Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-17-00249-CR

EX PARTE COBY STEWART

From the County Court at Law No. 15, Bexar County, Texas

Trial Court No. 486896

The Honorable Robert Behrens, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Rebeca C. Martinez, Justice

Luz Elena D. Chapa, Justice

Irene Rios, Justice

Delivered and Filed: April 4, 2018

AFFIRMED

Coby Stewart appeals from the trial court’s denial of his request for habeas corpus relief 

barring a retrial in his DWI case. Stewart asserts the State’s intentional misconduct forced him to 

move for the mistrial; therefore, retrial is barred by double jeopardy. We affirm the trial court’s 

order.

BACKGROUND

Stewart was arrested and charged with driving while intoxicated with a blood alcohol 

content of 0.15 or higher. Stewart’s blood was drawn by a nurse at the Bexar County Central 

Magistrate, who subsequently left Bexar County employment. Stewart filed a pre-trial motion for 

discovery seeking the State’s compliance with its duty of disclosure under article 39.14 of the Code 
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of Criminal Procedure, including the disclosure of any expert witnesses per article 39.14(b). TEX.

CODE CRIM. PROC. ANN. art. 39.14 (West Supp. 2017).

Nine months later, Stewart appeared for his twelfth trial setting and announced ready for 

trial. Before the jury was sworn, Stewart’s defense counsel informed the trial court that she had 

not received a witness list from the State and would be moving to exclude any expert witness 

testimony offered by the State. The trial court’s file also did not contain a State’s witness list. The 

State then produced a file-stamped witness list from its work-product file that it represented was 

faxed to defense counsel several months earlier. Stewart’s counsel disputed receiving the fax and 

the State’s confirmation sheet did not list counsel’s fax number, referring to it as “unknown.” The 

witness list identified the nurse as “Elva Villarreal, Licensed Vocational Nurse, Bexar County 

Central Magistrate” and provided that address. After an in-camera inspection of the State’s workproduct file, performed at defense counsel’s request, the prosecutors revealed that Ms. Villarreal 

was no longer employed by Bexar County and they had not had any contact with her for several 

months. After defense counsel renewed her objection to the lack of notice, the prosecutors stated 

they did not intend to call the nurse as a witness and planned to present the blood evidence through 

the toxicologist. However, the trial court indicated that it would require the nurse to testify before 

it would admit the blood draw evidence.1

 At that time, the prosecutors admitted they did have Ms. 

Villarreal’s current contact information and would attempt to contact her to appear for trial the 

next day. The nurse’s current contact information was not disclosed to the defense at that time. 

The jury was selected and sworn, and opening statements were presented.

 1 The trial court later acknowledged it was incorrect in stating the blood draw evidence was not admissible without 

the nurse’s testimony. See State v. Guzman, 439 S.W.3d 482, 488-89 (Tex. App.—San Antonio 2014, no pet.). 

However, that mistake is not relevant to the appellate issue before this court.
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The next morning, before any evidence was presented, Stewart’s counsel renewed the 

objection to admission of the blood evidence due to the lack of notice concerning Ms. Villarreal 

as a potential witness and the State’s subsequent failure to disclose the potentially exculpatory 

impeachment material that she no longer worked for Bexar County. Stewart also objected to the 

State’s failure to amend the witness list to update Ms. Villarreal’s contact information and disclose 

her departure from Bexar County in violation of its continuing duty to disclose. One of the 

prosecutors stated she personally learned just the day before that Ms. Villarreal no longer worked 

for Bexar County. The prosecutor stated she obtained Ms. Villarreal’s cell phone number and 

email from “a list of contact information” and successfully contacted her. After a lengthy 

discussion, the trial court stated it was not going to exclude the blood evidence and inquired of 

defense counsel “what remedy are you asking for?” and “are you asking for a mistrial?” Stewart’s 

counsel replied, “yes,” and the court granted the mistrial. At that time, the prosecutor gave defense 

counsel the email address for Ms. Villarreal. The trial court ordered the State to also obtain her 

address and provide it to defense counsel.

When the case was re-set for trial, Stewart filed a pre-trial petition for writ of habeas corpus 

asserting that retrial was barred under the Double Jeopardy Clause. U.S. CONST. amends. V, XIV; 

TEX. CONST. art. I, § 14. Stewart argued retrial was barred because it was the State’s intentional 

misconduct, i.e., nondisclosure of material witness information, that forced him to request a 

mistrial. After a non-evidentiary hearing on the habeas, the same trial court found, based on its 

recollection of the events, caselaw, and arguments of counsel, that there was not “any intentional 

misconduct on the State’s part as far as the witness in the case, Ms. Elva Villarreal, they didn’t 

have any intent to call her.” Stewart perfected this appeal of the trial court’s order denying habeas 

corpus relief.
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ANALYSIS

Habeas Corpus Standard of Review

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

evidence.” Ex parte Cruz, 350 S.W.3d 166, 167 (Tex. App.—San Antonio 2011, orig. 

proceeding). When reviewing a trial court’s ruling on an application for habeas corpus, an 

appellate court reviews the evidence in the light most favorable to the trial court’s ruling, and 

upholds the ruling absent an abuse of discretion. Id.

Applicable Double Jeopardy Law

Generally, a defendant in a criminal case may not be put in jeopardy by the State twice for 

the same offense. U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 14; see also Pierson v. State, 

426 S.W.3d 763, 769 (Tex. Crim. App. 2014). Because a defendant has a right to have the jury 

empaneled and sworn in his case to try it, the protection provided to defendants under the Double 

Jeopardy Clause attaches after the jury is sworn. Pierson, 426 S.W.3d at 769. Absent exceptional 

circumstances that show the prosecutor intentionally provoked a mistrial, the Double Jeopardy 

Clause is not violated if the trial ends prematurely. Id. at 770. The United States Supreme Court 

has explained that when the defendant is the party requesting the mistrial, the Double Jeopardy 

Clause generally does not bar the State from trying the defendant again. Oregon v. Kennedy, 456 

U.S. 667, 672, (1982). A retrial may be barred by double jeopardy, however, if the defendant 

presents objective facts and circumstances to demonstrate that the prosecutor’s misconduct in the 

case occurred because the prosecutor “intended to ‘goad’ the defendant into moving for a 

mistrial[.]” Kennedy, 456 U.S. at 676.

In 2007, the Texas Court of Criminal Appeals held that the standard announced in Oregon 

v. Kennedy for review of double jeopardy claims after a defense-requested mistrial also applies to 

such double jeopardy claims under the Texas Constitution. Ex parte Lewis, 219 S.W.3d 335, 371 
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(Tex. Crim. App. 2007). Thus, whether the claim is raised under the United States constitution or 

the Texas constitution, or both, a reviewing court must determine whether a defendant successfully 

moved for a mistrial because the prosecutor “engaged in conduct that was ‘intended to provoke 

the defendant into moving for a mistrial.’” Id. at 336 (citing Kennedy, 456 U.S. at 679). In 

Kennedy, the Supreme Court stressed that such a degree of prosecutorial misconduct presents a 

narrow exception to the general rule that retrial is not barred when the mistrial was granted at the 

defendant’s request. Kennedy, 456 U.S. at 673. The Supreme Court explained, “prosecutorial 

conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial 

on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to 

subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76. In adopting the 

Kennedy standard, the Texas Court of Criminal Appeals overruled its prior precedent interpreting 

the Texas constitution’s double jeopardy provision to also cover “reckless” conduct by the 

prosecution. Ex parte Lewis, 219 S.W.3d at 337, 371 (overruling Ex parte Bauder, 974 S.W.2d 

729 (Tex. Crim. App. 1998), and remanding to trial court for consideration under Kennedy

standard).

In another case decided during the same term as Ex parte Lewis, the Texas Court of 

Criminal Appeals discussed the Kennedy standard in the context of nondisclosure of Brady

material.2

 See Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007). In that case, the 

defendant was granted a mistrial in his two previous trials based on the prosecution’s failure to 

disclose Brady material. Before the third trial setting, the defendant filed a pre-trial habeas corpus 

application claiming double jeopardy barred the retrial. The trial court granted habeas relief, 

finding that jeopardy had attached in the prior trials and retrial was barred by double jeopardy; the 

 2 Brady v. Maryland, 373 U.S. 83 (1963).
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trial court made no finding as to whether the prosecution intended to provoke a mistrial. Id. at 

505. On review, the Court of Criminal Appeals looked to cases cited with approval in Kennedy in 

which habeas relief had been granted because the prosecution acted with intent to avoid a probable 

acquittal. See id. at 507-08. Applying that analysis to the facts before it, the Masonheimer opinion 

held that, viewing the evidence in the light most favorable to the trial court’s ruling, the record 

supported a finding that the defendant’s two motions for mistrial were “necessitated primarily by 

the State’s ‘intentional’ failure to disclose exculpatory evidence that was available prior to 

appellee’s first trial with the specific intent to avoid the possibility of an acquittal.” Id. The court 

concluded, “[u]nder Oregon v. Kennedy, this deliberate conduct, accompanied by this specific 

mens rea, bars a retrial.” Id.

Based on the Court of Criminal Appeals’s application of the Kennedy standard in Ex parte 

Lewis and Ex parte Masonheimer, we have described the double jeopardy analysis as follows, “[a] 

retrial is not barred by double jeopardy unless the prosecutor engaged in the conduct with the intent 

to provoke the defense to request a mistrial or the prosecutor intentionally engaged in the conduct 

with the intent to avoid an acquittal.” Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San 

Antonio 2011, orig. proceeding) (internal citations omitted).

The habeas applicant has the burden to provide the court with a record sufficient to prove 

his allegations by a preponderance of the evidence. Ex parte Coleman, 350 S.W.3d at 160; Ex 

parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005). In the habeas proceeding, the 

trial court may take judicial notice of earlier proceedings before the same judge and involving the 

same parties. Coleman, 350 S.W.3d at 160. “Appellate review of the [trial] court’s ruling is not 

limited to the evidence adduced at the habeas hearing, but may include the record as it existed 

before the trial court at the time of the hearing.” Id. The appellate court will reverse the ruling 

only if the record shows the trial court abused its discretion based on the decision it made when 
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ruling on the defendant’s application seeking habeas relief. Ex parte Wheeler, 203 S.W.3d 317, 

319-20 (Tex. Crim. App. 2006). Stewart argues in his brief for application of a de novo standard 

of review to “the issue of intentionality on the part of the State,” asserting that intent is a legal 

question based on the facts contained in the record and does not turn on credibility. See, e.g.,

Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (when there is no dispute about 

the material historical facts reflected in the record, an appellate court may review the legal 

significance of the undisputed facts de novo). However, the issue of the prosecutor’s intent is 

necessarily a fact question to be determined, in this context, from the circumstances and objective 

facts contained in the record. Ex parte Coleman, 350 S.W.3d at 160.

In Wheeler, the court provided a list of non-exclusive factors to be considered when 

determining whether the prosecutor’s misconduct goaded or provoked the defendant into 

requesting a mistrial:

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 . . . misconduct?

Wheeler, 203 S.W.3d at 323-24 (modified to delete “reckless” from the sixth factor per Ex parte

Lewis); see also State v. Rushing, No. 09-16-00423-CR, 2017 WL 4182316, at *6 (Tex. App.—

Beaumont Sept. 20, 2017, pet. filed).
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Application of the Law

A distinction must be made between the prosecution’s intentional failure to disclose Brady

material or engagement in other misconduct that led to the remedy of a mistrial, and the specific 

intent necessary to bar a retrial, i.e., intent to provoke a mistrial to subvert double jeopardy 

protections or to avoid a possible acquittal. Ex parte Coleman, 350 S.W.3d at 160-61. “Double 

jeopardy ‘is neither another form of due process protection ensuring the propriety of the criminal 

trial nor a means to protect against outrageous government conduct.’” Id. (quoting Ex parte Lewis, 

219 S.W.3d at 358). Here, the mistrial cured the due process violation stemming from the State’s 

violation of its continuing duty of disclosure under article 39.14, Code of Criminal Procedure and 

Brady. Id. at 160 (“The impropriety of the prosecutor’s response was remedied by the mistrial.”).

The relevant issue here is whether Stewart met his burden to prove the State committed the 

due process violation, i.e., engaged in the misconduct, with the specific intent (1) to provoke him 

into moving for a mistrial to subvert the protections of the Double Jeopardy Clause, or (2) to avoid 

the possibility of an acquittal. In making this determination, we review the entire record, including 

the habeas evidence and the trial record, and view the evidence in the light most favorable to the 

trial court’s finding that the State did not have the specific intent necessary to bar retrial. Id.

The State argues there is nothing in the record to indicate its prosecutors had the requisite 

intent when they failed to disclose the material evidence, to wit: the current contact information 

for Ms. Villareal, the former Bexar County nurse who drew Stewart’s blood. The State contends 

its prosecutors could not have withheld the information about the nurse’s employment and contact 

information with the intent to avoid an acquittal because no evidence had been presented at the 
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time of the mistrial; therefore, it could not be said the trial was not going well for the State.3 

Further, the State asserts the record does not support a finding that it intended to subvert Stewart’s 

double jeopardy rights because it shows the prosecutors did not originally intend to call the nurse 

to testify, and only changed its trial strategy after the trial court indicated it would require the 

nurse’s testimony for admission of the blood draw evidence. This contention is supported by the

record, as detailed above. At the time of the mistrial, the trial court had already reversed its ruling 

that the nurse’s testimony was necessary for admission of the blood draw evidence. Nevertheless, 

the State disclosed the nurse’s change in employment and provided her contact information to 

defense counsel at that time, late but prior to commencement of the State’s case-in-chief. In 

addition, as the State points out, Stewart’s counsel never requested a continuance during the 

discussions about Ms. Villarreal’s contact information and availability as a witness. In other 

words, Stewart had a lesser remedy that he chose not to use, i.e., a motion for continuance, instead 

of a mistrial.

Stewart argues the record shows the State engaged in the type of “intentional strategic 

gamesmanship” that article 39.14 seeks to avoid because the State had the nurse’s updated 

information in its work-product file, but failed to amend its witness list before trial. Stewart asserts 

that if his attorneys had timely received the nurse’s updated information, they would have 

contacted her before trial and investigated whether she complied with the required procedures for 

the blood draw. As evidence of the required intent to subvert double jeopardy or avoid an acquittal, 

Stewart cites to the circumstances showing the prosecutors initially stated they had lost contact 

 3 The State seems to suggest in its brief that jeopardy had not yet attached. However, jeopardy had attached because 

the jury had been sworn. See Downum v. United States, 372 U.S. 734, 735-36 (1963); Hill v. State, 90 S.W.3d 308, 

313 (Tex. Crim. App. 2002). 
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with the nurse, but then located her cell phone number and email address in their file and were 

able to successfully contact her that day.

Viewing the record in the light most favorable to the trial court’s ruling, as we must, we 

conclude the State’s misconduct in failing to timely disclose the change in Ms. Villarreal’s 

employment and update her contact information was not committed with the specific intent to 

provoke a mistrial to subvert double jeopardy or avoid an acquittal. See Ex parte Coleman, 350 

S.W.3d at 160. Stewart has not carried his burden to show that the State engaged in this 

misconduct with the intent to goad him into moving for a mistrial. See id. Therefore, we hold the 

trial court did not abuse its discretion in denying Stewart’s petition for habeas corpus relief barring 

his retrial.

CONCLUSION

Based on the foregoing reasons, we overrule Stewart’s issue on appeal and affirm the trial 

court’s order denying habeas corpus relief. 

Rebeca C. Martinez, Justice

DO NOT PUBLISH