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State v. Rushing

Court of Appeals of Texas, Ninth District, Beaumont

September 20, 2017


          Submitted on April 19, 2017

         On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CR31430

          Before McKeithen, C.J., Kreger and Horton, JJ.



         In this appeal, we are asked to decide whether the trial court abused its discretion by granting Dante Tyrone Rushing's habeas application on the basis that the Double Jeopardy Clause barred the State from retrying him after the trial court granted his request for a mistrial and then ordered that his indictment be dismissed.[1] See U.S. Const. amend. V; Tex. Const. art. I, § 14. We conclude the evidence and circumstances showing why the mistrial occurred fails to support the trial court's conclusion that anyone on the prosecutor's team engaged in conduct intended to provoke or goad Rushing's attorney into seeking the mistrial. We sustain the State's issues on appeal, and we reverse the trial court's order granting Rushing's application for habeas relief.


         In December 2014, the State indicted Rushing for possession, with the intent to deliver, 400 or more grams of cocaine including adulterants and dilutants. See Tex. Health & Safety Code Ann. § 481.112(f) (West 2017). The record of the proceedings in the trial court show that Rushing was arrested after police found him standing near a couch inside Cedrick Bass's residence on the day they executed a warrant to search Bass's home. Police found approximately 725 grams of crack and powder cocaine in Bass's home. The police arrested Rushing, Bass, and some other individuals they found inside Bass's house when they executed the search warrant. The evidence before us also shows that the police obtained the warrant that authorized Bass's home to be searched based on information that police had developed the day before when a confidential informant approached Bass's house and purchased two rocks of crack cocaine from Bass. Subsequently, Bass and Rushing were indicted for possession with intent to deliver the cocaine discovered inside Bass's home.

         The same trial judge that presided over Rushing's case presided over Bass's case. One of the issues that arose in Bass's case concerned whether Bass was entitled to discover the identity of the confidential informant who purchased drugs from him on the day before the search occurred. At Bass's request, the trial court ordered the prosecutors handling Bass's case to give Bass's attorney the confidential informant's name and the audio recording that captured the transaction between the confidential informant and Bass involving Bass's sale of the two rocks of crack cocaine. In re State of Tex., Nos. 09-15-00192-CR, 09-15-00193-CR, 2015 Tex.App. LEXIS 12083 (Tex. App.-Beaumont Nov. 25, 2015, orig. proceeding) (mem. op., not released for publication) (granting the State's request to set aside the trial court's discovery order, which required the State to produce a copy of a recording made by the confidential informant to defense counsel for Bass). The State sought relief from the order requiring it to disclose the information involving its confidential informant. At the State's request, we overturned the trial court's discovery order. Id. Subsequently, Bass pleaded guilty to possession with intent to deliver, but he reserved his right to appeal his convictions on the basis that the State failed to reveal the confidential informant's name, the audio recording from the transaction involving the confidential informant, or a written transcription of the recording. See Bass v. State, Nos. 09-16-00144-CR, 09-16-00145-CR, 2017 Tex.App. LEXIS 6646, *6 (Tex. App.-Beaumont July 19, 2017, no pet. h.) (mem. op., not released for publication). Bass appealed from the judgment convicting him of being in possession of the cocaine discovered by police in the search of his house, and we rejected Bass's complaints after concluding that the confidential informant's identity and the recording were not exculpatory evidence in Bass's case on the basis that Bass had not been "charged with the offense of selling drugs to the confidential informant, which is what the recording captured." Id.

         When Rushing's case was tried, it became apparent to the trial court that the prosecutors handling Rushing's case had failed to provide Rushing's attorney with the confidential informant's identity, disclose that an audio recording existed of the transaction between Bass and the confidential informant, or provide Rushing's attorney with excerpts from the recording to show that the confidential informant told the police that only Bass was present when the confidential informant purchased the drugs from Bass. In Rushing's case, nothing in the proceedings from the trial court show that the State ever charged Rushing with possessing the two rocks of crack cocaine purchased by the confidential informant, or that the prosecutor intended to claim that Rushing was being charged with possessing the drugs that Bass sold to the confidential informant. Additionally, nothing in the record indicates that Rushing ever raised any issues challenging the validity of the search warrant that authorized the search conducted on Bass's home.

         Only two witnesses testified in Rushing's case before the trial court declared a mistrial. Officer Paul Young was the first witness called in Rushing's trial. Officer Young provided the information used to obtain the search warrant on Bass's home. In Rushing's trial, Officer Young testified that he was one of the officers involved in the search that led to Rushing's arrest. At an early stage in Officer Young's testimony, the lead prosecutor showed Officer Young a box that contained several exhibits, which was marked Exhibit 90. Officer Young indicated that Exhibit 90 was a box that Peggy Bourgeois, an evidence technician employed by the Sherriff's Office, sent to a lab in Houston so that its contents could be tested. The testimony in the trial shows that Exhibit 90 contained packages of drugs that were marked as three separate exhibits: Exhibits 90A, 90B, and 90C. The testimony showed that Exhibit 90A contained two rocks of crack cocaine, Exhibit 90B contained eleven bags of crack cocaine and four bags of powder cocaine weighing a total of 725 grams, and Exhibit 90C contained crack cocaine that weighed approximately ten grams. Neither of the State's witnesses mentioned the weight of the two rocks of crack cocaine in Exhibit 90A. Peggy Bourgeois, the State's other witness, confirmed that she put the various packages of drugs gathered by the police in their investigation of the four individuals arrested at Bass's home into one box which she then sent to Houston for testing.

         While Officer Young was on the stand, the lead prosecutor asked him to explain what was in Exhibit 90A. Officer Young testified that the package appeared to be two rocks of crack cocaine that "we purchased through our confidential informant[, ]" and used "to get the search warrant for the residence." The record shows that the jury did not learn about the confidential informant for the first time based on Officer Young's reference to the confidential informant during his testimony. Instead, the record shows that Rushing's attorney first introduced the fact that a confidential informant had been involved with the police, as he told the jury in opening statement that on the day before Bass's home was searched, Bass sold the confidential informant cocaine at Bass's house. Rushing's attorney also implied in his opening statement that the transaction with the confidential informant is the reason that police obtained the warrant used to search Bass's home.

         Officer Young briefly described the search conducted on Bass's home before the trial court declared the mistrial. Officer Young testified that police recovered cocaine in several rooms of Bass's house, and that they placed the drugs found in the house in a container marked for trial as Exhibit 90B. Officer Young explained that the drugs contained in the exhibit marked as Exhibit 90B weigh approximately 725 grams. According to Officer Young, the drugs placed into Exhibit 90B were found in different rooms of Bass's house. Officer Young also indicated in his testimony that the drugs the police placed into Exhibit 90B were "[a]dded together."

         When Officer Young mentioned that the police added the drugs together that they placed in Exhibit 90B, the trial court interrupted and asked the lead prosecutor whether the drugs in State's Exhibit 90A were tested. In response, the prosecutor advised the trial court that the contents of Exhibit 90A had been tested. At that point, the trial court excused the jury, and outside the jury's presence asked Rushing's attorney "Do you see the problem yet?" Rushing's attorney responded, stating that had the State attempted to introduce Exhibit 90A into evidence there might be a chain-of-custody problem, but he also noted that the State had not yet offered Exhibit 90A into evidence. The trial court stated: "Well, it hasn't been introduced, so you're kind of getting at the problem." Next, the trial court asked the lead prosecutor in charge of Rushing's case whether he saw the problem. The lead prosecutor responded: "No, sir."

         After the attorneys involved in the trial failed to demonstrate they were aware of any problem, the trial court explained its view that a discovery and disclosure problem had been created when the lead prosecutor had Officer Young discuss Exhibit 90A in the jury's presence when the State had not disclosed to Rushing's attorney the confidential informant's name, a copy of the audio recording of the confidential buy, or the fact that the prosecutor knew that Rushing was not present when Bass sold the confidential informant the crack cocaine in Exhibit 90A. The record reflects that the trial court viewed the details of the confidential buy as exculpatory with respect to the charges against Rushing, and that the State should have disclosed the details of the confidential buy even though the State had not charged Rushing with being in possession of the two rocks of crack cocaine purchased by the confidential informant. When the trial court declared the mistrial, Exhibits 90, 90A, 90B and 90C had not been offered into evidence.

         When it became apparent to the lead prosecutor that the trial court was implying that he intended to offer drugs into evidence that were not fruits obtained during the search of Bass's home, the lead prosecutor informed the trial court that he did not actually know that the cocaine in Exhibit 90A came from a confidential buy and was not included in the drugs discovered during the search. The trial court responded:

The State did know. Maybe you didn't know. Hell, I knew. I mean, that's why I asked the question. Of course, I've tried all of these cases or I've been involved in some of the suppression hearings and things like that. The State knew. Now, you might not have known. The State knew.

         The trial court advised the attorneys that Exhibit 90A would not be admitted into evidence (despite the fact that it had never been tendered for admission). In addressing its view of the State's disclosure and discovery obligations to Rushing, the trial court referred to the Michael Morton Act and stated: "I'm telling you, this should have all - - he (referring to Rushing's attorney) should have known all of this before trial, before the middle of trial." See Tex. Code Crim. Proc. Ann. art. 39.14(h) (West Supp. 2016) (requiring that the State "disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the [S]tate that tends to negate the guilt of the defendant"); but see Bass, 2017 Tex.App. LEXIS 6646, at *5 (explaining that the recording was not exculpatory in Bass's case because Bass was not charged with selling drugs to the confidential informant). After the trial court made its view of the State's discovery obligations clear, Rushing's attorney asked the trial court for a mistrial. The State responded that it had no objection, and the trial court granted Rushing's motion for mistrial. Officer Young never completed his testimony, which might have explained why the State ultimately charged Rushing with being in possession of all of the drugs that police found in all of the rooms in Bass's home.

         Approximately one week after the mistrial occurred, Rushing filed his application for a pretrial writ of habeas corpus. In his application, Rushing claimed that double jeopardy barred the State from retrying him on the charges of possessing the cocaine in the house. In his application, Rushing argued that the double jeopardy provisions of the United States and Texas constitutions prohibited the State from retrying him under circumstances showing that Exhibit 90A contained cocaine from a source that was not a product of the search police conducted on Bass's home.

         In late October 2016, the trial court conducted a hearing on Rushing's habeas application. No witnesses were called during the hearing, and the trial court advised the State when the hearing began that rather than merely presenting argument, it should file a written response to Rushing's application for habeas relief. In the written response that the State subsequently filed, it argued that Officer Young testified about the contents in Exhibit 90A because the container of drugs from the search and the container of drugs purchased by the confidential informant were all placed together in one box. According to the State, Officer Young realized for the first time while testifying in Rushing's case that not all of the drugs in the box marked Exhibit 90 came from the search conducted on Bass's home. The State also suggested that its lead prosecutor, in preparing the case, failed to have the State's witnesses "empty each evidence bag pre-trial, and identify each item of evidence contained in the ...

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