Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-17-00280-CR

EX PARTE Miguel MARTINEZ

From the 437th Judicial District Court, Bexar County, Texas

Trial Court No. 2015CR4203

Honorable W.C. Kirkendall, Judge Presiding1

Opinion by: Marialyn Barnard, Justice

Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting: Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Irene Rios, Justice

Delivered and Filed: July 31, 2018

AFFIRMED

This is an appeal from the habeas court’s order denying appellant Miguel Martinez’s 

application for writ of habeas corpus. On appeal, Martinez contends the habeas court erred in 

denying his application because double jeopardy bars any attempt by the State to retry him for 

murder following the trial court’s grant of a mistrial. We affirm the trial court’s order. 

 1 The Honorable Lori Valenzuela is the presiding judge of the 437th District Court, Bexar County Texas. The 

Honorable W.C. Kirkendall, retired, was sitting by assignment. Judge Kirkendall signed the order at issue in this 

matter. 
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BACKGROUND

Investigation, Pre-Indictment, Indictment Phases

On January 11, 2015, San Antonio police were dispatched to a scene following a report of 

“possible shots fired.” Upon arrival, authorities found Laura Carter sitting in the driver’s seat of 

her vehicle, a Honda Accord. She was sitting in the front seat with her hands in her pockets and 

her feet crossed. She was pronounced dead at the scene. It was later determined Carter died as a 

result of multiple gunshots to the head. 

As a result of their investigation, law enforcement officials came to believe the murder had 

been committed by Martinez. Ultimately, authorities arrested Martinez for Carter’s murder. Law 

enforcement authorities continued the murder investigation after Martinez’s arrest. In March 

2015, law enforcement completed the “prosecution guide,” which was approximately fifty pages 

in length. The prosecution guide is prepared in its entirety by law enforcement; no part of the 

guide is prepared by the District Attorney’s Office. The guide generally includes initial offense 

reports, witness statements, discs of interviews, etc. It is used by prosecutors “to figure out the 

nuts and bolts of the case.” 

The prosecution guide was turned over to Jason Goss, first-chair prosecutor in the 437th 

District Court, which had been assigned to handle the case. Goss testified that around the end of 

the work day on March 8, 2015, he gave the prosecution guide to the second-chair prosecutor in 

the 437th District Court to review. According to Goss, she was to review the guide to assist him

in preparation for presenting the case to the grand jury. Goss did not believe she took the guide 

home with her, stating, “It would be unusual for her to do that.” The next morning — sometime 

before 9:15 a.m. — the second-chair prosecutor returned the guide to Goss, informing him that she 

had read the guide and did not believe she could continue on the case. When Goss queried her as 

to why, she advised she had a “one-night stand” or “one-time sexual encounter” three years earlier 
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with Gregory Dalton, who was listed in the prosecution guide as a witness. The second-chair 

prosecutor told Goss she did not even know the man’s real name, but recognized him from his 

photograph and nickname, Vegas. Goss asked whether she had any contact with Dalton since the 

initial encounter and she said, “no, it was one night.” 

Goss agreed and immediately removed her from the case, replacing her with the third-chair 

prosecutor. He instructed her to have nothing further to do with the case — specifically explaining 

she was not permitted to communicate with anyone about the case. She stated she understood. At 

her request, Goss agreed to avoid disclosing the details of her removal if possible. 

Goss subsequently explained to the habeas court that he believed the second-chair 

prosecutor had a “conflict” that precluded her further participation in the matter. As a result of the 

“conflict,” Goss removed her from the case, then went to the court advocate and without explaining 

the details, advised the advocate that the second-chair prosecutor was conflicted out of the case 

and there was to be no communication with her about it. Goss stated he constructed a “firewall” 

in the office to prevent the second-chair prosecutor from having anything to do with the case. Goss 

believed this action “ended” the matter and he did not think about it again. He explained he had 

the file the entire time and the second-chair prosecutor “didn’t have anything to do with this case.” 

When asked what he felt the conflict was, Goss replied that he had come from a smaller 

county in which it seemed as if someone in the prosecutor’s office always seemed to know a 

defendant or witness. In his former office, they would simply remove the conflicted person and 

wall them off from the matter. Goss admitted he would not want someone who knew a witness —

like the second-chair prosecutor — questioning him or her because it might affect his or her 

objectivity. They might react favorably or unfavorably with the witness, and the existence of a 

personal relationship might have the appearance of impropriety. However, Goss specifically 

testified that at the time of the disclosure, he “knew that what she had told me was not — was not 
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exculpatory, mitigating or relevant so — as far as — as far as to the facts of this case or to trying 

this case.” Thus, he “felt like the issue had been dealt with on my level as the supervisor.” Goss 

never spoke to the second-chair prosecutor again about the matter. 

Goss, with the assistance of the third-chair prosecutor, presented the matter to the grand 

jury. On April 14, 2015, the grand jury indicted Martinez for the murder of Carter. 

Pre-Trial Phase

In preparation for Martinez’s February 7, 2017 trial, Goss and District Attorney Nicholas 

LaHood interviewed Gregory Dalton on January 31, 2017. During the interview, Dalton revealed 

additional information he had not previously disclosed to law enforcement. The revelations by 

Dalton prompted Goss to prepare an amended Brady notice in response to a motion previously 

filed by Martinez and granted by the trial court requesting disclosure of materials within the 

purview of Brady v. Maryland. See 373 U.S. 83 (1963). In the amended notice, which was emailed 

to the defense on February 1, 2017, Goss fully disclosed the new information provided by Dalton. 

Goss explained at the habeas hearing that he filed the amended Brady notice because the 

information revealed by Dalton during the interview showed his willingness to participate in a 

sexual assault of the victim and in her subsequent murder. Goss stated this information fell within 

the confines of Brady because it could be used to impeach Dalton’s credibility as a witness. 

Goss did not disclose any information about the prior encounter between Dalton and the 

second-chair prosecutor. He explained he did not believe the “one-time sexual encounter” between 

the second-chair prosecutor and Dalton fell within the disclosure mandates of Brady. Goss 

maintained that position during the habeas hearing. However, Goss admitted he was sufficiently 

concerned to bring others from the District Attorney’s Office into the loop. Goss explained that 

he “kind of [got] an idea of what the defensive theory might be” with regard to Dalton and his 

encounter with the second-chair prosecutor. Accordingly, Goss disclosed the encounter between 
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the second-chair prosecutor and Dalton to LaHood. Goss testified at the habeas hearing that 

LaHood’s initial reaction was the same as his — this was not mitigating, exculpatory, or 

impeachment evidence that needed to be disclosed to the defense. 

LaHood contacted the chief of the appellate division, Enrico Valdez, that same evening. 

According to LaHood, Valdez advised that it did not seem “like information that needs to be 

disclosed,” but he wanted an opportunity to research the issue and speak to Patrick Ballantyne, 

chief of the office’s Ethical Disclosure Unit. A couple of days later — on February 2 or 3, 2017,

Valdez informed LaHood that he and Ballantyne had researched the issue and believed the 

encounter between the second-chair prosecutor and Dalton “was not information that was required 

to be disclosed and that we did not have to disclose it.” They suggested, however, that if Goss and 

LaHood wanted to take additional action with regard to the issue — “in an abundance of caution” 

— they might consider disclosing to the trial court in camera. LaHood could not remember if he 

spoke to Goss about what he learned from Valdez, but he assumed Goss was speaking to Valdez 

and Ballantyne too. He did not ask Goss to make an in camera disclosure to the trial court. LaHood 

stated he was not concerned about providing the information to Goss because “it wasn’t like we 

thought this was a — you know, a critical point for the — for the trial.” 

On February 7, 2017, during pretrial motionsjust prior to voir dire, Goss signed a discovery 

acknowledgment pursuant to article 39.14(i) of the Texas Code of Criminal Procedure. Article 

39.14(i) requires the State to “electronically record or otherwise document any document, item, or 

other information provided to the defendant” during discovery. TEX. CODE CRIM. PROC. ANN. art. 

39.14(i) (West Supp. 2017). As Martinez points out, there was nothing in the disclosure about the 

one-time encounter between the second-chair prosecutor and Dalton, thereby establishing the State 

had not disclosed to the defense information regarding the encounter. Under article 39.14(i), the 

acknowledgment is merely a statement of what was provided by the State during discovery. As 
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the one-time encounter had not been disclosed, it would not have been listed in the article 39.14(i) 

acknowledgment. 

Trial Phase — Multiple In-Chambers Hearings

The parties began voir dire on the scheduled trial date — February 7, 2017. A jury was 

selected, but not sworn. Proceedings were recessed and the jury left, instructed to return the next 

day. The next morning, before the jury was sworn, Goss filed a “Motion for Ex Parte 

Communication and In Camera Consideration of Potential Conflict Issue.” The motion was 

presented to the trial court and a copy provided to Martinez’s defense counsel. The trial court met 

in chambers with Goss. The only other person present was the court reporter, who recorded the 

proceedings. 

Goss informed the trial court about the second-chair prosecutor’s 2015 disclosure. In his 

conversation with the trial judge, the Honorable Lori Valenzuela, Goss used the second-chair 

prosecutor’s name.2

 Goss described his actions — immediately removing the second-chair 

prosecutor and constructing a firewall “between her and the case.” Goss advised the trial court 

that from that point forward, the second-chair prosecutor had nothing to do with the case. He 

stated he kept the file and no one spoke to her about the case. He assigned the task of assisting 

him with the case to the third-chair prosecutor. Goss told the trial court it was the third-chair 

prosecutor who helped him prepare for the grand jury. 

Goss then described Dalton’s role as a State’s witness and his possible testimony. Goss 

then explained that the purpose of bringing the matter to the trial court’s attention at this time was 

the possibility — raised by Ballantyne — that the defense might use the encounter between Dalton 

and the second-chair prosecutor to impeach Dalton. As Goss put it, the defense “could say you’re 

 2 Given that the second-chair prosecutor was assigned at the time of the disclosure to Judge Valenzuela’s court, 

concealing her name was obviously unnecessary — Judge Valenzuela would know the prosecutors in her court. 
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testifying to this is [sic] because of the sexual relationship you had with one of the prosecutors.” 

Goss believed the impeachment value of the encounter was “weak” given that to his knowledge 

the second-chair prosecutor and Dalton had not had any contact after that one encounter in 2011

or 2012. Goss testified at the habeas hearing that when the second-chair prosecutor first disclosed 

her encounter with Dalton, he asked her if she had any contact with him after that one night. 

According to Goss, she said “no, it was one night.” Goss then noted that during his three-hour 

interview with Dalton, Dalton never mentioned the second-chair prosecutor. 

Despite his belief that the information had little impeachment value, Goss advised the trial 

court that out of “an abundance of caution,” the State wanted to make the court aware of the 

situation and have the court decide whether the one-time encounter should be disclosed. Goss then 

again expressed his belief that the information “would be of no value ... to the defense,” but 

disclosure could damage the second-chair prosecutor’s reputation. 

After Goss completed his statements, the trial court first asked whether the second-chair 

prosecutor “[did] the intake?” Goss told the trial court the second-chair prosecutor did not do the 

intake. The trial court then asked if there were any “agreements” with Dalton with regard to his 

testimony. Goss advised there were not. Goss explained it was understood that after Dalton came 

forward and his story matched the evidence — and the District Attorney’s Office found it credible, 

he would not be charged with murder. Goss stated “there’s never been a threat of a charge or an 

agreement not to charge.” The trial court stated it did not believe that “the extent of their 

relationship” should be disclosed at this point. However, the court pointed out that during voir 

dire, the attorneys discussed accomplices and the law of parties, suggesting that the defense could 

point the finger at Dalton “as being some kind of party to this, an accomplice to this, the getaway 

driver[,]” making him more of a star witness than he might otherwise be. Goss agreed, stating

they talked about the law of parties during voir dire because that the defense might point to Dalton 
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as the actual murderer given that: (1) he picked up Martinez near the murder scene; (2) a van like 

his was seen near the site of the murder; (3) his phone was near the scene; and (4) he had 

information about the murder that he could have known only if he committed the murder, was 

present at the murder, or was told about the murder by the perpetrator. 

The trial court then stated it saw the matter as involving two discrete issues — one, whether 

the State should disclose the information, and two, whether the disclosure is admissible for 

purposes of impeachment. As to whether the State should disclose the existence of the one-time 

encounter, the trial court opined that “the disclosure may be necessary,” but it would have to hear 

the testimony before deciding whether it was admissible for impeachment or any other purpose. 

The trial court expressed her concern for the second-chair prosecutor and her reputation, agreeing

the matter had the potential to be much bigger than it was. Accordingly, the court agreed to 

“contemplate some remedies” to diminish potential harm to the second-chair prosecutor. 

The trial judge then stated that, “My gut right now is that I would want it disclosed.” Goss 

then asked that if he was being ordered to disclose the information to the defense, whether it should

be disclosed before opening statements or just before Dalton takes the stand. The trial judge then 

stated:

This is — this is not — I mean if I say disclose, you need to disclose, and you 

decide when you do it. 

But this is just my opinion for whatever it’s worth ... if this is information you’ve 

had since 2014 ... [o]kay 2015 ... I wouldn’t put yourself — that’s my — I’m just 

giving you my advice ... I wouldn’t wait any longer .... 

In response, Goss stated his concern about disclosing the information before the trial court 

had an opportunity to devise a remedy to reduce the effects to the reputation of the second-chair 

prosecutor. The trial judge responded by indicating that Goss should withhold the name of the 

second-chair prosecutor to give her time to consider a possible remedy. She then stated she would 
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take “the responsibility for the delay in disclosure,” advising she would “say I told you that I 

thought the disclosure was appropriate but to hold off so that I could make sure that I had an 

appropriate remedy.” Judge Valenzuela subsequently explained at the habeas hearing that she 

meant she would take the responsibility for any delay in the disclosure of the second-chair 

prosecutor’s name, but not any decision by Goss to delay disclosure about the encounter between 

Dalton and the second-chair prosecutor. The record does not show that at any time during the 

hearing the trial court ordered Goss to disclose to the defense the encounter between Dalton and 

the second-chair prosecutor. Rather, the trial judge’s strongest statement during the entire ex parte 

hearing was “I mean if I say disclose, you need to disclose[.]” In fact, at the habeas hearing, Judge 

Valenzuela admitted she did not order Goss to do anything at that time, agreeing that she left it up 

to Goss to do whatever he wanted to do at that point. 

Despite the absence of an actual order by the trial court, after the ex parte hearing, Goss 

disclosed the “one-time sexual encounter” to the defense, withholding the name and position of 

the prosecutor.3

 He also did not disclose that the prosecutor in question had reviewed the 

prosecution guide prior to indictment. In essence, he told one of Martinez’s defense attorneys, 

Christian Henricksen, that in early 2015, a female prosecutor had informed him that she had a 

“one-night stand” with Dalton several years prior to the murder. Goss further advised that he 

would provide the name of the prosecutor once the trial court found a “remedy” with regard to 

protection of the prosecutor. Henricksen testified at the habeas hearing he was “not then overly 

 3 Goss’s decision to withhold the position of the prosecutor in addition to her name was logical. Martinez’s defense 

attorneys are long-time Bexar County advocates. If Goss had advised them that “the second-chair prosecutor in the 

437th District Court” disclosed to him in 2015 that she had an encounter with Dalton, the defense attorneys would 

surely have known — or could have easily discovered — the name of the prosecutor to whom Goss was referring, 

thereby negating any effect of withholding her name as mandated by Judge Valenzuela. 
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concerned” by the disclosure. Henricksen passed the information to his co-counsel, Joe Gonzales, 

who testified he was focused on the trial at that point. 

After the disclosure, the jurors were sworn and trial began. Goss made an opening 

statement during which, among other things, he described the testimony he expected Dalton would 

provide; the defense reserved its opening statement. The State then called its first witness, L.C., 

who was fourteen at the time of the murder. L.C. essentially testified that on the evening of the 

murder, he was inside when he heard his dog barking. He went outside to feed the dog and saw a 

Honda Accord pull up and stop under a street light in front of the empty house next door. L.C. 

testified he saw a Hispanic male in a dark hoodie get out of the passenger side of the car. The 

male was “messing with his pockets” as if he was removing something. L.C. went back inside and 

just a couple of minutes later heard “six gunshots go off.” L.C.’s grandmother called 911 as he 

looked outside. After police arrived, L.C. told them he had seen a white Dodge van driving away 

from the Honda Accord a few minutes after the shooting. After the State’s direct examination of 

the first witness, court recessed for lunch. 

After lunch, the trial continued. At the habeas hearing, Judge Valenzuela testified that at 

some point that afternoon, an off-the-record conference was held in her chambers. Present at the 

conference were the judge, Goss, LaHood, and both defense attorneys. During the conference, 

according to Judge Valenzuela, she asked Goss if he had “told them everything.” When Goss 

advised that he had not, Judge Valenzuela, for the first time, ordered Goss “[t]ell them now 

everything.” [sic] Goss immediately disclosed the remaining details to the defense — the name of 

the prosecutor who had the encounter with Dalton, her position as second-chair prosecutor in the 

437th District Court, and that she had reviewed the prosecution guide prior to indictment, which 

prompted her disclosure to Goss. Goss’s remembrance of events was somewhat different. He 

testified that at this conference the trial court stated she was aware that Goss had told the defense 
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“some parts of what we talked about,” but had not disclosed the name at the judge’s direction. She 

then stated she had devised a remedy and would like for Goss to now disclose the name of the 

prosecutor. Goss then made the disclosure. 

According to Henricksen, he was upset because the details made the encounter between 

the prosecutor and Dalton “a completely different thing.” The defense was angry, believing Goss

was “wrong” to withhold the information until after the jury was sworn and evidence was 

presented. Nevertheless, after the conference, the parties went back to the courtroom and trial 

resumed. The State called two additional witnesses, L.C.’s grandmother and the first responding 

officer. 

L.C.’s grandmother confirmed L.C.’s statements about the barking dog and subsequent

gunshots. She agreed that as her grandson looked outside, she called 911. The first responding 

officer from the San Antonio Police Department, Michael Wehe, testified that when he arrived he 

saw the Honda Accord with its passenger door open — the vehicle was running and the lights were 

on. Officer Wehe and his cover officer approached the vehicle and discovered a woman in the 

driver’s seat. Officer Wehe testified she was slumped “over to her side, hands in her pockets, not 

moving.” He noted her legs were crossed, making it appear she was relaxed before she was shot. 

The officer contacted dispatch, advising there was a “female down.” Officer Wehe believed she 

had been shot, but could not determine how many times. 

At the conclusion of Officer Wehe’s testimony, court was recessed for the evening. As to 

the first day of trial, LaHood testified at the habeas hearing that he believed it was going well for 

the State. Goss echoed those feelings. 

That evening, Henricksen sent a text to the trial court, Goss, and LaHood. Therein, he 

expressed his concerns over the disclosure made by Goss earlier that day. He advised the defense 

planned to move for a one-day continuance to give the attorneys time to consider the matter. The 
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State agreed to the continuance and the trial court indicated its intent to grant it. On the morning

of February 9, 2017, as previously indicated, the defense filed a motion for continuance. In that 

motion, the defense stated a continuance was necessary because after the jury was seated, the State 

disclosed “critical and sensitive information that is material to the defensive theory in this case.” 

The State did not oppose the motion. The trial court granted the defense a continuance to February 

14, 2017. Immediately thereafter, the attorneys and the trial court held an in-chambers, on-therecord, conference. 

During this conference, defense counsel was permitted to express their concerns about the 

recent disclosure. They expressed the difficulty of the situation and the need to investigate the 

matter and speak to an appellate attorney. 

Judge Valenzuela noted that once the second-chair prosecutor’s name had been disclosed 

to the defense, she had instructed the defense and the State that she “did not want the person named 

in the disclosure to be disclosed beyond the people that needed to know[,]” i.e., an investigator for 

the defense. She also noted she told the prosecutors she did not want them telling the second-chair 

prosecutor that she was likely to be questioned about her encounter with Dalton. Rather, she 

instructed them to tell Ballantyne to tell the second-chair prosecutor “to anticipate that there would 

be some questions asked of her.” The judge noted she “shouldn’t be in this position” and that it 

was not her responsibility or problem. However, she advised that “everybody needs to use their 

best discretion,” but she would not make decisions that could “hurt the defendant.” To that end, 

she stated she was lifting “the gag order” that she had imposed the day before, stating that if the 

defense felt like disclosure of the prosecutor’s name was necessary, that would be their decision. 

She emphasized that the second-chair prosecutor did nothing wrong, disclosing her connection to 

Dalton “the moment she knew this information[.]” 
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The trial court also noted — as it had during the ex parte meeting with Goss — that 

although the encounter was discoverable, its ultimate admissibility was a different issue. Judge 

Valenzuela opined that even if the second-chair prosecutor had no influence in the case, the defense 

could assert a defensive theory in which Dalton was the actual perpetrator, and his encounter with 

the prosecutor could be fodder for impeachment based on bias or motive for testifying. 

Defense attorney Gonzales advised that he considered the second-chair prosecutor “a friend 

and colleague” and would be respectful with how the defense proceeded. However, he could make 

no promises until the matter was fully investigated — the timing and chronology of events, whether 

the prosecutor had any part in the intake of the file, or had any influence on whether or not Dalton 

“was ever considered for indictment as a party to an offense.” Gonzales asserted this would 

directly impact the defense’s theory of the case, asserting that Dalton “smells like a codefendant.” 

The defense attorneys explained their concern was not really about the second-chair prosecutor, 

but Dalton’s potential feelings toward her that might have prompted him to “do what [he] can to 

help” the State. 

Goss had previously denied the second-chair prosecutor had any part in the intake or any 

influence after she reviewed the prosecution guide and disclosed her encounter with Dalton. He 

subsequently reiterated this during the conference and then later at the habeas hearing. Goss 

further stated “for the record, so the Court knows, there was never a murder case that came in on 

Gregory Dalton.” Gonzales stated the defense was not questioning the second-chair prosecutor’s 

actions; rather, it was questioning Goss’s decision not to disclose the encounter “in the timely 

fashion.” 

Goss stated, as he had before, that it was only after Dalton expounded on his previous 

statement the week before trial that he began to see a possible defensive theory based on 

impeachment due to the encounter between Dalton and the prosecutor. When he did, he took 
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action, discussing possible disclosure with his colleagues and then requesting the ex parte hearing 

with the trial court. Goss advised that even the appellate chief — Valdez — and the disclosure 

integrity chief — Ballantyne — did not believe disclosure was necessary. The ex parte meeting 

with Judge Valenzuela was merely a suggestion in the event Goss felt it was necessary “out of an 

abundance of caution.” 

Goss also explained the intake process to the defense, noting as he had before that the 

second-chair prosecutor played no part in it. Rather, her only role was her review of the 

prosecution guide during which she discovered Dalton was a witness. After that, she was 

“firewalled” from the matter. Goss also stated it was and always had been the State’s position that 

the defense had “to do everything [it] can for [the] client.” To that end, Goss reiterated the State 

would provide any records concerning the second-chair prosecutor’s assignments during her tenure 

in the office, and make anyone available for an interview, as well as for testifying. Goss again 

stated it was simply his desire “not to impugn [the prosecutor’s] reputation unneed — needlessly.” 

Toward the end of the hearing, the parties discussed defense interviews with Dalton and 

the second-chair prosecutor, appointment of an investigator, and appointment of appellate counsel 

to assist the defense. The trial court agreed to appoint both an investigator and an appellate 

attorney. Ultimately, the trial court appointed James McKay as investigator for the defense and 

Mark Stevens as appellate counsel for the defense. 

Later that same day, Goss requested that everyone meet in the trial court’s chambers. The 

parties indicated no court reporter was present because the discussion was supposed to revolve 

around scheduling. The scope of the meeting far exceeded mere scheduling. Moreover, those who 

were present later provided conflicting accounts of what occurred. The accounts of what happened 

during this off-the-record meeting played out at the habeas hearing. 
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Henricksen and Gonzales testified the defense attorneys and trial court arrived first. Both 

testified LaHood walked in “aggressively,” and “[h]e appeared angry.” They discussed 

scheduling, but after that LaHood began talking about the defense’s prior motion for continuance. 

Henricksen and Gonzales stated LaHood had been upset and confronted the defense attorneys that 

morning about the way they had filed the motion. Henricksen said he believed they had been 

“innocuous” with regard to the wording of the motion, but LaHood was still upset. Henricksen 

had considered the matter closed until LaHood raised it at the “scheduling meeting.” According 

to Henricksen, LaHood called it “a shit show,” and was unhappy that in the motion the defense 

had mentioned “a late disclosure of evidence.” Henricksen claimed LaHood was angry because 

the media had picked up on the language and was asking Goss and LaHood about it. LaHood, 

believing it was an uncontested motion, questioned the necessity of including the language. 

Henricksen then testified that after they finished talking about the motion for continuance, 

LaHood began to press Gonzales about their intentions with regard to the disclosure. According 

to Henricksen, it was at this point that the issue of a mistrial came up, raised by LaHood. 

Henricksen stated LaHood was still angry and advised that if the defense wanted a mistrial, the 

State would agree, stating “we will pick a better jury, we will be better prepared next time.” 

Gonzales declined the offered mistrial, advising they still needed to look into the matter. Gonzales

stated the defense was not worried about the second-chair prosecutor’s actions, but “about Jason 

Goss and him sitting on this for two years.” Henricksen said his co-counsel then stated it might 

come to a point where the defense might “have to file something about prosecutorial misconduct.” 

Henricksen and Gonzales testified that in response to this statement, LaHood “lost it” and “went 

ballistic at that point.” According to Henricksen, LaHood then “started screaming” at Gonzales,

“I will destroy your practice ... neither of you will get hired on another case in Bexar County[.]” 

Gonzales also testified about similar threats by LaHood. Henricksen claimed he was worried “this 
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was going to get violent.” Henricksen said this threat from the District Attorney shook him up. 

Both Henricksen and Gonzales stated they viewed LaHood’s comments as a threat to their

livelihood and believed he had the power and ability to make good on his threat. Gonzales said 

LaHood’s threats had a “chilling effect on him” and his efforts in defending Martinez. Goss 

testified, however, that this was not Gonzales’s only statement about the confrontation. Rather, 

he expounded on his “valuable friendship” with LaHood, stating he felt their disagreement may 

have hurt their friendship. Goss believed this is why Gonzales stated he could not sleep the night 

after the incident. Henricksen admitted that the next day Goss advised them LaHood later

commented that “he didn’t want to lose Joe’s friendship over it.” Judge Valenzuela confirmed that 

Goss relayed this statement by LaHood. 

LaHood’s memory of what occurred at the in-chambers meeting was different, as was 

Goss’s. LaHood testified at the habeas hearing that the contention he was mad the media was 

calling him after the motion for continuance was filed was “a gross mischaracterization.” LaHood 

testified he fields media questions every day and does not “get mad over that.” According to 

LaHood he had heard from Goss that Goss felt the defense put on a show for the media at the 

hearing on the motion for continuance. LaHood admitted he called it a “shit show.” 

With regard to raising the mistrial issue, LaHood testified he was trying to determine 

exactly what Gonzales wanted, pointing out that the State had agreed to a continuance, offered the 

defense “every resource from the DA’s Office,” access to Dalton and the second-chair prosecutor, 

as well as assistance from any number of investigators. Goss said the matter arose when Gonzales

raised concerns about the length of time the jury would be out while the defense conducted an 

investigation into the encounter between Dalton and the prosecutor. In an effort to determine what 

Gonzales wanted, LaHood said he asked if Gonzales wanted a mistrial, describing the question as 

“more of a diagnostic.” He waited for a response and when none was forthcoming, he stated,
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“Judge, give him a mistrial so we can pick a new jury.” LaHood denied wanting a mistrial, 

believing that they had picked a “good jury” and was “happy with our jury.” According to 

LaHood, the State had a strong case and intended to try it to a verdict. Goss echoed LaHood’s 

impression about the trial, stating he felt it “was going very, very well[,]” exactly as he had 

prepared and planned. 

LaHood claimed Gonzales advised the situation was not that simple, stating that if there 

was going to be a mistrial, he wanted further prosecution barred. LaHood said he scoffed at the 

notion. LaHood testified that in response, Gonzales threatened to file a motion for prosecutorial 

misconduct and call a press conference. Goss confirmed LaHood’s testimony concerning 

Gonzales’s threat to go to the media, testifying that when he made the threat, Gonzales’s “voice 

was raised, his face was red and he was pointing in my face saying that he is going to go public, 

and accused me of prosecutorial misconduct.” According to Goss, Gonzales was “the first person 

to scream” and “the first person to raise his voice and to be aggressive in my direction.” Goss 

testified Gonzales’s threat was in stark contrast to his previous statement that he believed Goss 

had not intended to do anything wrong. Gonzales admitted saying he had a problem with Goss 

and pointed at him. He also admitted the defense might have to allege prosecutorial misconduct, 

but denied he threatened to go to the media. Henricksen and Judge Valenzuela echoed Gonzales’s 

testimony regarding the alleged threat to go to the press. 

LaHood said he then suggested that Gonzales consult the attorney disciplinary rules before 

taking such action. According to LaHood, at that point appellate attorney Mark Stevens advised 

that LaHood should not be upset with Gonzales because it was actually Stevens who suggested the 

notion of prosecutorial misconduct. LaHood admitted that at this point — after Gonzales’s threats 

— he said that if a mistrial was granted the State would pick a better jury and be more prepared 

for the next one. LaHood also denied threatening the practices of the defense attorneys, but stated
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that when Gonzales threatened to call a press conference and allege prosecutorial misconduct, he 

advised that “in the process of defending this office’s honor, I will expose you as the unethical 

lawyer that you are, and let’s see what happens to your law practice.” Goss confirmed the gist of 

this statement. LaHood further stated that as District Attorney, it was his responsibility to defend 

the integrity and honor of his office. 

Judge Valenzuela was subpoenaed to testify at the habeas hearing. With regard to the offrecord scheduling hearing at which the issue of a mistrial first arose, she testified LaHood 

“expressed some concern about the motion for continuance.” The judge testified LaHood “didn’t 

seem happy about ... the motion for continuance being handled in open court where the media was 

present.” She stated LaHood called it a “shit storm.” Judge Valenzuela agreed LaHood was the 

first to mention a mistrial, stating he was willing “to get a new jury to start all over again, the 

evidence was what it was.” She also agreed Gonzales said “he would possibly have to allege at 

some point prosecutorial misconduct.” The judge testified that in response to this statement, 

LaHood said “he was going to shut down his practice,” but she also recalled LaHood advising 

Gonzales that he had no right to file a motion in bad faith. She did not feel LaHood’s response 

was warranted. Judge Valenzuela felt LaHood was “mad” and she was concerned about the 

escalation in volume and tone, fearing a possibility “that somebody would get hurt physically.” 

However, there was never any physical violence, and afterward, the attorneys retired to another 

room to discuss further proceedings in the matter. 

As a result of discussions between the attorneys, the defense was provided an opportunity 

to interview the second-chair prosecutor and Dalton. Henricksen testified that during the defense 

telephone interview of Dalton, the information provided “pretty much lined up with the initial 

disclosure that [Goss] had made to the Judge in chambers that — in terms of where the relationship 

happened, how it happened[.]” Dalton confirmed the one-time sexual encounter, but could not 
04-17-00280-CR

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recall the name of the second-chair prosecutor and could only provide a basic description of her. 

Henricksen testified Dalton told the defense he had no contact with the second-chair prosecutor 

since their “one-time encounter” and he did not even recall her position in the District Attorney’s

Office. Both the second-chair prosecutor and Dalton denied having any contact regarding the case. 

During the defense interview of the second-chair prosecutor, she advised that she 

recognized Dalton when she reviewed the prosecution guide based on his photo and nickname, 

“Vegas.” She confirmed — as Goss had previously told the defense — she had no contact with 

Dalton since their encounter and had no contact with the case since her disclosure to Goss. Under 

questioning from the habeas court judge, Henricksen admitted the defense never uncovered any 

evidence to indicate the second-chair prosecutor directed the investigation by police or had any 

part in the charging decision. But Henricksen opined that it was his belief the prosecutor was 

“holding back on some things as far as admitting to the actual relationship.” He also claimed there 

were discrepancies between what she allegedly told Goss and what she stated in the interview with 

regard to her encounter with Dalton. 

According to Gonzales, after the interview, he contacted Jay Norton, Chief of the District 

Attorney’s Conviction Integrity Unit. Gonzales wanted to speak with Norton to see if they could 

devise a solution to avoid a mistrial. A possible plea bargain was suggested, but Norton advised 

he had no authority to negotiate a plea agreement. Then, the issue of a mistrial arose. At the 

habeas hearing, the testimony was conflicting when it came to who said what during this meeting. 

According to Gonzales, he told Norton LaHood suggested a mistrial, but neither he nor Henricksen

agreed. Norton’s testimony was in opposition. Norton testified it was Gonzales and Henricksen 

that wanted a mistrial, but Goss and LaHood were opposed to it. At Gonzales’s request, Norton 

discussed the concept of a mistrial with LaHood the next day. Norton stated LaHood was initially 

opposed, but after a while, he agreed. 
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Mistrial and Habeas Phase

On February 16, 2017, just nine days after voir dire, and on the heels of the meeting 

between the defense and Norton, the defense moved for a mistrial in open court. The defense 

attorneys claimed they did not want a mistrial and the motion was made reluctantly based on the 

untimely disclosure of information that might constitute impeachment evidence under Brady. 

Although the State agreed to a mistrial, it denied any wrongdoing or that the defense was forced 

into requesting a mistrial based on any action by the State. The trial court granted the motion for 

mistrial and reset the trial for May 2017. Thereafter, Martinez filed his pretrial application for writ 

of habeas corpus. In his application, Martinez alleged further prosecution based on the murder 

indictment was barred based on double jeopardy. 

A hearing on Martinez’s habeas application was held in April 2017. The trial court denied 

the application, entering written findings of fact and conclusions of law in support of its decision. 

Thereafter, Martinez perfected this appeal. 

Analysis

As noted above, Martinez contends in this appeal that the habeas court erred in denying his 

application for writ of habeas corpus. He argues retrial is barred by the Double Jeopardy Clause 

of the Fifth and Fourteenth Amendments4 to the United States Constitution because: (1) the State 

goaded him into moving for a mistrial; (2) the State intentionally engaged in conduct — failure to 

disclose exculpatory evidence — with the intent to avoid an acquittal; and (3) the State 

 4 Martinez does not challenge the habeas court’s ruling based on the double jeopardy clause found within the Texas 

Constitution. See TEX. CONST. art. I, § 14. However, the language in both the state and federal double jeopardy 

clauses is markedly similar, and as numerous courts have held, the double jeopardy provision in the Texas Constitution 

provides substantially identical protection to that provided by the United States Constitution. Compare U.S. Const. 

amend. V with TEX. CONST. art. I, § 14; e.g., State v. Blackshare, 344 S.W.3d 400, 405 n.8 (Tex. Crim. App. 2011); 

Bien v. State, 530 S.W.3d 177, 180 (Tex. App.—Eastland 2016), aff’d, Nos. PD-0365 & PD 0366, 2018 WL 2715380 

(Tex. Crim. App. June 6, 2018); Ex parte Hill, 464 S.W.3d 444, 446 (Tex. App.—Dallas 2015, pet. ref’d); State v. 

Almendarez, 301 S.W.3d 886, 889 n.8 (Tex. App.—Corpus Christi 2009, no pet.). Thus, any analysis under the Texas 

Constitution would be the same. 
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intentionally failed to disclose exculpatory evidence with the intent to protect a colleague from 

personal embarrassment.5

 

Standard and Scope of Review

It is the burden of the habeas applicant to prove his allegations by a preponderance of the 

evidence. Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San Antonio 2011, no pet.) (citing 

Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005)); State v. Webb, 244 S.W.3d 

543, 547 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (same). The applicant must also provide 

the court with a sufficient record to prove his allegations. Coleman, 350 S.W.3d at 160. Our 

review of the habeas court’s ruling may include the evidence adduced at the habeas hearing and 

the record as it existed before the habeas court at the time of the hearing. Id. 

We must review a habeas court’s decision granting or denying relief requested in an 

application for writ of habeas corpus under an abuse of discretion standard. Ex parte Baldez, 510 

S.W.3d 477, 478 (Tex. App.—San Antonio 2014, no pet.) (citing Kniatt v. State, 206 S.W.3d 657, 

664 (Tex. Crim. App. 2006); Ex parte Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth, 

2005, no pet.)); see Ex parte Peralta, 87 S.W.3d 642, 645 (Tex. App.—San Antonio 2002, no pet.) 

(holding abuse of discretion standard applies with respect to habeas court’s ruling on habeas corpus 

petition based on double jeopardy). Notably, in applying this standard, i.e., we must “review the 

record evidence in the light most favorable to the trial court’s ruling[.]” Kniatt, 206 S.W.3d at 

664; Ex parte Uribe, 516 S.W.3d 658, 665 (Tex. App.—Fort Worth 2017, pet. ref’d). Moreover, 

we must afford great deference to the habeas court’s findings and conclusions, especially when, as 

 5 Martinez has cited no specific authority, nor have we discovered any, holding that failure “to disclose exculpatory 

evidence with the specific intent to protect a colleague from personal embarrassment” is an independent ground for 

challenging a mistrial based on double jeopardy under Oregon v. Kennedy, 456 U.S. 667 (1982) or Ex parte Lewis, 

219 S.W.3d 335 (Tex. Crim. App. 2007). Accordingly, we will not consider this as a separate issue, but shall review 

the allegations within this issue as part of our review of Martinez’s other complaints, i.e., whether the State’s conduct 

in this matter was undertaken with the intent to goad Martinez into moving for a mistrial or to avoid the possibility of 

an acquittal. 
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here, they involve determinations of credibility and demeanor. See Ex parte Perusquia, 336 

S.W.3d 270, 274–75 (Tex. App.—San Antonio 2010, pet. ref’d) (citing Ex parte Wheeler, 203 

S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. 

App. 2003, overruled in part on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. 

App. 2007)); Uribe, 516 S.W.3d at 665. The mere fact that we might decide the matter differently 

is insufficient to constitute an abuse of discretion; rather, to overturn the habeas court’s ruling on 

a petition for writ of habeas corpus, we must find the ruling was outside the zone of reasonable 

disagreement. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003); Uribe, 516 S.W.3d 

at 665. 

Applicable Law

As a general rule, the State may not put defendants in criminal cases in jeopardy twice for 

the same offense. Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014); see U.S. CONST.

amends. V, XIV; see also TEX. CONST. art. I, § 14. There are, however, exceptions to the general 

rule and such exceptions endure because there are situations in which a defendant’s right to be 

tried before a particular tribunal should be subordinated “to the public interest in affording the 

prosecutor one full and fair opportunity to present [the State’s] evidence to an impartial jury.” 

Arizona v. Washington, 434 U.S. 497, 505 (1978). As is applicable here, double jeopardy generally 

does not preclude the retrial of a criminal defendant if the defendant requested the mistrial. Oregon 

v. Kennedy, 46 U.S. 667, 672 (1982). There is however, a “narrow exception” to this general rule, 

the parameters of which were set out in Kennedy. Id. at 673–79. 

Prior to Kennedy, numerous Supreme Court cases indicated “that even where the defendant 

moves for a mistrial, there is a narrow exception to the rule that the Double Jeopardy Clause is no 

bar to retrial.” Id. at 673 (citing United States v. DiFrancesco, 449 U.S. 117, 130 (1980); United 

States v. Dinitz, 424 U.S. 600, 611 (1976); United States v. Jorn, 400 U.S. 470, 485 (1971); United 
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States v. Tateo, 377 U.S. 463, 468 n.3. (1964)). In these earlier cases, the exception was described 

as applying to instances when a prosecutor intended to provoke a mistrial, but further suggested it 

also applied when there was “bad faith conduct” or “harassment” by the prosecutor. Id. at 674 

(quoting Dinitz, 424 U.S. at 611). The Kennedy court rejected these latter notions, stating they 

offered “virtually no standards for their application” particularly given that every act by a rational 

prosecutor during a trial is designed to “prejudice” a defendant in order to secure a finding of guilt. 

Id. Thus, the Court held “prosecutorial conduct that might be viewed as harassment or 

overreaching, even if sufficient to justify a mistrial on defendant’s motion ... 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. Accordingly, the exception applies “[o]nly where the 

governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.” 

Then and only then may a defendant assert double jeopardy in order to bar a retrial “after having 

succeeded in aborting the first on his own motion.” Id. at 676. 

The Texas Court of Criminal Appeals adopted the Kennedy standard in Ex parte Lewis, 

rejecting prior precedent that held the double jeopardy clause of the Texas Constitution barred 

retrial if the prosecutor acted recklessly. 219 S.W.3d at 337, 371 (overruling Ex parte Bauder, 

974 S.W.2d 729 (Tex. Crim. App. 1998)). Thus, under Lewis, a retrial is barred if a prosecutor 

engages in conduct with the intent to goad or provoke the defense into requesting a mistrial. Id. at 

336. After Lewis, but in the same term of court, the court of criminal appeals was called upon to 

discuss the narrow Kennedy exception in the context of a prosecutor’s failure to disclose

exculpatory Brady material. See Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007). 

In Masonheimer, the defendant was charged with murder. Id. at 495. The defendant’s first 

two trials ended in mistrials at the defendant’s request, “provoked by the State’s intentional failure 
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to disclose exculpatory evidence with the specific intent to avoid an acquittal.”6 Id. Prior to his 

third trial, the defendant filed a pretrial application for writ of habeas corpus, which the trial court 

granted. Id. at 503, 505. The court of appeals reversed. Id. at 505. Upon review, the Texas Court 

of Criminal Appeals reviewed Kennedy and noted the Court had cited with approval several cases 

in which retrial had been barred when the prosecution deliberately engaged in conduct with the 

specific intent to avoid an acquittal. Id. at 507–08. Accordingly, after viewing the evidence in the 

light most favorable to the trial court’s ruling, the Texas Court of Criminal Appeals held the record 

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

State’s deliberate failure to disclose Brady material with the specific intent to avoid the possibility

of an acquittal. Id. In sum, the court concluded that under Kennedy, such deliberate conduct, 

accompanied by specific intent to avoid the possibility of an acquittal, barred any retrial. Id. 

Thus, in Texas, when a defendant moves for a mistrial and subsequently claims retrial is 

barred by double jeopardy, the habeas court, and all subsequent reviewing courts, must determine 

whether: (1) the prosecutor engaged in conduct to goad or provoke the defense into requesting a 

mistrial; or (2) the prosecutor deliberately engaged in the conduct at issue with the intent to avoid 

an acquittal. Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350 

S.W.3d at 160. As applied to this case, the issue is whether, viewing the evidence in the light most 

favorable to the habeas court’s ruling, the habeas court abused its discretion in concluding

Martinez failed to prove by a preponderance of the evidence that the prosecutors engaged in 

conduct — withholding of potential impeachment evidence under Brady or Article 39.14(h) —

with the intent to goad or provoke the defense into moving for a mistrial after jeopardy attached

 6 Unlike this case, the defense, the State, the trial court, and the court of appeals in Masonheimer agreed the State 

failed to disclose exculpatory Brady material. Masonheimer, 220 S.W.3d at 494 n.1. 
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or to avoid a possible acquittal.7 See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 

336; Coleman, 350 S.W.3d at 160. The Texas Court of Criminal Appeals set out non-exclusive 

factors in Wheeler to assist trial and appellate courts in determining whether the prosecutor had 

the requisite intent so as to bar any retrial based on double jeopardy: (1) Did it reasonably appear, 

at the time the prosecutor acted, that the defendant would likely obtain an acquittal?; (2) Was the 

alleged misconduct repeated after admonitions from the trial court?; (3) Did the prosecutor provide 

a “good faith” explanation for his conduct?; (4) Was the conduct “clearly erroneous”?; (5) Was 

there a plausible basis — factually or legally — for the conduct, despite any ultimate impropriety?; 

and (6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence, 

negligence, or lack of judgment, or were they consistent with intentional misconduct? 203 S.W.3d 

at 323–24.8

 

Application

In determining whether the habeas court abused its discretion in denying Martinez’s 

application, we consider the evidence in the light most favorable to the court denial using the 

Wheeler factors. We consider each factor in turn. 

 7 Brady material includes evidence favorable to the defense, i.e, material, exculpatory evidence and impeachment 

evidence. Pena v. State, 353 S.W.3d 797, 811–12 (Tex. Crim. App. 2011). Exculpatory evidence is evidence that 

may justify, clear, or excuse the defendant. Id. Impeachment evidence is evidence that “disputes, disparages, denies, 

or contradicts other evidence.” Id. However, in addressing the habeas petition in this case, the habeas court should 

not have concerned itself with the propriety of the trial court’s Brady determination. See Coleman, 350 S.W.3d at 

160. The granting of the mistrial cured any due process violation based upon Brady. Id. Thus, in this case, the habeas 

court’s findings and conclusions relating to the nature and propriety of disclosure of the alleged Brady material are 

irrelevant. See id. 8 Courts have modified the Wheeler factors following the disavowment of Bauder by the court of criminal appeals in 

Lewis to exclude an original sixth factor — reckless misconduct by the prosecutor. See, e.g., State v. Yetman, 516 

S.W.3d 33, 36–37 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Ex parte Roberson, 455 S.W.3d 257, 260 n.1 

(Tex. App.—Fort Worth 2015, pet. ref’d). 
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1. Did it Reasonably Appear at the Time of Prosecutors’ Actions or Inactions Prior to the 

Mistrial that Martinez Would Likely Obtain an Acquittal? 

By the time Goss had fully disclosed the details of the encounter between the second-chair 

prosecutor and Dalton, the parties had completed voir dire, the State had presented its opening 

statement, and the State had presented and the defense had cross-examined three witnesses. At 

this point, Goss had, in his opening statement, advised the jury that he expected the evidence to 

show that Carter was purchasing heroin from Martinez, and on the night of her murder, Carter met 

Martinez for that purpose. Her cell phone records would show she received a call, shortly before 

her murder, from a TracFone. That phone was subsequently determined to have called Gregory 

Dalton just after the murder. Goss told jurors he expected Dalton would testify that: 

• He drove a white van with decals;

• He knows Martinez; 

• He picked up Martinez near the location of the murder, but he was unaware of 

the murder;

• He called Martinez the night of the murder when he was unable to locate him;

• Martinez paid him $400 or $500 for picking him up;

• Martinez told him he shot the girl featured in a news story;

• Martinez said he asked to borrow the victim’s cell phone, the victim gave him 

her phone, he stepped out of her vehicle, and then shot her five times in the right 

side of the head. 

According to the State, other evidence would confirm that a TracFone that had called Carter 

on the night of the murder called Dalton around the time Dalton stated Martinez called and asked 

Dalton to pick him up. In addition, the evidence would show Carter was shot five times in the 

right side of the head, just as Dalton was told by Martinez. Moreover, Carter’s cell phone was 

missing, corroborating Dalton’s claim that Martinez said he took her cell phone. 

Also, L.C., the State’s first witness, testified he saw a Honda Accord pull up and stop under 

a street light in front of the empty house next door. L.C. testified he saw a Hispanic male in a dark 

hoodie get out of the passenger side of the car. The male was “messing with his pockets” as if he 
04-17-00280-CR

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was removing something. Just a couple of minutes later, L.C. heard multiple gunshots. L.C. 

testified he saw a white van — a van that matched the description of the one driven by Dalton —

driving away from the Honda Accord a few minutes after the shooting. L.C.’s grandmother 

testified she also heard gunshots and called 911. 

Officer Wehe, the first responding officer testified that when he arrived he saw the Honda 

Accord with its passenger door open. The victim — later identified as Carter — was dead in the 

driver’s seat. Her feet were crossed and her hands were in her pockets, which according to the 

officer made it appear she was relaxed before she was shot. Officer Wehe believed she had been 

shot, but could not determine how many times. 

Goss and LaHood testified at the habeas hearing that they believed the trial was going well. 

Although LaHood was the first person to mention a mistrial, he testified this was only in an attempt 

to determine what the defense wanted with regard to remedying the disclosure about the encounter 

between the second-chair prosecutor and Dalton. According to the defense, LaHood stated the 

State would agree to a mistrial and would “pick a better jury and be more prepared for trial” next 

time. However, LaHood specifically denied wanting a mistrial, stating his belief that he and Goss 

had picked a “good jury.” He stated he was “happy with our jury” and the State intended to try 

the case to a verdict. Goss corroborated LaHood’s statements about the status of the trial just prior 

to the mistrial, stating he felt the prosecution of Martinez “was going very, very well[,]” just as he 

had prepared and planned. 

Viewing the evidence in the light most favorable to the habeas court’s ruling, see Kniatt, 

206 S.W.3d at 664, we hold it does not support the appearance that during the time leading up to 

the mistrial that Martinez waslikely to obtain an acquittal. See Wheeler, 203 S.W.3d at 324. Based 

on its opening statement, the State expected the evidence to show the same TracFone made 

telephone calls to Carter and Dalton around the time of the murder. Dalton would testify he 
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received a call from Martinez near the time of the murder, he picked Martinez up near the site of 

the murder, and Martinez confessed to the murder — supplying Dalton with details only the 

perpetrator would know. The State believed Dalton’s testimony would be confirmed by cell phone 

evidence, forensic evidence, and other witnesses. Both prosecutors testified at the habeas hearing 

that they felt they had a good jury and the case was going well. The habeas court, in its discretion, 

could have found that LaHood’s decision to raise the specter of a mistrial was done for the reason 

he stated — to feel out the defense in an effort to “diagnose” what it wanted following the 

disclosure. 

Accordingly, viewing the evidence in the light most favorable to the habeas court’s ruling, 

the habeas court could have determined — as do we — that it did not reasonably appear in the 

time leading up to the mistrial that Martinez was likely to obtain an acquittal. See id. The evidence 

pertinent to the first Wheeler factor supports the habeas court’s ruling. See id. 

2. Did Goss Repeatedly Fail to Disclose All Information Relating to the Encounter Between 

the Second-Chair Prosecutor and Dalton After Admonitions from the Trial Court?

Despite Goss’s apparent concerns after his full interview with Dalton, the evidence shows 

Valdez — chief of the appellate section — and Ballantyne — chief of the ethical disclosure unit 

— did not believe disclosure was necessary. However, they suggested Goss could, out of an 

abundance of caution, disclose the information about the encounter between the second-chair 

prosecutor and Dalton to the trial court. According to Goss, after speaking to Valdez and 

Ballantyne, the State requested an ex parte, in camera hearing with the trial court before the jury 

was sworn. During that hearing, Goss made a full disclosure to the trial court. Thereafter, the trial 

court stated it did not believe “the extent of their relationship” between the second-chair prosecutor 

and Dalton required immediate disclosure. The trial court also opined that “the disclosure may be 

necessary,” but it might not be admissible. The trial court expressed its belief that “it would be in 
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poor taste just to throw it out there,” and agreed to consider remedies that might minimize any 

harm to the second-chair prosecutor. 

The trial judge stated her “gut” told her she “would want it disclosed,” when Goss asked if 

she was ordering him to disclose the information to the defense. However, Judge Valenzuela then 

stated: 

This is — this is not — I mean if I say disclose, you need to disclose, and you 

decide when you do it. 

But this is just my opinion for whatever it’s worth ... if this is information you’ve 

had since 2014 ... [o]kay 2015 ... I wouldn’t put yourself — that’s my — I’m just 

giving you my advice ... I wouldn’t wait any longer .... 

Moreover, Judge Valenzuela advised Goss to withhold the name of the second-chair prosecutor 

while she considered potential remedies, stating she would take “the responsibility for the delay in 

disclosure.” The trial judge told Goss, “say I told you that I thought the disclosure was appropriate 

but to hold off so that I could make sure that I had an appropriate remedy.” 

Thus, the record does not show that at any time during the ex parte hearing that Goss was

ordered to disclose to the defense the encounter between Dalton and the second-chair prosecutor. 

Judge Valenzuela’s strongest statement during the entire ex parte hearing was “I mean if I say 

disclose, you need to disclose[.]” Moreover, at the habeas hearing Judge Valenzuela testified she 

did not order Goss to do anything at that time, agreeing she left it up to Goss. Viewing the evidence 

in the light most favorable to the habeas court’s ruling, we hold this does not constitute an order

to disclose. See Kniatt, 206 S.W.3d at 664

Even though he was not ordered to disclose the information — and was, in fact, advised to 

withhold certain information — immediately after the ex parte hearing and before the jury was 

sworn, Goss disclosed the “one-time sexual encounter” to the defense, withholding the name and 

position of the prosecutor. He also failed to disclose that she had reviewed the prosecution guide. 
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However, as previously noted, if Goss had disclosed the position of the prosecutor or that she had 

reviewed the guide, he would have, in essence, violated Judge Valenzuela’s admonishment not to 

disclose her name. To suggest that disclosing her position or her review of the guide would not 

have revealed her identity is farcical. The defense attorneys had worked in the courthouse for 

years and it would have taken no time at all for them to discover which female prosecutor in the 

437th District Court had suddenly been removed from the Martinez case. And, who but a 

prosecutor in the prosecuting court would review the prosecution guide when it was first provided 

to the District Attorney’s Office? Thus, the evidence shows Goss took the trial court’s “advice” 

and disclosed the encounter between a yet-to-be-named female prosecutor and Dalton, withholding 

her name and any additional information that might have revealed her name, as instructed by the 

court. 

The record shows it was only after the jury was sworn and the State had begun presenting 

its case that Goss was ordered to make a full disclosure to Martinez’s defense team. The evidence 

of how this occurred was conflicting. According to Judge Valenzuela, during an “off-the-record” 

conference in chambers, she inquired as to whether Goss had told the defense “everything.” Goss 

testified the trial judge stated she knew he had made certain disclosures, but had withheld 

information at her request. What is uncontested is at this point, and for the first time, the trial court 

ordered Goss to immediately make a full disclosure, which he did. Although Henricksen claimed 

he was upset that he was just learning the details, everyone returned to the courtroom and trial 

resumed. 

When we view the evidence relating to the ex parte discussion and the subsequent order to 

disclose in the light most favorable to the habeas court’s ruling, see Kniatt, 206 S.W.3d at 664, we 

hold there is no evidence that Goss — or any other prosecutor or member of the District Attorney’s 

Office — continued to withhold information after being ordered to disclose it. See Wheeler, 203 
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S.W.3d at 324. Moreover, neither Valdez nor Ballantyne instructed or advised Goss to disclose 

the information to the defense or to the trial judge. Rather, they stated they did not believe 

disclosure was required, but if Goss wanted to disclose the information “in an abundance of 

caution,” he might make an ex parte disclosure to the trial court to determine what the court 

believed he should do. Goss did as instructed by his colleagues and by the trial court. There was 

no withholding of information, i.e., “repeated misconduct” after advice from other members of the 

office or admonitions by the trial court. See Wheeler, 203 S.W.3d at 324. The evidence shows 

the trial court never admonished Goss about his failure to disclose the details of the encounter 

between the Dalton and the second-chair prosecutor. See id. Nor did the trial court order him to 

disclose the information until after the jury was sworn and the State began presenting its case. See

id. Goss immediately complied, as instructed, each time he was told to disclose. See id. 

Accordingly, this factor does not suggest an attempt to goad the defense into a mistrial or an 

attempt to avoid an acquittal. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 

336; Coleman, 350 S.W.3d at 160. 

3. Did Goss Provide a “Good Faith” Explanation for His Lack of Disclosure?

The undisputed evidence shows that when Goss found out about the encounter between the 

second-chair prosecutor and Dalton, he immediately “firewalled” the prosecutor from the case. 

He questioned the prosecutor, asking her if she had additional contact with Dalton after their “onetime encounter.” She advised she had not — Dalton later confirmed her statement and there was 

no evidence to the contrary. Goss testified he considered the second-chair prosecutor’s encounter 

with Dalton a “conflict,” and believed he took appropriate steps to deal with it. Subsequently, he 

stated numerous times that he withheld the information — until the week before trial when he 

learned Dalton knew far more than he originally disclosed — out of respect for his colleague, to 
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protect her reputation. Then, though advised the information need not be disclosed, Goss chose to 

disclose the information to the trial court, and then upon order, to the defense in full. 

The habeas court was entitled to find Goss’s decision to withhold disclosure of the secondchair prosecutor’s one-time encounter with Dalton was based on his good-faith desire to protect a 

colleague’s reputation in the legal community and at the courthouse. See Kniatt, 206 S.W.3d at 

664; Perusquia, 336 S.W.3d at 274–75. Viewing the evidence in the light most favorable to the 

habeas court’s ruling, see Kniatt, 206 S.W.3d at 664, we cannot say it was an abuse of discretion 

to find Goss provided a good-faith explanation for his failure to disclose fully at an earlier point in 

time. See Wheeler, 203 S.W.3d at 324. The evidence relating to this third Wheeler factor does not 

suggest an attempt to force a mistrial or avoid an acquittal. See Masonheimer, 220 S.W.3d at 507–

08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160. 

4. Was Goss’s Failure to Disclose “Clearly Erroneous”?

It is undisputed that until a week before trial, no one in the District Attorney’s Office had 

any idea Dalton would be an important witness for the State. Thus, Dalton’s encounter with a 

prosecutor seemed immaterial. See Pena, 353 S.W.3d 797, 811–12 (holding Brady material 

includes material, exculpatory evidence and impeachment evidence). It was only when Goss and 

LaHood interviewed Dalton the week before trial that they learned he had failed to provide law 

enforcement with all of the information he had relating to Martinez and the murder of Carter. Goss 

testified it was at this point that he began to see possible impeachment value in the information 

concerning the one-time encounter between the second-chair prosecutor and Dalton. See id. 

Concerned by the possibility, Goss consulted “experts” — Valdez and Ballantyne — who advised 

they did not believe the information had to be disclosed. Nevertheless, Goss disclosed the 

information to the trial court, which advised him to make a partial disclosure. Goss complied and 

then fully disclosed when ordered to do so by the trial court. 
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The habeas court found there was no evidence the second-chair prosecutor or Dalton had 

further contact beyond the single encounter. Rather, all of the evidence suggested there was no 

additional contact. Moreover, the evidence supports the habeas court’s finding that the secondchair prosecutor was “firewalled” from the case by Goss, and she had no further involvement in 

the case after she told Goss about Dalton. She had no interaction with any witnesses and was not 

involved in charging decisions, plea negotiations, trial strategy, or any other aspect of the case. 

The habeas court further found there was no evidence Dalton attempted to use the one-time 

encounter “to curry favor from” the District Attorney’s Office or law enforcement. This finding 

is supported by the evidence. Thus, the habeas court found the defense failed to establish the 

encounter between the prosecutor and Dalton was material, relevant, or admissible. Thus, with 

regard to Brady, we cannot say the failure to disclose prior to the trial court’s order was “clearly 

erroneous.” The habeas court failed to see — as do we — how the evidence would be material or 

admissible, even for impeachment purposes given the facts: (1) Dalton and the second-chair 

prosecutor had a one-time sexual encounter in 2011 or 2012 — three or four years before the 

murder; (2) there was no further contact after the single encounter; (3) the second-chair prosecutor 

only recognized Dalton from his picture and nickname; (4) Dalton did not remember the secondchair prosecutor’s position in the office and had only a vague recollection of what she looked like; 

(5) Dalton was never considered a suspect by law enforcement; (6) the second-chair prosecutor 

reviewed only the prosecution guide and had nothing else to do with the case after her disclosure; 

and (7) Dalton never attempted to use his encounter with the prosecutor to his advantage. 

Accordingly, we do not find the decision to withhold the evidence prior to the trial court’s 

disclosure order to be “clearly erroneous” under Brady. See Wheeler, 203 S.W.3d at 324. 

However, section 39.14(h) of the Texas Code of Criminal Procedure — known as The 

Michael Morton Act — does not require evidence to be material or admissible for purposes of 
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disclosure. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h). Rather it “creates a general, 

continuous duty of the State to disclose before, during, or after trial any discovery evidence tending 

to negate the guilt of the defendant or reduce the punishment the defendant could receive.” Hart 

v. State, Nos. 14-15-00468-CR & 14-15-00469-CR, 2016 WL 4533419, at *5 (Tex. App.—

Houston [14th Dist.] Aug. 30, 2016, no pet.) (mem. op., not designated for publication (citing TEX.

CODE CRIM. PROC. ANN. art. 38.14(h)). We hold — given the undisputed evidence as set out in 

(1) through (7) above — the habeas court could have concluded the failure to disclose the 

encounter prior to the trial court’s order was not “clearly erroneous” even under Article 39.14(h). 

The one-time sexual encounter between the second-chair prosecutor, who was firewalled from the 

case prior to indictment, with Dalton, a potential “star witness,” would not tend to negate 

Martinez’s guilt or reduce his sentence under the facts as found by the habeas court in its discretion. 

See Kniatt, 206 S.W.3d at 664. Accordingly, we hold this Wheeler factor does not lend itself to a 

finding of goading or fear of an acquittal by prosecutors. See Masonheimer, 220 S.W.3d at 507–

08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160. 

5. Was There a Plausible Basis — Legally or Factually — for Goss’s Failure to Disclose 

Despite Any Ultimate Impropriety? 

As discussed above, Goss’s reasoning for not disclosing the encounter between Dalton and 

the second-chair prosecutor until ordered to do so by the trial court was based on his belief that 

this was nothing more than a conflict that could be resolved by way of a firewall and his concern 

for his colleague and her reputation. The first reason proffered by Goss falls within the legal realm. 

In the “clearly erroneous” analysis, we held that under the facts of this case, the habeas court did 

not err in finding the encounter — the information withheld — immaterial, irrelevant, or 

inadmissible. Nor, as we concluded, did it tend to negate Martinez’s guilt given the second-chair 

prosecutor’s complete lack of participation in the case, the absence of contact between the relevant 
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individuals, and nonexistence of any agreement with Dalton for his testimony. Thus, even if it 

should ultimately be determined that disclosure was mandated under Brady or Article 39.14(h), 

we hold there was a legally plausible basis for Goss to withhold the information prior to the trial 

court’s order to disclose. 

There was also a plausible factual basis for Goss’s decision to withhold the information —

respect and concern for his colleague and her reputation. The trial court’s subsequent order to 

disclose the encounter and its ultimate propriety, does not detract from the plausible factual basis 

for Goss’s decision to withhold the information and “firewall” the prosecutor from the case. The 

trial court also expressed its deep concern about what would happen if the information was 

disclosed without some court-crafted remedy to minimize the harm to the second-chair prosecutor 

and her reputation. If the trial court was concerned about the disclosure in the absence of a remedy, 

how can it be argued that Goss’s decision to withhold was less than plausible, even if later 

determined to be improper? Viewing the bases provided by Goss for withholding the information

in the light most favorable to the habeas court’s denial of Martinez’s application, we cannot say 

the habeas court abused its discretion. See Kniatt, 206 S.W.3d at 664. Thus, this fifth Wheeler

factor does not suggest prosecutors engaged in behavior in an effort to goad the defense into a 

mistrial or that they acted out of fear of an acquittal. See Masonheimer, 220 S.W.3d at 507–08; 

Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 160. 

6. Was the Prosecutors’ Failure to Disclose the One-Time Encounter Consistent with 

Inadvertence, Negligence, or Lack of Judgment, or Was it Consistent with Intentional 

Misconduct? 

As a whole, the prosecutors involved in this matter did not believe the information about 

the one-time encounter needed to be disclosed at all, especially prior to the full interview with 

Dalton a week before trial. Up until a week before trial, Goss firmly believed he had dealt with 

the disclosure by the second-chair prosecutor appropriately — he removed her from the case and 
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created a firewall so that she would have no further contact with anyone involved. Thereafter, 

when he learned about the additional testimony Dalton intended to provide, he began to secondguess his decision. Accordingly, he brought his concerns to LaHood. Goss and LaHood both 

testified they did not believe the encounter fell within the purview of Brady or otherwise required 

disclosure. Nevertheless, they consulted the heads of the appellate and ethical integrity units. 

Neither Valdez or Ballantyne believed disclosure was mandated, but offered a solution in the event 

Goss and LaHood still had concerns. Goss decided to make a full disclosure to Judge Valenzuela 

and abided by her advice and subsequent order. The evidence shows that before the jury was 

sworn — and in accord with the trial court’s recommendation — Goss advised Martinez’s defense 

counsel, Henricksen, that a prosecutor had a one-time sexual encounter with Dalton, a State’s 

witness. Henricksen took no action at that time. Goss’s failure to disclose the prosecutor’s identity 

or other information that would have revealed her identity was based on the trial court’s direction 

not to disclose her name. Then, when ordered to make a full disclosure, Goss fully complied. The 

decisions by Goss and LaHood to seek advice from the head of the appellate and ethical integrity 

units — and subsequently the trial court itself — belies any intent to engage in misconduct. If 

Goss or LaHood desired to intentionally withhold information from the defense — information 

they believed they should disclose — they could have simply said nothing. Goss could have kept 

the second-chair prosecutor’s disclosure to himself, figuring it would never come out. LaHood 

and Goss could have decided between themselves disclosure was not mandated instead of seeking 

additional opinions. And once Valdez and Ballantyne told Goss they did not believe disclosure 

was mandated, he could have believed he had done his due diligence and moved on, but he did 

not. Rather, he went to the trial court with a full and complete disclosure. 

Given the evidence of the actions taken by the prosecutors in this case and their testimony 

relating thereto, the trial court was within its discretion in finding their actions were inconsistent 
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with intentional misconduct. See Kniatt, 206 S.W.3d at 664. After analyzing the final Wheeler

factor, we hold the evidence does not suggest the actions or inactions of the prosecutors were

undertaken out of fear of an acquittal or for the purpose of goading the defense into moving for a 

mistrial. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350 

S.W.3d at 160. 

7. Did LaHood’s Threats to “Shut Down” the Practices of Defense Counsel Goad Martinez 

into Moving for a Mistrial or Were They Made Out of Fear of an Acquittal? (Non-Wheeler 

Consideration)

Although the Wheeler factors were designed to assist the courts in assessing whether 

prosecutors intended to goad a defendant into a mistrial or acted in an effort to avoid an acquittal, 

the factors are non-exclusive. See Wheeler, 203 S.W.3d 323. Beyond the Wheeler factors, 

Martinez points to the threats by LaHood to shut down the practices of the defense attorneys as 

evidence of his intent to goad him into a mistrial. 

As set out in detail above, during an off-the-record meeting in chambers, a heated 

discussion developed concerning Goss’s actions in this case and the actions the defense would 

need to take in response. According to testimony from Henricksen and Gonzales, LaHood was 

angry and ranting, threatening to “shut down” the practices of both men. LaHood denied this, 

although Judge Valenzuela testified the threat was made. LaHood testified Gonzales threatened 

to allege prosecutorial misconduct and seek redress with the media. Goss confirmed Gonzales

threatened to allege prosecutorial misconduct, pointing at him. 

All those who were present agreed LaHood was the first to mention the specter of a mistrial. 

But he testified this was simply an effort to determine what it was the defense wanted in an effort 

to remedy the matter. Both LaHood and Goss testified they did not desire a mistrial. Martinez 

disagrees, arguing LaHood’s behavior was nothing more than an attempt to induce the defense into 
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requesting a mistrial. According to Martinez, the State needed to force the defense to move for a 

mistrial to avoid double jeopardy given the jury had been empaneled and sworn. 

The habeas court found LaHood “engaged [in] what one witness properly called a ‘rant.’” 

The habeas court further found LaHood stated that he would agree to a mistrial and would pick a 

better jury and be more prepared for trial. According to the habeas court’s finding, LaHood 

“became enraged and threatened to ‘shut down’ the defense lawyers’ practices, to go to the media 

and do whatever it took.” However, the habeas court concluded, that although LaHood behaved 

unprofessionally, “neither the intent nor the effect of his behavior was to force the defense to move 

for mistrial.” Rather, the habeas court concluded that if done with any intent, LaHood’s actions 

were taken “to attempt to deter the claim by the defense of jeopardy [attaching] by reason of 

prosecutorial misconduct, an issue separate from the mistrial.” We agree. 

Reviewing the evidence in the light most favorable to the habeas court’s denial of 

Martinez’s habeas application, see Kniatt, 206 S.W.3d at 664, we hold the habeas court did not err 

in accepting testimony by Goss and LaHood that the State did not desire a mistrial. Rather, 

LaHood’s rant and threats were made only in an effort to deter the defense from alleging 

prosecutorial misconduct, not to force a mistrial. When the evidence is viewed in the proper light, 

the habeas court could certainly have concluded from the evidence, as do we, that LaHood’s threats 

were related to the defense threats to allege prosecutorial misconduct, which was separate from 

the matter of a mistrial. 

CONCLUSION

The ultimate issue for the habeas court was whether Martinez proved by a preponderance 

of the evidence that the actions of prosecutors were taken: (1) with the intent to goad or force him 

into requesting a mistrial in order to subvert double jeopardy protections; or (2) to avoid an

acquittal. See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350 
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S.W.3d at 160. The habeas court, after hearing testimony and reviewing evidence, found Martinez 

failed to meet his burden. Based on an examination of the evidence under the appropriate standard 

of review, and considering the Wheeler factors and LaHood’s threats, we hold the habeas court 

was within its discretion in concluding Martinez failed to establish by a preponderance of the 

evidence that prosecutors intended to goad him into moving for a mistrial or feared an acquittal. 

See Masonheimer, 220 S.W.3d at 507–08; Lewis, 219 S.W.3d at 336; Coleman, 350 S.W.3d at 

160. We therefore hold the habeas court did not abuse its discretion in denying Martinez’s petition 

for writ of habeas corpus and affirm the habeas court’s order. 

Marialyn Barnard, Justice

PUBLISH