Affirmed and Opinion filed December 22, 2016.

In The 

Fourteenth Court of Appeals 

NO. 14-15-01072-CR

NO. 14-15-01073-CR

THE STATE OF TEXAS, Appellant 

V.

ROBERT JOSEPH YETMAN, Appellee 

On Appeal from the 176th District Court 

Harris County, Texas 

Trial Court Cause Nos. 1473046 & 1490556 

O P I N I O N 

In this appeal, we consider whether the trial court abused its discretion in 

granting a criminal defendant’s application for pretrial habeas-corpus relief. The

trial court held that the constitutional prohibition against double jeopardy bars the 

defendant’s retrial following a mistrial because the prosecutor, seeking to avoid an 

acquittal, goaded the defense into requesting the mistrial. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

Appellee Robert Joseph Yetman was indicted for indecency with a child. 

Appellee was accused of touching the genitalia of a seven-year old boy at 

Memorial Hermann Hospital, where appellee worked as a medical doctor and the 

boy was a patient. 

 The complainant had suffered an asthma attack while in the care of an aunt. 

The aunt initially took the complainant to an emergency care center. After 

learning the complainant would be transferred to Memorial Hermann Hospital, the 

aunt arranged for a family friend to accompany the complainant so that the aunt 

could return home to care for the complainant’s siblings, who also were in the 

aunt’s charge while the children’s mother was out of town. The following 

morning, the aunt came to the hospital and the family friend left. 

That morning appellee was making rounds at Memorial Hermann Hospital 

with medical residents. Appellee entered the complainant’s hospital room 

sometime around 8:00 a.m., accompanied by at least three residents. According to 

appellee and a resident who watched appellee examine the complainant, appellee 

performed a normal exam and did not touch the complainant’s genitalia. Appellee 

later asked that a social worker evaluate the complainant before the complainant’s 

discharge. Appellee left the hospital at 11:37 a.m. 

There was a period of time that morning when the complainant was in his 

hospital room unaccompanied by a relative or family friend. The aunt told police 

the complainant was unaccompanied from 7:00 a.m. until 9:00 a.m., but the aunt 

testified at trial that she may have arrived at the hospital later than she originally 

indicated. 

At some point after the aunt returned to the hospital, the complainant went to 
3

the restroom and the aunt checked on him because he seemed to be taking a long 

time. The complainant told his aunt that his penis was hurting. When the aunt 

asked why, the complainant told her that “some guy” came in and touched it. 

Upon further questioning from the aunt, the complainant stated that the man who 

touched his penis had gray hair and was wearing a white coat. The complainant 

demonstrated the way the man touched his penis by jerking a napkin twice. The 

aunt looked at the complainant’s penis and did not notice anything unusual. The 

aunt then contacted the complainant’s nurse, who examined the complainant’s 

penis and noticed some reddening. The nurse informed the resident on call, Dr. 

Carmelita Taylor. Dr. Taylor did not notice any injuries to the complainant’s 

penis. Dr. Taylor telephoned appellee and updated appellee as to the 

complainant’s medical status, and also informed appellee of the complainant’s 

allegations. Appellee asked Dr. Taylor if the complainant could be discharged and 

Dr. Taylor advised that the complainant could be discharged after meeting with a 

social worker. A social worker met with the complainant later that afternoon and 

the complainant was discharged in the evening. 

The complainant’s mother returned from her trip later that night and the aunt 

went home. The next morning, the complainant told his mother about the incident 

at the hospital. The complainant’s mother took the complainant to Texas 

Children’s Hospital, where a sexual assault nurse examiner examined the 

complainant. The nurse noted that the complainant had two wounds on his penis. 

The penis looked red and swollen, and had nail marks. The complainant’s mother 

took the complainant to the police station. After questioning, the complainant 

eventually identified appellee as the individual who had touched him. The 

complainant also was taken to the Children’s Assessment Center, where Susan 

Odhiambo interviewed him. According to Odhiambo, the complainant disclosed 
4

things to her and showed her things using his body. Dr. Marcella Donaruma 

examined the complainant at the Children’s Assessment Center and noted the 

injuries on the complainant’s penis. The complainant described appellee as the 

individual who touched his penis. 

Appellee was charged with indecency with a child. Appellee pled “not 

guilty.” A two-week jury trial followed. In the final minutes of the State’s final 

argument to the jury, the prosecutor made statements that twice prompted 

appellee’s counsel to object and move for a mistrial. The first time the trial court 

sustained the objection, instructed the jury to disregard the prosecutor’s statements, 

and admonished the prosecutor. But, the trial court declined to grant a mistrial. 

Immediately, the prosecutor made another statement that drew an objection from 

appellee. Again, appellee moved for a mistrial. This time the trial court granted it. 

Appellee then filed an application for pretrial writ habeas-corpus relief1on 

the ground that the constitutional prohibition against double jeopardy barred retrial. 

The trial court granted the habeas-corpus relief. The State, as appellant, now 

challenges the trial court’s ruling. 

ISSUE AND ANALYSIS

In a single issue the State asserts the trial court abused its discretion in 

granting appellee’s pretrial writ of habeas corpus. Generally, a criminal defendant 

may not be put in jeopardy by the State twice for the same offense. U.S. Const. 

amend. V; Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014). In cases 

tried by a jury, a defendant is placed in jeopardy when the jury is empaneled and 

 

1 Appellee’s double-jeopardy claim is a proper subject for pretrial habeas-corpus relief because 

delaying appellate review of a double-jeopardy claim prejudices an accused’s guarantee against 

being twice put to trial for the same offense. See Ex parte Watkins, 73 S.W.3d 264, 273 (Tex. 

Crim. App. 2002).
5

sworn, and “because jeopardy attaches before the judgment becomes final, the 

constitutional protection also embraces the defendant’s ‘valued right to have his 

trial completed by a particular tribunal.’” Id. (quoting Arizona v. Washington, 434 

U.S. 497, 504, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). Despite the general 

prohibition against jeopardy-barred trials, there are two exceptions in which a 

criminal defendant may be tried again without violating double-jeopardy principles 

when the prosecution ends prematurely as the result of a mistrial: (1) the defendant 

consents to a retrial, or (2) there was a manifest necessity to grant a mistrial. Id. at 

769–70. 

 When a defendant requests a mistrial, the defendant has elected to terminate 

the proceedings against him and the double-jeopardy clause generally does not bar 

retrial. Oregon v. Kennedy, 456 U.S. 667, 672–73, 102 S.Ct. 2083, 2088, 72 

L.Ed.3d 416 (1982); Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007) 

(adopting the standard articulated in Oregon v. Kennedy for determining when to 

grant double jeopardy relief after a defense-requested mistrial). But, even where a 

defendant moves for mistrial, there is a narrow exception to the rule that the 

Double Jeopardy Clause is no bar to retrial where the prosecutor’s actions giving 

rise to the motion for mistrial were done “to goad the [defendant] into requesting a 

mistrial.” Oregon, 456 U.S. at 672–73, 102 S.Ct. at 2088 (quoting United States v. 

Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976)). 

 When a trial court grants a pretrial application for habeas corpus on this 

ground, the reviewing court must determine whether the record supports the trial 

court’s ruling that any further prosecution of the appellee is jeopardy-barred under 

the Oregon v. Kennedy standard. Ex parte Masonheimer, 220 S.W.3d 494, 506 

(Tex. Crim. App. 2007). Because the appellee won in the trial court, we view the 

evidence in the light most favorable to the trial court’s ruling and we are to uphold 
6

the ruling absent an abuse of discretion. Id. When a trial court makes explicit 

findings of facts, the appellate court determines whether the evidence (viewed in 

the light most favorable to the trial court’s ruling) supports these fact findings. 

State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). 

 The Court of Criminal Appeals, in Ex parte Wheeler, 203 S.W.3d 317 (Tex. 

Crim. App. 2006), set out the following non-exclusive factors to assist the trial 

court when assessing the prosecutor’s state of mind: 

(1) Was the misconduct an attempt to abort a trial that was going 

badly for the State? Put another way, at the time the prosecutor acted, 

did it reasonably appear that the defendant would likely obtain an 

acquittal? 

(2) Was the misconduct repeated despite the trial court's admonitions? 

(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 impropriety? 

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

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

intentional? 

See id at 323–24. Using the Wheeler factors as our guide, we consider the record 

evidence. 

Trial Testimony 

At trial, the State introduced evidence from the complainant’s mother, the 

mother’s partner, and the complainant’s aunt regarding the details of the 

complainant’s hospital stay and allegations against appellee. The complainant 

testified that appellee came into his room, did not listen to his heart or lungs, but 

“touched me inappropriately . . . in my privates.” The complainant testified that 

appellee “jiggle[ed]” the complainant’s private part and that made the complainant 
7

feel sad and uncomfortable. According to the complainant, his penis stung after 

the incident. The complainant testified that “Robert Yetman” had touched him and 

explained that the source of his knowledge came from reading the doctor’s name 

badge. On cross-examination, the complainant clarified that his penis burned when 

he went to the bathroom, but it otherwise was fine, although he also testified that 

he got scabs from the doctor “playing with his private parts” and that the scabs 

bled. The complainant denied telling a nurse or another doctor about the incident 

and also denied that anyone at the hospital looked at his penis. The complainant 

maintained that appellee came into his room just one time while the complainant 

was at the hospital. Officer Sharee Waters testified that throughout her 

investigation, the complainant maintained appellee came into his room, alone, a 

single time. 

The sexual assault nurse examiner testified that the complainant would not 

give details about the incident but said his injuries occurred while he was at the 

hospital for an asthma attack. The sexual assault nurse examiner acknowledged 

that the complainant’s wounds could have been caused by his soiled underwear or 

a zipper injury. Dr. Donaruma did not ask the complainant about the cause of his 

injuries, but she examined his penis and noticed the injuries. She testified that the 

training of pediatric residents is erratic, so the resident and nurse may have missed 

the injury. Like the sexual assault nurse examiner, Dr. Donaruma acknowledged 

that the injuries were consistent with a zipper injury, though she noted that the 

complainant had not mentioned a zipper injury. The mother’s partner testified that 

the complainant’s penis was itchy and she and the mother saw the complainant 

scratching his penis. 

Dr. Christina Dang testified that she admitted the complainant to the 

hospital, took his history, and conducted a physical exam in the middle of the 
8

night. The following morning, Dr. Dang made hospital rounds with appellee. Dr. 

Dang explained the rounds are the process of reviewing patient treatment with the 

attending physician, in this case appellee, and the rest of the treating team. Dr. 

Dang’s team included herself, another supervising resident, and an intern. Dr. 

Dang testified that rounds usually took between two and three hours. According to 

Dr. Dang, it takes about ten to fifteen minutes to “round” on an individual patient, 

although the timing can vary depending on the complexity of the patient’s medical 

condition. She also testified that the night before had been particularly busy. 

Dr. Dang stated that she was with appellee the entire time he conducted 

rounds, including appellee’s visit to the complainant’s room. Dr. Dang’s trial 

testimony was corroborated by her notes and an order she placed at 8:01 a.m. for 

the complainant to be evaluated by a social worker. Dr. Dang testified that the 

team went into the complainant’s room, appellee performed an exam, the team 

discussed the treatment plan, and then moved to the next patient. Dr. Dang 

testified that appellee did not perform a genital exam on the complainant. 

 Dr. Dang testified that she and appellee “rounded” on the complainant and 

determined the complainant should be discharged the following evening or early 

the next morning as long as the patient was cleared by a social worker. Dr. Dang 

explained the rationale for getting the social-worker clearance, noting her concern 

that the complainant was at the hospital with an adult that did not know anything 

about the child’s medical history and that the child was staying with an aunt and 

they were not able to control the child’s asthma at home because they could not 

find the child’s inhaler. 

Dr. Thao Nguyen testified that he rounded with appellee on the morning in 

question. According to Dr. Nguyen, the shortest amount of time an attending 

physician could complete an assessment on a patient would be between ten and 
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fifteen minutes. When pressed on whether a doctor could assess a child without a 

parent present any faster, Dr. Nguyen stated that the shortest amount of time a 

round could be conducted would be five minutes. Dr. Nguyen testified that on the 

weekend, appellee likely would have rounded with two different teams, one after 

the other. Dr. Nguyen and Dr. Dang were part of the first team. Based on the 

medical records, Dr. Nguyen testified that he must have rounded on the 

complainant, but he did not remember the round. 

Dr. Annie Joleen Kayanickupuram testified that she rounded with Dr. 

Nguyen, Dr. Dang, and appellee that morning as well. Dr. Kayanickupuram 

testified that she was present when appellee visited the complainant, that she stood 

at the threshold of the doorway, and watched the exam. Dr. Kayanickupuram 

testified that appellee examined the complainant’s lungs and that there was nothing 

remarkable about the exam. Dr. Kayanickupuram also confirmed the names of the 

patients her team saw that day and testified that she and the other residents were 

with appellee the entire time he conducted rounds. 

Dr. Rebecca Girardet, a child-abuse pediatrician, testified that she did not 

think the complainant’s allegations made sense. According to Dr. Girardet, the 

complainant’s initial statements were complaints of pain in his penis that he 

associated with the doctor. The complainant initially tugged on his pants in the 

first mention of the matter. Dr. Girardet explained that the final description of the 

way the doctor moved his hand around the complainant’s penis would be 

impossible given the size of the complainant’s penis. The explanation made sense 

for an adult, but not a seven-year-old child. Dr. Girardet testified that in her 

opinion she did not think the complainant’s injuries and statements indicated abuse 

occurred. 

Dr. Girardet did not believe the complainant was consciously lying, but that 
10

something irritated his penis that day, he associated the pain with the doctor, and

his account of what happened might have evolved under the influence of wellmeaning adults asking leading questions. According to Dr. Girardet, neither the 

complainant’s description of burning pain during urination, nor the scabs that later 

could be seen on his penis were consistent with the nature of contact the 

complainant alleged. Dr. Girardet also testified that if appellee had caused the 

injuries later observed on appellant’s penis, those injuries would have been visible 

to the complainant’s aunt, the nurse, and the resident who examined the 

complainant. But, none of the three mentioned any injuries. The State crossexamined Dr. Girardet, noting that she normally testified for the State, and 

suggesting that if the person accused of sexual abuse had been a janitor rather than 

appellee (a doctor), Dr. Girardet would be testifying for the State. Dr. Girardet 

testified that she did not believe in the merits of the State’s case in this instance 

and that she would not put her reputation on the line for appellee. 

Appellee testified in detail regarding his activities on the morning in 

question. Computer records showed appellee logged onto a hospital computer 

between 7:19 a.m. and 7:26 a.m. Appellee explained that he arrived at the hospital 

and then “signed off” on the patients admitted the previous night. Computer 

records showed appellee logged back onto the hospital computer from 10:03 a.m. 

until 10:24 a.m. and then again from 10:32 a.m. until 11:15 a.m. Appellee then left 

the building and exited the parking garage. Appellee testified that between 10:24 

a.m. and 10:32 a.m., he was responding to an emergency situation, tending to a 

patient who was potentially dying. Appellee’s testimony about that patient was 

confirmed by the patient’s medical records and testimony from a hospital resident, 

Dr. Jian Azimi-Bolurian, who was on the second team that rounded with appellee 

that morning. 
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Relying on medical records and his memory, appellee testified about each 

patient he visited that morning and the medical care each patient received. 

Appellee rounded on fifteen patients that morning and was able to reconstruct the 

order in which he saw the patients. At 9:10 a.m., there was a record showing that 

appellee ordered a dermatology consult on the sixth patient out of the fifteen. 

Appellee explained that the initial patients took longer for rounds than the 

remaining patients, some of the patients were newly admitted and the team spent a 

lot of time with one patient who had been diagnosed with diabetes the night before. 

Appellee testified that he saw the remaining nine patients between 9:10 a.m. and 

10:03 a.m., at which point he finished rounds and logged onto the computer to 

begin writing patient notes. 

Appellee testified that he did not return to the complainant’s room. Appellee 

denied ever touching the complainant’s genitalia. In addition, appellee presented 

the testimony of multiple character witnesses and evidence that the complainant’s 

mother had retained a personal-injury lawyer who had sent a letter to Memorial 

Hermann Hospital threatening to bring a civil lawsuit. The mother’s attorney 

stated that it was in the best interests of the attorney’s clients and the hospital to 

“put this matter behind them as soon as possible,” and that the client would initiate 

a civil lawsuit “if justice is not served.” 

The Complainant’s Home Life 

The State asked each witness, including appellee, why they did not report 

the complainant’s allegations. Appellee explained that he expected the allegation 

to be addressed by the social worker when the social worker visited the 

complainant. Appellee was asked why he thought the consult with the social 

worker was necessary and whether he heard any testimony that made him worry 

about the complainant’s family life. Appellee explained that he was concerned 
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because he had received conflicting statements about the complainant’s mother’s 

whereabouts. In addition, appellee was concerned that the complainant had come 

to the hospital because the family could not find the child’s medication. Appellee 

also testified that “[the complainant’s] therapy was completely backwards. He was 

not on steroids at all. He was using Albuterol far too often, which is potentially 

life threatening, especially in an African American child.” Appellee explained that 

use of the drug Albuterol in an African American child is especially dangerous 

because: 

 lots of use of Albuterol in African American children is associated 

with a higher incidence, a higher chance of [th]em having some heart 

arrhythmias, so we try to avoid both long acting steroids – Albuterol 

is a short acting beta, what we call beta agonist. We try to avoid using 

a lot of those in African American children. 

And then there’s another form that are called a long acting beta 

agonist, and we avoid those at all costs in African Americans because 

there’s a higher chance of having an arrhythmia in the heart that will 

cause them to go into heart flutter and die. 

Appellee explained that the frequency with which the complainant was using 

Albuterol was not enough to cause him to have a heart arrhythmia, but under that 

therapy, the complainant was suffering asthma attacks every one to two weeks, 

which is something appellee explained “nobody should have to experience.” 

Appellee explained that the complainant would be symptomless if he were using 

steroids. Dr. K. Smith agreed the complainant had not been receiving ideal therapy 

for asthma. Dr. Smith explained that Albuterol is a “rescue drug” in an asthma 

patient that is used only in the middle of an attack. Dr. Smith testified that children 

should be on steroids because if a child uses the rescue drug frequently, it can stop 

working and the patient can die. 
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Closing Argument 

 In closing argument, the State argued that in addition to rounding on the 

complainant, the appellee entered the complainant’s room a second time at some 

point between 9:30 a.m. and 10:03 a.m. The State then asked the jury to imagine 

what the complainant’s mother has gone through to pursue this case. The 

prosecutor explained that the defense wanted the jury to think the complainant’s 

mother concocted the complainant’s story, but, according to the prosecutor, this 

was a difficult case to take on — “it’s like David and Goliath in here. Goliath 

being all this, all of the lawyers, the general counsel, the defendant and his friends 

with their accolades and their accomplishments and their positions of power that 

they hold.” In rebuttal, the prosecutor characterized the defense in the following 

way: 

What you heard from the defendant was five hours of him telling you 

how important he is. He made every opportunity to try to trash and 

bash that family and that child, blurting out things that weren’t even in 

evidence. To try and make you think that they are less than him. That 

you can’t believe them because they’re less than, because he’s not 

being taken care of correct, because African American children 

shouldn’t be on Albuterol. 

At this statement the gallery spontaneously erupted, prompting the trial court to 

admonish the spectators. Appellee’s counsel objected to the prosecutor’s 

statements. The trial court sustained the objection, instructed the jury to disregard 

the comment, and denied appellee’s mistrial motion. Immediately after the trial 

court denied appellee’s mistrial motion, the prosecutor stated, “You see what [the 

complainant’s] up against?” Appellee objected. The trial court sustained the 

objection and instructed the jury to disregard the comment. The appellee then 

moved for mistrial, which the trial court granted. 
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Application for Pretrial Writ of Habeas Corpus 

Following the mistrial, appellee filed an application for habeas-corpus relief 

in which he alleged that jeopardy should attach to the trial because the prosecutor 

goaded the defense into requesting a mistrial to avoid an acquittal. In support of 

his application for pretrial habeas-corpus relief, appellee attached affidavits from 

jurors. Juror Rathe stated in his affidavit that during closing arguments, after 

individuals in the gallery made inarticulable comments, he heard prosecutor 

Johnson reply, “it’s because he’s black.” Rathe stated that he was offended that 

the State introduced race into the closing arguments. According to Rathe, the 

evidence did not show appellee committed the offense. Rathe stated that after the 

trial court declared a mistrial, the jurors took an informal straw poll of all the 

jurors, including the alternates, at a time when only the jurors were present. In the 

straw poll, there were thirteen “not guilty” votes and one possibly “guilty” vote. 

The juror who said “possibly” stated that the juror wanted to look at two pieces of 

evidence to make sure, for the juror’s own peace of mind, that appellee was not 

guilty. The juror did not want to convict appellee, and the juror stated that the 

juror easily could have been persuaded to vote “not guilty.” Rathe thought that the 

jury would have found appellee “not guilty.” 

 Juror Carl submitted an affidavit stating that she felt she had “seen a full 

courtroom farce play out.” She thought appellee was not guilty. Carl believed 

something terrible happened to the complainant, but the police conducted a flawed 

investigation. According to Carl, appellee established a solid timeline, 

corroborated by many witnesses, proving appellee was never alone with the 

complainant. Carl was frustrated that the State “appealed to our baser instincts.” 

Carl stated that during closing arguments, the prosecutor twisted appellee’s words 

in an attempt to imply that appellee was racist. Carl felt that “The State of Texas 
15

treated me, as a juror, like an idiot.” 

 Juror Levy also submitted an affidavit in which she stated that she was angry 

and did not feel that appellee had been proven guilty. According to Levy, she felt 

the complainant’s testimony was rehearsed and that his injuries were caused by his 

“filthy underwear.” Levy stated that the “prosecution went to some really low 

levels to try and prove their case and did not even come close.” Levy believed the 

complainant’s mother was trying to extort money from the hospital. Levy felt that 

the State’s closing arguments were racist and said she could not believe the 

prosecutor had a job at the District Attorney’s office. 

 In addition to the jurors’ affidavits, appellee also submitted affidavits from 

individuals sitting in the gallery during the State’s closing argument. One 

spectator stated that she heard the prosecutor say that appellee chose to molest the 

complainant because he was poor and black. Another stated that she saw several 

jurors frown, shake their heads, and drop their jaws in disbelief during the 

prosecutor’s rebuttal argument. 

 In response to appellee’s application for writ of habeas corpus, the State 

argued that the prosecutor’s reference to the complainant’s race was a reference to 

appellee’s testimony in which appellee stated that the complainant should not have 

been prescribed Albuterol because of his race. According to the State, the 

prosecutor’s question about “what the complainant was up against” was a reference 

to the inappropriate outburst from the gallery. The State contended that the 

prosecutor did not make this argument because the trial had gone poorly or because 

appellee’s acquittal was imminent. 

 In support of its position, the State submitted the affidavit of the prosecutor 

who made the objectionable statements. The prosecutor stated she was anxious to 

finish the lengthy, tedious trial, and that she believed that the State’s witnesses 
16

came across as credible. According to Johnson, she did not want the complainant 

or his family to be forced to endure another trial. She stated that she mentioned 

race only once, while summarizing appellee’s testimony, and that she did not 

engage in intentional misconduct designed to goad the defense into requesting a 

mistrial. 

 Johnson’s co-counsel also submitted an affidavit in which she stated that she 

did not expect the judge to grant a mistrial, noting that after she entered into a line 

of forbidden questioning during trial about sexually explicit material purportedly 

found on appellee’s computer, she did not bring the subject up again. According to 

co-counsel, on the day of the mistrial, she and Johnson were tired and emotionally 

spent. She stated that they had no idea what the jurors were thinking because the 

jurors had been poker-faced throughout trial. 

The Trial Court’s Order 

 In granting appellee’s application for pretrial habeas-corpus relief, the trial 

court concluded that jeopardy had attached because the State intentionally 

attempted to goad appellee into moving for a mistrial so that the State could avoid 

an acquittal. The trial court made eighty-one fact findings, including the 

following: 

• During its closing argument, the prosecutor argued by inference that 

the complainant’s race was a factor in his “victimization” and this 

statement was not supported by the evidence.

• The prosecutor’s comment provoked gasps of shock and audible 

comments of disapproval from some members of the audience. The 

jurors also appeared shocked or surprised by the prosecutor’s 

statements. 

• The prosecutor’s attitude and provocative sidebar comments 

displayed open and obvious contempt for the Court’s rulings. 

• The prosecutor’s arguments and remarks demonstrated that she was 
17

unwilling to limit the scope of her statements to permissible areas of 

jury argument. 

• The prosecutor’s pattern of inappropriate conduct and improper 

argument shows her behavior was intentional and deliberate. 

• The prosecutor intentionally engaged in conduct that forced defense 

counsel to move for mistrial. 

• Ms. Johnson knew that her final comment would force the defense 

counsel to request a mistrial in order to preserve error. 

• In the face of an impending acquittal, the timing of Ms. Johnson’s 

improper conduct demonstrates her intent to force the Court to order a 

mistrial. 

• The prosecutor failed to credibly explain her improper statements 

and behavior. 

• The prosecutor provided the court with a factually plausible basis for 

her first improper argument; however, she failed to address her second 

improper statement and inappropriate conduct. 

• The court does not believe Ms. Johnson’s statements to the jury were 

made in the heat of battle or were the result of Ms. Johnson having a 

momentary lapse in judgment. 

• Ms. Johnson’s conduct was designed to force the Defense to ask the 

Court to order a mistrial rather than allow the case to go to the jury 

and risk a judgment of acquittal. 

• The tone and inflection of Ms. Johnson’s argument intimated that 

the complainant was victimized because he was African American or 

that the defendant thought the complainant was “less than” (sic) 

because the complainant was African American. 

• The defendant testified on his own behalf and provided a detailed 

account of his time and actions on the day in question. 

• After a long and difficult two-week jury trial, Prosecutor Johnson, 

intentionally engaged in conduct designed to force the court to grant a 

mistrial of this case. 

A. The State’s comments merited objection. 

While conceding that the prosecutor’s second comment, “You see what [the 

complainant’s] up against?” was inappropriate, the State argues that the prosecutor 
18

could not have intended to solicit a mistrial because her first line of argument was 

a proper response to the defendant “chastising” the complainant’s home life. The 

State also argues that appellee injected race into the proceedings, and the 

prosecutor’s argument was an appropriate response. 

While the State was entitled to respond to appellee’s testimony about why he 

placed orders to have a social worker evaluate the complainant’s home life, the 

trial court found that the prosecutor implied the complainant’s race “was a factor in 

his victimization.” See, e.g., McCleskey v. Kemp, 481 U.S. 279, 309 n.30, 107 

S.Ct. 1756, 1770 n. 30, 95 L.Ed.2d 262 (1987) (noting that the United States 

Constitution prohibits racially biased prosecutorial arguments). Reviewing the 

record, we cannot say that the trial court’s findings are not supported. Appellee 

testified that there was a medical reason the complainant should not be on 

Albuterol—namely that its use was associated with heart arrhythmias and could be 

dangerous. 

But, even if the prosecutor’s initial argument had been proper, the State 

concedes that the comment that led to the mistrial was improper. See Stahl v. 

State, 749 S.W.2d 826, 828–32 (Tex. Crim. App. 1988) (holding references to 

outburst constituted harmful error). The prosecutor made this comment 

immediately after the trial court sustained an objection to the prosecutor’s 

arguments. The trial court found that the prosecutor made sidebar comments in 

front of the jury, displaying open and obvious contempt for the trial court’s rulings 

and that the prosecutor impugned the dignity of the court. Affiants providing 

statements in the habeas record stated that the sidebar comments were a more 

direct statement that either appellee or defense counsel is racist. The next 

statement the prosecutor made, “You see what [the complainant’s] up against?” 

came with an arm gesture that the trial court found suggested the trial court was 
19

biased against the complainant. This escalation came on the heels of a sustained 

objection and an admonition from the trial court to “disregard the last comment by 

the prosecutor.” 

The trial court found that the prosecutor was an experienced attorney who 

knew, before she made the final comment, that the comment was improper and that 

the defense would have to object and ask for a mistrial to preserve error. Given the 

events that had just transpired, the record supports the conclusion that the 

prosecutor knew her comment was improper and that the defendant’s objection 

likely would be sustained. Even if the prosecutor’s initial commentary had been 

appropriate, the record supports the trial court’s finding that the prosecutor knew, 

when she made the second comment, that the remark was improper, that the trial 

court would sustain the objection, and that appellee would be forced to request a 

mistrial to preserve error. See Ex parte Masonheimer, 220 S.W.3d at 506. 

B. The record supports the trial court’s findings. 

The State argues that the trial court improperly relied on a pattern of conduct 

that included actions taken by the other prosecutor to support the trial court’s 

findings. In particular, the State argues that the record does not contain legally 

sufficient evidence to support the trial court’s twenty-eighth, thirty-fourth, and 

eighty-first findings of fact. The trial court’s twenty-eighth finding is “[i]n the face 

of an impending judgment of acquittal, the timing of Ms. Johnson’s improper 

conduct demonstrates her intent to force the Court to order a mistrial . . . .” The 

trial court’s thirty-fourth finding is “Ms. Johnson’s behavior was designed to force 

the Defense to ask the Court to order a mistrial rather than allow the case to go to 

the jury and risk a judgment of acquittal,” and the trial court’s eighty-first finding 

is after a long and difficult two week jury trial, the prosecutor “intentionally 

engaged in conduct designed to force the Court to grant a mistrial in this case.” 
20

 These findings address the prosecutor’s state of mind. Keeping in mind that 

appellate judges might not reach the same conclusion on a cold record that one 

might reach if one had been sitting as a trial judge, we must consider whether the 

trial court’s finding is supported by the record. See Ex parte Wheeler, 203 S.W.3d 

at 324. Thus, we now assess the trial court’s ruling in light of the Wheeler factors. 

1. Was the misconduct an attempt to abort a trial that was going badly for 

the State? 

We must consider whether, at the time the prosecutor acted, it reasonably 

appeared that the defendant likely would obtain an acquittal. The trial court made 

findings that the State called witnesses who had accompanied appellee on hospital 

rounds the day of the alleged incident and those witnesses believed appellee had 

not committed the offense. The trial court found that presenting these witnesses 

was damaging to the State’s theory of the case. The trial court also found that 

appellee testified, denied committing the offense, and provided a detailed account 

of his time and actions on the day in question. These findings are supported by the 

record. 

The State’s primary witness, the complainant, was consistent in testifying 

that appellee came into his hospital room only one time and did not perform a 

medical exam. Appellee and two residents testified that appellee performed a 

normal medical exam on the complainant during rounds. Appellee presented 

expert testimony that the complainant inadvertently could have come to testify that 

appellee touched him inappropriately after having been asked leading questions 

over and over by well-meaning adults. Furthermore, appellee presented evidence 

that the complainant’s injuries were inconsistent with the alleged misconduct and 

that the injuries did not occur until after the complainant left the hospital. 

The aunt told the police that the complainant was unaccompanied in his 
21

hospital room from 7:00 a.m. until 9:00 a.m. The record established appellee did 

not enter the complainant’s room during that timeframe except during rounds, 

when he was accompanied by a team of residents. In closing arguments, the 

prosecutor argued that appellee entered the complainant’s room a second time, 

contrary to the complainant’s testimony, between 9:30 a.m. and 10:03 a.m., a time 

the aunt told police she was present in the room. Several witnesses testified that 

appellee would not have been able to sneak into the complainant’s room during 

rounds and appellee presented evidence that he saw the sixth patient out of fifteen 

at 9:10 a.m. Several witnesses testified that the fastest they could round on a 

patient would be about five minutes. This evidence supported appellee’s testimony 

that he did not go back into the complainant’s room between rounds and entering 

patient notes on the computer. 

The State did not provide a significant challenge to appellee’s evidence 

about where he was at different points in time on the morning of the alleged 

incident. Instead, the State attempted to impugn appellee’s character, asking 

impermissible questions that violated an order in limine and attempting to paint 

appellee as arrogant and self-important. Although the prosecutor filed an affidavit 

stating that she did not think trial was going poorly, her closing argument 

suggested that the complainant and the State faced an uphill battle in securing a 

conviction. The “David vs. Goliath” theme of the prosecutor’s closing argument 

provides some insight into her mental state at that point in trial. 

The juror affidavits confirm that those jurors felt the trial was going poorly 

for the State. One juror recounted that an informal straw poll after the mistrial 

showed thirteen of the fourteen jurors thought appellee was not guilty, with one 

juror undecided, but leaning toward a “not guilty” vote. More importantly, the 

jurors were not nuanced in their view of the trial. They were critical of the 
22

prosecutor’s tactics. One called the trial a farce. 

2. Was the misconduct repeated despite the trial court's admonitions?

The trial court found that it properly admonished the prosecutor after the 

prosecutor made her initial commentary. But, the trial court found that instead of 

complying with the trial court’s order, the prosecutor intentionally and 

inappropriately complained to the jury about the court and the audience. The 

prosecutor made a comment that the trial court found showed the prosecutor 

believed the defense and the audience were biased against the complainant. Then, 

after the trial court’s warning, the prosecutor made another statement to the same 

effect, implying that the trial court’s ruling on the prosecutor’s initial comment 

demonstrated the truth of the first remark. 

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

the conduct? 

The trial court found that the prosecutor did not provide a credible 

explanation for her improper behavior. The prosecutor submitted an affidavit in 

which she stated that the theme of her closing was “David v. Goliath,” the nineyear-old complainant versus the well-respected and accomplished pediatrician. 

The prosecutor pointed out that the defense had presented evidence that the 

complainant’s mother falsely accused appellee in an attempt to get money from 

Memorial Hermann Hospital. Additionally, the defense had presented evidence 

that provided an unflattering portrait of the complainant’s family. The prosecutor 

noted that the defendant had called the complainant’s account and history 

“sketchy” and stated that “socially, it was, you know, a mess.” The prosecutor 

stated that during direct examination, appellee made statements and judgments 

about the complainant’s home life. The prosecutor stated that she believed the 

defense attempted to place the complainant’s family in a bad light to show they 

were not credible witnesses. The prosecutor explained that she was summarizing 
23

appellee’s testimony concerning the complainant’s medication regime and that 

appellee testified the complainant was not being taken care of correctly because 

African American children should not be on Albuterol. 

Although different individuals could view the prosecutor’s affidavit 

differently, as the finder of fact, the trial court was entitled to discredit the 

prosecutor’s affidavit statements. 

4. Was the conduct “clearly erroneous”?

The State argues that the prosecutor’s commentary on appellee’s testimony 

about the complainant’s family was permissible, but the State acknowledges that 

the prosecutor’s follow-up “you see what he’s up against” statement was 

impermissible. See Stahl, 749 S.W.2d at 828–32.

5. Was there a legally or factually plausible basis for the conduct despite 

its impropriety?

The trial court found that the prosecutor gave a legally or factually plausible 

basis for the commentary on appellee’s testimony about the complainant’s family, 

but the prosecutor failed to address her second improper statement and improper 

conduct. In her affidavit, the prosecutor stated that her second improper statement 

was an argument to further her theme of “David v. Goliath.” But not all statements 

that could further a particular theme are permissible arguments, so even if the 

statement expounded on the prosecutor’s theme, that does not explain why the 

prosecutor thought the statement had a legally or factually plausible basis. 

6. Were the prosecutor's actions leading up to the mistrial consistent with 

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

intentional? 

The trial court found that the prosecutor’s actions were intentional. 

Although different people might reach different conclusions about the prosecutor’s 

intent, the trial court’s determination that the prosecutor’s actions were intentional 
24

is supported by the record. The record shows that after the prosecutor’s first 

improper statement, the jurors looked shocked. The habeas record contains 

evidence that the jurors had their mouths agape and appeared stunned. 

Furthermore, immediately after the trial court sustained an objection, the 

prosecutor re-engaged in making the same type of statement. 

After analyzing the trial court’s findings in light of the non-exclusive factors 

the Court of Criminal Appeals has suggested the trial court might consider in 

determining the prosecutor’s intent, we conclude the trial court’s findings are 

supported by sufficient evidence. See Ex parte Wheeler, 203 S.W.3d at 323–24; 

Ex parte Masonheimer, 220 S.W.3d at 506. 

C. The trial court’s findings support its conclusion. 

The State argues that the trial court’s findings do not support its conclusion 

that jeopardy should attach to appellee’s current trial because the trial court made 

conclusions that the State intentionally and deliberately engaged in an 

inappropriate pattern of conduct so as to force defense counsel to move for 

mistrial. The State argues that some of the trial court’s fact findings related to the 

pattern of conduct are not evidence of the prosecutor’s intent to goad defense 

counsel into moving for a mistrial to avoid an acquittal. Many of the findings the 

State references bear on the way trial was progressing and how the prosecutor may 

have felt about the outcome. For example, one inference the trial court could have 

drawn from behavior that the trial court found was improper is that the State 

resorted to those tactics in light of a difficult trial. But, even if some of the trial 

court’s findings are extraneous, the trial court made sufficient findings to support 

its conclusion that jeopardy should attach. 

Jeopardy should attach if the prosecutor’s actions giving rise to the motion 

for mistrial were done “to goad the defendant into requesting a mistrial.” Oregon, 
25

456 U.S. at 672–73, 102 S.Ct. at 2088. The trial court made specific findings that 

trial was going poorly for the State and those findings support an inference that the 

prosecutor was aware trial was going poorly for the State and appellee might be 

acquitted. The trial court made findings that the prosecutor’s conduct was 

intentional. The trial court found that as an experienced criminal attorney, the 

prosecutor knew her conduct was improper before she committed it and also knew 

that appellee would have to request a mistrial to preserve error on any complaint 

about the conduct. Moreover, the conduct came on the heels of other improper 

behavior that led to a sustained objection and a jury instruction. The first improper 

conduct caused a reaction in the courtroom and the habeas record suggests the 

jurors were shocked by the prosecutor’s behavior. The prosecutor saw the jurors’ 

reactions to her first improper argument, and although the prosecutor stated that 

she did not feel the trial was going poorly, the trial court could have discounted 

that statement, particularly in light of the trial record. The trial judge was present 

throughout the two-week trial and she was in the best position to evaluate the 

prosecutor’s intent. 
26

After reviewing the record and considering the non-exclusive factors the 

Court of Criminal Appeals has suggested may help a trial court determine a 

prosecutor’s intent, we conclude that the trial court did not abuse its discretion in 

granting appellee’s request for pretrial habeas-corpus relief. See Ex parte 

Masonheimer, 220 S.W.3d at 506. Therefore, we overrule the state’s sole issue 

and affirm the trial court’s order. 

 

 /s/ Kem Thompson Frost

 Chief Justice 

Panel consists of Chief Justice Frost and Justices Boyce and Brown.

Publish — TEX. R. APP. P. 47.2(b).