# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CR EX PARTE Amanda Marie MONTOYA From the 227th Judicial District Court , Bexar County, Texas Trial Court No. 2016CR11671 Honorable Kevin M. O ’ Connell , Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Luz Elena D. Chapa, Justice Irene Rios , Justice Lori I. Valenzuela, Justice Delivered and Filed: June 7, 2023 AFFIRMED This is an appeal from the trial court ’ s order denying a ppellant Amanda Marie Montoya ’ s request for pretrial habeas relief . On appeal, Montoya contends the trial court erred in denying her pretrial habeas application because double jeopardy bar s the State ’ s attempt to retry her for murder. We affirm the trial court ’ s order. B ACKGROUND Montoya was charged with murder, manslaughter, and aggravated assault in a dating relationship regarding the death of Cesar Gallegos on March 24, 2016. Trial occurred in February 2020, and on the first day of trial, the State disclosed its plea bargain of fer of a cap of eighteen years opposed to Montoya’s application for deferred adjudication in exchange for Montoya’s plea to the aggravated assault count . Montoya chose to proceed with trial, and a jury was selected and04

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- sworn in that day. The State procee ded by call ing several witnesses. One of the witnesses, Leticia Garza , testified she lived on the same property as Gallegos , and on the evening of March 24 , she
saw Gallegos and Montoya socializing and drinking outside. Garza testified when she was getti ng ready for bed , Gallegos and Montoya were dancing outside to music . She testified she went to sleep but then woke up when she heard loud banging at her front door

. According to Garza , Montoya was banging on her door and exclaim ing she had accidentally shot Gallegos . Garza testified she called her boyfriend, who told her to call 9

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. The jury also heard testimony from police and firefighter personnel , who testified when t hey arrived at the property, they f ound Gallegos lying unresponsive in his bed with a gunshot wound. Gallegos was pronounced dead at the scene. The trial court recessed for a short break , and o u tside the presence of the jury, t he prosecutor informed the trial court she had learned two DNA swabs had not been disclosed to her or defense counsel. One of the DNA swabs was of the alleged murder weapon and the other DNA swab was of the blood sample found on the weapon. The prosecutor explained sh e was learning of the DNA swabs for the first time

. Montoya requested a mistrial arguing the newly discovered evidence changed the circumstances of how Gallegos ’ s death may have occurred and therefore impacted her defense. The trial court denied Montoya ’ s request
. The next day Montoya re - urged her m istrial motion, and the trial court held a hearing on the motion outside the presence of the jury. During the hearing, Detective Tom McNeely testified he had been responsible for preparing the original package of evidence in 2016 for the Bexar County District Attorney ’ s Office . He testified the original package did not contain the two DNA swabs, and the swabs came to his attention when he was preparing the package of evidence for the 2020 trial . He also indicated a report prepared by the officer who collected the swabs had never been submitted to the District Attorney ’ s office . According to Detective McNeely, when the04

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- evidence was originally collected in A p ril 2016 , he had requested the weapon be swabbed, but he never followed up on whether the weapon was swabbed. He testified it was an oversight on his part. The trial court ultimately granted Montoya ’ s mistrial request and ordered the swabs be tested. Before the State retried the case, Mon toya filed a pretrial application for writ of habeas corpus, arguing double jeopardy barred a retrial when the mistrial was caused by government misconduct. After a hearing, the trial court denied Montoya ’ s pretrial application, and Montoya filed this app eal. A NALYSIS Standard of Review We review a trial court ’ s decision to grant or deny relief requested in a pretrial habeas application based on double jeopardy under an abuse of discretion standard. See Ex parte Martinez , 560 S.W.3d 681, 695 (Tex. App.

— San Antonio 2018, pet. ref ’ d). In applying this standard, we “review the record evidence in the light most favorable to the trial court ’ s ruling. ” Id . (quoting Kniatt v. State , 206 S.W.3d 657, 6 95 (Tex. Crim. App. 2006) ) (internal quotation marks om itted)

. We afford great deference to the trial court ’ s findings and conclusions, especially if they involve credibility and demeanor determinations. Id

. Merely because we may decide the matter differently than the trial court is insufficient to constitu te an abuse of discretion; instead, to reverse a trial court ’ s decision on a pretrial habeas application, we must determine the trial court ’ s ruling was outside the zone of reasonable disagreement

. Id

. Applicable Law

“ The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense .” Oregon v. Kennedy , 456 U.S. 667, 671 (1982) (internal footnote omitted) ; Ex parte Lewis , 219 S.W.3d 335, 353 (Tex. Crim. App. 2007) . As part of this protection, it “affords a criminal defendant a ‘ valued right to have his trial completed by a04

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- particular tribunal. ’ ” Kennedy , 456 U.S. at 671

– 72 (quoting Wade v. Hunter , 336 U.S. 684, 689 (1949) ) . However, a criminal defendant is not g uaranteed the State ’ s case will be resolved in one proceeding. See id . at 672. For example, in cases “[w]here the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the ‘ m anifest necessity ’ standard , ” which covers situations like when a jury cannot reach a verdict. Id . (quoting United States v. Perez , 9 Wheat. 579, 580, 6 L.Ed. 165 (1824) ). But, when, as here, a mistrial is declared at the defendant ’ s request, different principles apply

. Id . This is because “[a] defendant ’ s motion for a mistrial constitutes a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” Id

. at 6 76 (quoting United States v. Scott , 437 U.S. 82, 93 (1978) ) (internal quotation marks omitted). W hen the trial court grants a defendant ’ s mistrial motion , a defendant may invoke the double jeopardy bar only when “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Id . at 679. In such cases, it can “be said that the prosecutor, rather than the defendant, has exercised primary control over the decision to seek the trial terminat ion.” Lewis , 219 S.W.3d at 358

– 59. “Prosecutorial conduct that might be viewed as harassment or overreaching . . . does not bar retrial absent intent on part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Kennedy , 456 U.S. at 675. It is “[o]nly where the governmental conduct in question is intended to ‘ goad ’ the defendant into moving for a mistrial.” Id

. In the context of habeas, the burden is on the applicant to prove her double jeopardy allegation by a preponderance of the evidence. Martinez , 560 S.W.3d at 695
. If the applicant has met this burden, it is the S tate ’ s burden to introduce evidence of the applicant ’ s consent to the order terminating her first trial. See Ex parte Garrels , 559 S.W.3d 517, 524 (Tex. Crim. App. 2018).04

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- Application Mont oya argues Detective McNeely ’ s failure to disclose the DNA swabs before the February 2020 trial amounted to the governmental misconduct necessary to invoke the double jeopardy bar. According to Montoya, the detective ’ s oversight denied her access to relevant evidence before her first trial and denied her the opportunity of accepting the State ’ s plea offer to resolve her case. To determine w hether double jeopardy bars the State from retrying Montoya, and thus whether Montoya is entitled to habeas rel ief, we must decide whether the prosecutor ’ s conduct “was intended to provoke [Montoya] into moving for a mistrial.” See Kennedy , 456 U.S. at 679. Here, the record shows the prosecutor learned of the undisclosed DNA swabs on the first day of trial, and s he brought her concern regarding the undisclosed evidence to the trial court ’ s attention as soon as she first learned it had not been disclosed. When viewing this evidence in the light most favorable to the trial court ’ s ruling, we conclude the trial cour t did not abuse its discretion in concluding the prosecutor ’ s conduct was un intentional and did not amount to goading the defense into requesting a mistrial

. See id. Montoya, however, contends Detective McNeely ’ s oversight amounted to the governmental misconduct necessary to invoke the double jeopardy bar because the detective is an agent of the State

. Montoya ’ s argument requires us to impute the conduct of the detective to the prosecutor, but there is no evidence indicating Detective McNeely was part of the prosecutor ’ s team or assigned or worked under the District Attorney ’ s direction. See State v. Rushing , N o. 09

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— Beaumont Sept. 20, 2017, pet. ref ’ d) (not designated for publication) (holding conduct of employees in sheriff ’ s office could not be attributed to S tate ’ s prosecutor ’ s team because no evidence they were employed by District Attorney ); Henderson v. State , No. 13

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— Corpus04

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- Edinburg Apr. 11, 2019 , no pet. ) (mem. op., not designated for publication) (rejecting argument that law enforcement conduct amounted to prosec utorial misconduct because no evidence law enforcement officer worked for District Attorney) ; but see State v. Mutei , 2017 WL 542025, *6, 2017 WL 542025 , **16

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— El Paso Feb. 10, 2017, pet. ref ’ d) (considering conduct of detective who testified in its double jeopardy analysis because “there does not appear to be a bright line rule that would prohibit a trial court from imputing the wrongful conduct of a State ’ s witness to the prosecution”)

. Even if the trial court attributed Detective McNeely ’ s conduct to the pro secutor , there is no evidence indicating the detective intended to provoke Montoya into requesting a mistrial. T he record shows although Detective McNeely requested the weapon be swabbed in April 2016, he never followed up as t o whether the weapon was swabbed or whether the swabs were tested. He testified it was “an oversight on [his] part,” and he agreed it was evidence he should have sent to the District Attorney. Again, w hen viewing the record in the light most favorable to the trial court ’ s ruling, we cannot conclude Detective McNeely ’ s oversight showed intent to subvert the protections afforded by the Double Jeopardy Clause and goad Montoya into moving for a mistrial. See Kennedy , 456 U.S. at 675. Accordingly, we hold th e trial court did not abuse its discretion in denying Montoya ’ s pretrial application for writ of habeas corpus. C ONCLUSION Based on the foregoing, we affirm the trial court ’ s order denying Montoya ’ s pretrial application requesting habeas relief. Luz El ena D. Chapa, Justice Do Not Publish