Ex Parte: James Edward Hilliard v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EX PARTE: § No. 08-22-00179-CR
JAMES EDWARD HILLIARD. § Appeal from the
§ 210th Judicial District Court
§ of El Paso County, Texas
§ (TC# 20190D00815 and 20220D02996)
OPINION
Appellant, James Edward Hilliard, appeals the trial court’s order jointly denying his
amended application for a pretrial writ of habeas corpus and his motion to dismiss based on claims
of double jeopardy and prosecutorial vindictiveness, respectively. On appeal, Hilliard contends the
trial court abused its discretion by denying his claim for relief. Finding no error, we affirm.
I. BACKGROUND
On February 27, 2019, the State charged Hilliard by indictment with one count of
indecency with a child by sexual contact in cause number 20190D00815. A jury trial was originally
scheduled for February 14, 2020. But Hilliard filed a motion for continuance to investigate and
pursue discovery, which the trial court granted. The jury trial was reset, on special setting, for
March 17 and 18, 2022. Days before, however, the State moved for a continuance due to its
complaining witness and others being out of town and unavailable for trial. The State informed the
trial court that defense counsel indicated they were ready to proceed on the specially set dates. The
trial court granted the State a continuance. Trial was reset for special setting jury trial on May 5
and 6, 2022, with backup dates on May 19 and 20, 2022. The State next filed a second motion for
continuance on May 2, 2022. The State asserted as grounds that it had only recently learned of
new facts from its complaining witness, identified in the motion as J.C., and such information led
to paternity testing of J.C.’s first child. 1 The State asserted the testing could hinder the outcome
of the proceeding for both the State and the defense. The trial court denied the State’s motion.
Trial began on May 9, 2022. Prior to trial, the trial court had granted in part Hilliard’s
motion in limine as to evidence described in the State’s notice of extraneous offenses and its notice
of statements alleging conduct not otherwise alleged in the indictment. As its first witness, the
State presented testimony from O.A.W. 2, its complaining witness, who was then 37 years old. She
described that she lived in El Paso until she was roughly eight years old. Before moving from the
city, she recalled she had first lived at her grandmother’s house, then at an apartment where her
mother frequently re-decorated her bedroom, and finally they moved into a ranch-style home. She
testified that her mother died when she was 12 years old. She never knew her biological father.
She described that she was raised by Hilliard, who was her stepfather. He was the only father figure
of her childhood. She identified him in the courtroom.
1
At the hearing, the State argued to the trial court that J.C. was considered a second complainant who could add
credibility to the complainant named in the indictment. Defense counsel objected arguing the second witness was not
relevant to the case given she would not be called as a witness in the case.
2
Because the complaining witness was a minor at the time the offense was committed, we use her initials, for privacy
protection. See TEX. R. APP. P. 9.10(a)(3).
2
The prosecutor asked O.A.W. about her memories of when she lived in the apartment in El
Paso. For the most part, she recalled that she loved books and Barbies. She spent most of her time
with her mother. When asked about things she did with her stepfather, O.A.W. said she tried to
limit her time with Hilliard. When asked why, she said, “So we -- my dad would do this thing
called cleaning, essentially.” She remembered it became an issue of when she went to the bathroom
by herself, he would claim that she had not properly wiped herself and he would check her
underwear. The State followed her testimony asking her at what age she was when this
circumstance occurred. O.A.W. testified she was five or six. Hilliard then objected on the basis
that her testimony fell outside the date range of the indictment. The trial court overruled Hilliard’s
objection and his request for a mistrial. As O.A.W.’s testimony continued she provided details
about what Hilliard would do to her. When she exited the restroom, he led her to her bedroom or,
in some instances, the living room. He asked her to bring with her a roll of toilet paper and baby
oil. After he removed her underwear, he would bend her over the middle of her bed, face down.
Hilliard then rubbed the baby oil in between her butt cheeks, took out his penis, and rubbed it up
and down where he had applied baby oil. O.A.W. said she felt the pressure of him pushing his
penis up and down and he would try to insert it into her butt.
Hilliard objected again and moved for a mistrial. At a bench conference, Hilliard argued
that O.A.W.’s testimony clearly described an extraneous offense, and not conduct alleged by the
indictment. The State disagreed, arguing no violation of the in-limine order had occurred, that the
witness’s mention of penetration was not intentionally elicited by the State, and that the extraneous
offense was admissible as part of the same criminal episode. After hearing argument outside the
presence of the jury, the trial court granted Hilliard’s motion for mistrial without prejudice. The
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trial court noted the State’s notice of extraneous offenses had expressly stated there were no
allegations of penetration or ejaculation.
On August 17, 2022, the State filed a notice to vacate its prior notice of extraneous offenses,
bad acts, and habitual offense, which had been filed on February 6, 2020. The following day, in
cause number 20220D02996, the State reindicted Hilliard on eight felony counts of aggravated
sexual assault of a child. Hilliard next filed a pretrial application for writ of habeas corpus alleging
he had already been prosecuted under the prior indictment and the Double-Jeopardy Clause of the
5th Amendment of the United States Constitution, through the 14th Amendment of the United
States Constitution, prohibited a re-prosecution. Within his writ application, Hilliard also asserted
a claim of intentional prosecutorial misconduct.
In cause number 20190D00815, the State moved to dismiss the indecency with a child by
sexual contact indictment based on the case having been refiled under cause number
20220D02996. Next, Hilliard separately filed both a motion to dismiss cause number
20220D02996, and an amended application for writ of habeas corpus. The motion to dismiss was
based on prosecutorial vindictiveness, while the amended writ application was based on violations
of the Double Jeopardy Clause of the United States and Texas Constitution. Yet, in either event,
Hilliard’s amended writ application incorporated by reference his motion to dismiss the pending
indictment. After holding a non-evidentiary hearing on both of Hilliard’s requests, the trial court
jointly denied relief by written order.
Hilliard challenges the trial court’s order denying the relief requested in his amended writ
application.
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II. DISCUSSION
In his sole issue presented, Hilliard contends the trial court erred by denying his pretrial
writ claims of double jeopardy and prosecutorial vindictiveness. He contends the indictment
should be dismissed with prejudice. Countering, the State argues both pretrial writ claims lack
merit.
A. Standard of review
“Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy.” Ex parte
Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017). “[W]hether a claim is even cognizable on
pretrial habeas is a threshold issue that should be addressed before the merits of the claim may be
resolved.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). A defendant may use a
pretrial application for writ of habeas corpus only in very limited circumstances. Ex parte Smith,
178 S.W.3d 797, 801 n.13 (Tex. Crim. App. 2005). The Court of Criminal Appeals has limited the
use of pretrial habeas applications to issues that would result in immediate release and has “held
that an applicant may use pretrial writs to assert his or her constitutional protections with respect
to double jeopardy and bail,” to challenge the facial constitutionality of the statute under which he
or she is prosecuted, or to allege that the offense charged is barred by statute of limitations. See Ex
parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). The Court has “held that an applicant
may not use a pretrial writ to assert his or her constitutional rights to a speedy trial, challenge a
denial of a pretrial motion to suppress, or make a collateral estoppel claim that does not allege a
double jeopardy violation” because those issues are better addressed by a post-conviction appeal.
Id.In limited circumstances, a trial court may dismiss a case without the State’s consent. The
Court of Criminal Appeals of Texas recognized that such authority exists “when a defendant has
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been denied a right to a speedy trial, when there is a defect in the charging instrument, or pursuant
to [Article 32.01 of the Texas Code of Criminal Procedure], when a defendant is detained[,] and
no charging instrument is properly presented.” State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim.
App. 2003). We review a claim of prosecutorial vindictiveness for an abuse of discretion. Wilson
v. State, 633 S.W.2d 952, 956-57 (Tex. App. 1982). And the same standard applies when reviewing
a trial court’s ruling on a claim for habeas relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
App. 2006). In both circumstances, we review the evidence presented in the light most favorable
to the trial court’s ruling. Id. We afford almost total deference to the court’s determination of
historical facts supported by the record, especially when the fact findings are based upon credibility
and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). We
also afford the same deference to the trial judge’s rulings on application of law to fact questions if
resolving those ultimate questions turn on evaluating credibility and demeanor. Id. If resolving
those ultimate questions turns on applying legal standards, however, we review the determination
de novo. Id. at 87.
Because no testimony was received at the trial court’s hearing on Hilliard’s motion to
dismiss and application for writ of habeas corpus relief, we note the trial court’s ruling could not
have turned on credibility and demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524, 526
(Tex. Crim. App. 1999) (en banc). Accordingly, we apply a de novo standard of review.
B. Analysis
Hilliard argues three grounds in support of his appeal. First, he contends the State filed
continuances to prevent Hilliard from exercising his constitutional right to a speedy trial. Second,
Hilliard contends the State purposefully goaded him into moving for a mistrial evidenced by its
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justifications for violating the court’s in limine order. Lastly, Hilliard contends the State punished
him for exercising his right to a jury trial by increasing the charges.
Hilliard’s first and third arguments both fall under the prosecutorial vindictiveness
complaint. Accordingly, we address those arguments together under our vindictiveness review.
However, as to his argument asserting he was forced to protect his rights to a fair trial and motion
for a mistrial, we interpret this complaint liberally as presenting a double jeopardy complaint
against a retrial. We address this argument last, but only to a limited extent.
(1) Prosecutorial vindictiveness
Hilliard asserts the State sought repeated delays of his constitutional right to a jury trial
and, when its second motion for continuance was denied, it reindicted on eight counts of
aggravated sexual assault of a child in retaliation. Hilliard contends the State increased the charges
against him solely because he exercised his right to a fair trial. He asserts his claim raises a
presumption of prosecutorial vindictiveness.
Habeas corpus relief on grounds of prosecutorial vindictiveness is not among the claims
listed as cognizable in a pretrial habeas application by the Court of Criminal Appeals. See Ex parte
Estrada, 573 S.W.3d 884, 891 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing Ex parte
Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001)). However, because an applicant may appeal
a trial court’s denial of habeas relief regardless of the underlying claims for the relief sought, we
determine whether a vindictive-prosecution claim is cognizable in Hilliard’s petition for pretrial
habeas corpus. Ex parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998) (en banc).
Generally, prosecutors have broad discretion to decide what charges to file against a
criminal defendant. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (en banc). Yet,
that discretion is not without limits. A prosecutor may not increase the charges brought against a
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defendant simply as a punishment for invoking a right. United States v. Saltzman, 537 F.3d 353,
359 (5th Cir. 2008). “To punish a person because he has done what the law plainly allows him to
do is a due process violation ‘of the most basic sort.’” United States v. Goodwin, 457 U.S. 368,
372 (1982).
A constitutional claim of prosecutorial vindictiveness may be established in either of two
distinct ways: (1) proof of circumstances that pose a “realistic likelihood” of such misconduct
sufficient to raise a “presumption of prosecutorial vindictiveness,” which the State must rebut or
face dismissal of the charges; or (2) proof of “actual vindictiveness”—that is, direct evidence that
the prosecutor’s charging decision is an unjustifiable penalty resulting solely from the defendant’s
exercise of a protected legal right. Neal, 150 S.W.3d at 173. “Under the first prong, if the State
pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his
legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of
prosecutorial vindictiveness.” Id. To establish the second prong, a defendant must prove with
objective evidence, that the prosecutor’s charging decision was a “direct and unjustifiable penalty”
that resulted “solely from the defendant’s exercise of a protected legal right.” Id. at 174.
The presumption of vindictiveness prong rarely applies outside the context of a prior
conviction, a successful appeal, and a post-appeal enhanced charging decision. See Goodwin, 457
U.S. at 373. The United States Supreme Court explained:
There is good reason to be cautious before adopting an inflexible presumption of
prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case
for trial, the prosecutor may uncover additional information that suggests a basis
for further prosecution, or he simply may come to realize that information
possessed by the State has a broader significance. At this stage of the proceedings,
the prosecutor’s assessment of the proper extent of prosecution may not have
crystallized. In contrast, once a trial begins—and certainly by the time a conviction
has been obtained—it is much more likely that the State has discovered and
assessed all of the information against an accused and has made a determination,
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on the basis of that information, of the extent to which he should be prosecuted.
Thus, a change in the charging decision made after an initial trial is completed is
much more likely to be improperly motivated than is a pretrial decision.
Id. at 381. In the few instances it does apply, the defendant must prove he was convicted, he
appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional
enhancements. Neal, 150 S.W.3d at 174. Such factors are not present here and the first vindictive
prosecution claim is not satisfied. We decline to extend the presumption of prosecutorial
vindictiveness in this case based on the record presented.
Under the second prong, Hilliard was required to prove, with objective evidence, that the
prosecutor’s charging decision was a “direct and unjustifiable penalty” that resulted “solely from
the defendant’s exercise of a protected legal right.” Id. (quoting Goodwin, 457 U.S. at 384 n.19).
Hilliard shoulders the burden of both production and persuasion, unaided by any legal
presumption. Id. The trial court does the ultimate factual issue based upon the evidence and
credibility determinations. Id. The State may stand mute unless and until Hilliard carries his burden
of proof. Id.Hilliard asserted the state increased charges against him solely because he exercised his
lawful rights. In response, the State contended it reindicted the case because, after the mistrial, it
had the complaining witness write down everything that had happened to her. The State considered
her resulting statement as new evidence. After receiving the complaining witness’s new statement,
the State decided to reindict the case alleging actual penetration. The State further points out that
Hilliard never filed a demand for speedy trial but instead requested a continuance at one point.
Based on this record, we cannot conclude the trial court clearly erred in finding the State
did not engage in prosecutorial vindictiveness. We overrule Hilliard’s sole issue in part to the
extent it pertains to prosecutorial vindictiveness.
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(1) The Double Jeopardy claim
“The double jeopardy provisions of the federal and Texas constitutions protect a citizen
from repeated attempts at prosecution for the same criminal offense.” Ex parte Wheeler, 203
S.W.3d 317, 324 (Tex. Crim. App. 2006); see also U.S. CONST. amend. V; TEX. CONST. art. I,
§ 14. When a mistrial is granted at the defendant’s request, double jeopardy principles generally
do not bar a retrial. Oregon v. Kennedy, 456 U.S. 667, 673 (1982). However, when the defendant
demonstrates that the prosecution engaged in conduct that was intended to provoke the defendant
into moving for a mistrial, double jeopardy principles bar retrial. Id. at 679; Ex parte Lewis, 219
S.W.3d 335, 371 (Tex. Crim. App. 2007) (adopting the standard announced in Oregon v. Kennedy
for determining when to grant double jeopardy relief following defense-requested mistrial).
An applicant for habeas corpus relief must prove his claim by a preponderance of the
evidence. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013). In addition, an
applicant must ensure that a sufficient record is presented to demonstrate error requiring reversal.
Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005). To be entitled to habeas
corpus relief on double jeopardy grounds, appellant was required to establish by a preponderance
of the evidence that the prosecutor engaged in conduct that was intended to provoke him into
moving for a mistrial. See Kennedy, 456 U.S. at 679. Texas courts analyze a federal or state
constitutional double-jeopardy claim under a three-part test: (1) whether manifestly improper
prosecutorial misconduct provoked the mistrial; (2) whether the mistrial was required because the
prejudice produced from that misconduct could not be cured by an instruction to disregard; and
(3) whether the prosecutor engaged in that conduct with the intent to goad the defendant into
requesting a mistrial or with conscious disregard for a substantial risk that the trial court would be
required to declare a mistrial. Ex parte Wheeler, 203 S.W.3d at 323. The Texas Court of Criminal
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Appeals has held that courts should consider the following list of non-exclusive factors in assessing
the prosecutor’s state of mind:
1) Was the misconduct a reaction to abort a trial that was “going badly for the
State?” In other words, at the time that the prosecutor acted, did it reasonably
appear that the defendant would likely obtain an acquittal?
2) Was the misconduct repeated despite admonitions from the trial court?
3) Did the prosecutor provide a reasonable, “good faith” explanation for the
conduct?
4) Was the conduct “clearly erroneous”?
5) Was there a legally or factually plausible basis for the conduct, despite its
ultimate impropriety?
6) Were the prosecutor’s actions leading up to the mistrial consistent with
inadvertence, lack of judgment, or negligence, or were they consistent with
intentional or reckless misconduct?
Id.Within Hilliard’s second argument, he asserts the State exhibited prosecutorial
vindictiveness by purposefully goading him into moving for a mistrial. Whether a prosecution
intentionally goaded a defense request for mistrial is included in the analysis of whether Hilliard
established his entitlement to habeas corpus relief based on a double jeopardy violation. See Ex
parte Wheeler, 203 S.W.3d at 324. Indeed, Hilliard’s application for writ of habeas corpus included
such a claim. However, his appellate brief on appeal neither mentions nor includes any argument
challenging the trial court’s rejection of such double jeopardy claim. Even if we were to interpret
Hilliard’s second argument liberally, his brief fails to develop an argument or cite to authority
addressing a double-jeopardy analysis. See TEX. R. APP. P. 38.1(i) (requiring briefing to include
concise argument for contentions made with appropriate citations to authorities and to the record).
Similarly, Hilliard does not analyze the prosecutor’s state of mind or show how the record
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established by a preponderance of the evidence that the prosecutor engaged in conduct intended to
provoke him into moving for a mistrial. See Ex parte Wheeler, 203 S.W.3d at 324. Based on both
the record presented and briefing, we conclude the double-jeopardy portion of Hilliard’s writ claim
is without merit.
Thus, we overrule the remainder part of Hilliard’s sole issue.
III. CONCLUSION
We conclude the trial court did not abuse its discretion in denying Hilliard’s amended
application for a writ of habeas corpus, which was separately presented and incorporated in his
motion to dismiss. We affirm the trial court’s order.
GINA M. PALAFOX, Justice
July 21, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
(Do Not Publish)
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