NO. 07-01-0286 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JUNE 10, 2002

______________________________ RUBY WASHINGTON HILL, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUN TY; NO. 43,516-E; H ONORAB LE ABELOPEZ, JU DGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellant Ruby Washington H ill brings this app eal froman order of the trial court denying her

app lic ati on for writ of habeas cor pus foll owing a mistrial. By five issues, appellant que stio ns whet her (1)j eop ard y at

tac hed pur

sua nt to A rtic le 1, Section 14 of the Texas Constitution when t he trial court granted a m istrial due to the prosecuto r’s violation of a m otion in limine, (2) the trial courtproperly granted a m istrial, (3) the prosecutor2

intended to induce the mistrial by asking her about a p rior 1985 conviction in violation of
a mo tion in limine, (4) the mistrial occurred as a result of the prosecutor’sconscious disregard of the risk of

asking her about a 1985 conv iction in viol ation of a mo tion in limine, and (5) thetria l cou rt’ s ru ling d eny ing h er a pplicatio n fo r a p ret rial w rit of habeas corpus
wa s “ cl ea rl y e rr on eo us .” Ba se d u po n t he ra ti on al e e xp re ss ed he re i n, we a ff i rm. Appellant plead not gu ilty to th e charge of burg lary of a buil ding. At a pretrial conference, the trial court granted appellant’s m otion in limine by which she requested that the State not m ention, allude to or refer to, in any m anner, any prior convictions or alleged violations of law or extraneous offenses i n the jury’s presence and before the tr ial cou rt’s determ ination of r

elev anc y of thesug ges ted evid enc e. T he r eco rd in dic ate s that the di scussion on the m otion in limine was off therecord. After the State rested during th e gui lt/in nocence phase of the trial, appellant testified in her own defense. D uring d irec t
exam ination, appellant’s counsel did not “open the door” to evidence of or otherwise allude to appellant’s prior conviction for manslaughter. H owever, during cross -exam ination by Assistant District Atto rney Martindale, the following exchange occurred: Q. Isn’t it true you were previously convicted of theft? A. Yes, sir. Q. Twice? A. I ha d to – I had to think about that, because it has been so long ago. Yes.3

Q. Th at’s true. A nd you’re also the sam e person convicted in the 181 st Distri ctCou rt in Cause No. 23,88 5-B for the offense of manslaughter , isn’t that correct? MR. McKIN NEY: Y

our Honor, I’m going to objectto that. That violates the prior Motion in Limine. THE COUR

T: Let m e see you up here. (At the bench, bef

ore the Court only:) THE CO URT: I thin k un der 609it’ s ad m iss ible, Bill. MR. McKIN NEY: I have – I have a ch ance to be heard on that, Judge. You kn ow, for sta rte rs t hey ’rein m y M otio n in L im ine. No w , if you read –

may we argue thi s point outsi de of the presence of the jury? (in open court:) THE COUR

T: Jesse, if you w ill take the jury out, please. (Jury re tired from

the co urtroom ). THE COURT: All ri ght, Mr. McKinney. MR. McKIN NEY: N umber one, Judge, under 609-A , I’m entitled und er m y Motion in Limine to have a ruling on the pro bative va lue wh ether it’ s m ore prejudicial than it is or probative on the issue of theft. Not onl y under 609-A, but609- B. A nd that was the sole purpose of the M otion in Limine was to have a ruling by the Court on the probative value versus th e prejudicia l affect of it. He had opened the do or in violation of the Motion in Limine. MR. MARTINDALE: Yo ur H ono r, I belie ve if you w ill go back and recall the pretrial hearing when the Court asked m e if I agreed to the Motion in Limine, I said, yes, Your Honor, w ith the exception of im peachm entinformation. A nd the Court said that w

as fine. MR. M cKINNE Y: Your Hon or, under the rule I’m entitled to a ruling on that. THE COURT: When did the manslaughter conviction of this incident occur:4

MR. M ARTINDA LE: The conviction date is the 12 th of August of 1995 (s ic). She was sentenced to s even years confinem ent, Your Honor. Ex

cuse m e, 1985. I’m sorry. MR . M cK INN EY : Y eah . Th ank you , C oun sel. MR. MARTINDALE: Don’t mention it, Mr. McKinney. THE COURT: All ri ght. I’ll grant your motion, Mr. McKinney. W hat is it you want to do? I’ll instruct the jury to disregard that last – MR. McKINNEY: Okay. And then I’m going to m ove for a m istrial, Your Honor. THE COUR

T: Overruled. MR. McKIN NEY: Wel l, I w ould like – I would like to – all right. W hat instruction are going to give, Judge? THE COUR

T: Jus t te ll them to disregard the last question and the last – the last ques tion she d idn’t answer. MR. MA RTIND ALE: So, I ’m prohibited in g oing into th at m atter? THE COURT: Yes

. W e should h ave had a hearing o n that a nyway, M r. Martindal e. And it’s time barred anyway by time limitati ons. Bring the jury in, Jesse. THE BAILIFF: Judge, she need ed a break. THE COUR

T: Mr. M cKinney, do you have anything else? MR. McKINNEY: W ell, let me – letm e m ake sur e I unde rstand whe re we are at, Yo ur Hono r. The uh – I m ade m y objec tion. My obj ection to the statem entthat, are you the sam e person wh o was c onvicted of

ma nslaughter in 1985, at which point

I objec ted because it violated the Motion in Lim ine. Itdid not give me an opportunityto have the Court determ ine whether or not

–eve n if it w

as a dm is sib le, whether it was m ore prejudicial than it was probative. If I understand correc tly, the Court has denied m y – or overruled my objection.5

THE COUR

T: All right. I’m g oing to sustain the obj ection. MR. McKINNEY: Your Honor, the– at this timeuh - I would ask the Court uh

–to instruct the j ury not to consider it for any purpose, and it’s m y intention to move for a m istri al, because o nce the skunk’s in the box, I can’t remove the stink. THE CO URT: A ll righ t, I ’mgra ntin g yo ur M otio n fo r a M istr ial. MR. McK INNE Y: Than k you, Your H onor. MR. MARTIN DALE: Y

o ur H ono r, w hen Mr . M cK inne y ur ged his Mo tion in Limine yes ter

day m orn ing, as I re call the Court specifically asked m e if I had any objec

tions to it. My respons e to the court was, Your Honor, ex cept for the purposes of im peachm ent, I have noobjection. A nd the Court said fine, as I recall it. Therefore, I don’t see, based on that decision from the Court, how I w as li m ited fro m goin g into th at p art icula r iss ue b y his Mo tion in Limine. THE COURT: AS l o ng as you com plied with Rule 609, which you did not. Y ou told me t hat conviction is over ten years old, did you not? I t’s a 1985 conviction. MR. MA RTIND ALE: That is correct, Your H onor. THE COUR

T: All right. Jesse, bring the jury in. MR. M cKINNE Y: May

she stepped [sic step ] down? THE COURT: Yes. (Jury seated.) THE COURT: You may be seated. Ladies a nd ge ntlemen, I am going to discharge you as j urors from the trial of this case. I amreleasing you from all thein s tructions that I have previously given you. If you j ust hand your tags to Mr. S alazar, you’re free t o go. Thank you for your jury s ervice. I apologize if we have caused you any inconvenience. Thank you. (Jury released.)6

(Reporter then released ex hibits to the State.) THE C OURT: Counsel, I have a jury p anel coming in at 1:30. I expect you to be ready. MR. M cKINNE Y: Your Hon or, uh – TH E C OU RT : I f y ou ha ve ot he r a rr an ge men ts ca nc el th em. MR. McKINNEY: Your H onor, uh – w ell, t he u h – my intent ion is to f ile a w rit of ha beas co rpus alleging p retrial – not pretrial, bu t alleging pros ecutori a l misconduc

t. I would like to goback to m y office , I’ll prepa re it immediately, and I would like to have a hearing on it before w e do that. THE COURT: Be ready at 1:30, Mr. McKinney. MR. McKINNEY: Okay. (Recess.)
W hen counsel returned at 1:30, appellant presented her application for w rit of hab ea s corpus. Appellant called the State’s attorney as a w itness. His exam ination demonstrated that Mr. M artindale is an experienced prosecutor and was aware of th e trial court’s order granting the m otion in limine; however, he testified that according to his recollection, the court order di d not li mit use of prior offen se s for impeachm ent purposes. A fter consideration, thetria l cou rt d enie d th e ap plica tio n for writ of habeas corpus on t he grounds of double jeopardy. W he n the State stipulated that appellant was entitled to appeal the court’s denia l of the appl icati on, the court anno unced a fina l recess.1 After its initial decision in Ex ParteBaude r, 921 S .W.2d 696 (Tex .Cr.A pp. 1996 ), the Court

had a second opportunity to consider when a m istri al impli cates double jeopardy. Bauder v. State, 97 4 S.W.2d 729 (Te x.C r.App. 1998). 7 Restating appellan t’s fiv e issues, she questions w hether (1) jeopardy attached pursuant to Article 1, Section 14 of the Texas Constitution when the trial court granted a mistrial due to the prosecutor’ s violation of a m otion in lim ine, (2) th e trial court pro per ly granted a m istrial, (3) the prosecutor intended to induce the m istrial by asking her about
a prior 19 85 c onv ic tion i n viola tion of a motion i n limine, (4) the mistrial occu rred as a
res ult of the prosecutor ’s c onsciou s disregard of the risk of asking her about a 1985 conviction in violation of a motion in limine, and (5) the trial court’s ruling denying her application for a pre trial writ of habea s corpu s was “clearly erroneou s.” W e need not consider appellant’s second issue because s he concedes that t h e trial co urt pro per ly granted her m otion for m istrial and theState acknowledg es that after Bauder II 1 the propriety of t he m is trial is n ot a consideration in resolving a double jeopardy argum ent. Accordingl y, we w ill consider ap pell ant’s remaining issues simultaneously; but f irst, we set fo rt h t he ap pr op ri at e st an da rd of re vi ew.
Standard of Review
In reviewing trial court rulings, an appellate court must determ ine the amoun t of deference which is appropr iatel y given to the ru ling at issue. Appel late court s either gi ve almosttotal deference to trial court rulings, or review the rulings de novo , depending on8

the bas is of

thedec isio n being cha llenged. W here, as here a reporter’s record of the hearing on the application for writ of habeas corpus i s presented, al most total deference is given to the (1) trial court’s determ inations of historical facts with support in therecord, (2) fact determ inations involving an evaluati on of credibility or demeanor, and (3)rulings
on questions involving application of law to fact (also known asmix ed questions of law and fact) if the resolution of those ultimate ques tions turns on an evaluation of credibility and dem eanor. Guzm an v. State, 955 S.W.2d 85, 89 (Tex.C r.App.1997) (en banc). This level of appellate deference is referred to as a review for abuse of discretion. Id . Mixed questions of law and f

act not falling within the foregoing categories m ay be reviewed de
novo by the appellate court. Id

. De novo review does not embod y the abuse of discretion standa rd of

re vi ew. Id. Even w hen conducting a de novo review , however, an appellate court affords appropriate deferenc e (abuse of discretion) to the trial court’s findings on subsidiary factual questions. Id

. General ly, the denial of habeas corpus relief is within the discret ion of th e court considering thehab easpet ition . E x Pa rte Pip kin , 935 S. W .2d 213, 215 (Tex .App.
-- Am arillo1996, pe t. ref’d) . On appeal, the ruling of such court w ill be upheld unl ess its ruling is an abuse of discre tion. S tate v. DeLeon , 971 S .W.2d 701, 705 (Tex.A pp.-- Am arillo 1998, pet. ref’d). The ruling of the court considering the habeas petition will be uph eld ifit is cor re ct on an y th eo ry of la w. Id . Accordingly, we will review the trial court’s9

order to dete rm i ne if its decision is clearly erroneous. Ex Parte May, 852 S .W .2d 3, 5 (Tex. App.-- Dallas 1993 , pet. ref’d).
Before Bauder I I , 97 4 S.W.2d at 731, the granting of a defendant’s m otion for mistrial did not implicate a clai m of d oub le jeopardy b aring retrial, see Crawford v. State, 703 S.W.2d 655 (Tex.Cr.A pp. 1986), except whe n the prosecutor cause d the defendant to move for m istrial. Id . at 662; Ex P arte May , 852 S. W .2d at 4. Aft er Bauder II , the questions presented are:

• whether

the de fendant ’s m otio n fo r m istr ial w as acho ice m adein response to ordinary rev e rsible error in order to avoid conviction, appeal, reversal and retrial; or, on the other hand,

• wasthe defendant required to m ov e for m istrial because the pr osecut or deliberatel y or recklessly crossed “the line between legi ti mate adversary gam esm anship and m anifestly improper met h ods” that rendered trial before the ju ry unfair to such a degre e that no j udicial admonishm ent could have cured it?
974 S.W.2d at 732. (E m pha sis add ed) . Th e op inion doe s no t de fine“or dina ry r eve rsib le error,” however, where, as here, the trial court granted a m istrial for viol ation of a m otion in limine, we do not consider th e error tobe “ordinar y revers ible error, ” i.e ., in adv ert ent ly ad mi tt ed hearsay evidence, otherw ise orders granting mot ions in limine would be rendered me aningless and produce a was te of ju dicial resources by the granting of mistrials.10

Similarl y, Bauder II

does not provide any guidelines or instruction to assist us or the trial court in determining when the pros ecutor deliberatel y or recklessly crosses “the line between legit imate adversary gamesmanship and manifestly improper methods, ” th at render j udic ial ad m onis hm ent to t he j ury

fut ile . Here , at the heari ng on appel lant’s application, the prosecutor testified that according to his recollection, when the m otio n in limine was considered, the o rder di d not prohibit use of the evidence for purposesof impeachm ent. How

ever, the record shows that the motion and the co urt’s rem arks w ere off the record and theorder granting the m otion does not specifically address the use of priorconvictions for purposes of im peachm ent . Also, the record doesnot dem onstrate whether the prosecutor’s recollection was supported by the r ecord or whether his refe rence to appellant’s prior conviction was delibe rate or reckless. Ther efore, accordi ng almost total deference to the trial court’s ruling, we are unable to hold that the trial court abused its discretion in denying appellant’s applicati on for writ of habeas corpus. We h ave not overlooked Ex Parte Wheel er, 61 S.W.3d 766 (Tex.A pp.--Fort W orth 2001, pet. filed Feb. 26, 2002), relied on by appellant; however , i t is not controlling because we have been provided w ith arecord of t he h ear ing in thetria l cou rt w hen theapp licat io n for writ of habeas corpus was presented, and the s ame judge w ho heard the appl ication presided
over appellant’ s tri al. Iss ues one, three, four and f ive are overruled and we need not consider issue two. Accordingly, the j udgme nt of the trial court is affirmed.11 Don H. Rea vis Justice
Publish.