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Case Name: Ex parte Anthony Charles Graves

●        OFFENSE: Pre-Trial Habeas Corpus

●        COUNTY: Burleson

●        C/A CASE No. 10-08-0189-CR            

●        DATE OF OPINION: November 5, 2008

●        DISPOSITION: Trial Court Affirmed  OPINION: Gray, CJ. [PDF]

●        TRIAL COURT: 85th D/C; Hon. Reva Corbett

●        LAWYERS: David Mullin (Defense); Patrick Batchelor, Chuck Mallin (State)

Ed Note: Commentator emeritus Roy Greenwood represented Mr. Graves for years, winning him a new trial based on facts that were intentionally hidden by the former prosecutor. See Graves v. Dretke, 351 F.3d 143 (5th Cir. Aug. 15, 2003); Graves v. Dretke, 351 F.3d 156 (5th Cir. Nov. 13, 2003); and Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006).

G&S 331 Prosecutorial Misconduct / Suppression of Evidence by Prosecution: During Applicant’ capital murder trial, the State did not disclose to the defense the exculpatory statements of its “star witness,” Robert Carter, who had told the district attorney the night before his inconsistent trial testimony that he alone had committed the murders, along with his statement implicating his wife Theresa “Cookie” Carter in the murders. The district attorney also intentionally -- “more egregiously,” as the Fifth Circuit put it -- elicited Carter’s false and misleading testimony that, except in his grand jury testimony, he had always implicated Applicant in the murders. The district attorney also elicited the false and misleading testimony of Ranger Coffman that all of Carter’s statements except his grand jury testimony had implicated Applicant. Applicant was found guilty of capital murder and sentenced to death. In his habeas corpus application, Applicant contended his conviction was “tainted by recantations of the State’s so-called ‘star witness,’ which were never disclosed to Applicant or his attorneys, perjured testimony elicited by the prosecutor and many other egregious acts of misconduct by the State Applicant appeals from a denial of a pre-trial application for a writ of habeas corpus contending, in two issues, that the habeas court erred in denying him relief. Applicant’s first issue is premised on double-jeopardy, and his second on speedy-trial grounds.

Holding: The Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. If the first trial has ended in a conviction, the double jeopardy guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. The Double Jeopardy Clause does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. To require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression which the Double Jeopardy Clause was intended to protect. Viewing the evidence in the light most favorable to the habeas court’s order denying Applicant relief, we hold that the habeas court did not abuse its discretion in denying Applicant relief on Applicant’s double-jeopardy ground.

Concurring / Dissenting Opinions: Justice Vance [PDF] dissented, arguing that Oregon v. Kennedy provides a “narrow exception” to the general rule that there is no jeopardy bar to a retrial after a defense-requested mistrial: A defense-requested mistrial bars retrial only when the prosecutorial “conduct giving rise to the successful motion for a mistrial was intended to provoke [or goad] the defendant into moving for a mistrial.” He believes that a similar narrow exception should apply in those extremely rare cases where the State intentionally withholds Brady evidence and intentionally elicits false testimony relevant to that evidence with the intent to avoid the possibility of an acquittal, and the conviction is later reversed or set aside for that Brady violation.

Ed Note: The Court declined to address Applicant’s speedy trial issue, holding that, under Ex parte Weise, 55 S.W.3d 617 (Tex.Cr.App. 2001)(see G&S, Vol. 9, No. 38; 09/24/01), a speedy-trial claim is not cognizable on a pretrial writ of habeas corpus.