02996, and an amended application for writ of habeas corpus. The motion to dismiss was 

based on prosecutorial vindictiveness, while the amended writ application was based on violations 

of the Double Jeopardy Clause of the United States and Texas Constitution. Yet, in either event, 

Hilliard’s amended writ application incorporated by reference his motion to dismiss the pending 

indictment. After holding a non-evidentiary hearing on both of Hilliard’s requests, the trial court 

jointly denied relief by written order. 

Hilliard challenges the trial court’s order denying the relief requested in his amended writ 

application. 
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II. DISCUSSION

In his sole issue presented, Hilliard contends the trial court erred by denying his pretrial 

writ claims of double jeopardy and prosecutorial vindictiveness. He contends the indictment 

should be dismissed with prejudice. Countering, the State argues both pretrial writ claims lack 

merit. 

A. Standard of review 

“Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy.” Ex parte 

Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017). “[W]hether a claim is even cognizable on 

pretrial habeas is a threshold issue that should be addressed before the merits of the claim may be 

resolved.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). A defendant may use a 

pretrial application for writ of habeas corpus only in very limited circumstances. Ex parte Smith, 

178 S.W.3d 797, 801 n.13 (Tex. Crim. App. 2005). The Court of Criminal Appeals has limited the 

use of pretrial habeas applications to issues that would result in immediate release and has “held 

that an applicant may use pretrial writs to assert his or her constitutional protections with respect 

to double jeopardy and bail,” to challenge the facial constitutionality of the statute under which he 

or she is prosecuted, or to allege that the offense charged is barred by statute of limitations. See Ex 

parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). The Court has “held that an applicant 

may not use a pretrial writ to assert his or her constitutional rights to a speedy trial, challenge a 

denial of a pretrial motion to suppress, or make a collateral estoppel claim that does not allege a 

double jeopardy violation” because those issues are better addressed by a post-conviction appeal. 

Id.

In limited circumstances, a trial court may dismiss a case without the State’s consent. The 

Court of Criminal Appeals of Texas recognized that such authority exists “when a defendant has
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been denied a right to a speedy trial, when there is a defect in the charging instrument, or pursuant 

to [Article 32.01 of the Texas Code of Criminal Procedure], when a defendant is detained[,] and 

no charging instrument is properly presented.” State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. 

App. 2003). We review a claim of prosecutorial vindictiveness for an abuse of discretion. Wilson 

v. State, 633 S.W.2d 952, 956-57 (Tex. App. 1982). And the same standard applies when reviewing 

a trial court’s ruling on a claim for habeas relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. 

App. 2006). In both circumstances, we review the evidence presented in the light most favorable 

to the trial court’s ruling. Id. We afford almost total deference to the court’s determination of 

historical facts supported by the record, especially when the fact findings are based upon credibility 

and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). We 

also afford the same deference to the trial judge’s rulings on application of law to fact questions if 

resolving those ultimate questions turn on evaluating credibility and demeanor. Id. If resolving 

those ultimate questions turns on applying legal standards, however, we review the determination 

de novo. Id. at 87.

Because no testimony was received at the trial court’s hearing on Hilliard’s motion to 

dismiss and application for writ of habeas corpus relief, we note the trial court’s ruling could not 

have turned on credibility and demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524, 526 

(Tex. Crim. App. 1999) (en banc). Accordingly, we apply a de novo standard of review. 

B. Analysis

Hilliard argues three grounds in support of his appeal. First, he contends the State filed 

continuances to prevent Hilliard from exercising his constitutional right to a speedy trial. Second, 

Hilliard contends the State purposefully goaded him into moving for a mistrial evidenced by its 
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justifications for violating the court’s in limine order. Lastly, Hilliard contends the State punished 

him for exercising his right to a jury trial by increasing the charges. 

Hilliard’s first and third arguments both fall under the prosecutorial vindictiveness

complaint. Accordingly, we address those arguments together under our vindictiveness review. 

However, as to his argument asserting he was forced to protect his rights to a fair trial and motion 

for a mistrial, we interpret this complaint liberally as presenting a double jeopardy complaint

against a retrial. We address this argument last, but only to a limited extent. 

(1) Prosecutorial vindictiveness 

Hilliard asserts the State sought repeated delays of his constitutional right to a jury trial 

and, when its second motion for continuance was denied, it reindicted on eight counts of 

aggravated sexual assault of a child in retaliation. Hilliard contends the State increased the charges 

against him solely because he exercised his right to a fair trial. He asserts his claim raises a 

presumption of prosecutorial vindictiveness. 

Habeas corpus relief on grounds of prosecutorial vindictiveness is not among the claims 

listed as cognizable in a pretrial habeas application by the Court of Criminal Appeals. See Ex parte 

Estrada, 573 S.W.3d 884, 891 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing Ex parte 

Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001)). However, because an applicant may appeal 

a trial court’s denial of habeas relief regardless of the underlying claims for the relief sought, we 

determine whether a vindictive-prosecution claim is cognizable in Hilliard’s petition for pretrial 

habeas corpus. Ex parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998) (en banc).

Generally, prosecutors have broad discretion to decide what charges to file against a 

criminal defendant. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (en banc). Yet, 

that discretion is not without limits. A prosecutor may not increase the charges brought against a 
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defendant simply as a punishment for invoking a right. United States v. Saltzman, 537 F.3d 353, 

359 (5th Cir. 2008). “To punish a person because he has done what the law plainly allows him to 

do is a due process violation ‘of the most basic sort.’” United States v. Goodwin, 457 U.S. 368, 

372 (1982). 

A constitutional claim of prosecutorial vindictiveness may be established in either of two 

distinct ways: (1) proof of circumstances that pose a “realistic likelihood” of such misconduct 

sufficient to raise a “presumption of prosecutorial vindictiveness,” which the State must rebut or 

face dismissal of the charges; or (2) proof of “actual vindictiveness”—that is, direct evidence that 

the prosecutor’s charging decision is an unjustifiable penalty resulting solely from the defendant’s 

exercise of a protected legal right. Neal, 150 S.W.3d at 173. “Under the first prong, if the State 

pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his 

legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of 

prosecutorial vindictiveness.” Id. To establish the second prong, a defendant must prove with 

objective evidence, that the prosecutor’s charging decision was a “direct and unjustifiable penalty” 

that resulted “solely from the defendant’s exercise of a protected legal right.” Id. at 174.

The presumption of vindictiveness prong rarely applies outside the context of a prior 

conviction, a successful appeal, and a post-appeal enhanced charging decision. See Goodwin, 457 

U.S. at 373. The United States Supreme Court explained:

There is good reason to be cautious before adopting an inflexible presumption of 

prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case 

for trial, the prosecutor may uncover additional information that suggests a basis 

for further prosecution, or he simply may come to realize that information 

possessed by the State has a broader significance. At this stage of the proceedings, 

the prosecutor’s assessment of the proper extent of prosecution may not have 

crystallized. In contrast, once a trial begins—and certainly by the time a conviction 

has been obtained—it is much more likely that the State has discovered and 

assessed all of the information against an accused and has made a determination, 
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on the basis of that information, of the extent to which he should be prosecuted. 

Thus, a change in the charging decision made after an initial trial is completed is 

much more likely to be improperly motivated than is a pretrial decision.

Id. at 381. In the few instances it does apply, the defendant must prove he was convicted, he 

appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional 

enhancements. Neal, 150 S.W.3d at 174. Such factors are not present here and the first vindictive 

prosecution claim is not satisfied. We decline to extend the presumption of prosecutorial 

vindictiveness in this case based on the record presented. 

Under the second prong, Hilliard was required to prove, with objective evidence, that the 

prosecutor’s charging decision was a “direct and unjustifiable penalty” that resulted “solely from 

the defendant’s exercise of a protected legal right.” Id. (quoting Goodwin, 457 U.S. at 384 n.19). 

Hilliard shoulders the burden of both production and persuasion, unaided by any legal 

presumption. Id. The trial court does the ultimate factual issue based upon the evidence and 

credibility determinations. Id. The State may stand mute unless and until Hilliard carries his burden 

of proof. Id.

Hilliard asserted the state increased charges against him solely because he exercised his 

lawful rights. In response, the State contended it reindicted the case because, after the mistrial, it 

had the complaining witness write down everything that had happened to her. The State considered 

her resulting statement as new evidence. After receiving the complaining witness’s new statement, 

the State decided to reindict the case alleging actual penetration. The State further points out that 

Hilliard never filed a demand for speedy trial but instead requested a continuance at one point. 

Based on this record, we cannot conclude the trial court clearly erred in finding the State 

did not engage in prosecutorial vindictiveness. We overrule Hilliard’s sole issue in part to the 

extent it pertains to prosecutorial vindictiveness. 
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(1) The Double Jeopardy claim

“The double jeopardy provisions of the federal and Texas constitutions protect a citizen 

from repeated attempts at prosecution for the same criminal offense.” Ex parte Wheeler, 203 

S.W.3d 317, 324 (Tex. Crim. App. 2006); see also U.S. CONST. amend. V; TEX. CONST. art. I, 

§ 14. When a mistrial is granted at the defendant’s request, double jeopardy principles generally 

do not bar a retrial. Oregon v. Kennedy, 456 U.S. 667, 673 (1982). However, when the defendant 

demonstrates that the prosecution engaged in conduct that was intended to provoke the defendant 

into moving for a mistrial, double jeopardy principles bar retrial. Id. at 679; Ex parte Lewis, 219 

S.W.3d 335, 371 (Tex. Crim. App. 2007) (adopting the standard announced in Oregon v. Kennedy

for determining when to grant double jeopardy relief following defense-requested mistrial). 

An applicant for habeas corpus relief must prove his claim by a preponderance of the 

evidence. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). In addition, an 

applicant must ensure that a sufficient record is presented to demonstrate error requiring reversal. 

Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005). To be entitled to habeas 

corpus relief on double jeopardy grounds, appellant was required to establish by a preponderance 

of the evidence that the prosecutor engaged in conduct that was intended to provoke him into 

moving for a mistrial. See Kennedy, 456 U.S. at 679. Texas courts analyze a federal or state 

constitutional double-jeopardy claim under a three-part test: (1) whether manifestly improper 

prosecutorial misconduct provoked the mistrial; (2) whether the mistrial was required because the 

prejudice produced from that misconduct could not be cured by an instruction to disregard; and 

(3) whether the prosecutor engaged in that conduct with the intent to goad the defendant into 

requesting a mistrial or with conscious disregard for a substantial risk that the trial court would be 

required to declare a mistrial. Ex parte Wheeler, 203 S.W.3d at 323. The Texas Court of Criminal 
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Appeals has held that courts should consider the following list of non-exclusive factors in assessing 

the prosecutor’s state of mind: 

1) Was the misconduct a reaction to abort a trial that was “going badly for the 

State?” In other words, at the time that the prosecutor acted, did it reasonably 

appear that the defendant would likely obtain an acquittal?

2) Was the misconduct repeated despite admonitions from the trial court?

3) Did the prosecutor provide a reasonable, “good faith” explanation for the 

conduct?

4) Was the conduct “clearly erroneous”?

5) Was there a legally or factually plausible basis for the conduct, despite its 

ultimate impropriety?

6) Were the prosecutor’s actions leading up to the mistrial consistent with 

inadvertence, lack of judgment, or negligence, or were they consistent with 

intentional or reckless misconduct?

Id.

Within Hilliard’s second argument, he asserts the State exhibited prosecutorial 

vindictiveness by purposefully goading him into moving for a mistrial. Whether a prosecution 

intentionally goaded a defense request for mistrial is included in the analysis of whether Hilliard 

established his entitlement to habeas corpus relief based on a double jeopardy violation. See Ex 

parte Wheeler, 203 S.W.3d at 324. Indeed, Hilliard’s application for writ of habeas corpus included 

such a claim. However, his appellate brief on appeal neither mentions nor includes any argument 

challenging the trial court’s rejection of such double jeopardy claim. Even if we were to interpret 

Hilliard’s second argument liberally, his brief fails to develop an argument or cite to authority 

addressing a double-jeopardy analysis. See TEX. R. APP. P. 38.1(i) (requiring briefing to include 

concise argument for contentions made with appropriate citations to authorities and to the record).

Similarly, Hilliard does not analyze the prosecutor’s state of mind or show how the record 
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established by a preponderance of the evidence that the prosecutor engaged in conduct intended to 

provoke him into moving for a mistrial. See Ex parte Wheeler, 203 S.W.3d at 324. Based on both 

the record presented and briefing, we conclude the double-jeopardy portion of Hilliard’s writ claim 

is without merit. 

Thus, we overrule the remainder part of Hilliard’s sole issue. 

III. CONCLUSION

We conclude the trial court did not abuse its discretion in denying Hilliard’s amended 

application for a writ of habeas corpus, which was separately presented and incorporated in his 

motion to dismiss. We affirm the trial court’s order.

GINA M. PALAFOX, Justice

July 21, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)