Ex Parte Davis

parte Ex Jack Warren DAVIS. 495-95.

No. Texas, Appeals of of Criminal

Court

En Banc.

Sept. Houston, Schneider, appel-

Stanley G. lant. Horn, Atty.,

Jeffrey L. Asst. State’s Van Prosecutor, Austin, San Ray Taylor, Special Austin, Paul, Antonio, Atty., Matthew State’s for State. PETITION APPELLANT’S ON

OPINION REVIEW FOR DISCRETIONARY MANSFIELD, Judge. Davis, con

Applicant, Warren Jack to life capital murder and sentenced victed of appeals reversed and prison. court of for a the trial court the cause to remanded (“Davis I”), 831 v. State new trial. Davis d). 1992,pet. (Tex.App.-Austin ref S.W.2d subsequently pretrial filed writ of Applicant corpus, averring the double habeas States con the Texas and United clauses of The habeas barred his retrial. stitutions relief, appeals court denied (“Davis ”), 893 Davis II parte Ex affirmed. 1995). This (Tex.App.-Austin petition for discre applicant’s tionary consider the review to ground for review: of Bander v. hearing presence 921 ed an informal outside the Does the rationale jury. barring (Tex.Crim.App.1996), S.W.2d 696 jeopardy grounds fol- retrial on state double attorney told the court he The district lowing granting of mistrial because of police reviewed statements two officers apply when the halfway applicant said had come which goes cause to a verdict but is reversed on (Toth up apartment the stairs to victim’s appeal? initially the embrace occurred at the testified stairs). top of the He also reviewed the applicant’s At Zain for Fred testified testimony sister’s that she did not embrace expert He the State as an witness. testified police applicant. Subsequently, he asked a allegedly performed as to DNA tests he call officer to contact Toth and for her to evidence, testimony blood and other arrival, he her Upon office. her informed hearing was found the court at the habeas testimony there was a conflict between her to be false. The habeas court also found that that of other witnesses and that he Richards, testimony Lt. another State present grand to the if the matter witness, inaccurate, probably was as was the conflict. He said he he could not resolve testimony. on Zain’s The court based habeas lied, they the officers if had “or would indict intentional, Zain’s conduct was concluded if the truth.” the reverse she had not told outrageous and shocked the conscience of the already put person in He told her he had one court. year. jail lying on the stand last He for appeals, reversing appli- The court of might finally her if she have been asked I), {Davis appli- cant’s conviction sustained completed having seen a em- mistaken about attorney in- cant’s contention the district brace; said she had been mistaken. she Toth, and, effect, witness, timidated a Toth, granting The court then asked after perjury. Toth testified on direct suborned perjury immunity from her applicant and the examination she observed jail, going to if assuring her she was not shortly after victim’s sister embrace testimony response changed she had her significance murder was discovered. attorney to the threat from the district testimony supported appli- is that it of this jury. brought grand have her before cant’s version as to how the victim’s blood oath, answered, why “that’s She (the got applicant’s and saliva onto vest changed also told the court the it.” She attempted her sister to revive victim’s frightened and intimi- attorney had district CPR; doing giving her while so blood attorney and an dated her. The district clothing the victim’s wounds stained office, Filkins, pres- employee who was of his wearing appli- was when she embraced she at his office to dis- appeared when Toth ent vest). applicant’s re- staining cant thus On there testimony, both testified cuss her trial she confirmed her earli- direct examination Toth; he berating intimidation of was no testimony to the embrace. er as cleaning up only expressed his interest testimony Toth and in the inconsistencies day the recalled Toth. She The next attorney did police The district officers. that, thought, on second she testified then anyone involved who testify take he would victim’s actually applicant see and the did not jury. lying grand what testified she saw sister embrace. She just-concluded embrace. was a she assumed court ruled hearing, the trial After the anyone had asked Toth Defense counsel there had not been testimony change her or had her to asked indicate justify He did a mistrial. that would so; if she did not do she said threatened her jury not to consider instruct he would no one had done so. testimony any pur- day Toth’s second subsequently did. pose, which he learning had been contact be-

Upon there acknowledged “it is appeals attorney after The court and the district tween Toth judge or court improper per se for day, applicant testimony the first her attorney prospective to advise prose- pro-secuting ground on the moved for a mistrial testifying false- penalties witnesses of The trial court conduct- cutorial misconduct. I, on sev has held ly.” supra, citing Davis “continuing Blackwell, concept that the 1334 eral occasions States v. 694 F.2d (D.C.Cir.1982). appeals applicable charac- where an individual jeopardy” attorney of his conviction. terized the actions the district obtained a reversal right having beyond judi- gone far a cautious or not denied his That is he was because warning Toth or risk to have the cious to tell the truth clause under the double noting meeting a perjury charge, the took to verdict before charges against him tried a place presence judge. Whereas, outside the of the trial where a mistrial first the tribunal. appeals strongly of the opportunity The court criticized place, he is denied takes attorney giving jury im- district by first the case tribunal. have decided pression that it was who first contacted Toth Therefore, of his convic retrial after reversal testimony him thought because she her initial by barred the double tion misleading opposite was when the was true. of the States Constitution. clause United appeals The court of found this to be the Georgia, supra; Boston v. Justices Price of knowing testimony, 308, perjured 294, use of found it Municipal Lydon, U.S. Court v. 466 applicant (1984); have a fair trial and 1805, 1813, denied 311 L.Ed.2d 104 S.Ct. 80 process rights, held 400, 402-403, violated his due Hall, 107 481 U.S. Montana denying applicant’s (1987). mo- trial court erred 1825, 1826,95 L.Ed.2d 354 S.Ct. tion for mistrial.1 jeopar- principle a double It is venerable of appeal hearing, findings dy jurisprudence

At that the successful the habeas the court’s (1) conviction, any ground key judgment of of of fact noted: certain items evi- of mishandled, insufficiency including of the evidence dence were lost or hair other than the (citation omitted), (2) taped support the verdict samples; and blood statement of French, prosecution on the night poses Marei made of homi- no bar to further French, cide, charge Corresponding ... police. erased same was given a fair trial right make a of an accused to witness who testified at did punishing one taped day interest second statement after the societal (3) witness, Hanus, homicide; he has obtained guilt testi- whose is clear after a second high price contradictory It would be a fied the two statements were such a trial. every society pay ac- description persons indeed for were as to French’s she immunity punishment apartment cused from leaving observed the victim’s (4) crime; sufficient to consti- Zain of defect night of the committed because proceedings in the aggravated perjury tainted all of the tute reversible error From the stand- leading to conviction. he handled. evidence defendant, it is least doubtful point at of affirming appeals, of the deni- court zealous would be as courts relief, concluded “when trial al habeas they protecting are now proceeds despite legitimate to conclusion pre- at the trial or improprieties effects prejudicial error and the claim of serious they of a stage if knew that reversal appeal, retrial is not conviction reversed put irrevoca- the accused conviction II, jeopardy-barred.” Davis 893 S.W.2d at prosecu- bly beyond the reach of further States, 662, See Ball v. United U.S. therefore, practice reality, In tion. (1896); 16 S.Ct. L.Ed. 300 rights as well as defendants’ retrial serves Dinitz, 96 S.Ct. States v. U.S. society’s interests. (1976); Georgia, 398 L.Ed.2d 267 Price v. Hall, 402-03, 481 U.S. 300 Montana v. 90 S.Ct. 26 L.Ed.2d Toteo, 1826; (1970). citing United States S.Ct. applicant’s supported sample blood importance initial testimo- 1. Given the of Toth’s cause; resulting establishing Tex. ny probable the actions of the see and the taint from affidavit (Davis /) 18.01) attorney, appeals the court district Art. and his eleventh Proc Code Crim. disregard refusing the instruction to (trial found erred in point error subsequent testimony insufficient. Toth’s impeach opportunity to applicant an permit appeals applicant's also tenth court of sustained prejudice). to bias or witness Balonis as (application for to take a point error warrant 463, 466, 1587, 1589, State, (Tex.Crim.App.1986); 377 U.S. 84 S.Ct. Collins v. (1964). L.Ed.2d 448 (Tex.Crim.App.1982) (panel op.); (Tex. Anderson S.W.2d 722 general, double jeopardy “does Crim.App.1982). held prevent government retrying a de clause Fifth getting fendant who succeeds in first Amendment not offended a second aside, through conviction appeal set direct prosecution for the same offense where attack, collateral because some error proceeding earlier mistri terminated proceedings leading to conviction.” request al at the defendant’s unless the State Nelson, 33, 38, 109 Lockhart v. deliberately provoke defen set out 285, 289, 102 L.Ed.2d 265 There are Oregon dant’s motion mistrial. v. Kenne exceptions example, a few this to rule. For dy, supra. if a conviction is reversed the evi because legally convict, is dence insufficient retrial to that, In Bauder the Texas we held under because, jeopardy pur is barred for double clause, jeopardy “a Constitution’s double sec- poses, equivalent judgment is to a jeopardy after ond barred acquittal. Doyle, 121 United States v. of mistrial at the defendant’s declaration 1078, (7th Cir.1997), citing F.3d 1083 Lock objectionable request, only where Nelson, 39, v. hart 488 U.S. 109 S.Ct. at to in- prosecutor conduct of the was intended mistrial, a motion but also when the duce applicant’s It is clear retrial is not barred consciously prosecutor but disre- was aware by Fifth the double clause garded the risk an event for which he that

Amendment to the United Constitu- States responsible require a mistrial at was would tion. ... request He is accounta- defendant’s granted by properly ble for mistrials Court, initially We as note that this judge making trial the events a mistri- Court, Supreme as the held well Texas has necessary own or al were of his deliberate gives greater that the Texas Constitution Bauder, doing.” supra, at 699.2 reckless in protection instances citizens some to Texas counterpart. than does its federal Daven Bauder, however, dispositive is not Garcia, (Tex.1992); port v. 4 834 S.W.2d respect present to a case due (Tex.Crim. State, v. Heitman 815 S.W.2d 681 significant applicant in the most difference: State, App.1991); v. 31 Autran 887 S.W.2d present ease conviction reversed af had his (Tex.Crim.App.1994) (plurality op.). Howev a full the merits whereas ter trial on er, recently, consistently until have held we applicant’s completed Bauder never the Texas constitutions’ and United States (on occasions) State-provoked two due to provide jeopardy provisions substan double At federal mistrials. least one State, tially protections. Phillips v. identical has held would “[double court Ste (Tex.Crim.App.1990); S.W.2d 391 787 retrial where (Tex.Crim. reversal] bar after State, phens v. 806 S.W.2d 812 undertaken, Bauder, prosecutor misconduct opinion in App.1990). Prior to our acquittal, simply to but prevent supra, applied we of re have standard acquittal that the be prevent an Supreme set forth view United States likely 667, to occur lieved at the time was Kennedy, Oregon v. 456 U.S. Court (1982), v. 2083, of his United States absence misconduct.” 72 L.Ed.2d 416 102 S.Ct. (2nd Wallach, 912, Cir.1992), 979 F.2d 916 arising of instanc claims out denied, 2414, 124 939, 113 provoked by cert. es where mistrials were (1993).3 The Second Circuit 655 L.Ed.2d 637 v. 703 S.W.2d State. Crawford Smith, explicitly reasoning v. 532 Pa. supreme have Commonwealth 2. Several state courts 177, (1992) Kennedy to that of adopted Oregon A.2d similar v. standard under 615 321 v. Common Bauder. state constitutions. Robinson their (1994); wealth, 814, Va.App. S.E.2d 542 Oseni, see, Commonwealth, however, (Ky. Stamps States v. v. 3. But Cir.1993), 186, (7th 1983); White, in which 369 S.E.2d F.2d 187-188 State v. 322 N.C. (1988). specifically rejected Circuit’s Pennsylvania Supreme the Second Court’s may have been of Marci French that that set ment noted that this standard embraced Oregon may have been use- exculpatory v. or otherwise forth impeach French. There is Kennedy applicant after a mistrial retrial ful to prosecu- have been egregious question applicant and intentional caused Applicant missing tape. direct- Bra- torial misconduct. to the entitled access cases, however, any ed us to where Su- dy Maryland, 373 U.S. 83 S.Ct. Oregon preme explicitly (1963); Whitley, Kyles Court has extended L.Ed.2d apply Kennedy to instances where ver- 131 L.Ed.2d 490 115 S.Ct. guilty appeal been reversed on dicts have support does not The record and there- due tape or the assertion that erasure jeopardy-barred. as fore retrials the re- physical evidence was mishandling of sult or reckless of intentional Bander, that, Applicant contends for the does not stand Bander State. case, granted in this mistrial had been by the Dou- proposition retrial is barred applicant would have been barred. How- Texas Jeopardy Clause of the Constitu- ble ever, ground appli- on which this is not the granted due tion where a mistrial discretionary petition for review was cant’s slop- prosecutor’s simple negligence mere granted; noted earlier we review forbid, certainly not on piness. Bander does to consider whether the Texas Constitution’s jeopardy grounds, a retri- constitutional state interpreted jeopardy protections, as double appeal. al a on Further- following reversal Bander, by apply in this Court where an more, sloppiness negligence and was on the applicant has of his con- obtained reversal remedy police; the part proper of the the part appeal, viction on due at least in that, effect, denied police actions in such prosecutorial misconduct at trial. process retrial. Bra- applicant due of law is respect testimony the of Fred With Kyles Whitley, dy Maryland, supra; Zain, we the habeas not note court did make supra. indicating any findings of fact the State known, knew, or testimo should have Zain’s prosecutor pres- in the actions of the ny perjured. Indeed, or was false habe- habeas reprehensible. ent case were Richards, as court Zain misled Lt. found jury as court misled the found witness, key regarding the forensic not and why evidence was tested certain facts, testimony causing Lt. Richards’ thus jury quality of the as misled probably conclusions inaccurate. and (he by police investigation told conducted by findings not While we are bound had, jury it when he before was excellent fact and conclusions law of the habeas trial, writing about the lost complained court, they generally them if are we defer to depart- police negligence evidence and of the and, record, supported in this in ment). to his out-of-court conversation As stance, reliable, supported by find them to be Toth, poor- while we find was with witness record, and entitled to such deference. handled, agree coercively do ly and we (Tex. Turner, parte Ex 545 S.W.2d appeals in Davis that with court Adams, parte Crim.App.1977); Ex encouraged perjure herself or Toth was (Tex.Crim.App.1989); Ex misrepresent observations to otherwise her (Tex.Crim. Mowbray, parte 943 S.W.2d are false im- jury. troubled We did not We that the State App.1996). hold ap- that Toth pression given recklessly applicant’s intentionally or cause that prosecutor out of concern proached the perjured testimo trial to be tainted Zain’s potentially mislead- testimony was her initial testimony. ny Lt. Richard’s inaccurate ap- prosecutor who it was the Still, persuaded police proached we are her. court also found the The habeas prosecutor were so key physical actions certain items evi- mishandled applicant retrial of egregious as to bar the tape recorded state- and also erased dence Wallach, Oregon Kennedy prosecutorial misconduct. extending due, part, a reversal to bar retrial jeopardy- Texas constitutional the Due Process Clause of the double United States grounds, already Constitution, rights as he has been accorded the as well as relief to he was entitled: reversal of provisions due of law Texas course appeal. his conviction on (Art. 19). I, Constitution Secs. We declined, however, accept applicant’s con- Applicant cites a decision recent prosecution’s tention the misconduct was so support New Mexico of his egregious as to bar retrial on state or either contention that the holding of Bander be jeopardy grounds. federal involving prosecutorial extended to cases misconduct where convictions have been re- noted, appeals As the court of “in consid barring on appeal (thereby versed cir ering other cases where facts and Texas Constitution’s double fully outrageous were cumstances Breit, provisions). State v. 122 N.M. case, shocking as those the Court Breit, applicant’s P.2d convic- Appeals Criminal has ordered a retrial and reversed, and, tion was on double charges acquit not the dismissal of grounds, applicant ordered dis- II, 257, citing tal.” Davis Ex 893 S.W.2d charged prosecution in further d Adams, (Tex.Crim. parte 768 S.W.2 cause. App.1989); Brandley, parte Ex 781 S.W.2d emphasized The court that “when a trial is (Tex.Crim.App.1989). agree We severely prejudiced by prosecutorial conduct, retrial, appeals court of . identical, jeopardy analysis the double acquittal, charge dismissal of the is the mistrial, requests whether the defendant proper remedy. Breit, or, appeal, new a reversal.” Yet, supra, 930 P.2d at 797. the court fails to Fundamentally, process ease. this is due opinions cite federal long It that a defen- has been the law where opinions high sup- courts4 in of other state process rights have violated dant’s due been port holding jeopardy prin- of its that double fair to extent that he has been denied a ciples applicable are has where trial, remedy his proper is reversal of ap- obtained a reversal of conviction on to the conviction and remand of cause due, part, prosecutorial in peal at least to Brady proceedings. trial court for further trial, during thereby misconduct his first bar- supra; Kyles Whitley, Maryland, v. su- ring his retrial.5 667, pra; v.Bagley, States We L.Ed.2d is, place present in in What took case to our applicant’s invitation extend decline many respects, similar to what we found to interpretation of the Texas Constitution’s grounds compel process on due in reversal in- jeopardy protections in double Bander State, (Tex.Crim.App. 940 S.W.2d 623 Cook present involve 1996). Cook, like the case which stances prosecutorial we found mis conduct, process due for which the well- concerns withholding poten which included remedy reversal intended evidence,6 established tially exculpatory combined only where a mis- testimony applies Bander address. misleading the false and' granted to reckless or concerning been due expert fingerprint has state’s witness misconduct; evidence, there- rights applicant’s intentional violated Breit, argument. supra, closing See Supreme Court did affirm statement to 4. The North Carolina Appeals’ Appendix. Carolina Court of in the the North The misconduct appeal case, reversal present though significant, is no means jeopardy-barred where the reversal was due to place took in Breit. comparable to that which prosecutorial overreaching or harassment aimed acquit- prejudicing for the defendant’s chances misrepre- evidence of evidence included 6.This tal, in the current trial or retrial. whether criminal a deal a convicted between sentation White, N.C.App. 354 S.E.2d State v. out) (falsely, testify it turned and the State aff’d, (1987), 322 N.C. S.E.2d pointing another applicant, evidence (N.C.1988). person suspect, and con- a viable evidence (Hoehne), cerning key prosecution witness prosecutor in were Breit actions intentional, perjured may himself. he have which indicated pervasively improper, and tainted nearly opening every phase ordinary rule strikes “trial error.” This apply present case as fore it does not community’s le- mistrial proper no and we further find balance between a de- fighting crime and part on the gitimate abuse of discretion interest mistrial inter- applicant’s trial court in its denial of double legitimate fendant’s motion. ests. apply hold- Accordingly, we decline to our adopt as a dissenting opinion instances, present in Bauder to like the mostly law a of state constitutional matter case, retrial, to bar a on Texas constitutional unprecedented rule that double jeopardy grounds, applicant an double where reprosecutiori when a convic- principles bar a appeal has had his conviction reversed dis- appeal what the tion reversed on due, part, prosecutorial miscon- at least in “prosecutorial miscon- senting opinion calls duct.7 just This rule would be limited duct.” judgment of the court of We affirm appli- facts but would be this case these appeals. judges every least five case where cable “prosecutorial miscon- on this Court believed J.,

KELLER, result. concurs power This is awesome duct” occurred. judiciary opinion dissenting advocates OVERSTREET, J., dissents. especially one should reserve itself McCORMICK, Presiding Judge, “prosecutorial mis- that most times considers concurring. easily For exam- conduct” is not so defined.1 join majority opinion in this case. I dissenting opinion ple, author of the separately respond philosoph- write position “prosecutorial miscon- taken the judicial approach ically to constitu- activist factually legally guilty duct” occurs interpretation tional advocated the dissent- the prosecu- free even when criminals walk ing opinion. engage in tion not intend to does an honest mistake. and makes opinion adopts as a matter of 701-02 Bauder law the rule state constitutional well-settled (Baird, J., concurring) (Tex.Cr.App.1996) every applied almost state “mis- (prosecutors “responsible” are for their jurisdiction country: federal in this their mens regard conduct” without jeopardy principles reprosecu- not do ).2 appeal tion is reversed on rea when a conviction recognize inadequate prosecutorial deter misconduct so the to The dissent fails to considerable justify as an extension of Bauder. impact to adverse of a reversal of conviction on whether or the State. The State must decide Finally, evidence that the State intentional- the cause, retry complicated the a decision often to ly improper at the first trial in an manner acted years by passage the of since the first several simply acquittal of an is so as to avoid the risk trial, possible and the loss of evidence over time Assuming, arguen- by supported the record. not do, may longer avail- the fact that witnesses no dur- misconduct there was no may or memories of the event be less able their persuade appellant’s us the he does not reliable, rendering testimony less accurate. their legally factually or insufficient evidence was of a of the The cost to the State “second bite conviction, support a bar his retri- would financially apple" significant, and otherwise Nelson, supra. al. Lockhart v. (indeed, pursue elects not to often reversal; see, e.g., parte "prosecuto- Ex concurring opinion 1. This addresses Brandley, implicit supra); particu- dismissal general the dissent's and not the rial misconduct” troubling. holding in the case this fact is Our in this case. This does of lar conduct sanctioning “prosecutorial present present as of mis- cause cannot be read the issue whether occurred, misconduct, unnecessary to en- so it for which conduct” feel-good pointless gage of remedy in a exercise was cor- the well-established of reversal condemning” "openly that occurred the conduct by appeals. rectly applied court of in this case of the dissent case as footnote seven remedy, should decline to create a new We have would us do. expansion of to bar retrial Texas con- Bauder prosecu- grounds due after reversal stitutional course, compelling position this author in there is no taken torial where 2. Of and, therefore, remedy garnered only one vote need to do so. The well-established Bauder law this State even being as does not constitute has not been demonstrated reversal (cid:127) Bauder, guilty acquittal.3

Our citizens have remedies aside or See 921 S.W.2d other (McCormick, judicially imposed P.J., dealing dissenting). rules for with at 706 fn. 5 Bauder, “prosecutorial actually pro- misconduct.” See clause Texas’ (McCormick, P.J., fn. 5 S.W.2d at 706 dis- protection” provided “less than that vides senting). contrary Absent clear intent to the interpret- counterpart, its at least federal jeopardy pro- in Texas’ constitutional double Bauder, ed Court. See visions, duty remedy is to our leave the P.J., (McCormick, dis- S.W.2d at fn. 5 “prosecutorial legislative misconduct” to the applies to senting). This also other Texas political processes for the citizens provisions. See Heitman constitutional decide. Unanswered, Question 23 St. State: Left Mary’s interpretation at This L.J. 956-74. questions interpreta Most of constitutional jeopardy provision strikes a Texas’ double giving tion involve effect to intent of competing inter- proper balance between adopted provi voters who the constitutional ests. sion issue. See v. Fourteenth Lanford (Tex. Appeals, 847 S.W.2d Completely approach from the absent Bauder, Cr.App.1993); S.W.2d at dissenting interpretation in the constitutional (McCormick, P.J., dissenting). This means opinion any legitimate consideration judiciary interpreting Constitu community sense interests power policy tion has its own legislate judicial Autran restraint. See preferences Legislature’s behind the back. (McCor- (Tex.Cr.App.1994) 43-49 Bauder, (McCor 921 S.W.2d at 705-08 mick, P.J., dissenting). reader When the mick, P.J., dissenting). Questions of consti away dissenting opinion’s rhetori- strips interpretation tutional involve often a deli of out-of-state cal flourish its discussion process balancing cate the interests of the little, anything, with that have to do cases community interests individu Constitution, interpreting our reader Bauder, al. See 921 S.W.2d 705-08 realize that the author of the dissent- P.J., (McCormick, dissenting). legislate ing opinion attempting his own opinion speaks of dissenting When the guise consti- policy preferences under “breathing life” into our Constitution ef- interpretation. approach This tutional fectively interpreting provide pro- “more interpreting the less to do with Constitution criminals, community’s tection” to inter- legislating do and more to behind protecting dangerous est ourselves from Legislature’s back. Bauder, criminals also suffers. See (McCormick, P.J., fn. 2 dis- S.W.2d at 703 opinion en- Finally, dissenting seems senting). Interpreting Constitution our approach to Brennan’s amored with Justice protection” to also provide “more criminals interpretation. constitutional necessarily puts on the “more restrictions” judicial ac- Brennan’s brand of adopt Justice If community’s efforts to combat crime. we interpreting our Constitution. tivism for effectively interpret our are Constitution judicial never of approach an has heard Such criminals, protection” provide “more restraint, limits of knows no bounds .provision at issue then the constitutional judicial respect no to the power and shows require do so. clearly should us to legitimate inter- legislative process or Jacoby, law-abiding citizens. See Jeff ests of jeopardy clause contains a Texas’ double Imperious Legacy: An Brennan’s The Justice simple prohibition. “plain” command (for over Judiciary; The Houston Chronicle history language of clause indicates bench, “re- Justice Brennan years on reproseeution bar it was intended to precedent, peatedly aside text and proceeded final of shoved a case to a verdict ordinary appeal for dissenting opinion on though at- 3. When a case reversed author of the error,” concurring opinion tempted pass proceeded to a his in Bauder has not case "trial majority off as Court. verdict. final Bauder, (Baird, J., concur- S.W.2d 701-02 ring) plurality opinion prece- with (one-judge no value). dential in our role as a and bar fail bench rights legisla- We trampling the of citizens avoid discretionary court when we notions of review tures in to chisel his own order legal question justice directly grappling his with the into American law” with chief on judicial resolving the case its legacy “his in favor of being presented authoritarianism: said, briefly controversy, I will outline political his assertion that This facts. voters, supports not judges the last word—not I have believe rationale lawmakers, representatives”).4 upon today. question not elected judgment Court’s Court parties have turned to this which the comments, join majority With these enti- guidance is a defendant is for whether judicial opinion’s exercise restraint. an jeopardy barred after tled to have retrial motion that his appellate court determines MEYERS, Judge, concurring. prosecutorial miscon- mistrial on based engaged in Appellant claims the (whether repugnant to it misconduct be duct sufficiently to have egregious State, 921 Kennedy, supra, or Bander granting motion for a warranted the of his erro- (Tex.Crim.App.1996)) was S.W.2d consequential jeopardy bar to mistrial and a neously denied. though mistrial motion was retrial. Even proceeded granted not and the trial to ver- Kennedy. Analysis begin with dict, says appellant retrial should be barred dicta, Court, albeit There the because would have been the trial barred not jeopardy would assumed that double granted his properly court had ruled upon determination erroneously deny- motion instead of mistrial erroneously the defen- the trial court denied Appeals it. Court of held that when prosecu- for mistrial based dant’s motion proceeds despite trial court verdict torial misconduct: legitimate claim of serious mis- the broad and Were we to embrace conduct and the conviction reversed on adopted by amorphous standard somewhat appeal not due to the retrial is Appeals, are not Oregon Court of we Davis, parte Ex barred. sure that criminal defendants as class 1995). 252 (Tex.App.—Austin We grant- Knowing would aided. that the granted review decide whether ing of defendant’s motion for mistrial Appeals holding. erred in this inevitably bring it an but all altogether It is clear on what basis grounds attempt to bar a second trial deal, if great case. A resolves this jeopardy, judge presiding over double most, opinion the Court’s is devoted grant a might well be loath to first re-analyzing prosecutor’s whether the actions a mis- defendant’s motion mistrial. If reprehensible sufficiently were to have war- trial were in warranted fact granting appellant’s ranted motion law, course, the applicable mistrial under Bander v. 921 S.W.2d ap- many successfully could in instances (Tex.Crim.App.1996). That peal on the same judgment conviction review, ground how- upon which we mistrial, urged a and the grounds that he opinion ever.1 Court’s contains some present Jeopardy Double Clause would jeopardy principles mention bar to retrial. context, application in but their the mistrial 676, 102 Kennedy, 2089- any analysis at S.Ct. at appear not 456 U.S. there does be added). (footnotes decisively omitted)(emphasis upon the Court’s comments, the Court to these a footnote rests. recognizes concurring opinion dissenting opinion other la- 1. Even the has The author ” or present this discussion as an "ad hominem beled not the issue of that “this case does personal It is attack on the late Justice Brennan. ‘prosecutorial misconduct' occurred.” whether my perception What is a not. it is discussion of P.J., McCormick, concurring n. judiciary a criticism of the role of the attempt high who serve courts those philosophical judicial sword of activ- wield ism. is consistently danger drawing farther it But there too much noted had held Indeed, exception. grudging Burks’ jeopardy is there no bar to retrial -when a itself, gov- in Burks stated that in getting defendant has been a successful among ernmental misconduct was not court to it is set his conviction aside unless grounds implicated for reversal reversed for evidence. Four insufficient jeopardy clause. And as the Court double concurrence, major- judges in referred Oregon Kennedy: added “This Court ity’s assumption appellate that an court Jeop- consistently held that the Double obligated reprosecution “would not to bar be ardy imposes upon Clause limitation as well as reverse conviction” as “irra- power government retry a defen- n. n. tional.” Id. at 688 102 S.Ct. in persuading who has dant succeeded (Stevens, J., concurring, joined by Bren- aside, court to set his conviction unless the Blackmun, J.J.). nan, Marshall, and conviction has been reversed because of question why would a insufficiency If the bed- of the evidence.” Supreme Court consider no bar to jeopar- supporting rock interest double appellate retrial after an determination that dy prohibition protection of the defen- pros- a mistrial should have been right” dant’s “valued have a verdict jus- four ecutorial while other jury,, the first then the dan- rendered position tices view that as “irrational.” As is gers prohibition to avoid which the seeks law, persuasive often the case in there are more when first trial are attenuated arguments on both sides of the matter. verdict, goes to since the defendant has not compet Several courts have set forth acquittal the first lost his chance for issue, reflecting roughly sides argued persuasively jury. Thus can be arguments presented by parties in.this double clause should not that the Appeals case. The 8th Circuit Court ad remedy of impose read to the drastic be clarity in with dressed the issue indictment rever- dismissal (8th Cir.), Singer, 785 F.2d 228 cert. States of a conviction on the basis of miscon- sal denied, 273, 93 107 S.Ct. duct. (1986): L.Ed.2d 249 (citations omitted). Both sides Id. at 239-40 good argue that a There is reason also been well articulated the issue have criminal conviction over a defendant whose of Appeals: the Fifth Circuit Court timely is reversed be motion mistrial moves for a mistrial ... When defendant miscon governmental cause of sort ..., prosecutor’s misconduct because of placed equal footing with duct should be appellate that same reversal based on properly whose motion equivalent to a determi- misconduct seems granted. The defendant obtains mistrial in rul- court erred nation that the district only judge apprehends the suffi the trial motion. It seems ano- ing on the mistrial ciently In revers prejudicial say identical malous to ing, simply corrects the court will create constitutional right correctly of criminal trial court’s error. when the district court to retrial jeopar placed the district grants defendant not to twice a mistrial but when re- dy hang erroneously court mistrial on which correct denies the ly determines that misconduct infected quest. hand, Court stated Kennedy

trial. As the other theOn States, Burks [437 v. United jeopardy clause concerned double (1978)], is in- 57 L.Ed.2d misconduct that why explaining provoke concerns a mistrial. When a tended declared, upon prosecu- preclude insuffi then the reversal mistrial is evidence, unsuccessful. The “[T]o cient hold otherwise efforts have been tor’s Kennedy exception was arbitrary dangers distinction be that the purely create a position prevent—that the defendant petitioner’s in tween those intended right complete might lose his “valued enjoy the benefit of a others who would jury,” and that the before the first by his trial District Court.” correct decision 671-72, dy, at 2087 might seeking a favor- 456 U.S. at S.Ct. be more Hunter, opportunity (quoting able to convict—are more at- Wade (1949)). 834, 837, This is 93 L.Ed. 974 tenuated when the defendant convicted S.Ct. excep- right of the narrow by jury appellate the first lies the heart but a jeopardy a where prosecutorial permitting reverses for In tion2 bar case, a pursuant such defendant has not lost his to the defen- granted mistrial was jury, mis- acquittal by upon prosecutorial chance for an the first dant’s motion based unlikely any prosecutor Kennedy seems conduct of nature discussed in Bauder). (or intentionally lay appellate Constitution, a for basis Texas under the protec- in Bauder, reversal order “to right subvert emphasized In that is we by Jeopardy tions afforded the Double granted lost a a result of when mistrial is as Clause.” prosecutorial stating, this “When happens, government we should think the Singleterry, United States v. 683 F.2d (5th denied, responsibility denying bear for the defendant Cir.), 1021, 103 cert. by Jeop- right, his secured the Texas Double 74 L.Ed.2d 518 Clause, ardy single proceed- to be tried in a summarize, argument support To Bauder, by jury selected.” first allowing jeopardy a an appellate bar after added). (emphasis S.W.2d at 699 When largely on determination based the idea does not in invoke the State’s conduct fact jeopardy rights that a defendant’s should not mistrial, gets right to then the defendant his upon turn which court makes the determina- by single proceeding tried a government’s tion that the misconduct infect- selected, admittedly pro- although first proceedings. argument oppo- ed the The ceeding proceeding a has been tainted. Once permitting jeopardy sition to a bar after an occurred, a to verdict has defendant’s double beyond determination looks by jeopardy rights implicated are a mis- government conduct actual fruition trial situation.3 There has not been mistri- view, my position, later action. al. fact have been a that there should unfair, may while it seem more consistent error that the can mistrial defendant underlying the purposes the double jeopardy appeal, principles raise to which on Kennedy bar and Bauder situa- apply. do not tions. years this fifteen We addressed issue over Jeopardy protects The Double Clause State, ago Durrough 620 S.W.2d 134 multiple prosecutions

defendant rejecting (Tex.Crim.App.1981), there the de- the same offense. In the mistrial context the that his retrial should be fendant’s claim recognized part Supreme that as by prose- double because barred prohibition against multiple prosecu- trial: cutorial in an earlier tions, misconduct Jeopardy the Double Clause affords a right Jeopardy protect “the his trial Double Clause does valued to have against governmental completed by particular tribunal.” Kenne- a defendant actions rendered, request upon granted a convic- at the defendant's is based After verdict whether reprosecute acquittal, misconduct that was intended the State cannot tion prosecutor was or when the induce mistrial the same offense. The same is not true when the conscientiously disregarded sought aware but risk defendant has received reversal (unless compel the defendant to upon that his conduct would conviction the reversal is based Burks). request a mistrial. evidence under In these cir- insufficient cumstances, retry the the State can defendant. prior pursuant When trial is aborted to a verdict suggests in its brief that evidence objection, dou- a mistrial over the defendant’s by tainted long jeopardy does as the ble be inclined not be admitted retrial. would necessity.” justified “manifest mistrial this the trial court to address when to leave at the defendant's When mistrial is parties on retrial. See Cook raised however, generally request, will exception opinion)(stating (Tex.Crim.App.1996)(plurality The one narrow not bar retrial. by prosecutorial Court in miscon rule was fashioned that evidence tainted and, Kennedy retrial based under the Constitution duct in first trial admissible on Texas fairness). process and fundamental the mistrial motion due this Court in Bauder—when knowing provoke plications, jeopardy intended to mistrials so as to af that bar would imposed mistrial prosecution op ford the a more be were denied favorable portunity to convict But and denial was found to be in error the defendant^4 such proceeds when the trial to its conclusion an court.5 despite legitimate preju claim of serious reasons, judg- these I concur in the For error, Jeopardy dicial the Double Clause ment of the Court. present will no to a if the obstacle retrial appeal. conviction is reversed on In the BAIRD, Judge, dissenting. present alleged case misconduct did justice system, prosecu- criminal In the in appellant not result a mistrial. The attorney aggres- tor a trained who must “is guilty capital was and found murder sively in court of a seek convictions on behalf judgment sentenced to death. That was time, public. same he must victimized At the appeal on the case re reversed hierarchy of interests place foremost reject appel

manded for a new trial. We truth.” States determination of United alleged lant’s contention that the miscon 3375, 667, 696, 105 Bagley, 473 U.S. S.Ct. to duct was a bar further J., (1985) (Brennan, 3391, 87 L.Ed.2d 481 this case. I, § dissenting). Believing art. 14 of (citations omitted). following the Constitution bars retrial Texas Appellant’s argument focuses on the na- motion mistrial erroneous denial of a alone, government’s ture of rath- conduct I .based on dissent. provoked er than the circumstances issue, conduct. If conduct alone were I. question appellant further would whether be all. But it request need a mistrial at Jeopardy Double Texas and Federal arising government circumstances A. justify that bar under misconduct I, § 14 of the Texas Constitution Art. Kennedy the fact and Bauder—it is that person, guarantees same offense “[n]o granting government misconduct leads put life or shall be twice consequential denial of the of a mistrial again upon put nor shall a liberty, person , right to have that render defendant’s offence, trial same after a verdict for the verdict, justifies exception that the narrow jurisdic- competent in a guilty court of rule does not Similarly, Fifth Amendment tion.” mo- arises from a defendant’s mistrial guarantees the United States Constitution tion. subject person for the same shall “be jeopardy of life or place put to be twice no offence recognize that this view protect guarantees criminal responsibility judges trial limb.” These on small amount prosecution for against a second conscientiously and rule mo- defendants consider acquittal, against a offense after same for mistrials based tions after the same offense prosecution for Kennedy or Bauder. But second under conviction, punish- against multiple appel- positioned than courts are better trial United States for the same offense. circumstances ments determine when late courts to 1892, S.Ct. Halper, cry a mistrial. I would trust out for The basis 104 L.Ed.2d 487 required un- mistrials when grant courts “the State safeguards is the belief jeopardy im- these irrespective of the der the law .that granting of a mistrial court's A trial proposition, For we cited States Dinitz, 600, 611, Bauder, necessarily Kennedy unreview- (1976), opinion defendant, pre-Kennedy retry 47 L.Ed.2d 267 which the Jeopardy may The State seek able. stated, “The Double may whereupon assert a claim the defendant protect a defendant Clause does appeal from a jeopardy. can The State provoke governmental mistri- actions intended jeopardy lies. TexCode determination thereby subject requests defendants al (a)(4)(state appeal can Ann. art. 44.01 Crim. Proc. by multiple imposed the prosecutions.” burdens substantial jeopardy). sustaining of former claim from order

21 secured, and, by a second power all resources a reversal with its circumstances, attempts a de- repeated prosecution. to make In such be allowed offense, objectives alleged request an for an convict individual mistrial fendant’s embarrassment, thereby subjecting by him to the Dou- not unlike the interests served expense, compelling and ordeal and him to the Jeopardy ble avoidance Clause—the anxiety continuing expense, delay live a state anxiety, occasioned insecurity, enhancing possibili well as as prosecutions.1 multiple innocent, ty though may that even he be Id., 608, Be- 96 at 1080. U.S. S.Ct. States, guilty.” v. found Green United significant right and cause of the absolute 184, 187-88, 221, 223, U.S. 78 S.Ct. 2 L.Ed.2d having the first decide interest for defendant, Jeopardy for the the Double case protects prosecutori- Clause defendants B. in a Id. al misconduct which results mistrial. protection integral Jeop- An Double 667, Oregon Kennedy, In 675- U.S. ardy Clause is the bar to retrial after a 676, 2083, 2089, 72 L.Ed.2d S.Ct. mistrial due to In Dinitz, (1982), re-examined hold- the Court Dinitz, United States 606- might ing, “[p]rosecutorial conduct that 1075, 1079, 47 L.Ed.2d 267 overreaching, even viewed as harassment or (1976), Court stated: justify a mistrial on defen- if sufficient ... ... a Where mistrial has been de- motion, therefore, does not bar retrial dant’s clared, right the defendant’s “valued part prosecutor on the of the absent intent completed particular have his trial a by the Dou- protections subvert the afforded implicated. tribunal” is also Since Mr. Jeopardy Consequently, when Clause.” ble Story’s opinion Justice prose- a the mistrial was result Perez, in United States v. 9 Wheat. to goad cutorial misconduct intended the de- 6 L.Ed. this Court has held that mistrial, seeking fendant into a question whether under the Double Fifth under the Amendment. barred Jeopardy Clause there can be a new trial However, provides the Texas Constitution after a mistrial has been declared without greater Kennedy. than Bauder protections request or defendant’s consent de- (Tex.Cr.App.1996). 921 S.W.2d 696 pends on whether “there is a manifest held, prose- The Bauder Court “a successive [mistrial], necessity for or the ends of after cution barred declaration public justice would otherwise be defeat- request, mistrial at the defendant’s (Internal omitted.) ed.” citations objectionable prose- of the when the conduct The Court made the distinction between a motion for cutor was intended induce request the defendant’s for a mistrial mistrial, but also when sponte granting judge. sua of one the trial consciously disregarded risk aware but error, with has the Even defendant objectionable he was event proceeding choice of to verdict the first require responsible a mistrial at the jury, requests unless the defense the mistri- Id., request.” The Ken- at 699. defendant’s why explaining In al. misconduct invokes understanding required an nedy Court guarantee of the Fifth Amendment prosecution, while Bauder scienter of Court stated: recklessly results conduct which Court held judicial ... it is that when But evident words, in a mistrial will bar retrial. other seriously prejudices error Constitution, there is under the Texas defendant, may he have little interest intentionally and reck- between distinction obtaining a verdict completing trial and lessly forcing request mistri- defendant may jury. first from the al. reasonably conclude that a continuation of whether Dou- this case is proceeding issue the tainted would result Jeopardy of the Texas Constitu- lengthy appeal ble Clause conviction followed supplied ed. emphasis unless otherwise indicat- 1. All “the

tion bars retrial the erroneous de- reasoned Court was Pennsylvania clause of upon prosecutorial nial of a mistrial based prohibits retrial of Constitution a defendant misconduct.2 prosecutorial is when misconduct provoke mov- to the defendant into intended II. mistrial, when conduct but also the Other Jurisdictions intentionally prosecutor is undertaken of A. point prejudice to to of Id., at 325. denial trial.” of fair Mexico, Supreme In New Court Smith, Pennsylvania In 532 Pa. dependent upon adopted a test which is (1992), Pennsylvania 615 A.2d 321 Su- prosecutorial when the misconduct is discov preme Pennsylvania held under moves ered. Their test is “when defendant Constitution, prosecutorial misconduct di- mistrial, retrial, or reversal because of securing a a possible rected at conviction is prosecutorial is barred Smith, In jeopardy bar retrial. double to II, Mexi Article Section 15 of the New prosecution potentially exculpa- withheld Constitution, improper co official con tory physical evidence and denied the exis- unfairly the defen prejudicial duct is so of agreement tence with the State’s chief short that it cannot be cured means dant witness, whereby the would receive witness or a new and if of a mistrial motion for sentencing testifying favorable treatment improp knows that the conduct is official Id., A.2d at 322. The Smith. prejudicial, if the official either er and and egre- reasoning of the Court rested on the or in willful provoke intends to a mistrial acts part giousness bad on the of the faith mistrial, resulting retrial or disregard of the principles all of prosecution “violate[d] which Breit, 122 N.M. New Mexico v. reversal.” Pennsyl- justice fairness in the embodied (1996). coming'to P.2d vania Constitution’s double clause.” decision, upon the Breit Court relied Id., case, Citing at 324. their own the Court of the trial court. memorandum decision stated their standard: egregious re The made several Court has United States during the trial and trial marks types prose- principally enunciated two further motion to dismiss Breit’s overreaching. First there is cutorial jeopardy grounds. prosecution upon double designed is prosecutorial which misconduct of the judge role discussed provoke in order to secure a a mistrial Berger v. United quoting favorable, second, opportuni- perhaps more 629, 633, 78, 88, States, 55 S.Ct. ty Second there to convict the defendant. (1935): L.Ed. undertaken prosecutorial is the Attorney repre- is the The United States prejudice or harass the bad faith ordinary to a party not of an sentative prosecutorial In contrast defendant. controversy, sovereignty whose but of error, overreaching not an inevitable impartially as com- govern obligation process and cannot be part the trial all; govern obligation to pelling as its signals the breakdown condoned. It therefore, interest, in a criminal and whose judicial proceeding, and integrity case, it shall prosecution is not that win type tactic represents such, he justice done. shall be As but that jeopardy clause was de- very definite sense peculiar in a against. signed protect law, the twofold aim servant Starks, escape guilt shall not Id., which is (citing Commonwealth at 324 may prosecute (1980)). suffer. He 336, 341, innocence 416 A.2d 490 Pa. opinion limited to the issue This argues adoption is not true. concurring opinion of this I, namely § presented, art. whether would opinion create a rule” that "broad the trial retrial when Constitution bars conviction was Texas all cases where the pros- erroneously judge a mistrial denies based reversed as a result Ante, P.J., (McCormick, concurring). ecutorial misconduct. This at 15 Nevada, 225, 226 747 P.2d vigor—indeed, he should Nev. earnestness But, may do so. while he strike hard

blows, liberty he is to strike foul duty ones. It is as much his to refrain B. pro- improper methods calculated wrongful duce a conviction as it is use Federal every legitimate bring means to about a implica- just one. considered The Fifth Circuit upon pros- reversal based tion retrial after Breit, P.2d at 807.3 Wade, Robinson ecutorial misconduct. Connecticut, Superior In the Court estab Cir.1982). (5th The Court 686 F.2d lished the test to determine wheth preclusive “unjustness ... the of discussed er retrial was barred. The must defendant judicial simply point the in the effect prove engaged prosecutorial “the state in process charge overreaching is at which a of with misconduct ‘undertaken the deliberate Id., F.2d at 307. found meritorious.” purpose depriving the of double of defendant to make a distinction went on Court shield, jeopardy’s say, only high a that is Burks, the supra, in between the intentionally wrong handed directed prosecutorial problem misconduct: with right trig the will defendant’s constitutional the rationale of Burks inconsis- Nor is ger right put jeopardy twice to be ” application “prosecutorial of tent with the for same offense.’ Connecticut Col overreaching” exception bar retrial (Conn.Su ton, 219996, at *1 1997 WL overreaching a caused tainted where II, A.2d per.Ct.1997) (citing Colton aside, a to be set rather than taint- verdict 339). The Court stated the defendant must ’ proceeding ed to be aborted. Burks prove prose also that “the misconduct of dichotomy resting perceived a holding, simply prevent cutor is undertaken not an evidentiary insuffi- between reversals acquittal, prevent acquittal an that the but that, ciency, hold indicated the former likely prosecutor believed at the time was guilt implication for the or innocence of occur the absence of his misconduct.” Id. defendant, they raise no bar to would emphasized of the court few rationale Burks, prosecution. 437 U.S. at 14- future standard, they cases meet the however would at 2149. That distinction does 98 S.Ct. held: necessarily true hold where error justification no principled We can see prosecutorial is to intentional attributable prosecutorial a distinction between miscon- overreaching. tactics The extreme which clandestine, duct that is and therefore not prosecutorial overreaching of- constitute a or discoverable until after verdict jeopardy at least in fend the double clause appeal, prosecutorial that part they unfairly deprive the de- because visible, is and so can be a remedied acquittal, by heighten- possible of fendant appeal. or on motion for mistrial direct law, ing, in a manner condemned (Colton II), v. Colton 234 Conn. Connecticut jury’s perception of defendant’s 683, 663 A.2d guilt.... condemned Whether the tactic Nevada, objective securing jeopar- a In ruled double in its successful of mistrial, unsuccessful, but causes the in which the dy would bar retrial “cases conviction, judg- a denied and the return verdict motion for retrial was of significance develop- subsequently reversed because of seem to little ment was designed preclusion precip- ment a law prosecutorial misconduct which protect this interest. motion for mistrial.” Collier itated the attorney, lying forced miscon- has suffered from a district states the significant, judice, case sab "while perjury, physical duct in the and destruction false evidence comparable to which took by no means exculpating It easier to de- evidence. is far Ante, disagree. at 14 n. place Breit.” against open falsehoods fend assault than covert numerous prosecution in Breit made While the egregious manipulations. throughout appellant remarks Robinson, mistrial, voking acquittal by 686 F.2d at 308.4 a avoids the Indeed, an act of deliberate dicta, suggested Circuit has Second Kennedy is not extended to this limited Jeopardy Double Clause would bar retri- degree, prosecutor apprehending an ac- al if misconduct was under- quittal encounters to re- preventing acquit- taken with the intent of engages trial when he in misconduct of believed, tal reasonably visibility precipitate a mistri- time, sufficient likely absent such misconduct. motion, not when he al but United, Wallach, fends off States v. F.2d anticipated acquittal by misconduct (2nd Cir.1992). compellingly Their rationale unaware until after argued Kennedy: for an extension justification the verdict. There is no ... If bars where that distinction. prosecutor commits an act of misconduct Id., at 916.5 provoking with the intention mistrial defendant, Rios, plausi- motion there In United States v. 637 F.2d (10th Cir.1980), argument “that ble same result should the Court held applicable obtain where he does so intent considerations after acquittal likely. applica- he then has indeed avoid believes mistrial been are prosecutor prosecutorial who acts the ble the manner with intention in same goading making requires the defendant into a of a conviction reversal presumably does for of a after mistrial motion mistrial motion so be- lack fair trial completion he denied Rios’ cause believes the been denied.” The Court likely however, acquittal. appeal, trial will in an ruled the result That because the Court Kennedy prosecution provoke aspect suggests rationale did not intend to Again, precluding prosecutor ap- seeking where into retrial defense mistrial. and, prehends para- an acquittal pro- prosecution instead of scienter of the was seen as See, meaning. Penry opinion, 4. earlier in their In an Fifth Circuit consid with no distinction State, barring (Tex.Cr.App.1995); ered the issue of retrial after reversal for v. 903 715 S.W.2d determined, State, (Tex.Cr. prosecutorial misconduct and Higginbotham ‘‘[t]he 732 v. Yount, (Tex.Cr. argument logic.” support has some in United App.1991); S.W.2d 6 State v. 231, (5th Opager, (Tex. Cir. States v. 616 F.2d Frye, App.1993); 897 S.W.2d 324 State v. 1980). However, ultimately Opager State, Court Cr.App.1995); v. 940 S.W.2d 623 Cook prosecutorial determined no curred, misconduct had oc supra. (Tex.Cr.App.1996); and v. Bauder day. An so the issue was left for another Judge interesting stated: “In footnote Gewin majority 5. United v. has referred to States sum, may completely read to Burks be fore ante, Oseni, (7th Cir.1993), at 12 n. 996 F.2d 186 application of the double close 3, proposition that the 7th Circuit has after clause to cases in which reversal conviction "specifically rejected Circuit’s hold- Second type bad faith has been obtained where Kessler also cites United in Wallach." The Id., 236, overreaching at n. 13. exists.” (7th Cir.1997), Doyle, F.3d 1078 States Kessler, (5th F.2d 1246 In United States regarding to retrial after reversal bar 1976), Ante, However, Cir. the Court: in at 11. insufficient evidence. gov- found that intentional misconduct specific Doyle, comments the 7th Circuit made presenting ernment in false evidence to regarding which the ma- their Oseni seriously prejudiced defendant and court acknowledge: jority has failed to that "such intentional misconduct held First, suggests impliedly law ... our case overreaching’ 'prosecutorial is one of the Wallach-type Circuit does not subscribe 'types oppressive practices which at the dou- ” Kennedy. States extension Oseni, jeopardy prohibition Opager, is aimed.’ ble 186, Cir.1993). (7th 996 F.2d 187-88 Kessler, (citing F.2d at 530 F.2d at Second, today although we do not decide Hunter, 1257-58, quoting Wade v. adopt exception the Wallach 834, 837, we whether would 93 L.Ed. 974 not, circumstances, Doyle does other (1949)). he, could meet the can how he nor show also made a distinction be- The Fifth Circuit Kennedy exception to the tradi- or Wallach “prosecutorial and "bad tween misconduct" analysis, even either if tional overreaching,” preferring faith apply expressly We were to ... reserve overreaching case phrase of the bad as connotative apply question would merely Wallach prosecution whether uninten- intent of the versus Id., circumstances.. at 13. In this other n. tional Doyle, simultaneously used both terms we have jeopar- appellate miscon- determining mount whether or retrial after reversal dissent, duct, dicta, they dy their rationale: Judge McKay bars In discussed retrial. vehemently argued against stan- this scienter argue good that a There is reason to dard, stating, suggest “[t]o that the double whose conviction over a criminal defendant jeopardy clause is not violated unless the be- timely for mistrial is reversed motion only can (presumably defendant show governmental miscon- sort of cause confession) through prosecutor’s that the placed footing with equal duct should be subjective purpose was to properly was a defendant whose motion go obtain mistrial invites the mistrial granted. The obtains wishes, only knowing as far apprehends judge the suffi- the trial Id, faces new sanction it is a trial.” revers- ciently prejudicial misconduct. In simply corrects the ing, appellate expressly The Third Circuit held double right trial court’s error. criminal upon reversal for placed jeopar- twice misconduct, however, only in defendant dy hang on cor- should not which court very narrow circumstances. United States v. rectly determines that misconduct Curtis, (3rd Cir.1982). 683 F.2d infected trial. decision, reaching their the Curtis Court dis- cussed Justice Stevens’ concurrence in Ken- Id., at 239.6 problem nedy allowing and his obvious retrial after reversal: III. Stevens, joined by ... Justice who Facts Justices,

three other also observed that the sought penalty the death in this plurality’s reasoning “premised was on the Appellant capital assumption was appellate an case. convicted that that ultimately life murder and sentenced to only concluded that defendant’s prison. was reversed His conviction granted mistrial motion should have been a new trial was or- Appeals Court of and but also that intended to (Davis I), 831 dered. Davis v. State S.W.2d provoke obligated a mistrial would not be 1992). Appellant filed reprosecution (Tex.App.—Austin to bar as as well reverse pretrial corpus alleging re- of habeas conviction.” Justice termed writ Stevens such Jeopardy by the Double assumption trial was barred an “irrational.” Texas Relief was Clause Constitution. Curtis, (citing Kennedy, F.2d at denied the trial court and Court of 22). 2095, n. n. (Davis II), ’ Appeals. parte Davis Ex “apparently Even consideration Burks 1995). (Tex.App.—Austin S.W.2d 252 We Curtis, preclusive language,” 683 F.2d at I, whether art. review determine the Court held “the double clause § 14 of Texas bars retrial Constitution a retrial follow- be read forbid following of a motion for the erroneous denial prosecutorial reversal for prosecutorial mistrial based if a retrial would be barred.” Ibid. opinion rele- has laid out the Important vant facts. are the habeas court’s Singer, 785 F.2d States v. findings of of law re- fact and conclusions Circuit, (1986), Eighth case in a Reimer, garding the Bill the Comal actions of length impression, the dou- first discussed at Attorney. find- County District The court’s they ultimately jeopardy issue in a case ble ings were: implicate jeopardy con- determined did not at- Bill is the elected district unwilling the Court was to 1. Reimer cerns. However County, torney Texas. of Comal the issue of whether barred address State, mg opinion concurring opinion in Bauder v. refers to the cases dis- 6. The (McCormick, J., "mostly representing a (Tex.Cr.App.1996) this section as dis- cussed in unprecedented P. (McCormick, vote, rule.” Ante at 15 only senting), garnered one his own However, support posi- concurring). PJ. tion, therefore, and, any precedential value. is void of concurring judge only his dissent- cites Reimer, capacity “already person 2. acting put in his official her that he had one County, attorney jail year.” district of Comal lying on the stand last He personally prosecuted Applicant at his might said he asked if she have then her first trial. having about seen a com- been mistaken pleted embrace. She said she had been disqualified has Reimer himself further in this and mistaken. cause Ray Taylor has special been named dis- testify Reimer Id. also directed Toth attorney prosecute Applicant trict changing had him about her testi- she called independent Taylor completely Id., day, mony. at 437. The next Toth was County Attorney’s Comal Office. District changed she again called to the stand where Appeals 4. The Court of found testimony her to conform with Reimer’s man- engaged Reimer mis- Id., crossexamined, at 436. date. When perjury. That conduct suborned being change Toth denied coerced to her finding binding upon this Court testimony. Id. accepted finding herein and that witness, After Toth as a but was recalled as a conclu- serves basis Court’s the end of the the defense before generally, sions law. Davis Toth learned Reimer had threatened (Tex.App.—Austin 831 S.W.2d 426 perjury. At that grand indictment for d). 1992,pet. ref for a mistrial on the point, defense moved presented facts Reimer ground misconduct. Id. The jury Applicant’s trial: judge hearing outside the conducted a. Certain evidence was not tested jury. given presence of the Id. Toth was County. to Comal because cost immunity changed and testified she had because This statement was incorrect testimony Reimer’s threats. her because of County only paid testi- Comal for'Zain’s Id., at 436. further testified the district She mony. attorney’s frightened and manner intimidat- police investigation That the b. jail going feared she ed her she unless excellently outstanding conducted and changed testimony. her Id. On crossexami- he New while before the trial wrote nation Toth testified she was city of complaining Braunfels officials up Reimer showed where she fearful when negligence lost evidence and of thoroughly frightened police and lived police investigation. attempted get who her “ride into officer accurate, fully findings, These while do not country him.” Id. After this hear- with scope egregious of misconduct com- state the judge “that had ing, the trial concluded there mitted Reimer. been misconduct that would and suborning perjury, Reimer coerced Id., trial justify a at 437. The mistrial.” Toth, Carolyn for the a witness threatened ignore Toth’s judge instructed the appellant she saw State. Toth testified testimony. Id. of second round exchange an after the victim’s sister embrace appellate court summarized the dam- I, 831 body was discovered. Davis credibility light “In of Toth: of age to the Reimer, feeling testimo- S.W.2d at 435. this stories, likely changing we think it Toth’s case, police ny damaged the State’s ordered ignore part of the court’s instruction that Id., at Toth contact Toth. 436. officer to convincing of testimony her had effect attorney’s ultimately arrived at the district simply jurors that was least some she was told Reimer there was office and testimony all of her credible witness that testimony her and that conflict between Id., (emphasis in at 439 ignored.” should be told Toth: other witnesses. Reimer original). ... if not resolve this conflict that he could of the Equally outrageous is the conduct grand present he the matter to the lied, un- expert, Fred Zain. The he forensics jury; if officers had State’s and that expertise not made officers, reliability Zain’s was or “the reverse would indict Although told known until after reversal. He also she not told the truth.” had theory prosecution was privilege 10. Zain invoked Fifth Amendment The State’s testimony of Lt. Rich- premised on the hearing at the self-incrimination Rich- misled Lt. ards and Zain. Zain corpus, appellant’s pretrial writ of habeas facts, thus regarding the forensic ards judge following pertinent habeas made the con- testimony and causing Lt. Richards’ findings of fact: probably inaccurate. clusions employee 1. Fred Zain was an employed by the Comal 11. Zain County Center Bexar Forensic Science Attorney to County District conduct Applicant’s for the who testified testing evidence in this serology trial. case. County paid County 2. the Bexar Comal 12. conduct was intentional Zain’s Examiner for Zain’s services as Medical the conscience outrageous and shocked perfor- expert not for the witness and the court. testing mance of of evi- scientific with the hold is familiar Court in Applicant’s dence trial. Virginia Supreme ings West per- 3. Zain at the trial that he testified Virgi in The Matter the West Court scientific tests on blood and formed the nia State Police Crime Lab State Police other evidence in connection Division, oratory Serology No. 93- ease. S.E.2d [190 Misc.-402 W.Va. (not 4. Zain in fact not the DNA 1993) did conduct (W.Va. yet Nov. re 501] report. in his tests noted agrees ported). with the Virginia factfindings general of the West probable highly It is that Zain com- concerning com Supreme Court Zain’s testifying aggravated petjut'y in mitted reliability petence, and finds abilities Applicant’s concerning re- danger significant that there is of some or all of the tests sults scientific in Texas. conduct occurred similar Specifically, Zain he said he conducted. from the Bexar 14. Zain was terminated aggravated perjury the fol- committed for mis- County Forensic Science Center lowing ways: handling of and because evidence personally He that he had a. testified Dr. result of Stone’s audit. scientific tests when fact he conducted II, Again, the at 258-259. Davis 893 S.W.2d did not. findings fully represent the extent of do pieces He certain b. testified that Applicant’s physical evidence contained appellant’s blood was on Zain testified he or should blood when fact knew There when it was not. physical evidence pieces of evidence have known these crime, to therefore eyewitnesses this were Applicant’s not contain blood. did testimony was critical State’s Zain’s 6. Zain is not credible oath. And, entirely on lies. was based case. hearing Applicant's applica- 7. At the on obviously perjured testimony, Beyond Zain’s Zain in- corpus, of tion writ habeas evi- irregularities with the other there were incrimination right self voked his lost, was hair evidence dence. Crucial guaranteed the Fifth Amendment as exculpating appellant perhaps tape crucial rights by his being admonished of after police Braunfels the New was erased admitting that trial court and after Id., improperly stored. samples were blood be- employment had been terminated at 259. being possession of in his cause evidence the ac- Appeals The of determined Court lost. trial appellant a fair of Reimer denied tions reli- Zain’s evidence was not 8. rights. scientific appellant’s process due and violated able. sum, per- I, In at 439. Davis 831 S.W.2d testimony presented at the behest was testimony jured as served reports 9. Zain’s Id., evi- at 438. The scientific testimony Reimer. of opinions, for the the basis un- completely presented at trial was dence Lt. Richards. Ed conclusions II, guilty reliable. Davis at 258. Pos- instances where verdicts of have S.W.2d exculpatory destroyed by prosecutorial evidence was appeal sible been reversed on due to I, police. holding Davis at 442. It is retrials S.W.2d and therefore Ante, lengths incomprehensible almost at 12.8 In Comal barred.” other words, County appellant. appellant went to order to convict cannot cite a because case readily intentionally directly point, And the State he That type admits on loses. committing attempt misconduct in their of reason and reflects rationale devoid appellant. any The actively poorly convict de- court of last resort. State prived appellant opportunity of his for a fair jurisdic- majority recognize The fails trial. Kennedy that have extended did not tions change After Reimer coerced Toth to her point Supreme opinion Court have testimony, appellant for a moved mistrial. jurisdic- justify their extension. those What prosecutorial The trial court ruled mis- problems grasp was a of the did have tions justify conduct did not a mistrial. That deci- Kennedy. extending in not For inherent Appeals. sion was reversed Court Pennsylvania Supreme example, Court Id., judge’s 831 S.W.2d at 439-440. The correctly type that recognized prose- this erroneous was decision reversed.7 not an cutorial misconduct was inevitable part process, of the trial but was instead

IV. integrity judicial of the breakdown proceeding the double clause Analysis Smith, designed protect against. was majority lead of the follows the And, the Fifth Circuit has A.2d at 324. Appeals holding Constitution Texas tactics constitute noted “extreme prevent not does retrial after reversal prosecutorial overreaching offend Ante, prosecutorial at 14. In Robinson, F.2d at 308. clause.” reaching .majority this states: cases, Moreover, any Court did not have a case “Appellant not directed us to Bander, however, point directly on when it decided where the Court has ex- Kennedy prose- plicitly Oregon apply the harm incurred when extended and held such, responsible Zain’s concurring opinion conduct. 7. states the Reimer was defined," also, Castellano, ante, parte 863 S.W.2d 476 may "easily Ex not be (Off J., (McCormick, (Tex.Cr.App.1993) duty peace concurring), pause officer who P. assigned case but took it to an arson every judge was who has been involved with note perjury upon engage in was himself assist and only easily recognized the mis- this case has not team.). part Under this openly the misconduct. conduct but condemned responsible for the evidence rationale the State Whitley, Kyles its case. states that it is not clear the also (1995), 131 L.Ed.2d Zain' knew or have known testimo Supreme Court held: Ante, ny was false. at 12. This statement First, two there is for at least reasons. incorrect means that the individual ... This in turn knew Zain had conducted evidence Reimer any duty to learn has a favorable tests which he testified about. of the DNA acting on the to the others evidence known Second, II, Unless, even Davis ... government's in the case behalf false, testimony indeed, did know the Reimer adversary system knowledge falsity imputed had unmitigated Reimer gladiatorial level descend to a to by any prosecutorial and, expert Zain the forensic because therefore, State’s obligation for the of sake part truth, In a team. government simply re- avoid the cannot 150, 154, States, 92 Giglio knowing suppression the sponsibility for 763, (1972), 766, the Su portend 31 L.Ed.2d 104 such effect S.Ct. to an has come of evidence circumstances, destroy in preme Court held in certain to confidence on a trial’s outcome testimony may imputed knowledge be perjured of its result. Id., 437-439, knowledge who lacks actual S.Ct. at 1567-1568. at 115 Adams, 281, 28, State, also, (Tex.App.-— falsity. parte 768 S.W.2d 33 Ex Zule v. 802 the (The 1990) responsible for (Tex.Cr.App.1989), Corpus the Court "declined to Christi by its agencies disclosing known different favorable evidence between draw distinction officers, par- focusing agents, including police even the government, the instead same prosecuting known to the evidence is not ‘prosecution team' which includes both ticular upon the attorney.). personnel.” investigative As correctly judge deprive a the engages in duct. Had trial cution mistrial, have type prosecution of harm further defendant of a fair State, I, against. § su- protect art. is meant barred. Bauder been occurs, And, prosecution pra. when this responsibility denying for should bear the no However, there is holds fair trial: defendant there was jeopardy violation because circumstances, ... mistrial is Under such But, mistrial, there a reversal. not necessary exigen- not a concession to type for of distinction. no rationale this trial, nor cies of the unavoidable conse- Wallach, 916; F.2d at United States beyond quences prosecutor’s of events Colton, and, 663 A.2d at 347. Connecticut v. control, but an immediate result condi- erroneously requested mistrial was If by produced government’s repre- tions why appeal, that error is found on denied and upon a which force defendant sentative subjected to retrial? be should the defendant tri- expense and embarrassment of another defendant, an Why due to incorrect should a willing accept an incura- al unless he is judge, ruling the trial lose constitu- happens, unfair we ble one. When this protection? simply It is inconceivable tional government bear the re- think should protections that the valuable double sponsibility denying the defendant suddenly the case enters vanish when right, Jeopar- secured the Texas Double right appellate The of a process.9 Clause, dy single proceed- be in a tried not to be free from double should selected. first correctly de- which court be determined Bauder, 921 S.W.2d at 699. infected the trial. termines that misconduct Jeopardy The Double Clause has evolved See, Singer, A 785 F.2d 239. constitution- simplest understanding from its to the cases “non- guarantee morph into a al II., supra. The discussed here section judi- right” depending upon point in the protections defendant are based process an himself. cial individual finds fairness; protect principles fundamental ruling, through an judge, erroneous power and not the state sub- to forfeit an individu- should not be allowed

ject any repeated attempts at individual to According- right. constitutional al’s valuable burden, causing expense conviction undue I, § hold art. 14 of the Texas ly, I would anxiety. Burks v. United States held bars retrial the erro- Constitution retried if defendant could be denial of a motion mistrial based neous evidence, held there was insufficient prosecutorial misconduct. previously given because State had “been opportunity proof one offer fair whatever Conclusion Burks, it could U.S. assemble.” S.Ct. at 2149-2160. genius “The of the Constitution resides ease, meaning that had in a had static world

In the instant gone, adaptability its day day, prosecu- but in their court. On that dead greatest interpretations principles its jurors represent- tor stood before twelve cope problems and current current every ed in this and was individual Brennan, given proof needs.” J. Constitutional opportunity to offer whatever William Law, 559, Adjudication, Notre Dame The State chose not could be assembled. (1965).10 guarantees inherent our fair, engage in egregious miscon- but to Powell, See, enduring legacy of Justice Brennan—the Stone v. J., (Brennan, (1976) high placed indi- 49 L.Ed.2d 1067 which he on claims of value dissenting). rights against the asserted vidual constitutional self-government—is authority majoritarian portion Judge spends large McCormick forgotten disregarded danger being ad attack on his concurrence hominem simply has left the bench. because he who died less than two months Justice Brennan jurists may disagree as Future historians kind, respond I ago. Rather than refer legacy, but foremost he to Justice Brennan's Justice Rehn- reader to the comments Chief quist upon Brennan’s retirement: Justice society Constitution mirror what we aas revere,

respect and we and what live die BROOKS, Appellant, Michael Joe for. What we refuse to tolerate oftentimes speaks government’s more volumes about our of Texas. STATE

concept liberty of freedom and ordered than accept. what we No. 887-96. openly engaged it State admits Appeals Texas, Court of Criminal egregious ap- order convict En Banc. (State’s 18.)

pellant. pp. brief This mis- very upon conduct shakes foundation Nov. justice system

which our I rests.

expect every condemnation from member of Instead, majority

this Court. refers to

“reprehensible” prosecutor, actions

Ante, blindly judgment at but affirms the Appeals. hold the Court of To the Double

Jeopardy Clause not violated when the intentionally

State commits go

misconduct invites the wishes, it knowing

far as sanction

faces is new trial—a second bite See, Rios, (McKay,

apple. F.2d

J., But, affording dissenting). opportunity to

second convict under these exactly what Fifth

circumstances supposed protect against.

Amendment is

Moreover, ques- begs retrial sanction if in first

tion: instance State was

willing to commit misconduct in order to convict,

improperly why would the State

stray path a from that second time?

Believing appellant’s I, § 14 Con-

barred under art. Texas

stitution, judgment would reverse Appeals. Because the

the Court not, I dissent.

does Services, Bennett, Legal

John Inmate Huntsville, appellant. many country admirably years.

a man who served this

Case Details

Case Name: Ex Parte Davis

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 17, 1997

Citation: 957 S.W.2d 9

Docket Number: 495-95

Court Abbreviation: Tex. Crim. App.