Ex Parte Lewis

perhaps control of their children—is parte Marie inter- Ex Swanda liberty of the fundamental oldest LEWIS, Applicant. recognized by Supreme] [of ests [the United States].” No. PD-0577-05. divest temporary orders here children, Appeals fit of Texas. parent possession of his Court of Criminal principle violation of Troxel’s cardinal 10, 2007. Jan. overcoming statutory pre without his acting that the father is sumption 18, April Rehearing Denied interest. children’s best Such divesti irremediable, ture is and mandamus relief Mays- In re appropriate. therefore 778;

Hooper, 189 S.W.3d see also Little (Tex.1993)

v. Daggett, 858 S.W.2d trial

(granting mandamus relief vacate temporary order granting

court’s visitation paternity); Dancy

in suit to establish (Tex.1991)

Daggett, 815 S.W.2d

(holding that mandamus an appropri remedy

ate because “the trial court’s issu temporary subject not

ance of orders [was] interlocutory appeal”); In re accord (Tex.2006)

Francis, S.W.3d

(stating may that a writ of mandamus temporary in

appropriate reviewing a Newton,

junction); In re 146 S.W.3d (Tex.2004) (conditionally granting

651-52 noting tempo

mandamus relief and “a

rary restraining generally ap- order is not

pealable”).

y hearing

Without oral con- argument, we

ditionally grant mandamus relief and di- July

rect trial its court vacate temporary amended orders.11

Tex.R.App. P. We are confident that 52.8. comply; our promptly trial court will only

writ issue if does not. will abused its discretion discre- whether the court 11. Because the trial court abused its of, ordering pursuant possession tion in access to section granting the Johnsons Code, 153.433(2) Family to, we do opposed the children. to access Ricky's nor reach constitutional concerns Burns, Worth, TX, Danny Ap- Fort pellant. Horn,

Jeffrey L. Van First Asst. State’s Paul, Attorney, Attorney, Matthew State’s Austin, TX, for State.

OPINION KELLER, P.J., delivered WOMACK, the Court in which KEASLER, HERVEY, COCHRAN, JJ., joined.

In Oregon Kennedy, United States held that the Fifth Jeopardy Amendment’s Double Clause barred retrial a defendant successful- after ly only moved for mistrial when it was engaged shown that con- provoke duct that was “intended moving for defendant into a mistrial.”1 In 1. 456 U.S. S.Ct. L.Ed.2d 416 operator the 911 Q. Did ever tell you Dou- interpreted we Bauder [you], Wiley] raping had been [Kenneth Jeopardy provision of the Texas Con- ble [you]? attacking had he been “reck- expansively, more to cover stitution conduct, would holding less” that retrial A. No. prosecutor

also was be barred “when the fact, told law en- Q. you never consciously disregarded the risk aware but rape? forcement about the he objectionable that for which event day, during further cross-exami- The next at responsible require a mistrial would occurred: following of the appellant, nation request.”2 granted the defendant’s We speaking with Q. [Detective] After holding.3 Bander’s review reexamine August on 10th of the McCaskill John over- We conclude that Bauder should be 2000, you to learn year did have occasion proper rule the ruled and that the under year day, August next on 11th of the the rule Texas Constitution the articulated speak McCaskill wanted to John in Supreme Court the United States you again? Oregon Kennedy. A. Yes. opportunity him

Q. you And denied I. BACKGROUND speak—7 question, the and after the last killing 911 after her After first

Appellant called arrived, succeeding they question in each of the two husband. When officers that car, eventually sequences, objected in counsel placed patrol her and defense had the de- prosecutor At the commented on police she was taken to the station. station, of appellant gave post-arrest at fendant’s silence violation scene and Code of Crimi- Miranda4 warn- Article 38.08 of Texas receiving statements after Procedure, I, § trial, 10 of the Texas ings. prosecutor At three nal Article asked Constitution, Fifth and Fourteenth sets that of and the questions appeals thе court First, to the States Consti- analysis. deemed relevant to its the Amendments United officer, objections All three were sus- prosecutor asked the crime scene tution.8 tained, disregard instructions to were you [Appellant] “When met with Swanda and given in connection with the Wiley, giving requested is that the name that she was Second, A mistrial you questions.9 prosecutor then?”5 while the second two sets question, on the first appellant, following requested oc- was cross-examined regard requested and denied with curred: disposition first two (Tex.Crim.App.1996). Due to 921 S.W.2d our ground grounds, we dismiss the State's third for review. granted grounds 3. We three for review: Arizona, (1) 384 U.S. Court deci 4. See Miranda Should this reconsider its 16 L.Ed.2d 694 S.Ct. in Bauder v. 921 S.W.2d sion 1996)? (Tex.Crim.App. (Tex. Lewis, parte S.W.3d 5. Ex (2) showing that a Is mere 2005)(brackets original). App.-Fort Worth recklessly required engaged in conduct mistrial, declaration of without show- (brackets original). 6. Id. ing prosecutor intended to induce that the to order a double such sufficient (brackets original). 7. Id. reprosecution of-

jeopardy bar to for that fense? 8. Id. 380-381. (3) correctly apply Appeals Did the Bauder standard? rule, questions, grant- underlying

the second set of and was or that principle questions.10 unnecessary ed after the third set of place syst burdens on the (5) em,19 sup that the reasons later Appellant pretrial filed a habeas port the rule have been with the undercut application, claiming any subsequent passage time.20 prosecution jeop- was barred double under ardy but court principles, the trial denied to, points disputes, The State two relief.11 After Court’s lat- discussing this currently accepted legal upon propositions standard,12 est on the Bauder holding which Bander’s rests. The first is appeals reversed, holding court Texas jeopardy protection least, prosecutor, engaged “the at the setting. embraces mistrial The second disregard this conduct with for a conscious protec- Texas jeopardy is that the double risk substantial that the trial court would tion a different than its imposes standard 13 required be declare a mistrial.” Fifth Amendment counterpart for deter- mining defense-requested when mistrial II. STARE DECISIS can be properly attributed to the State for In conducting a re-examination purpose barring prosecution. further precedent, we in mind the keep strong Overruling proposi- legal either of these preference for adhering past decisions: result in eliminating tions would rule it is better “Often to be consistent than in announced Bauder. We will examine overruled, right.”14 Precedent can be in proposition light each of the factors however, if the doing reasons for so are articulated above. weighty enough.15 support Some factors (1)

ing overruling precedent are: III. MISTRIALS original that rule or decision was A. The Issues (2) outset,16 from the flawed that rule’s results,17 application produces that, inconsistent The State contends con- properly (3) strued, that the rule other prece provi- conflicts with the Texas jeopardy double dent, especially precedent apply when the other sion not setting. does the mistrial (4) reasoned,18 soundly is newer more in This contention has also been advanced regularly produces dissenting opinions prog- the rule results in its Bauder and unjust, unаnticipated by eny.21 interpretation adopted, are that are If this were 10. Id. 17. Malik. 11. at 381. Id. Bawcom; State, 974 Awadelkariem v. (Tex.Crim.App.1998). S.W.2d (evaluating at 381-392 case under Peterson, parte Ex 117 S.W.3d (unjust unnecessary (Tex.Crim.App.2003)(hereinafter referred to Bawcom results and II)). (unantic- body burdens); (same); in the of this as Peterson Jordan Malik results). ipated at 392.

13. Id. 20. Jordan. State, (Tex. 14. Malik v. 953 S.W.2d Crim.App.1997). Bauder, (McCor- 921 S.W.2d at 706 n. 5 State, (Tex. 15. Jordan v. 54 S.W.3d P.J., Lee, mick, dissenting); 15 S.W.3d State v. Crim.App.2001). (Tex.Crim.App.2000)(Keasler, 928-929 Peterson, J., II); dissenting)(Lee 117 S.W.3d Jordan; Bawcom v. S.W.3d J., (Hervey, dissenting). at 826-827 (Tex.Crim.App.2002). truly that, for one to believe in some ludicrous be to hold the result would in constitution provision Texas constitutional of the Texas respects, the framers actually than its provides protection less jeopardy pro contemplated had double as counterpart, and Fifth Amendment into even come exis tection that did not it way provides less result which seventy years later.” more than tence until any inquiry would obviate protection, position, the dis with the State’s line might more this ease into whether II had concluded sent in Peterson respects.22 In the lan- expansive in other years approximately 150 be “during the Hulit, setting if guage of the mistrial I, our state fore our decision Bander part of the state double provision constitutional double “building,” has no then one occasion interpreted having had been never contains a building whether that determine setting.”26 application to the mistrial feder- “floor” not found in the recklessness Second, legisla- contends that building.23 State al double passed defining jeop- tion 1856— makes arguments The State two basic ardy acquittal— solely conviction or First, position. its the State support of the of the framers of the reflected intent species” claims that the “mistrial of double points Texas out Constitution. State part was not jeopardy jurisprudence a legislation passed that mere common that formed the for the law basis the years eleven after Texas Constitution provision. Relying Texas constitutional a the (containing predecessor of of upon dissenting opinion Justice Powell’s in 1845 Bretz,24 that, jeopardy provision) Crist the State contends current double instead, species” “mistrial traces the its the of twenty years before Constitution lineage through English common law an (containing jeopar- the current double independent jury practice, rule of formu dy in II provision). The dissents Peterson Coke, prohibited lated Lord need argument.27 II Lee made same jury. of discharges less The State in Finally, we include this discussion re-prosecu further that “a bar to asserts Presiding third made former argument, premature tion because of of termination in Judge in his Ban- McCormick dissent the first did trial because of mistrial not jeopardy double provi- der: that the state emerge principle even as constitutional language suggests applies sion’s jeopardy jurisprudence of until double His only acquittals.28 opinion quotes when delivered in provision following with the Hunter,”25 state its in Wade v. which italics, that he believed that suggesting imported Consequently, Lord Coke’s rule. concludes, provi- “it clause modifies the entire the State becomes almost italicized (Tex. U.S. 69 S.Ct. 93 L.Ed. 22. See Hulit 982 S.W.2d 431 Crim.App.1998). ("The at 437 state constitution J., (Hervey, dissenting). 26. 117 S.W.3d at 827 parts legаl not one federal constitution are of building; has each its own structure. Their J., Peterson, (Hervey 117 S.W.3d at 827 different, shapes parts. may may be their (Keasler, Lee, dissenting); at 928 15 S.W.3d may rights Each shield that the other does J., dissenting). ceiling may not. The of one be lower than other.”). floor of (McCor- Bauder, at 706 n. 5 S.W.2d 28, 40-49, 24. 437 U.S. 98 S.Ct. mick, P.J., dissenting). J., (1978)(Powell, dissenting). L.Ed.2d 24 sion rather than the immediately preced- judicata embodied “a res policy” for crimi- ing clause: person, “no for the same of- nal policy cases.33 That required an actual fense, shall be put jeopardy twice of life acquittal or implementa- conviction for its liberty, person nor shall a again put be tion.34 The debates in 1789 on the Bill of upon offense, trial for the same a Rights confirmed that the framers of the after guilty verdict compe- a court United States double provision jurisdiction.” tent understood that it operate would in such a manner.35 Century B. Before the 19th There is also some historical indication The Fifth Amendment’s Jeopar- Double phrase “life or limb” the Fifth dy provides: Clause “nor any person shall Amendment was to perform intended subject for the same offence to be twice limiting function. One commentator has put in jeopardy of life or limb.”30 This argued strenuously phrase provision was in light framed of a long intended literally encompass only capital history of concept double cases.36 But that interpretation seems to in English common law. The development limb,” which, discount the words “or even law in England and the interpretation, under literal suggests ap- history incorporation of its into the United plication punishment. to lesser Several States Constitution is discussed in various old state court cases indicated that Supreme Court and opinions. state court phrase “or limb” was used to refer to a There seems to be dispute no between the category offenses, punished serious long majority and dissent regarding Bretz ago dismemberment, England by developments, historical rely so we came be known as “felonies.”37 heavily upon dissent, Justice Powell’s along with information from other sources. Separate pleas from in bar that formed law,

In the English common basis for the doctrine of “jeopardy” jeopar- re- double dy, ferred to the a rule principle underlying was laid down the doc- Lord Coke trines of acquit prohibiting discharge juries: and the of once autrefois autrefois convict.31 A jurors sworn, defendant was the considered to were “retorned and their placed in jeopardy heard, twice upon they a second verdict must be and cannot be only if prior there existed a discharged.”38 conviction originally The rule was acquittal.32 or Essentially, the doctrine absolute command that “once banded to- (emphasis Wilson, original). 340-342, 29. Id. in 35. 420 U.S. at 95 S.Ct. 1013; Bretz, 40-41, 437 U.S. at 98 S.Ct. 2156 J., (Powell, dissenting). 30. U.S. Amend. V. Const., Jr., Stephen Limbaugh, 36. N. The Case Exof Wilson, 332, 340, 31. United States v. 420 U.S. (or Lange Parte Jeopardy How the Double 1013, (1975); 95 S.Ct. 43 L.Ed.2d 232 Hoff- Limb”), Clause Lost Its 36 Am.Crim. “Life State, 425, (1863); man People v. 20 Md. 433 (1999). L.Rev. 53 Goodwin, 187, (N.Y.1820). 18 Johns Goodwin, 201; State, 18 Johns at Hare v. Bretz, 33, 437 U.S. at 98 S.Ct. 2156 187, (1839); Elden, Miss. State v. 41 Me. (Court’s opinion). 165, (1856); Parker, Fay 53 N.H. (1872); 11, 47, Andrews v. 174 Ala. J., (Powell, Id. at 98 S.Ct. 2156 dissent- 56 So. ing). Bretz, (Pow- 437 U.S. at 98 S.Ct. 2156 ell, J., dissenting). understanding was “But this constitutional jury discharged not be gether a should of destined endure.”47 it had its solemn task not completed until during de- announcing a Even verdict.”39 Century Developments 19th C.

liberations, jury required the to be Jurisdictions Other аnd drink” together “unfed without kept they agree.”40 “till death if do not even years the four after In less than miti- of rule was soon The harshness ratified, Rights was the Bill of and gated necessity41 two exceptions: Lord of North Carolina invoked of the defendant.42 the seven- consent discharg- against unnecessary rule Coke’s century, teenth Lord Coke’s rule became the capital in a case after to bar retrial es against oppression— useful defense Crown the discharge jury, of a and premature per- precluding “tyrannical practice” the of “not stated it would specifically court discharge jury reindict- mitting of and jeopar- life in again put [the defendant’s] acquittal likely.43 ment when seemed that, during explained dy.” The court family England, However, reign of the Stuart discharge against this rule prosecution dismissed a the Crown often jury of practice was one of the trial “for during middle pleas from basis for bar which against evidence having better purpose doctrine of double arose.44 future and the day,” at a early [the defendant] cases treatises no announced “so practice as court condemned of fail- regarding clear standard effect safety and every principle rule, it abhorrent ing to follow the “seems never security, ought that it not to receive pleaded successfully have been in bar in the of this countenance courts prosecution period least second Books, country.”49 rule is have Year when the said to event, “In any it never arisen.”45 seems salvo, state courts opening After plea to have furnished the basis for a century split nineteenth on whether Rather, acquit. was viewed autrefois implicated their constitu- mistrials state matter committed to the discretion of jeopardy. protections against tional judge, from which no writ of error York, a of state by New number Led nor future any plea

would he bar of a under- hewed to the traditional courts prosecution would allowed.”46 impli- standing jeopardy that double Bretz, or majority only previous conviction Supreme cated after Carolina reaffirm- acknowledged history responded, acquittal.50 but But North 36, 43, (Court’s opinion). 2156. at 98 2156 46. Id. at 98 S.Ct. 39. Id. S.Ct. 13, n. 2156.

40. Id. at 36 98 S.Ct. 33, (Court's opinion). 2156 47. Id. at 98 S.Ct. Id.; Cook, Serg. & Commonwealth v. 6 41. 241, Garrigues, 2 241-242 v. N.C. 48. State 577, (Pa.l822)(opinion Tilgh of Rawle 580 (1795). man, C.J.). 49. Id. 42. Cook. Goodwin, 200-206; Wyatt v. 50. 18 Johns Bretz, 42, (Pow- 98

43. 437 U.S. at S.Ct. 2156 257, (Ind.1823); State, Nugent 257 1 Blackf. ell, J., dissenting). State, (Ala.1833); monwe 4 Stew. & P. v. Com Fells, (1838); Pnce Va. alth 41-43, 98 S.Ct. (1858); 543-544 Miss. Hoff Shotwell, 432-433; 41-42, man, People v. 20 Md. at Id. at 98 S.Ct. 2156. ed its earlier holding as a correct articula- “jeopardy,” one was in peril, or of life his tion jeopardy of double principles,51 and it liberty trial, or when put he was joined position by Pennsylvania, its after the verdict was delivered.55 One of Tennessee, Carolina, South and Ohio.52 opinions issued the Waterhouse case Subsequently, jurisdictions several other Supreme Court of Tennessee ac- join switched sides to the trend towards knowledged the tension between the “com- incorporating Lord Coke’s rule into double acceptation” mon “jeopardy” the word jurisprudence.53 By history and the usage of its in English Supreme Court of Nevada would confi- common law.56 “But for a long course of dently say that “the rule now seems to be judicial opinion to the contrary,” the Ten- pretty well settled in American courts” justice wrote, nessee “I should be at a loss that double jeopardy protections extended to attach a meaning different to the ex- to the premature termination of a trial.54 pression.”57 Ultimately, he appeared to In deciding to import Lord Coke’s rule English harmonize ancient law with ordi- into jurisprudence, sever- nary language by concluding that the term al courts plain looked to the meaning of “acquittal” could “include the case of ille- “jeopardy” word in finding that gal discharge jury protection which case necessarily extended to pro- —in ceedings occurring before verdict: some- virtually acquitted, the defendant is and is (1865); Cook, 27 Cal. 398-399 Serg. O’Brian v. Com (opinion & Rawle at 596-597 monwealth, (1869). Ky. Duncan, J.)("There ais wide difference given, between a verdict and the of a Spier, In the matter 12 N.C. 491 Hazard, peril, danger, jeopardy verdict. of a North Carolina’s state constitution contained verdict, given. cannot mean a verdict When- jeopardy’’ provision, no “double but as Ga- jury charged ever prisoner, are with a illustrate, rrigues Spier it was considered death, punishable by where the offense is principle a venerable of the common law of defective, jeop- the indictment is not he is in state. The North Carolina life.”); ardy Spier, (opin- of his 12 N.C. at 502 say Court would principle later rested J.)(" Taylor, put ion of jeopardy’ C 'Twice authority on the of the Fifth Amendment to trial,' put convey and ‘twice on to the mind the United States being Constitution "which meanings, several and distinct for we can land, part supreme obliga- law of the readily person understand how a has been in tribunals, tory judicial all on whether state or jeopardy, upon Jury whose case the have not federal,” accepted resting “if it be not passed. danger peril of a verdict do basis, may agreed, on this at least be that it given. Jury not relate to the verdict When the law, principle is a of the common and as impanelled upon person, are the trial of a such, same force in our state as if made offence, charged capital with a and the indict- authoritative our own state constitution.” defective, peril ment is not life his is in or Davis, (1879). State v. 80 N.C. 387 jeopardy, throughout and continues so the Cook, 577; Serg. 52. 6 & Rawle O’Brian, State v. Water- trial.”); ("The ‍​‌‌‌‌​​‌​‌​​‌​​​​‌‌​​‌​​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌​‌‌‌‍Ky. 72 at 340-341 house, (1827); M’Kee, 8 Tenn. 278 State v. 17 death, loss, jeopardy exposure word means to (1 (S.C.1830); Bailey) S.C.L. 651 Mount v. hazard, etc., danger, peril, and where one is State, (1846). 14 Ohio 295 put upon charge his trial on a of murder jury before a sworn to decide the issue be- State, Weinzorpflin 53. 7 Blackf. 189— tween the commonwealth and himself the ac- (Ind.1844); Webb, People 193 38 Cal. 467 exposed peril cused is then to the hazard and (1869); Commonwealth, Ky. O’Brian v. 72 life.”). of his (1872)(the case, retrial, 333 same after 51); cited in footnote Teat v. 53 Miss. Crabb, J.). (opinion 56. 8 Tenn. at 279-280 of (1876). 439 Maxwell, parte 54. Ex 11 Nev. 434 57. Id. at 279.

343 necessary to effectuate jury was also discharged.”58 to be Even the entitled also provision requiring constitutional jurisdictions strictly to the state adhering one of the “remain right jury acknowledged that the England law of the common Finally, express- some courts popular usage between inviolate.”61 the conflict jeop- according such double ques- ly “If this a found that established tradition: were necessary the protect grave ardy doubts effect was impression, tion of first the double very to its solu- interests of might proper be entertained as itself, against pos- the safeguard prohibition, The constitutional inter- clause tion. sense, discharge that trial court would preted sibility in its would seem to the popular simply a retrial because put upon pro- jury and order bear construction similar Carolina, visions, was or Pennsylvania, prosecution North witness absent support insufficient to offered was proof Tennessee.”59 [and] the conviction.62 jurists in also Several these state cases importing prohibition plac- Most of the state decisions against reasoned into against discharges life or Lord Coke’s rule ing person “twice of necessarily jeopardy jurisprudence mean than contained must more limb” illegal pri- pronouncement that an age-old principle express common law jury operated as an ac- judgments given preclusive discharge or ef- were Virtually importing all of the principle applied fect—a even civil quittal.63 however, that a agreement, common principle cases—because that law cases were (and oper- protection.60 discharge legal in no need was thus did special of addition, necessity Pennsyl- acquittal) if there justices one of the ate as an opined (assuming he according vania case double or the defendant consented Although of most of wrongful discharge attorney).64 effect to a had an 58. Id. at 280. 64.Garrigues, (jury at 241 should not 2 N.C. discharged for benefit of "unless jury prisoner prisoner ... after the or if Hoffman, 20 59. Md. at 432. him, ... or charged be found insane are prisoner’s request, jury be with- at the if Cook, Serg. (opinion 6 at & Rawle 595-596 an let to take benefit of drawn to him in Duncan, J.); Spier, of 12 N.C. at 501-502 Cook, Serg. at 580 exception”); & Rawle C.J.); Webb, (opinion Taylor, of 38 Cal. J.)(discharge permit- Tilghtnan, C (opinion of necessity upon or in cases of consent ted counsel); is assisted where defendant Cook, Serg. (opinion & Rawle at 597 Crabb, Waterhouse, (opinion 8 Tenn. at 282 Duncan, J.). Spier, J.)(discharge necessity); allowed Hall, J.)(discharge (opinion N.C. at 241; Mount, Garrigues, 2 Ohio N.C. at by necessity: permitted an unforeseeable 303; O'Brian, Ky. at 340. indictment) fundamentally event or defective C.J.)(discharge (opinion Taylor, and 497 Cook, Serg. (opinion & Rawle at 598-599 consent, if permitted with the defendant’s also Duncan, J.)("amounted acquittal”); to an of Waterhouse, counsel); (quot- represented by M’Kee he was Crabb, (opinion 8 Tenn. at 282 Shirer, 20 ed in State v. S.C. J.)(‘‘virtually acquitted”, "tantamount (1884))(consent, juror, prisoner, illness of Mount, ("op- acquittal"); at 14 Ohio 302-303 juror, impossibility of judge, absence of a “equivalent State, erating acquittal”, verdict); to an as upon v. 18 agreeing Mahala Webb, ("equivalent acquittal”); (1837)(consent Cal. at 38 478 and neces- Tenn. 541-542 Miss, Teat, Mount, (consent); at acquittal”); verdict of sity); to a 53 at 302 Dob- 14 Ohio Maxwell, (1863) (“will State, operate acquittal”); as an St. 500 454 14 Ohio bins 215, 216 ("equivalent (necessity); Morgan of Ind. Nev. at 437 to a verdict 13 11 occurrences); (1859) (consent, unforeseen acquittal”).

344 in

cases which relief granted whenever, was involved in their opinion, taking all the the discharge jury of the during delibera- consideration, circumstances into there later,65 tions or several state expan- courts act, is a necessity for the or manifеst sively pronounced that jeopardy attached public justice the ends of would other- jury sworn, when the impaneled, was and They wise be defeated. are to exercise charged with the By “charged case.66 with subject; sound discretion on the and it case,” these authorities charged meant impossible to define all the circum- in the being charged jurors sense of as at stances, proper which would render to beginning of trial.67 sure, power ought interfere. To be Although the Supreme United States caution, greatest to be used with the Court did not start incorporat- the trend of circumstances, urgent under and for ing Lord against Coke’s rule unnecessary causes; very plain and, and obvious in discharges into jurispru- capital especially, cases Courts should dence, the Court issued decision that had be extremely they how careful interfere the effect of fueling it. United States v. any life, chances of fav- Perez, jury discharged because it But, all, our prisoner. they after could agree upon verdict, not and the have the right to order the discharge; defendant claimed that the discharge oper- security and the which the public have ated as a prosecution.68 bar to further faithful, sound, for the and conscientious not, Court held that it did discretion, rests, this, exercise of this in language but that suggested that cases, upon other responsibility absence of a might upon bar turn Judges, of the under their oaths of of- necessity” existence of “manifest for the fice. We are aware that there is some jury’s discharge: diversity practice and on this opinion, are of We that the facts consti- subject, Courts; but, in the American tute legal no bar to a future trial. The weighing after question with due de- prisoner has not been convicted or ac- liberation, opinion, we are of that such a quitted, may and again put upon his discharge constitutes no bar to further think, defence. We that in all cases of proceedings, gives no nature, right of ex- the law has invested Courts justice emption prisoner to the authority being with the from dis- charge jury verdict, giving any from again put upon trial.69 Miss, Webb, (consent, lost); Teat, legal (verdict necessity, 38 Cal. at 480 at 439 Teat, court); indictment). beyond cause wrong the control of the Spi- sentence on But see Miss, er, (record (legal physical at necessity); at N.C. 494-495 did not dis- Maxwell, (consent why jury except 11 Nev. at 434-435 close returned no verdict necessity, including inability jury expired). the fact that the term of court had agree of a verdict). on a Hall, J.); Spier, (opinion 12 N.C. at 494 Shirer, 405); (quoted M'Kee 20 S.C. at 65.Garrigues, (jurors 2 N.C. at 241 were re- Mount, 302-303; Morgan, Ohio 13 Ind. quired "separate” “they because could not 216; Webb, 478-479; Maxwell, 38 Cal. at convict”); Cook, agree Serg. & Rawle at 11 Nev. at 434-435. (jury had arrived at a verdict as to two third, prisoners jury but but was dis- previous 67. See authorities footnote. charged giving regarding without a a verdict Mahala, prisoners); 18 Tenn. at (9 Wheat.) 579, 68. 22 U.S. 6 L.Ed. (jury discharged during 541-542 delibera- tions); Mount, (nolle prosequi 14 Ohio at 306 added). ground (emphasis after verdict on the that indictment Id. at 580

345 a bar century, Supreme defendant’s wishes—resulted In the late twentieth of those com- prosecution.74 that “a close future Two acknowledge would Court recognized that there expressly mentators reading” passage sup- the above “could of contrary but conclud- were decisions to pur- was port view the Court not ed, language from of various double porting question, decide constitutional provisions, consequences jeopardy simply settling arising from problem but contrary jeop- rule to a defendant’s double jus- the administration federal criminal 70 interests, prevailing or the common- ardy no tice.” But the Court made their practice, that view was better law in the pronouncement clear to that effect one.75 fact, century,71 implied and in it nineteenth in an 1874 parte Lange decision—Ex —that authorities, light of the various some jeopardy

Perez indeed a case.72 was double positions. states took intermediate Some meantime,

In the dismissal of improper states on both sides claimed that of, support jury barring issue Perez in at a future trial but cited or resulted of, respective least their did not claim that bar flowed from posi- discussion Citing discussing protection against jeopardy,76 tions.73 or and or ex- Perez not,77 cases, respected pressly state at least three nine- claimed that did claimed if teenth-century might preju- American that a new trial barred commentators general concluded that at the avoided attached dice occurred.78 Others saying the jury impaneled pronouncements, simply time was and sworn that there necessity and termination the trial no if existed79 or the without bar against the necessity verdict —absent and defendant consented.80 Bretz, 10, change materially 70. at 437 U.S. 35 n. 98 S.Ct. 2156. ... nor the statements Perez, doctrine”)); legal United States v. 1 45, (Powell, J., 71. See id. at 98 2156 357, (Bennett S.Ct. Leading & 358-359 Crim. Cases dissenting)(admitting that 19th 20th Cen- 1857); Cooley, Heard Thomas M. Cooley’s tury Supreme following ed., cases (1878). Perez 4th 404-406 Limitations, Const. ambiguous). were 1018, (9th ed.) § Bishop (language at 75. 1019 173-174, (18 Wall.) 163, 17, 72. 85 n. U.S. 174 consequences); & Heard at 359 Bennett (1874). L.Ed. 21 872 (common forbidding practice prose- nolle law sworn). qui jury impaneled after Compare concluding 73. cases that double implicated: Wyatt, was not 1 Blackf. State, (Ala. 8); v. 7 187 183 76. Ned Port. 616; 1; Fells, Price, at 257 at 36 n. 36 Va. Commonwealth, Williams 43 Va. 567 v. Miss, 544; 434; Hoffman, at 20 Md. at Shot- 568, State, 577, (1845); 579 Atkins v. 16 Ark. 399; well, O’Brian, 568; Ky. 27 at Cal. 69 at 699, (1855); v. W.Va. 701-704 Gruber 3 concluding with cases that double (1869). Mahala, 536; implicated: 18 at Tenn. Dobbins, 500; Maxwell, Ohio St. at 11 72, 594, Nugent, & P. WL at 4 Stew. at Nev. 6, **2, 3, 51, LEXIS at 1833 Ala. (see Bishop Morgan, on Criminal Law Costello, 11 Ann. 284—285 78. State La. Webb, (citing Ind. 216 and 38 Cal. (1856). 657, 658, 665); Law, §§ see Bish.Crim. ed., 1014(5), §§ also 9th Law, Bish.Crim. Hall, (1827). State v. 9 N.J.L. 262-264 1015, 1018, (1923)(preface: edition first 1856, renumbering issued in occurred in Sholes, 95 Mass. third edition issued in various editions 80. Commonwealth arrangement including latest “do differ in 346 Century Developments

D. 19th again put upon be trial for the same of- fense,

in Texas after a guilty; verdict of not and the right by jury of trial shall remain invio- adopted Texas its first jeopardy late.” Finally, present state consti- in provision when it was an indepen- tution, adopted in inserted additional republic. dent The ninth section of the in language places, two different changed a Rights Declaration of of the Constitution comma, semicolon to a and moved the Republic of the provided: of Texas “No “jury trial” separate provision, clause to a person, offence, for the same shall be twice resulting in present what is now the dou- put jeopardy of life or limbs. And the jeopardy provision: ble person, “No for right by jury of trial shall remain invio- offense, the same put shall be twice Upon States, late.” joining the United liberty, of life or nor shall a constitution, Texas drafted a new adopted pеrson again put be trial upon for the in 1845. This new state constitution delet- offense, same after a guilty verdict of not “limbs,” ed the “s” from added a new competent jurisdiction,”86 court of clause, and made changes some minor In punctuation, the midst of these causing constitutional the section to then changes, the offense, Legislature read: enacted laws ar- person, “No for the same ticulating its own jeopardy. shall view double put be twice of life or limb, pro- 1856 Code of Criminal Procedure person again nor shall a be put upon vided: trial the same a verdict offence after guilty; right and the by jury person Art. 18. No for the same of- shall remain put inviolate.”82 When fence can in jeopardy Texas be- be twice of life part came Confederate States dur- limb. This is intended to mean that ing States, person subjected the War Between no can it drafted second constitution, offense, prosecution a new for the adopted in 1861. The same after having prosecuted text of the section been once in a Court containing the double jurisdiction same, competent duly con- provision remained the ex- victed. cept that the comma after “limb” became

semicolon.83 With the defeat of the Con- Art. foregoing 19. The article will ex- federacy, trial, and the resultant empt person new constitu- no from a second who tion of changed the semicolon was has illegal been convicted on an instru- information, back to a comma.84 under a new ment or judgment arrested, adopted thereupon constitution as a result of nor recon- where new struction, defendant, trial has granted the words “or limb” were been to the delet- ed, “life,” nor jury discharged a semicolon where a has been placed after verdict, rendering a new without nor for comma was inserted after the sec- legal case other than that of a convic- “offense,” ond appearance of the word tion. causing the section to read as follows: “No offense,

person, for the same shall be twice By provisions Art. 20. of the Con- put life; stitution, in jeopardy person nor shall a acquittal of the defendant Rep. Const., Rts., (1836). I, (1869). § § Tex Decl. 85. Tex. Art. Const., I, (1845)(new § 82. Tex Art. lan- Const., I, (1876)(new § 86. Tex Art. lan- Const., italics). guage in italics). guage in I, (1861). § 83. Tex. Art. Const., I, §

84. Tex. Art. Const., trial, question him a or a its own belief the exempts pressed from second offense, “finally jeopardy protection the had prosecution second same double may highest authority irregular proceedings the settled the however been been; England if and America to have reference have but the defendant shall trial, person in a and so that no acquitted upon have been the trial the verdict” a having jurisdiction exemption the of- “claim an from second Court no could fense, nevertheless, maxim, once may, he under this unless he has prose- be trial acquitted ... or convict- again having jurisdic- cuted in a Court been tried and 93 Nevertheless, point- the court also tion.87 ed.” finding out that even the authorities ed later provisions The of Section were jeopardy principles applicable double carried forward as Section of the 1879 an in the exception in this context found Procedure.88 Code Criminal further necessity.94 And the court case Moseley In the 1871 decision of that, necessity concluded if be considered Supreme Texas Court addressed the then, exception, logically, an the issue jeopardy protec- the double whether state jury a discharge simply is whether trial was applied tion when a terminated trial matter to the court’s sound addressed prematurely.89 tried The defendant was conclusion, support In of that discretion.95 offense, capital for a and case was his cited Supreme the court the United States jury, jury submitted to but and con- decision in Perez its own Court’s (without consent) discharged his because contrary that a would be clusion decision jurors could agree upon a verdict.90 upon unacceptable notion that based response to the claim that defendant’s preferable perhaps “it to confine and discharge created jury and period, for an indefinite starve retrial, Supreme bar to the Texas ver- thereby force from them reluctant acknowledged that the issue involved than against judgment dict their rather disagreement among juris- area of various danger- permit the court to exercise that “All agree dictions: authorities discharge jury, discretion when ous jeopardy, legal word in its common and morally they could not became certain hazard, signification, danger means but intelligent at an and honest ver- arrive time many disagree as to the when that dict.” danger begins person charged to a with an offense, year, and it ends.”91 court next when The The Texas Taylor observed that the defendant’s the issue in position Court revisited maintained case was “Lord Coke ... and defendant State.97 of N. Ev- Pennsylvania, initially courts of Tennessee indicted for the murder states,”92 ans, proof other that he some but the court ex- but showed Lee, J., (Keasler, 87. 15 S.W.3d at 928 dissent- 93. Id. at 672-673. ingXquoting the 1856 Criminal from Code of added). Procedure)(emphasis 94. Id. at 673-674. 88. Id. Id. (1871). Tex. 671

89. 33 at 674. Id. Id. at 672. 97. 35 Tex.

92.Id. Morgan

killed Evans.98 jury impaneled After the State’s After the had been opening argument, sworn, entered during testimony (a prosequi witness, a nolle nonsuit of prosecu- State’s it was discovered that the tion), jury and the was discharged.99 The erroneously indictment referred to the vic- subsequently State filed a new indictment tim in as “H. Franks” when his name was charging the defendant with the murder of fact jury “H. Frank.”106 The was dis- Morgan Citing Moseley, Evans.100 the defendant, charged protest over the of the court reiterated holding its that the double indictment, and a new alleging the correct jeopardy protection could not be invoked name, Appeals was filed.107 The Court of prosecution a second unless there had quite observed that there had “been a prior been a “trial and verdict.”101 The opinions conflict of country” regard- court Bishop, observed that “Mr. in his ing whether the double protec- law, valuable work on criminal seems to implicated by premature tion was the ter- view,” entertain a somewhat different but mination of trial.108 a careful “[AJfter cited, because of exceptions the numerous authorities,” examination of the court the the court concluded that the discussion jeopardy protec- concluded that the double really support lent to its own view that apply, exceptions tion did but with for discharging jury in the the first trial was when the defendant consented or a vari- simply a matter to be left within the trial ety of circumstances that could be reason- discretion, judge’s with no attendant dou- ably necessity: characterized as However, ble jeopardy consequences.102 We ... that if believe the court had no the court jeopar- also observed that double cause, jurisdiction of if or the indict- dy might not in apply event because judg- ment was so defective that no valid Morgan murders of N. Evans and it, upon by ment could be rendered or if “separate Evans constituted and distinct any regular necessity jury are dis- offenses.”103 charged might without a verdict —which Although the Texas happen Court had from or death of the the sickness aligned court, jurisdictions judge this state with those inability or the of the hewing strictly to Eng jury agree upon the common law of after verdict suffi- land, change that would soon crimi when cient deliberation and effort —or if the appeals by predeces by nal were handled our term of court as fixed law comes to sor, finished, Appeals (assigned the Court of an end before the trial is or the responsibility by jury the Constitution of are discharged with consent of 1876).104In the 1877 case of Parehman v. the defendant, expressed implied, or if, accused, the defendant against claimed that double after verdict it jeopardy barred retrial after the case was has been set aside on his motion for a pursuant dismissed to a prosequi.105 judgment, nolle new trial or arrest of V, (1876). § 98. Id. at 109. 104. Art. See Tex. Const., 99. Id. Ct.App. 105. 2 Tex. 237-238 100. Id. Id. at 237. Id. Id. at 238. Id. at 110. 108. Mat 239. court, cases, competent jury again competent in all such with may,

accused sworn, charged impaneled, put upon trial the same facts case, him, placed has and is he then reached charged against proceed- and the and, ... after the ings protection. had constitute will no attached, discharge so But, has once legal when bar at- has once the consent of the defen- tached, jury without government avoid cannot verdict, dant, they before have reached varying the form the indictment. equivalent acquittal.112 to a verdict If the first indictment such accused have been un- might convicted in Parch- Arguably pronouncements proof it on the facts der which they were dicta because man Vestal sustained, then sought second to be the of necessary resolution were first the which attached to the neither case re- those cases and because protection against must constitute a a holdings the in Mose- conflicting ferred to trial on the second.109 ley Taylor. Any and cloudiness in the law disappear in on that account would however, it, regard to the case With before however, with the advent of Powell v. court that a the concluded second trial was State.113 because, not barred double due to a material variance in name of the Powell, In the defendant claimed victim,

the charged the second indictment jeopardy provision pre- Texas the a the different offense from first.110 jury vented his retrial after the was dis- charged his first trial for failure to year,

The next the Vestal v. trial, on a verdict.114 At the the agree of first Appeals Court with confronted courtroom de- jurors returned to thе after parol whether evidence admissible to say liberating for one-and-a-half hours to show the of a actual status first trial they could not—and never be would pleas connection with a defendant’s special agree a verdict.115 trial able on The of acquit jeopardy.111 and former to— autrefois jurors the judge sent out deliberate discussion, In its quoted with hour, they another after which returned approval passage the above Parch- from say they agree.116 The again could never man, quoted and also from statement time, jurors sent out a judge third in that regard- defendant’s brief case they an hour returned later with ing attachment of at the be- judge same results.117 The trial then dis- ginning acquittal of trial and the conse- charged jury over the defendant’s ob- quences premature of termination of jection.118 proceedings:

[Wjhen placed his party upon meaning is once attempting to ascertain the offense, a public involving trial for life or jeopardy provision of the double found Constitution, liberty, indictment, Ap- on a valid before the Texas Court of added). (emphasis 109. Id. 239-240 114. Id. at 347-348.

110. Id. at 240-241. Id. at 347. (1878). Ct.App.

111. 3 Tex. Id. Id.; Parchman, Ct.App. see also 2 Tex. Tex.Crim.App. at *3 1877 WL LEXIS at 8. Id. at 348. Ct.App.

113. 17 Tex. peals first examined Articles 18 and 19 the cause.”124 The Court found that this the Texas Code of “uniformly” supported by Criminal Procedure view was “the (and weight the successor Article 20 in the respectability decided of au 1879).119 thority.” Code Criminal Procedure of Court observed Ben The Court observed that “if it could so be nett and Heard’s note contained the “most done, a meaning thorough fixed and definite has discussion and elaboration of au given by been Legislature upon subject” “fully to the words thorities which jeopardy,’ ‘former meaning, and that as sustain[ed]” Court’s conclusion.126The declared, is that ‘former jeopardy’ quoted approval is noth- Court also from its ing prior legal short of a prior opinion (quoted conviction.”120 above Vestal here in), and, But the Legislature recognizing Court held the prior Texas cases view, authority expressing contrary had no to construe a constitu- the Court provision Moseley Taylor.127 tional “which overruled has become fixed by judicial and settled determination.”121 recognized The Court then Parchman Acknowledging diversity [judicial] “a (also herein) quoted setting above forth meaning jeopardy, views” on the jury the circumstances under which a Court nevertheless maintained that resolv- discharged creating could be without a bar ing uncertainty on the matter was not for (i.e. necessity), to future trial consent and Legislature the but for the courts to de- jurors] which included “where have [the cide.122 kept together been for such time to they it altogether improbable render that approval The Court then cited with the agree.”128 could a Court found that of Cooley Bishop, views and the sec mere three-and-a-half hours was not ond edition of Bennett and Heard’s note to enough time to that Perez, jury determine the United States v. all three of which agree could upon never verdict.129 Con- application advocated of double sequently, the concluded that the protection to the premature termination of judge trial “abused his discretion” in dis- quoted Cooley’s a trial.123 The court from and, therefore, charging jury that the proposition treatise for the that plea defendant’s of double was jury “impan attached at the time the result, correct.130 As a sworn,” Court reversed eled and that the defendant at that judgment the trial court’s and dismissed time became entitled to a verdict prosecution.131 prosecution, would bar a new defendant could not “be deprived of this E. Evaluation prosequi by bar a nolle entered will, prosecuting against officer his or argument We first address the discharge jury jeopardy provision ap- and continuance of the Texas double 119. Id. at 349. 126. Id. at 351.

120. Id. 127. Id. at 350. 128. Id. at 352.

122. Id. 129. Id. at 353.

123. Mat 350-351. 130. Id. 404). (quoting Cooley

124. Id. at 350 131. Id.

125.Id. reasons Finally, there are at least two explained only acquittals. As plies two might have wanted why the framers above, remaining unchanged provision, By language, its separate protections. for the person, states: “No since clause extends to guilty” “verdict of not all offense, put jeopar- same shall be twice regardless prosecutions, criminal types of dy liberty, person or nor shall a of life but the lan- type punishment, trial for the same of- again put upon be liberty” suggests life guage “jeopardy of or fense, in a guilty after a verdict of not imprison- or application only to death best, jurisdiction.” At competent court of excluding offenses for which ment — applies provision the conclusion the forfeiture only is a fine or punishment only acquittals upon possi- is based one Thus, express acquittal— property. (but likely) necessarily ble not the most preclu- have guilty of not verdict —would ambiguously punctuated of an construction spectrum of application in a broader sive problemat- That sentence. construction implied ac- cases than do convictions wholly redun- ic because it would render addition, if framers were quittals. dant the entire clause of the statute refer- jeopar- of various conflicts aware ring “jeopardy liberty.” of life or states, among having dy jurisprudence Moreover, constitu- earlier versions of the the two clauses would ensure verdicts provision tional make clear that the lan- broadly given would guilty containing “put upon guage words how preclusive regardless desired effect ... in- guilty” after verdict of not jeopardy law were aspects other of double comprise separate tended to clause from ultimately decided. referring “jeopardy

the clause of life or the claim We next address State’s liberty”: separate it was added as a clause jeop species” of double the “mistrial prior to of and all the Constitution part not a of the ardy jurisprudence was containing language versions the were common law that formed the basis for punctuated (through the omission of a provision. Texas constitutional timely comma placement or the semi- double species claim that State’s colon) in a manner that made this obvious. jeopardy jurisprudence did not even Further, judicial none of the old decisions correct, all, only if at emerge until 1949 is interpreted provision apply have law. as a matter of federal constitutional fact, in only acquittals, a 1900 deci- shows, application discussion As the above jeopardy sion held that the Texas double jeopardy protection pre to the double provision actually “jeopar- contained two of trial133 occurred at mature termination dy” protections: prohibiting one second early the state level as 1795 and became jeopardy liberty of life or and the other jurisdictions accelerating trend state prohibiting century. a second trial after a verdict of during the nineteenth While Jus criticism in Bretz tice guilty.132 not Powell’s legal usage, merely a a “mistrial” is 132. Woodward v. 42 Tex.Crim. common (1900). prior 58 S.W. 135 has been terminated to its “trial which normal conclusion.” Dictionary, Black’s Law characterizing species” the "mistrial In ed., may p. A mistrial be 5th appli- jeopardy jurisprudence of double extraordinary of some declared "because jeopardy protection cation of double juror, attorney), (e.g. death event "premature trial be- termination of first prejudicial cannot be corrected at error that mistrial,” suggests the State that a cause of trial, jury.” Id. of a deadlocked or because ways prematurely trial can be terminated in than a But definition other mistrial. Repub- especially given his- the fact Supreme ignored pre-1791 separate did contain tory jeopardy jurisprudence lic’s constitution of double jury trial patterned after the possesses strong logical provision its own decisions Con- force, guarantee found the United States it must remembered stitution.134 jeopardy provision double earliest Texas until and the current appear did not “or Similarly, the addition of the words in 1876. The provision adopted Texas version of the state liberty” to the 1876 “Johnny-eome-lately” Texas Constitution’s could have been jeopardy provision double that the fram- possibility status raises the Lange, decided two parte a reaction to Ex emerging jurispru- ers did consider the States years Lange, earlier. United framing dence in other states in the Texas the federal decided that ‍​‌‌‌‌​​‌​‌​​‌​​​​‌‌​​‌​​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌​‌‌‌‍Supreme Court jeopardy provision. double to all protection extended jeopardy double crimes, severity of the Moreover, regardless of the version reflects the 1876 “or lib- origi- contemplated punishment.135 With alterations from the text substantial document, erty,” framers of the Texas Constitu- nally contained the 1836 agreement matter, may signaled tion have their the text of the for that from notion that the double contained in the with the counterpart provision even to misdemeanors protection extended Fifth Amendment to the United States minor expressed time at the same significant That alterations but Constitution. disagreement with the Court’s suggests that the language present are carving very exception limited opinion by did not of the Texas Constitution framers carry not a risk of for crimes that do the state double simply pattern and for the defendant incarceration which after its federal constitutional provision by a verdict of thought acquitted was not gave independent but counterpart in- If the Texas framers considered guilty. crafting. gave its That the framers of the drafting the 1876 version crafting Lange dependent thought to that at least jeopardy provision, have suggests they would also provision they also consid- possibility developing double raises cognizant of the been then-mushrooming jurispru- state likely ered the jurisprudence and crafted of double regarding application the jurisprudence in dence provision with that the implication to mistrials and the jeopardy mind. jeopardy pro- Lange itself that the double provision the framers might applicability have some tection would Republic the of Texas Constitution that context. dou- Pennsylvania the have had available course, and code provisions the 1856 a connection Of case that drew ble Taylor are Moseley and and the decisions of life or limb” “jeopardy between Legisla- the contrary: both evidence to the jury to a trial “remain having right the ex- Supreme Texas Court ture and the might it have been inviolate.” While the view coincidence, pressed these two placement termination premature implicated by Re- section of the in the same protections trial, expressed unusual, and these views were to be appears constitution public's Rep. Const., Rts., § U.S. at 173. 135. Compare Tex. Decl. trial, by speedy public (1836)("right and to Const., impartial jury”) U.S. Amend. an with trial, by an speedy public ("right to a VI impartial jury”). that has precedent overturn a sufficient to relatively short time before within a years. for unmolested over existed Howev- adopted. of 1876was Constitution er, developments of these survived neither counsel do considerations practical Nor (decided relatively short within a Powell re- barring The framework otherwise. of the Constitution adoption time after the without a mistrial has occurred trial when 1876), provi- declared the code which mani- and absent consent defendant’s sions unconstitutional and overruled consistent necessity proven has to be fest cases. Texas the framework does and workable. While occasional allowing the have its cost— develop- of these earlier And neither pro- serves to guilty person go free—it their mer- ments were unassailable on own harassing multiple from tect defendants may have revealed Legislature its. The important an interest under- prosecutions, jeopar- regarding double its own confusion clause, and the lying the double when it indicated that the dy jurisprudence necessity serve exceptions of consent only there “jeopardy” applied term when reasonably impact. limit adverse position that prior was a conviction—a decisis, de- In accordance with stare we clearly comport English did not com- holding Powell’s cline to overturn law, applied concept mon which also with ex- jeopardy provision, Texas “jeopardy” prior acquittals. Moseley against ceptions, protects defendant (and Taylor, upon as was based Mose- premature termination of trial. ley) grounded part upon its decision in

what we now know is a false dilemma: DEFENSE-REQUESTED IV. characterizing the issue as a choice be- MISTRIALS keeping jurors together indefinitely tween A. The Issues until, starvation, they induced issue a contentions can be accurate- The State’s verdict, or, trial court giving reluctant First, categories. into four ly sorted absolute, unreviewable discretion to de- in- the Bauder standard as State attacks clare a mistrial with no attendant double legal theory pur- consistent with jeopardy consequences. The decision of double pose species” of the “mistrial an pointed approach Powell between claims jeopardy protection. The State give those extremes: the trial court discre- goes awry by that the Bauder standard tion of discre- but allow review abuse against the operating penal as a sanction practice appellate tion—a with which against rather than as a shield prosecution intimately courts are now familiar. a trial to prosecutor’s attempt to abort upshot The of this discussion is prevent impending acquittal. applicability of the Texas double penal nature State further claims depends upon the provision to mistrials subsequent conflicts with of the sanction Powell, say vitality of and we cannot with jeopar- declining to accord double caselaw Second, wrongly confidence that Powell was dy appellate effect to reversals. decided, was much less that the decision in as opinion attacks the Bauder the State most, the At we can the flawed from outset. The State claims poorly reasoned. history, and that say disputable, that the issue was failed to examine Texas law, arrived at its Moseley jurisprudence each advanced reason- but Powell or subjec- holding solely if we decided that based on the Court’s positions. able Even Third, the State likely correct notion of “fairness.” Moseley’s position was more tive sup- is no historical matter, contends that there an historical that would be century applying in Bau- the nineteenth cases dou for the standard announced port out that no Texas points der. The State jeopardy protection ble mistrial set as a matter cases endorsed the standard ting uniformly held that a defendant could law before the Unit- of state constitutional if he had consented to the be tried anew applied the fed- Supreme ed States Court exception mistrial. The first time an eral double clause to the states. principle appears to have been men finally, the contends that And State by in 1964 tioned in caselaw was Su amorphous Bauder standard is too in v. Tateo.139 preme Court United States practical application. The State claims case, claimed that he In that the defendant that current caselaw reflects the Texas opportunity of an to obtain a deprived generated. confusion the standard has acquittal verdict of due to comments plead him judge the trial that coerced into Underpinnings Legal B. suggest ing guilty.140 The Court Developments 1. Historical that, requested had defendant ed majority concurring opinions judge’s com mistrial on the basis of the attempt Bauder did not to show that the ments, that if he “there would be no doubt intended framers of Texas Constitution successful, had the Government been deci- the standard set forth the Bauder retrying have been barred from would not legal not cite opinions sion.136 Those did him,” said it would and further etc.) (cases, treatises, statutes, materials “strange” for the defendant “to benefit constitu- preceding framing of the 1876 delay сhallenging of his because influenced the word- might tion have footnote, In a judge’s conduct.”141 ing jeopardy provision of the state double added, any intimation “If there were Court way the intent of the or in some reflected judicial im prosecutorial in a case that cite opinions framers.137 Nor did those resulted justifying a mistrial propriety early construing pro- cases the 1876 Texas jury likely from a fear that words, Bauder did not vision.138 other accused, different considerations acquit conduct, regard to the “recklessness” would, course, obtain.”142 standard, we have con- the kind of review part regarding III the mistrial ducted later, early foresha- years Two question. standard, dowing Kennedy suggested Pennsylvania Supreme suggests that Bauder

Our research af- would bar retrial that double upon could not have been based such if defense-requested mistrial “the ter evidence supporting review because the above, intentionally sought to infect prosecution not exist. As discussed simply does (Court’s opin at 697-700 138. Id. 136. See 921 S.W.2d J., ion), (Clinton, concurring), 701- 700-701 J., (Malo (Baird, concurring), 702-703 S.Ct. U.S. 468 n. 139. 377 J., Maloney’s ney, concurring). Judge con L.Ed.2d 448 quote interpretive curring opinion did commentary discussing whether the Texas 464, 466, 84 S.Ct. 1587. 140. Id. at all, applied, jeopardy provision setting. is a Id. at 702-703. That the mistrial 467-468, 84 S.Ct. 1587. 141. Id. at matter, already part III separate addressed in opinion. of this 3, Id. at 468 n. 84 S.Ct. 1587 142. preced- opinions cited in the 137. See various ing footnote.

355 1971, Supreme United States the tri- in order to abort proceedings plurality in a in dictum it, suggested But, the Court in the case before al.”143 develop circumstances that “where remarks “were prosecutor’s improper judicial or prosecutorial to not attributable mistrial,” and precipitate to calculated by the defendant overreaching, a motion thus, confront- appellate court was not to re- ordinarily assumed for mistrial “in the prosecution ed with a case which if reprosecution, even move barrier an- invited the mistrial in order to secure by necessitated the defendant’s motion is other, opportunity favorable possibly more judicial In a prosecutorial or error.”149 Pennsyl- accused.”144 The to convict the footnote, as the Supreme Court stated would confront that case a vania Court a defen- proposition: “converse” “where Warfield, year later in Commonwealth v. by motion is necessitated dant’s mistrial where, motion to after defendant’s judicial impropriety de- prosecutorial or granted, confession was suppress his signed acquittal, reprosecution to avoid statement, opening told the prosecutor, might bewell barred.”150 jury that the defendant had made a con- police.145 fession to the The defendant clear, holding definitive Without immediately moved for a and the them, struggled courts to de- guide lower granted trial court the motion.146 The sug- rule precise fine the contours of the parties agreed prosecutor’s re- Supreme gested dicta Court. mark made for the specific purpose “was prosecutorial The Fifth Circuit held that causing ruling a mistrial so that a bar to error would result might be obtained from the if defense-requested mistrial retrial after Pennsylvania upon Court of the correct- “gross negligence the error amounted to of the judge’s suppressiоn ness intentional misconduct.”151 Other Pennsylvania confession.”147 The differently, Su- the rule encom- courts stated preme Court held that retrial of the first- miscon- passing “deliberate intentional 152 degree-murder charge avoid an “designed barred duct” or conduct jeopardy provision.148 acquittal.”153 state double carrying possible punish- Montgomery only 143. ex. v. Commonwealth rel. to offenses 180, 191, 859, 865, Myers, 422 Pa. 220 A.2d death or dismemberment. Id. at ment of denied, 963, 405, 558-560, (refusing cert. 385 U.S. 87 S.Ct. 17 227 A.2d at 179-180 (1966). parte Lange). L.Ed.2d 308 Ex follow 190-191, 144. Id. at 220 A.2d at 865. Jorn, 470, 485, 149. United States v. 400 U.S. 547, (1971)(opinion S.Ct. 27 L.Ed.2d 543 91 555, 556-557, 177, 145. 424 Pa. 227 A.2d 178 Harlan, J.). (1967). objected hearing Neither side to the being held after had attached. 12, Id. at 485 n. 91 S.Ct. 547. 557, 227 A.2d at 178. 1124, Beasley, v. 479 F.2d 151. United States 557, Id. at A.2d denied, 924, (5th Cir.), cert. 414 U.S. 252, (1973). S.Ct. 38 L.Ed.2d 158 Id. at 227 A.2d at 178-179. Ballinger, Ariz.App. 560-561, 152. See State Id. at 227 A.2d at 180-181. The (1973). 504 P.2d Pennsylvania Supreme Court concluded could be tried for the lesser defendant Manning, degree 224 N.W.2d offense of second murder because 153. See State Calhoun, (Iowa 1974); 67 Wis.2d Pennsylvania's provision, State v. limb,” 204, 225, containing phrase applied N.W.2d "life or 356 1976, Supreme ing “application” the Supreme Court handed Court’s Dinitz,

down States v. which held United statement in context with its abstract dis- motion for that a defendant’s mistrial ordi- latter, suggests cussion of law but narily removed bar to interpreted at least one court state recognized excep- retrial.154 The an Court Supreme it as the former.158 The Court of “governmental tion for actions intended to reading Hawaii an broader of the had even provoke requests thereby mistrial sub- rule as protecting against “misconduct de- ject to the burden defendants substantial ... signed acquittal, to an or deliber- avoid of multiple prosecutions.”155 Retrials ate misconduct which has for its intended “where would be barred ‘bad-faith conduct the defendant’s purpose the denial of con- ... judge prosecutor’ or threatens the right stitutional to a fair trial.”159 Other an accused by successive ‘[harassment] courts, took the view that intent to though, prosecutions or declaration of a mistrial so provoke a an essential ingre- mistrial was prosecution to afford the a more favor- type dient to relief on this claim.160 opportunity able convict’ the defen- However, potential recognizing while 156 regard dant.” With case before Dinitz, conflict Fifth Circuit nev- it, ques- held conduct in Court cling ertheless to its appeared earlier tion not done bad faith in order to “was “gross articulation of the negligence” stan- goad respondent requesting into a mis- dard,161 courts, while several other includ- prejudice his prospects or to own, ing our the Fifth followed Circuit acquittal.”157 any apparent formulation without aware- disjunctive negative preced- The in the ness conflict.162 sentence, isolation, ing at least raised an Against backdrop, the United States this concerning ambiguity whether the stan- Supreme Oregon v. Court decided Kenne- was met if the intended dard dy. acknowledged that its pre- Court (1) mov- goad either to defendant into the rule “with phrased vious cases had less prejudice or to ing pros- for a mistrial (2) crystal clarity” than and that state of pect acquittal, goad or both to in the affairs had caused confusion lower moving into for a defendant mistrial and prejudice prospect Tak- courts.163 The then acquittal. 600, 1075, intentionally overreaching 96 S.Ct. al calculated to 154. 424 U.S. 47 L.Ed.2d (1976). original); mistrial”)(emphasis 267 force State 722, 725, Baylor, Kan.App.2d v. 2 587 P.2d 611, 155. Id. at 96 S.Ct. 343, Potter, (1978); 345 v. Commonwealth 918, 266, 251, A.2d 478 Pa. 386 925 Jom, (brackets Xquoting 156. Id. 400 Dinitz (1978)(‘ designed to force the de- 'misconduct 485, 91 S.Ct. 547 Downum v. U.S. at mistrial”). fendant to seek States, 734, 736, 372 U.S. 83 S.Ct. United 1033, (1963)). L.Ed.2d 100 10 Crouch, 1311, 566 F.2d 161. United States v. (5th Cir.1978). added). 1318 n. 9 (emphasis 157. Id. Gwara, 106, 108, v. 311 Minn. 247 158. State Martin, 135, v. 561 F.2d 140 United States (1976). N.W.2d 417 Baca, 9, (8th Cir.1977); 193 Colo. State v. 14 5, 411, (1977); Chvojka n. 562 P.2d 414 n. 5 Pulawa, 377, 382, v. 58 Haw. 159. State (Tex.Crim.App. 582 S.W.2d denied, (1977), cert. U.S. P.2d 1979). 56 L.Ed.2d 768 98 S.Ct. 674, 679, 540, 543, Kennedy, U.S. at S.Ct. Marquez, 113 Ariz. 160. State (1976)("judicial prosecutori- P.2d

357 Oregon v. Ken- espoused in the the current federal rule for rea- to the one adopted Kennedy v. had nedy Oregon case that we will discuss later.164 This sons before been decided.170 recognized Court later Court’s clarification of the rule.165 shows, present discussion As the decided, double conse- only according seven rule Kennedy

Since courts, Court, defense-requested a mistrial quences to high including state this circumstances) (under limited a broader standard.166 Vari- certain adopted have There was relatively a recent innovation. appear nuances in each of these deci- ous sions, any jurisdiction a they roughly authority into no for such but can be sorted (1) categories: ap- the “fair trial” rule at the time the Texas Constitution three Pennsylvania adopted, despite Ha- the fact proach, by followed and 1876 was (2) waii,167 time numerous author- culpable a there existed at the permitting lesser jeopardy protections respect applying mental state with to the occur- ities (but mistrial, only by Oregon, general context in rence of the followed to the mistrial (3) Arizona, Mexico,168 a and the defendant did not consent Texas and New when mistrial). originally acquittal” approach, the “intent to avoid an When rule, response it by Ironically, adopted followed California.169 did so rather than as an Pennsylvania holdings repre- jurisprudence Arizona and federal departure previous independently sented a from the effort construe our adoption essentially jeopardy protection. of a standard identical state’s own double 674-679, Pool, 108-109, 164. Id. at 102 Ariz. at 677 P.2d at 271- S.Ct. 2083. 139 (prosecutorial 272 misconduct that “is State, 655, 703 S.W.2d 662 Crawford error, merely legal negligence, result (Tex.Crim.App.1986). but, mistake, impropriety, or taken as whole, amounts to intentional conduct 260, Kennedy, 166. State v. P.2d 295 Ore. 666 prosecutor improper knows to be and 98, (1983); 1316 Pool v. 139 Ariz. 677 any pursues prejudicial, and which he Smith, (1984); P.2d 261 Commonwealth v. sig- improper purpose to a with indifference 177, (1992); 532 Pa. 615 A.2d 321 Bauder resulting danger mistrial or rever- nificant Breit, 655, (1996); State v. 122 N.M. 930 P.2d ante; Breit, Bauder, sal”); see this 405, (1996); Rogan, 792 State v. 91 Hawai'i 666, (“wilful P.2d at 803 122 N.M. at 930 Batts, (1999); People 984 P.2d 1231 disregard” pur- defined as “conscious and 660, 67, Cal.Rptr.2d Cal.4th 68 P.3d 357 prosecutor poseful decision to dismiss (2003), denied, 1185, cert. 540 U.S. 124 S.Ct. may that his or her conduct lead concern L.Ed.2d reversal”). to a mistrial or Smith, 532 Pa. at 615 A.2d at 325 ("when conduct inten- is 695-696, Batts, 30 Cal.4th at 134 Cal. tionally prejudice undertaken to the defen- (“when Rptr.2d P.3d at 380-381 trial”); point dant to the of the denial of fair prosecution, believing in events that view of Rogan, 91 Hawai'i at 984 P.2d at 1249 during ongoing unfold an trial that the defen- ("where, egregious prosecutori- in the face of acquittal likely secure an at that dant is misconduct, beyond be al cannot said misconduct, in the absence of intention- doubt that the defendant received reasonable ally knowingly commits misconduct trial”). a fair acquittal to thwart such an order —and court, reviewing the as of the circumstances Kennedy, P.2d at 295 Ore. at misconduct, determines that from time of (“when improper official conduct is so prosecutor's objective perspective, the mis- prejudicial to the defendant that it cannot deprived the defendant of conduct in fact cured means short of a and if the acquittal”). prospect of an reasonable improper official knows that the conduct is prejudicial indif- and either intends Potter, reversal”); Marquez previously. resulting cited ferent to the mistrial or 170. See Purpose jury ed that a trial right

2. Mistrial Double “the to before the first to a

Jeopardy right selected is the trial Protection fair statement, jury.”175 before that That Absent reason to the fram- believe however, the double jeopardy conflates ers of the Texas Constitution intended for protection generalized with more notions protection the apply double to to process of due and due course As law. a de/ense-requested why recog- has Supreme recog the California Court all, nize at a rule in that context however “[Djouble nized, jeopardy is neither anoth crafted? narrowly the rule is The answer er form of process protection ensuring due posited must that the be circumstances the criminal trial propriety of the nor a consent show the defendant’s to a mistrial against outrageous means to protect gov Kennedy, to be a sham. the “remedy ernment conduct.”176 The of a Court held that the defendant’s valued new trial” to is “sufficient vindicate both right trial complete his before the first citizen’s interest a fair and the jury if would be “hollow shell” retrial societal those bringing properly interest permitted prosecution, were after found guilty punishment.”177 ques conduct, through intentionally precip- its tion, jeopardy purposes, for not is a mistrial.171 According itated whether the defendant’s trial was “fair” Court, however, enough, it is not that but a mistrial ulti requesting whether was defendant faced a “Hobson’s choice” be- mately his The Bander decision.178 giving up jury his first tween and continu- suggested decision in a defendant’s Rather, ing trial.172 with a tainted would not “recklessness” situation question whether the is defendant retained decision,179 question “free” but is not primary control over the course to be fol- “free” whether the decision was in the lowed.173 being sense of but whether unconstrained own, The Bander Court claimed that sit decision was his albeit the face by its encompassed uations “recklessness” say of a dilemma.180 To decision “constitutionally were indistin standard own is to say the defendant’s guishable” encompassed those from reality the decision made some specific-intent of Oregon else, standard v. Kenne But one e.g. prosecutor. when dy,174 justifications reckless, but the Court’s one prosecutor merely cannot say fall short. prosecutor contention With no author has made decision ity whatsoever, Only prose the Bander to seek a when the Court contend mistrial. 673, Potter, 266-267, 171. 102 S.Ct. 177. 386 A.2d 918. 456 U.S. at 2083. 478 Pa. at Dinitz, 609, 172. 424 at 96 U.S. S.Ct. 1075. 608, Dinitz, 178. See at 96 S.Ct. 1075 424 U.S. (defendant request a who chooses mistrial Id.; 676, Kennedy, at 456 U.S. 102 S.Ct. may do he has “little interest in so because trial). completing” a "tainted” Bander, 921 S.W.2d at 699. 179. 921 S.W.2d added). (emphasis 175. Id. at 698 Dinitz, 180. See at 609 n. 96 S.Ct. U.S. Batts, (rejecting applicability "knowing, in at 690 Cal. 30 Cal.4th n. telligent, voluntary Rptr.2d standard” of Johnson (quoting 68 P.3d 377 n. 23 Zerbst, Henning, U.S. 58 S.Ct. Peter J. Prosecutorial Misconduct Remediеs, (1938), L.Ed. to the double 77 Wash. U. Constitutional L.Q. 713, context). (1999)). mistrial Un- purpose. in his succeeds prosecutor the defendant’s provoke cutor intends to standard, motion can it be said Kennedy mistrial der the defendant, than the has rather prosecutor, also causing a mistrial who succeeds over the decision primary control exercised dismay) in to his (presumably succeeds trial’ termination. to seek the To be consis- prosecution. further barring that, tent, for the Bauder expect, also claimed under The Bauder Court one would the distinction jeopardy purposes, double standard, a who succeeds prosecutor intent and recklessness between through his reck- obtaining in a conviction “fuzzy imponderable,” and the Court faced with also be less conduct would of the purpose that the did “not believe when that jeopardy bar to retrial double really has right here in issue constitutional overturned, of that because conviction is in- prosecutor’s to do with the anything conduct, motion post-verdict to a pursuant 181 actually, the distinction be- tent.” But Indeed, the appeal. new trial or on is culpable mental states tween the two recognizing jurisdictions five other clear, of intent is requirement and the in than that articulated Ore- broader rule above, whether important. As discussed Kennedy that have addressed gon v. bring about a prosecutor intends the view expressed issue182have determining critical to whether mistrial is not a mistrial was applies rule even when defendant, he, exer- rather than the has obtained, and the granted, verdict a mis- primary cised control over whether stage subsequent at a case was overturned addition, In the different sought. trial is The lead cases proceedings. of the mental states reflect different culpable actually involved Pennsylvania and Hawaii misconduct, prosecutorial purposes ap- on that were reversed purposes important and those different are convictions in the double context. As dis- case in- the New Mexico peal183 while III, part one of the common cussed tri- motion for new post-verdict volved a century double- threads of nineteenth case, In the Arizona al.184 a later that the decla- jeopardy mistrial cases was appellate its own rule to Court extended mistrial, necessity or the ration of without found And we have not reversals.185 while consent, implied, constituted an defendant’ the rule to a applying decision Oregon an virtual, prosecu- acquittal. or When verdict, original proceeded case that mistrial, produce he purpose tor’s is referring to the statement rule — has, essence, But sought acquittal. strongly “resulting mistrial reversal” — pro- prosecutor’s purpose when the is that it does.186 suggests conviction, even at the substantial duce a not prosecutor risk of has cases— subsequent this Court’s Under sought acquittal. parte Ex Mitchell— parte Davis and Ex Con- under the Texas retrial is not barred bringing method of the distinction

One to verdict proceeds if if the case happens to ask what stitution into focus is 658, Breit, P.2d at 795. 122 N.M. at S.W.2d at 699. far, declined, thus to ad- 182. California has 390, Jorgenson, 10 P.3d 198 Ariz. 185. State v. Batts, at 665 n. the issue. 30 Cal.4th dress Cal.Rptr.2d P.3d at 360 n. 1. 322; P.2d at Kennedy, 295 Ore. at Smith, 532 Pa. at 615 A.2d P.2d at 1234. Rogan, 91 Hawaii at objective later, of intent from facts appeal.187 This is nonexistence is overturned on process is a familiar the defendant “was not denied and circumstances so because justice system.”190 right under the double clause our criminal his him to a charges against to have the tried however, suggested, The Bander Court So, if verdict before the first tribunal.”188 inadequate that the “intent” standard was (in prosecutor the reckless succeeds ob- distinguish difficult to because was too taining through a conviction dubious intent and recklessness with re- between means), no then Texas culpable mental spect prosecutor’s to a But, bar if the reckless arises. regarding state the occurrence of a mistri- declared, then fails, because mistrial claim, support al.191 of this relief, greater a bar the defendant obtains contended, perceive a distinc- “we do have prosecution, to future than he would significance tion of constitutional between if had achieved his obtained attorney in which prosecuting conduct of far, appears Texas to be purpose. Thus a and conduct he intends to cause mistrial only jurisdiction adopting illogical attorney a which he is prosecuting position. reasonably certain to result a aware is But, as an examination of our mistrial.”192 C. Practical Considerations illustrates, own Penal Code “reasonable “knowing” a certainty” is the hallmark of Kennedy The Standard 1. quite and is different from mental state Kennedy, In criti- Court of reckless- the “substantial risk” standard gener- vague proposed cized as too certain claimed that dis- ness.193 Court determining type al what standards culpable mental states tinction between result in a prosecutorial conduct should a criterion for was “far too insensitive on the defen- jeopardy bar after mistrial cases,” in these but the Court’s decision It that standards dant’s motion. found reflect its own confu- conclusion seems to “harassment,” faith,” and such as “bad mental state was regarding sion which “virtually offered no stan- “overreaching” really talking about. con- application.”189 “By dards for ... Judge Baird trast,” said, concurring opinion, In his the Court “a standard straightforward a more statement prosecutor, the intent of the offered examines really been may have though certainly entirely free from of what difficulties, intent to cause manageable stan- concerned with: practical “virtually impossible Inferring the existence or mistrial would be apply. dard to Bauder, Davis, 9, (Tex. at 699. parte S.W.2d 14-15 191. 921 S.W.2d 187. Ex 1023, denied, Crim.App.1997), 523 U.S. cert. 1307, (1998); Ex 118 S.Ct. 140 L.Ed.2d added). (emphasis 192. Id. 575, Mitchell, (Tex. parte 977 S.W.2d 580-581 873, denied, 1997), Crim.App. U.S. cert. 6.03(b)C‘a per- § Compare Pen.Code 193. Tex. 172, 119 S.Ct. 142 L.Ed.2d respect knowingly ... with re- son acts when he is aware that his sult of his conduct Davis, 11; see also Mitch- 957 S.W.2d ” reasonably to cause the conduct is certain J., ell, (Meyers, con- at 582 n. 2 977 S.W.2d result) (c)(“A recklessly ... person acts with curring). conduct respect to ... the result of his 674-675, Kennedy, 102 S.Ct. 456 U.S. consciously disre- when he is aware of but unjustifiable gards risk a substantial added). occur”)(emphasis will ... the result 190. Id. at 102 S.Ct. 2083. vein, anticipated the standard before presciently Baird com- Judge In this prove.”194 decided, other six but the Kennedy was independent that his research mented In two of Kennedy and follow it.197 where cite single to reveal even a case “failed cases, the State conceded met.”195 Our the seven Kennedy burden was intent,198 the other five while opinions prosecutor’s court has high research of state finding pros- seven, a trial court of which were in involved uncovered five a mistrial.199 ecutor intended to cause Bander was de- published opinions before cases, requisite finding of the seven cases is all seven cided.196 One War- discussed, by the record.200 supported which, already have intent was field, as we Bauder, (Baird, corroborat contradicted so-called S.W.2d at 701 J. con- tent and witness, surprised by ing prosecutor was curring). witnesses; testimony prose of another of his 195. Id. request was de for a weekend recess cutor’s nied; began asking prosecutor then several Laster, Warfield,supra; State v. 223 Mont. questions, objections were to which irrelevant Dawson, (1986); People 724 P.2d 721 sustained, particularly prejudicial and one (1988); 431 Mich. N.W.2d 886 State question, precipitated improper which Rademacher, (Iowa 1988); 433 N.W.2d 754 mistrial; appeared prosecutor neither sur Beck v. 261 Ga. 412 S.E.2d 530 prised argued against the defendant’s nor (1992); Long, State v. 1993 WL 1993 motion, when asked whether he mistrial but Thomas, (1993); 275 Del. LEXIS 250 State v. replied, "Nope.”); Ra any response, he had 167, may Ga. S.E.2d 501 There 562 demacher, 757-758, (at at 759 433 N.W.2d others; through be we made no effort to wade proceedings, prosecutor stage the one appellate the numerous trial and intermediate volunteered, probably going "I’m to lose opinions on the federal and state level that anyway”; prosecution’s case was "at best one Oregon Kennedy. have cited difficult”; prosecutor expect ... did not trial ruling regarding some testi previous court’s in limine 197. See authorities footnote. witness, mony state’s and after from a crucial 557, Warfield, 424 227 at Pa. at A.2d 178- attempts circumvent several unsuccessful to (parties agreed prosecutor 179 that intended order, prosecutor to the in limine chose appeal to cause a mistrial that he could so Beck, directly); at the order 261 Ga. violate ruling trial court’s adverse on a motion to 826, (prosecutor at 530 violated 412 S.E.2d attached); suppress after had Daw offenses; excluding extraneous order son, 258, 431 Mich. at 427 at 897-898 N.W.2d granting trial court found (counsel during for the conceded oral state goad” prosecutor "a deliberate intent to had argument prosecutor intended to cause a mistrial”); Long, defense counsel "into a mistrial). 250, 245367, *1, at Del. LEXIS 1993 WL 1993 (improper questioning wit at 2 of a defense Mont, 723; Laster, 154, 223 at 724 P.2d at ness; examining length prosecu at after Rademacher, 757-758; Beck, 433 N.W.2d at conduct, proffered explanation for tor’s 826-827, 530-531; at 261 Ga. at 412 S.E.2d evidence, conduct, and the state of the Long, 1993 WL 245367 at *1 1993 Del. LEXIS to trial court found that the stood Thomas, 167, 250, 2; at 275 Ga. at gain advantage” on retrial and con a "clear S.E.2d pro prosecutor intended to cluded that the Thomas, mistrial); 275 Ga. at 167- voke a Warfield, 424 Pa. at 227 A.2d at 178 (the prosecutor S.E.2d at 502-503 open (prosecutor’s confession in reference to inconsistent, "gave unconvincing explana ing confes statement after trial court ruled Mont, why posed [mistrial-provok Laster, tions as to he inadmissible); sion ing] question expert, ... did not seek (trial to the 724 P.2d at court consid instructions, the trial or assert that curative objective of the ered facts and circumstances continuе, Dawson, 258-259, prosecutor stood case); ... and the should Mich. at gain by aborting the ex going to the trial because (prosecutor’s N.W.2d at 898 case was weak, testimony defen pert’s [the was favorable badly inculpatory evidence was because dant]”). complaining testimony witness’ was inconsis 205—invoked under system” criminal Obviously, obtaining relief under the Or- is rare. That is of circumstances —a egon Kennedy inhospitable standard the most understandable, however, con- when one of an action for relief as result request ordinarily not prosecutors do party procured, siders which requesting 206— cases, even when attempt to “throw” their ordinarily give estoppel rise to would Moreover, the problems are encountered. sel be difficult to obtain and would would sanction renders such granted. dom be self-defeating. conduct The Bauder Standard we are not aware

And while Kennedy granting relief under decisions Inception a. contain neither a proceedings where the its suggested The Bauder Court trial court concession nor a favorable state advan- “practical standard would have any such cases does finding, the absence of subjective.”207 any inadequacy in because it was “less necessarily point tages” But, recognize that are later questions the standard. For as this Court would fact-intensive, party II, highly prevailing “recklessness” proffered Peterson appellate in the significant advantage has a prosecutor’s turned on the men- standard forum, party if is not prevailing Kennedy’s, intent just tal as much as state proof, with the burden of charged the one standard, was “no less sub- and therefore great.201 advantage may especially lenient, more jective.” The former was That, however, system, is the nature thus, at least seem easier would “main proceedings are the where the meet, in this context is not but “easier” event, tryout than a on the road.”202 rather later necessarily “better.” Our position Trial are in the best courts objective” ratio- that the “more suggested prosecutor’s a conduct determine whether “if trial and might carry some force nale a an intent to cause evinces upon the primarily courts focus appellate oppor- with the Texas defendants provides of the objective facts and circumstances in the trial tunity litigate question the events which conduct and prosecutor’s 209 (before trial),203and even the second forum But, ‍​‌‌‌‌​​‌​‌​​‌​​​​‌‌​​‌​​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌​‌‌‌‍as discussed that conduct.” led to (on retrial).204 jury a before above, Supreme previously had Court Kennedy its own stan- recognized in under an expect that such Finally, one should in light that intent could be assessed essentially an dard remedy extreme —what and circum- “objective facts of relief in of greatest “the form acquittal, 204. TexCode Crim. Ross, 27.05 & 27.07 201. See State Arts. 32 S.W.3d 853 Proc., jeopardy). plea ruling (special of double (Tex.Crim.App.2000)(trial court in de- suppress can be favor on motion to fendant’s 234, (Tex. State, may 205. Malik v. S.W.2d upheld that the trial court on the basis witnesses). Crim.App.1997). the State’s not have believed State, (Tex. 244 206. See Prystash v. 3 S.W.3d 88 S.W.3d Manzi cert, denied, 529 U.S. Crim.App.1999), (Tex.Crim.App.2002)(quoting Anderson v. Bes- 146 L.Ed.2d 120 S.Ct City, 105 S.Ct. semer 470 U.S. (1985))(omitting ellipsis and in- L.Ed.2d 207. marks). S.W.2d at 699. quotation ternal Peterson, 11.07, § 203. Tex.Code Crim. 117 S.W.3d at 814. 2 & 208. Arts. Proc., application for writ of habeas (pre-trial 11.08 indictment). (motion Id. at 814-815. dismiss corpus), 27.03 manifestly improper simply gamesmanship and The Bauder standard stances.”210 methods should be difficult prosecutorial advantage respect. no in this offers attorneys to cross prosecuting for most well-recognized culpable mental As a and that they purpose,” do it on unless state, “recklessness” would at least seem line, deliberately or crossing that “either reasonably specific, avoiding to be Su- further recklessly,” results a bar to preme generalized Court’s criticism of a harkens prosecution.213 Such statement standard, “overreaching” but the Bauder “overreaching” generalized back to the adhere to completely formulation did warned standard that the Court familiar found in the Penal definition juris- turns double against and that require Code because did not prudence by making jeopardy on its head “risk” be a one.211 Even if “substantial” preclusion defense-requested from a mis- lan- implied, confusing that element were than the trial a common occurrence rather guage opinion suggested the Bauder probably That not the exception. rare was application that the standard’ would not be there, intent, language was Court’s but simple. that Statements that unwary an trap waiting sprung to be right the defendant’s to a “fair trial” was appellate trial or intermediate court. consideration, important prose- confusing language in the Setting aside “irrelevant,” specific cutor’s intent was opinion, the recklessness standard Bauder that jeopardy question might the double practical problems some in this con- poses prosecutor turn on whether the “rea- “Every part act on the of a rational text. sonably certain” that a mistrial re- would prosecutor during designed a trial is sult, and that the rule formulated was ‘prejudice’ the defendant” front subjective” somehow “less than one that him.214 The jury so that it will convict specific suggested turned on intent all foul, be fair rather than prejudice should the standard be complex would more than battle, may prosecutors but the heat of simply evaluating prosecutor whether the overstep their bounds. While with regard reckless to whether a clearly try knows he should not to cause mistrial would occur.212 mistrial, may a lot certain what he less The Bauder lan- also contained court would decide appellate conduct an guage actually suggested grant- carried a substantial risk of mistrial ing a defendant’ requested mistrial would have con- prosecutor the is then found to usually result in a jeopardy double bar. dissent, In sciously disregarded. his Pre- by emphasizing It did so that “trial condi- siding Judge McCormick doubted tions must be extreme before a mistrial is prosecutors would “know with certain- Texas,” “[accordingly, by warranted this ty prohibited what conduct legitimate the line between adversarial rule.”215 2083;

210. 456 at 102 S.Ct. see also Id. at 102 S.Ct. 2083. U.S. 679-680, (Powell, 456 U.S. at 102 S.Ct. 2083 J., concurring). 2083; Kennedy, 456 U.S. at 102 S.Ct. Bauder, (McCor- see also 921 S.W.2d 6.03(c)("A person § 211. See Tex Pen.Code mick, P.J., dissenting). reckless, respect recklessly, with acts or is ... his conduct when he is the result of aware Bauder, (McCormick, at 705 921 S.W.2d consciously disregards of but a substantial P.J., dissenting). unjustifiable risk that ... the result will occur.”). 698-699, 212.Id. 102 S.Ct. 2083. that its decision to court would understand that a broad stan-

Another concern is affect the deny might the mistrial likely unduly granting grant deter thе dard is by regarding determination appellate otherwise warranted court’s of mistrials when misconduct, and so judge because a trial flagrancy the circumstances the completely the decision to reverse do not es- jurisdictions would rather leave these course, Texas, court than create a situa- the appellate to an the issue. Of cape because, prosecution forever bar applies tion that would with full force concern Mitchell, In may guilty.216 well be a defendant who the trial court due to Davis and two Kennedy, Court isolated appeal on carries does know that reversal a defendant could be ways in which grant- risks of none of the double (1) the defendant loses harmed as a result: problem is ing a motion for mistrial. This him” advantages secured to “some of the posed by disparate similar to because, by jeopardy protection the double punishment under Texas law of treatment ultimately appellate if he obtains an even stage trial at the motion for new errors reversal, subject he will be to additional refusal to and a trial court’s appeal, and on time, anxiety might have expense, punish- trial on the basis of grant new mistrial, and by obtaining a (and been avoided upholding of that ment error our (2) any relief the defendant fails to obtain refusal)218 type of con- comports with (which otherwise have ob- at all he would Supreme Court duct foreseen mistrial) because of through tained worse problem But the is even Kennedy. deferring to appellate practice courts’ because, egregious pros- here the more earlier, rulings.217 trial court As discussed misconduct, in- greater ecutorial adopted a jurisdictions most that have has to ensure centive the trial court logical step of rule have taken the broader to avoid a double completion of the trial extending sanction jeopardy bar. reversals, to some extent

appellate which If the defendant ameliorates this concern. Subsequent b. Cases that he should appeal relief on obtains the Bauder applying Problems receive he will have obtained remand began with this Court’s standard At jeopardy protection. the same double the reck- explaining in Bauder itself. theoretically, may have least court standard, in this passage one lessness deny a meritorious mistri- incentive to less rule, stated: “Under Court’s conse- al since the double motion mis- accountable for is not reversal appellate of mistrial and quences need not have judge the trial But the trial trials when practically, are the same. Sorto v. 173 S.W.3d Kennedy, 102 S.Ct. 2083 218.See 456 U.S. at - denied, ("Knowing granting (Tex.Crim.App.2005), the defendant' U.S. cert. inevitably -, all but motion for mistrial would L.Ed.2d 989 126 S.Ct. attempt trial bring with it an to bar second (2006)("A grant a new trial trial court cannot judge pre- jeopardy, the grounds of double on appellant’s only. punishment Even if as to might siding well be more first punish underlying and unusual claim of cruel grant for mistri- a defendant’s motion loath al.”); meritorious, deals that claim had been ment Bauder, at 704 921 S.W.2d see also Therefore, punishment stage. only J., (McCormick, dissenting). P not guilt would new trial on or innocence by appropriate which vehicle have been 676-677, n. Kennedy, 456 U.S. at 217. reliеf.”). provide him Bauder, 2083; S.W.2d also 102 S.Ct. see J., (McCormick, dissenting). P at 704 Dinitz, Jom, in and preme Court cases granted the defendant’s motion.”219 On remand, Appeals Kennedy, the San Antonio Court of from this Court’s earlier and Bauder, concluded that this sentence created the held in Bau- decision in (1) two-prong of a test: wheth- prong first III that the issue was whether the der granted, er the motion needed to be motion for mistrial was “made defendant’s (2) prosecutor’s whether the conduct was ordinary in reversible error” response to intentional or reckless.220 The court of “required prosecu- ... because the or was appeals further concluded that this first deliberately recklessly crossed ‘the tor prong concerned “whether the trial court legitimate games- adversarial line between would have abused its discretion if it had manship manifestly improper methods’ in motion for mistrial” which denied [the] jury ... the trial that rendered before determining turn required “whether judicial that no degree unfair to such supports reasonable view of the record could have cured it.”225 admonishment granting discussing mistrial.”221 After Consequently, this Court reversed the the trial incident that led to the II appeals’s court of decision Bauder police description witness’s defen- and remanded for reconsideration.226 engaging response dant a sex act to a concurred, expressing “fear Judge Baird prosecutor’s question about what the offi- majority opinion potentially blurs location, at a certain the ap- cer observed mistrials the critical distinction between pellate court held that trial court did ‘ordinary’ granted response revers- grant not have to the motion for mistrial granted ible error and those because any harm flowing because from the testi- ” 227 Judge ‘prosecutorial overreaching.’ mony by could have been cured an instruc- dissented, arguing that the stan- Keller disregard.222 appeals tion to The court of in Bauder dard articulated this Court express did some concern that this Court’s materially III to differ from appear did not holding required ignore the trial ap- applied the standard the court of findings.223 court’s I/.228 peals Bauder review, petitioned The defendant remand, ap- the court of On the second Ap- this Court decided that the Court of acknowledged pro- Bauder III and peals peals applied wrong “The standard: to address the double ceeded question is not the of the rul- correctness time, question for a third time.229 This ing granting the mistrial. question the court discussed evidence that Jeopardy under Double Clause surprised by the witness’s truly whether the defendant consented to question.230 Consequently, Quoting response the mistrial.” from the Su- to his Bauder, 219. 921 S.W.2d at 699. 226. Id. (Tex.

220. Bauder v. 936 S.W.2d J., (Baird, concurring). Id. at 732 1996)(Bauder II). App.-San Antonio J., (Keller, dissenting). Id. at 733-735 Id. at 21-22. at 22. Bauder, (Tex.App.- parte 2 S.W.3d 376 229. Ex 1999)(Bauder IV). San Antonio Id. at 21 n. 3. Bauder, parte 224. Ex 974 S.W.2d 731-732 230. Id. at 378. (T III). ex.Crim.App.1998)(Bauder 225.Id. at 732. (1) two-step the prosecutor process:

the concluded that whether mistrial court the (2) granted,” had aware of a risk that an was and “properly not been whether responsible necessary he was would by event for which the mistrial was “made the “deliberately had not cause a mistrial and conduct of pros deliberate or reckless the recklessly crossed the line le- expressed between Lee court ecutor.” The con gitimate gamesmanship adversarial and prong cern “many about the first because In a manifestly improper times, methods.”231 for an because of concern accused’s footnote, intermediate court appellate the trial, right judge to fair a trial will err on its belief that the reiterated mistrial grant the side and of caution mistrial. unnecessary an to dis- because instruction Many considerations factor into this deci error, regard cured the and it would have many them cannot sion be ade expressed at what perplexity it saw to be quately reflected in the record.”238 on conflicting statements the matter The court appellate pro- nevertheless III.232 Affirming this in Bauder holding ceeded to prong, the first that it relief, the trial court’s denial of habeas would be met if it were shown that error finally the appeals court of succeeded was committed and the error could not be ending appellate Bauder’s orbit.233 cured to disregard.239 instruction decided, III was the Dal Before Bauder Finding prosecutor’s statement to be a Appeals las handed a deci Court of down right comment to counsel in viola- on the case, In that sion in v. Lee.234 tried State tion of caselaw and Article 38.38 of the was granted October a mistrial after and finding Code of Procedure Criminal opening said statement have shaped comment “could well a police defendant had told detec jury’s entire view” defendant tive that he did not want to talk to him and case, and the court concluded appellate should contact the de the detective error had occurred.240 incurable With lawyer.235 When the State fendant’s regard prong, the second court case, sought retry the defendant trial appeals concluded that the court was action, filed a and in December habeas its within discretion to believe that But, judge the trial denied relief. although experienced not in- prosecutor, subsequently a motion defendant filed tending to cause a reckless Bauder, light and the reconsider regard her to whether comment relief, granted thereafter dis judge at the require a mistrial defendant’s would missing prosecution.236 Relying upon request.241 II, appeals the court of held that Bauder review, jeopardy analysis petitioned entailed a State omitted). (internal quotation 236. Id. 231. marks at 554. Id. ("But presume

232. n. 1 we from Id. at 378 Id. at 555. of our second that nei- reversal necessity of the the effi- ther the mistrial nor Id. at 555 n. 5. disposi- cacy judicial admonishment ” tive. But see statements in Bauder Id. at 556. III.). Bauder 233. See id. at 378. 1997). (Tex.App.-Dallas

234. 971 S.W.2d 553 Id. at 557.

235. Mat 555. (Lee J/).242 conduct First, of “intentional” this The first definition Court reversed standard of the “intent” not a definition is prosecutor’s the Court determined nor does the Kennedy, Oregon found in properly characterized as statement was fall the “reckless- clearly within definition rather right the comment on to silence Rather, found Bander. ness” standard Second, the right than the to counsel.243 from to be appears definition the so-called appropriateness Court determined a life of in Bander took on language pre- type of the of comment at issue—on three The Court also offered its own. arrеst, ques- pre-Miranda silence—was of the standard: definitions “reckless” impression tion and was of first in Texas (1) con- prosecutor was aware but Finally, system.244 in the federal unsettled disregarded risk that an sciously that, concluded in view he objectionable event for which law, prosecutor’s actions “state of the a mistrial at require would responsible reck- could not have been intentional or request, defendant’s less.” (2) reasonably his is he aware conduct conclusion, explaining the Court to result in a or ... certain only offered what can be described as (3) is aware that his conduct creates he troubling array of definitions of “intention- reasonably that a cer- a risk mistrial is According al” “reckless” conduct. occur, disregards consciously tain to but opinion, prosecutor engages in “in- that risk.247 conduct when: tentional” all three Although of these formulations (1) believing he cannot obtain a Bander, language from were derived under the conviction circumstances only comport the first seems to with the confronted, given which he is standard, but, original original as with disposal, admissible evidence at his then formulation, risk require it does not deliberately objectionable offers evi- and, therefore, is not the be “substantial” materially he dence which believes will traditionally un- definition of “reckless” as his chances a con- improve obtaining in Texas. The definition derstood second viction, preju- and the law considers the standard, “knowledge” appears to be objectionable dicial effect of such evi- “recklessness,” than one of while rather dence to be a firm incurable even hybrid appears the third be some sort of judicial jury admonishment to the culpable the two mental states. between or ... II, After this Court’s Lee decision (2) objectionable Appeals conduct of the anoth Dallas Court of confronted prosecutor was intended to induce a mo- claim Peterson.248 parte er Bander Ex case, testi tion for mistrial.246 In that elicited Lee, inserted, (Tex.Crim. (quoting )(numbering Bauder State S.W.3d 921 247. Id. omitted, omitted). App.2000). ellipses brackets some Id. at 923-924. 05-01-01093, 01286-CR, 2001 WL 248. Nos. (Tex. Tex.App. LEXIS Id. at 924. 20, 2001)(not desig- App.-Dallas, December Id. at 925. publication). nated for Bander, (quoting S.W.2d at 699)(numbering inserted ease of refer- omitted). ence, ellipsis (2) mony required the trial court believed was Was the mistrial because discovery produced from that prejudice barred as result of violat miscon- Although prosecutor ion.249 contend duct could not be cured an instruc- disregard? ed at trial that she believed the matter was tion to report in an defen contained offense (3) prosecutor engage Did the in that received, timely trial dant had court goad conduct with the intent to the de- granted the defendant’s motion for mistrial (Ken- requesting a mistrial fendant into give prosecutor] opportu “to another standard) [the nedy or with conscious disre- nity give discovery to to the defendant.”250 gard that the trial for a substantial risk However, pre the defendant later filed a required court would be to declare a application, alleging trial habeas standard)?258 (Bauder mistrial jeopardy, granted.251 which the trial court gave list of We also nonexclusive factors affirmed, Appeаls evaluating

The Dallas Court of cases under the consider (1) concluding prosecutor had “delib- third of the test: whether the prong (2) erately recklessly State,” or the line be- badly cross[ed] for the “going legitimate tween adversarial conduct and repeated whether the misconduct was de- manifestly (3) improper methods” and that court, spite admonitions from the trial judge the trial could have concluded prosecutor provided a reason- whether the error was incurable.252 In its discus- able, “good explanation faith” for the con- sion, appeals the court of relied upon (4) duct, “clearly whether the conduct was array il.253 of definitions recited Lee (5) erroneous,” legally whether there was explained The court that “the conduct, factually plausible or basis for the ‘severely tapes damaging’ knew the were (6) prosecutor’ actions whether and that admission of [the defendant] leading up to the mistrial were consistent tapes substantially ‘would have in- inadvertence, lack judgment, securing a creased the State’s chances of instead, negligence, or were consistent ”254 conviction.’ with intentional or reckless misconduct.259 vacated that decision in Peterson We II The Court’s in Peterson obvi- Acknowledging I/.255 the Bauder ously great lengths clarify went to always proven easy standard “has not to messy flowing from jurisprudence Bauder. apply,” proceeded “clarify we brought It the standard closer to true standards” under which the Texas double by explicitly requiring recklessness jeopardy protection could invoked.257 “substantial,” jetti- implicitly the “risk” be three-pronged set forth a test: We confusing soned various other formulations (1)Did manifestly prosecuto- of the “intent” and “recklessness” stan- improper II, provoke mistrial? dards articulated in Lee clarified that rial misconduct **1-2, Peterson, 255. 117 S.W.3d at 820. 249. Id. at at 1-4. Id., *2,

250. at at 4-5. 256. Id. at 815. Id., *3,

251. at at 6. at 257. 807. Id., *5, at at 13. added). (emphasis Id. at 817 Id., *4, at 10-11. *5, omitted, Id., (some at 12 brackets Id. at 818-819. inserted). others Kennedy, v. “with Oregon have in- than found in must been question error in California, curable, lack sought possible to establish a clear exception and by formulating three-pronged optimal framework achieve an requisite clarity rele- approach suggesting number of defendant’s double balance between the regard vant consider with to the factors to society’s rights and interest jeopardy 265 “the prong, third which it considered to be enforcing And the Su- criminal laws.” 260 But problematic.” most the Court’s California, while contend- preme Court of that the Bauder candid admission test Kennedy that the standard ing Oregon v. subjective” “no less than the intent test protect did not interests completely Oregon Kennedy articulated in led underlying jeopardy double California’s say that the hold- Judge Hervey to Bauder provision, found the recklessness/willful- into ing made-up has transformed “been standards, such as the ness/indifference rule in search of rationale constitutional Texas, “less one to be than articulated despite to justify its existence.”261 And satisfactory, none articulates the because clarifications, Judge Keasler attempted for a basis conclu- precise jeopardy double still maintained that the Bauder rule is underlying a sion that the defen- principles “ill-сonceived, unsound, historically and im- interest have jeopardy dant’s double been 262 precise.” Judge Hervey also concluded 266 Consequently, violated.” California that the attempted clarification was ulti- Supreme that “as applied Court concluded mately of pursuing quix- futile: “Instead settings, each im- to different factual test clarify otic attempt jurisprudence, properly may mandate double re- 263 reexamine it.” Court should De- (that trial) is, barring any lief for instances factors, spite prongs and Judge the new prosecutorial ap- misconduct more said, Hervey the Bauder standard “will propriately should be remedied reversal continue apply to be difficult to and will do and retrial.”267 (if frustrate) actually little to not promote double protected interests that these are One indication criticisms principles.”264 cases target pend- on is that we have more ing before remand from Peterson us. On jurisdictions Courts from other have II, Appeals analyzed Dallas Court mounted criticisms of similar the Bauder II the case under the Pederson framework standard. The Court of Con- that habeas relief should be juris- necticut concluded complained tests in denied, again dictions a standard and that case has come recognizing broader Conn, ¿d. against jeopardy. 274 260. See hibition double at 817. court at 875 A.2d at 528. The neverthe- J., proceeded analyze whether a (Hervey, dissenting). less standard 261. at 829 protective more than that articulated in Ore- recognized (Keasler, J., gon Kennedy should be in the dissenting)(brack- Id. at 820 Lee, protection double found be im- omittedXquoting ets State v. at S.W.3d process 927)(Keasler, J., plied in the constitution’s due state dissenting). Conn, 349-360, provision. at A.2d 528-535. (Hervey, dissenting). Id. at J. 691-692, Batts, 134 Cal. 30 Cal.4th Id. at 830. (emphasis origi- Rptr.2d 68 P.3d at nal). I., State v. Michael Conn. 875 A.2d The Connecticut original). express pro- (emphasis contain an 267. Id. constitution does not us.268 However, before three other Ban- points the standard problem to a with the cases, one, der including present standard itself. were pending during year. before us the past problem One seems to the Court parte case, Ex present Wheeler and the really has never been able to describe relief, the trial courts denied the courts of adequately what it believes jeopar- appeals relief, reversed granted we dy protect should that is not already pro- vacated the courts of appeals’ decisions in tected Oregon under v. Kennedy. The II, light of Peterson and the courts of recklessness standard Bander appears appeals position maintained their to only re- have been an approximation, and cases, in subsequent lief should be In State v. the Court has added Ma- granted.269 sonheimer, (e.g. conditions improper conduct from relief, the trial granted court objective standpoint, harm flowing from reversed, but the court of appeals holding cure) conduct not amenable to that it has that relief grant- should be We denied.270 closer, believed approximation made the petitions ed discretionary for in all review but it quite gets never to the unarticulated Recently, three cases. opin- we issued an (and unarticulable) ideal that the Court Wheeler, ion in conсluding that the court of seems to have striving been for. To be appeals had erred in granting relief be- sure, we have suggested that these other cause the evidence supported the habeas conditions Kennedy also attach to the stan- finding court’s did dard, but the United Supreme States not possess culpable mental state re- Court has not said may It be that so.273 quired for a double jeopardy violation.271 attach, these conditions do indeed but it If we discussing were a necessary say they standard that has never been because, do “acquire[d] prosecutor actually content when the only through applica- tion,” provoke intends to a the other such as suspicion” “reasonable conditions certainly present. will almost be conduct or even a standard that stop,272 But when the standard varies from the expected cases, is to be many utilized in Kennedy “intent provoke mistrial” we surprised would not be high test, other conditions expressly must be court of a upon state would be called nu- “guard against added to an unwarranted merous times to clarify expound imposition of the double meaning standard’s and reach. But the bar.”274 type of standard at issue one is that should problem The is that the refinement nev- very rarely implicated, so frequency er seems to end. If we continue down the with which upon we are called path, to construe Bander must accept we either Peterson, 05-01-01093-CR, States, 690, parte 268. Ex No. 272. Ornelas v. United 517 U.S. 2004 WL Tex.App. LEXIS 1396 116 S.Ct. 134 L.Ed.2d 911 12, 2004)(not (Tex.App.-Dallas, February des- ignated publication). Batts, for 273. See Cal.4th 134 Cal. Rptr.2d ("Kennedy P.3d at ... Wheeler, parte See Ex 146 S.W.3d 238 objective component attached no similar to its Lewis, 2004); (Tex.App.-Fort standard”). Worth S.W.3d 376. (A showing objec- 274. See id. that "from an Masonheimer, 270. State v. 154 S.W.3d perspective, prosecutor’s tive conduct in 2005). (Tex.App.-Eastland deprived fact the defendant of reasonable or prospect acquittal” required realistic as Wheeler, (Tex. parte part expansive 271. Ex 203 S.W.3d 317 of the more state constitutional "windfall”). Crim.App.2006). guard against standard Bauder and point that defendants who are conflict between some some Davis/Mitch- practical its jeopardy acquittal only for not entitled to a double ell is relevant not one consequences legal will nevertheless obtain under conflict but also standard, continually must Bauder or we By be resolved. precedents that must reach for refine the standard to that elu- contrast, Kennedy standard worka- overturning sive unarticulated ev- ble, narrow, and appropriately comports ideal— ery grant along under Bauder of relief the double purpose with the way on the rare except occasion when to the mistrial provision’s application set- supported Oregon relief would also be ting. we overrule Consequently, Bauder Kennedy. simple explanation (Bauder III, II, Lee progeny and its Peter- never-ending path “sepa- toward this II). son As a matter of state constitution- ideal rate” state constitutional is that law, we articulated adopt al the standard exist, does the real because ideal is Court in United States Oregon Kennedy standard. v. determining Oregon Kennedy for when grant relief after a Evaluation

D. defense-requested and we reaf- opinion Bauder was The flawed and firm the in Davis Mitchell. holdings respects. a It was number of not based judgment Appeals The of of is upon understanding an historical of double reversed, is and the case remanded for to the available framers of the analysis of claim under appellant’s Constitution, Texas and the standard Oregon standard articulated Kenne- accurately formulated does not reflect dy. purposes jeopardy protec of the double justifications tion. opinion’s for the COCHRAN, J., concurring filed a faulty, new and standard were the stan opinion. dard, articulated, as Prac confusing. tical applying difficulties in the standard PRICE, J., dissenting opinion filed have followed. Trial courts and courts HOLCOMB, MEYERS, JJ., which and appeals difficulty correctly have had inter joined. preting the Bauder applying and standard JOHNSON, J., dissented. situations, various fact this Court Further, clarify has it. struggled J., COCHRAN, concurring. Bauder standard conflicts logically with I appellate join majority opinion. this I Court’s treatment rever write Mitchell, partly separately sals additional for Davis to set out reasons result, And, undoubtedly overruling carries the un as the risk of Bauder1 author of Wheeler;21 duly fall discouraging parte courts from declar in Ex also And, ing my upon mistrials when warranted. sword. (Tex.Crim. "split (Tex.Crim.App.2003), were 1. Bauder v. 921 S.W.2d 696 the dif- App.1996). attempted to ference” which steer a decisions middle between the "harsh" but clear course (Tex.Crim.App.2006).

2. 203 Ex S.W.3d "kinder, Kennedy gentler” and the but rule parte was this Court’s recent Wheeler most ambiguous Unfortunately, cre- Bauder rule. and, Bauder, attempt reclarify having writ- ating a constitutional "workable” state rule is it, newly- ten to disavow that I am reluctant acceptable jurisprudentially not a substitute quickly. But precedent minted so as the dis- culpa. principled for a Mea rule. noted, already cerning will have reader both Peterson, parte Wheeler and Ex 117 S.W.3d Swanda Lewis charged join with mur- der. I overruling the Court in Bau- trial, der. dering her During husband. her, asked on separate three First, however, I agree majori with the occasions, whether she had told the 911 ty that the Texas constitutional double- operator, officer, the crime scene or the jeopardy provision does bar retrial when a detective given post- to whom she had mistrial is neither a necessity manifest nor statement, arrest anything about her trial- requested by consented to or the defen testimony time that her husband had dant. Although the State and several

raped her immediately before she killed argued members this Court have him. Each time objected, the defense double-jeopardy provision of the Texas stating that questions improperly these provides Constitution protection no this commented on post-arrest her silence.3 context,5 the Presiding Judge’s historical After the third such question, the trial inquiry precisely type analysis granted court defense-requested mistri- necessary to independent determine the al. Ms. Lewis then an application filed content of the Texas Constitution. And I corpus, arguing writ of habeas agree retri- Although her conclusion: explicitly al was Texas Constitution does not barred the Texas ad constitutional the double-jeopardy consequences dress double jeopаrdy provision under have, Texas courts for well over Court’ parte decision Ex Bauder. The (and held) years, assumed that retrial relief, trial court denied but the court of is barred after has attached if the appeals held that the trial court abused its jury discharged without a manifest ne discretion in failing prose- to find that the cessity unless the defendant consents.6 questions cutor’ manifestly improper were and disregard were asked “with conscious problem The with Bauder is that it un- for a substantial risk that the trial court analysis dertook no historical of the Texas required would be to declare a mistrial.”4 Constitution. It did not look to the fram- The court of appeals held that the State intent, social, uniquely political, ers’ Texan was prohibited retrying from Ms. Lewis. legal, jurisprudential developments and alia, granted decide, We review to inter throughout the late nineteenth and twenti- centuries, whether to reconsider our any decision Bau- eth or other in con- factors questioning long The issue of whether this line of open, endorsement of a tradition of improper directly is not before us. widespread, unchallenged use that beginning Republic, dates back to the Lewis, (Tex. parte 4. Ex 165 S.W.3d proper striking we have no basis for it 2005). App.-Fort Worth accepted down. Such a venerable and tra- Bauder, 10-14, 25-32; 5. State's Brief at examining dition is not to be laid on the P.J., (McCormick, S.W.2d at 706 n. 5 dissent- conformity table and scrutinized for its to Lee, ing); State v. 15 S.W.3d 928-29 principle some abstract of First Amendment (Keasler, J., (Tex.Crim.App.2000) dissenting); adjudication by devised this Court. To the Peterson, J., (Hervey, 117 S.W.3d at 826-27 contrary, such traditions are themselves dissenting). principles stuff out of which the Court’s are are, They to be formed. in these uncertain 346-51; supra, Op. 6. See see also Rutan v. areas, very points of reference which Ill., Republican Party 497 U.S. legitimacy illegitimacy prac- or of other (1990), S.Ct. 111 L.Ed.2d 52 in which figured tices is to be out. dissenting Justice Scalia stated that 95-96, J., (Scalia, Id. at practice 110 S.Ct. 2729 dis- expressly prohibited by when a not Rights senting). the text of the Bill of bears the subjecting from government strain the double-jeopardy eluding that the Texas mental, of crimes to the persons than accused provides a thicker shield provision emotional, of re- hardship and financial provision.7 federal corresponding the same offense.10 peated trials for Bauder, majority of this Court In bare Supreme ignored same, why the United States then If the is the purpose lengthy analysis of the Court’s historical our meaning application would the double-jeopardy provision in its Or- federal unique provision special differ? What Kennedy8 decision. The Bauder egon even in its history in Texas or factors exist inaccuracies in majority any did not find milieu that would legal current social and the com- Supreme Court’s recitation of rule un- call for a different constitutional the An- development mon-law historical patterns fact der the same conditions and double-jeopardy protection. glo-American Supreme Court? as those set out point any It Texas deviations did Bauder, nothing pointed this Court hoary lineage.9 Quite the con- from that Instead, an- uniquely Texan. this Court’s trary, expressly stated: Supreme decision swer to the Court’s Clause, court Kennedy highest like think the Jeopardy

The Texas Double was: We wrong.11 It not that the counterpart, is meant to re- the land is its federal plausi- context has at least some 7. See Cobb v. 85 S.W.3d 266-68 the mistrial it; (Tex.Crim.App.2002) (rejecting any the defendant’ I am unaware of ble historical basis argument adopt a that Texas courts should concluding basis for that it is historical expression Court dissent as the greater. Constitution). the content of the Texas As we Cobb, stated in Bauder, S.W.2d at 698. Appellant points nothing unique in Texas law, history, jurisprudence which would stated, majority Bauder inter alia: for, require, suggest or even a basis Texas Court, "But, Supreme unlike the we do not Supreme prec- courts to deviate from Court specific prosecutor’s intent is a rele- think the Although edent on this issue. the Texas inquiry.” aspect 921 S.W.2d at vant of reject Constitution is an "available” tool to prosecutor’ to us that the "[I]t seems Supreme we Court decisions with which specific Id. “In our intent ... is irrelevant.” might disagree, impose we are not free to choice, view, putting even a defendant to this fairness, our notions of nor those dissent- of recklessly, constitutionally indistinguishable is ing Supreme justices, upon Court Texas cit- deliberately forcing from him to choose izens as a matter of state constitutional law perceive Id. do not a distinc- “[W]e mistrial.” support history or without firm state significance between tion of constitutional policy. This Court’s constitutional mandate attorney prosecuting in which he uphold faithfully conduct of a interpret is to the laws state, of a of this and not to create new constitu- to cause a mistrial and conduct intends jurispruden- attorney tional doctrines without solid prosecuting which he is aware is say, tial foundation. That is not reasonably to result in a mistrial." certain course, that we cannot or will not construe short, that Id. “In we do not believe providing rights our state constitution as right purpose the constitutional here in pro- which the federal constitution does not really anything prose- issue has to do with vide, only but rather that we should do so it, specific intent.” Id. “As we see cutor’ history, juris- unique aspects Texas when in a double stan- there is no wisdom prudence, support separate that in- or law which is at once difficult to dard of decision terpretation. pro- apply promote interests and does little 267-68. Jeopardy Clause.” Id. tected the Double words, added). (all we 667, 2083, emphasis In other 72 L.Ed.2d 8. 456 U.S. 102 S.Ct. (1982). majority of the United States Su- believe a wrong, preme justices got so we will Court argument that the Texas constitutional 9. The them. not follow double-jeopardy provision is a lesser shield Bauder court propose concluded that the Texas ture a constitutional amendment double-jeopardy provisions and federal approval for the citizens’ at a statewide purposes enjoyed embodied different election to erase that line upon new which separate lineage, simply historical it was they were never consulted. disagreed that this specific Court with the One member Supreme U.S. bright-line Supreme Court drew. Court, Jackson, said, famously Justice “We So it drew its own double-jeopardy fine in infallible, final are not because we are but the sand and called it the Texas constitu- only are fi- we infallible because we are tional fine. 12 Perhaps recog- nal.” because Court Indeed, this Court does have the author- nizes that its on word constitutional issues ity to draw such It constitutional lines. America, final appropri- is the one it is power not the to draw new constitutional ately deferential to the other branches of issue, “oughtness”

lines that is at it is the government, recognizing that sit as “[w]e Alamo, of such an endeavor. At the Colo- judges, legislators[.]”13 not as The Su- sand, nel Travis drew a line in the and his may, times, preme intentionally step men had a over it or stand choice — draw its constitutional parsimoniously lines pat. When this Court draws new lines in to leave the citizens of the various states sand, the constitutional the citizens of Tex- free to make their own choices on whether they as have no must it. step over choice — only legisla- Their recourse is to have the to draw a different line.14 Bran- Justice Allen, 540, however, authority, 12. Brown v. 344 U.S. 73 S.Ct. This Court's extends (1953) J., (Jackson, only 97 L.Ed. 469 concur- determining City’s pro- whether ring). posed “public condemnations are for use” meaning within the of the Fifth Amendment Ramos, 992, 1014, 463 U.S. California to the Federal over Constitution. Because 103 S.Ct. 77 L.Ed.2d 1171 century interpreting of our case law provision dictates an answer to affirmative decision, example, 14. For in one recent Kelo petitioners question, may grant we not London, City New 545 U.S. 125 S.Ct. of 162 L.Ed.2d 439 they the relief that seek. (2005), (footnotes omitted). Although Id. at 2668 Court concluded that the federal constitution teeth, gnashed some citizens wailed and their prohibit City did of New London from decrying "wrongness” Court’s deci- exercising private prop- eminent domain over sion, others took heed of the itself new, erty “public privately for the use” of a right and rushed out to debate and draft local development project. owned waterfront legislation. According to the Wall Street Court, perhaps anticipating at 2666-68. The Journal, placed property- eleven states new criticism, noted, impending the of tsunami rights initiatives on their November emphasize nothing We that in our WST.com, Wave, ballots. The Anti-Kelo Sat- precludes any placing State from further 4, 2006, urday, http:ll November available at takings restrictions on its exercise of the www.opinionjoumal.com/weekend/hottopic/? Indeed, many power. already States im- 01/09/2007) (list- (last visited id=l1000.9196 pose "public requirements use” that are Arizona, Florida, California, ing Georgia, Ida- federal stricter than the baseline. Some of ho, Nevada, Michigan, Hampshire, New requirements have been these established as Dakota, Carolina). Oregon, North South and law, of state constitutional while matter noted, "Some 28 The Wall Street Journal also expressed others are in state eminent do- already passed have statutes that limit states carefully main statutes limit the ‘takings’ powers, Tuesday’ and five of 11 bal- grounds upon takings may which be exer- legisla- by lot measures were crafted state parties cised. As the submissions of the clear, good example that tures.” Id. Kelo is a necessity and their amici make the disapprove specific using when the citizens of and wisdom of eminent domain to Supreme holding grants or promote development Court economic are cer- fewer rights legitimate public lesser constitutional than the citizens tainly matters of debate. Kennedy adopted It the rule deis, itself.16 noting Supreme the Court sets bar a second would rights floor on constitutional and obli- the “[o]nly govern- where the after a mistrial gations, urged experimentation local with to intended question mental economic reforms: “It is one of conduct social and moving into system ‘goad’ of the federal the defendant happy the incidents pro- its may, prior mistrial” because its single courageous precisely that a if choose, (and laboratory; sought by the rule Jus- citizens as a and nouncements serve concurring opinion) in his experiments social and tice Stevens try novel economic and thus country.”15 essentially the “standardless” without risk to rest of were to the upon practical guidance Brandeis’s the would little emphasis Justice offer choose, citizens lower courts.17 right of power of state to choose for them. judges Indeed, precisely that has been Kennedy, Bauder. It the ra- recog- problem followed Supreme Court with concurring opin- lacked tionale of Stevens’ prior precedent “crys- nized that its Justice Kennedy majority criticized and read to ion which clarity” grant tal could be precisely and has protection “amorphous,” broader in the mistrial context as led to “bright-line” and re- adopted type judicial than did the rule it clarifications perceive appropriate, they certainly ways. deem know what cuts both If state’s citizens pass protec- expanded do about it: a new a law or constitu- need for constitutional "wrong” beyond tional amendment. No matter how tion that found in the federal constitu- tion, “arbitrary” may judges personally they state their con- or citizens—can amend —the Supreme particu- protections. provide believe the to be on a those That is Court stitution to issue, they, lar like of the Kelo. As Justice John the rest nation’s lesson of Chief citizens, ago: generally years should follow Marshall stated more than 150 states, pronouncements people Had or on constitutional is- several them, required changes their in their provi- sues unless state constitutional constitutions; independent they required sions have historical had additional basis citizens, through legislation safeguards liberty apprehended their own or the from particular govern- their constitutional amendment encroachments of evince process, hand, remedy competing rights balance different and ments: the in their own in- by applied been them- terests. would have that, as- selves. A convention could have been suggested Some commentators have state, by and the sembled the discontented because of the relative ease which state citizens, required improvements would have been constitutions can be amended its made itself. judges judi- state should feel free exercise Baltimore, (7 Pet.) Mayor Barron v. 32 U.S. they expand cial activism state should course, even Howard, L.Ed. 672 Of rights. constitutional See A.E. Dick easier, legislatures ask citizens can their state Rights State Courts Constitutional in the protective appropriately to enact statutes Court, Burger Day 62 Va. L.Rev. the need arises. (1976) (pointing judges out that some amending believe that “the ease of state con- Liebmann, New Co. v. 285 U.S. 15. State Ice justification for an activist [is] stitutions 371, 262, 311, (1932) S.Ct. 76 L.Ed. 747 52 Utter, Diversity position”); Freedom and in a J., added). (Brandeis, dissenting) (emphasis System: Perspectives Federal on State Consti- Washington tutions and the Declaration of 673-74, 667, Kennedy, Oregon 456 16. v. U.S. Rights, Developments in State Constitutional 677-78, 2083, 416 S.Ct. 72 L.Ed.2d 102 (B. Williamsburg 242 Law: The Conference (1982). ed.1985) (noting McGraw that “the relative amending ease of state constitutions reduces 5,n. 17. Id. at 675 & S.Ct. politically unaccepta- of the risk erroneous or lawmaking by judges ble constitutional state however, 7, occurs”). argument, S.Ct. 18. Id. at 677 n. once it This “ Supreme pre- clarifications that the ‘correction through legislative Court action is ” clear, practically impossible’ dicted would occur without a simple in those cases.23 “black letter Kennedy Payne, Supreme law.”19 The rule Court overruled may relatively Platonically perfect, precedent judi- not be but it its recent which does clarity cially prohibition have the virtues of and sim- created a constitutional plicity. provides certainty against admissibility It notice and impact of victim the bench and bar on how to evidence in a apply capital sentencing hearing.24 rule. It similarly-situated original ensures that It noted that its holdings Booth Maryland25 defendants will be treated the It v. same. and South Carolina v. Gath- judicial constrains It discretion. avoids ers complicated idiosyncratic judicial tests and were decided the narrowest of mar- balancing factors. gins, spirited challenging over dissents underpinnings the basic deci- those

Because Texas courts have dealt with They questioned by sions. have been years Bauder for ten and this Court has Supreme Members Court later times,20 clarified and it reclarified several decisions and have ap- defied consistent might against jetti- stare decisis counsel plication by the lower courts.27 said, soning it It now. is in defense of decisis, Bander, stare ‍​‌‌‌‌​​‌​‌​​‌​​​​‌‌​​‌​​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌​‌‌‌‍that sometimes “it is better appro- The same is true of and we right.”21 to be consistent than But Ban- priately precisely overrule Bauder for der is neither consistent right. nor Stare Supreme same reasons that decisis most frequently does and should overruled Booth and Gathers. law,” apply to “black type letter comments, join these I With Court’s has, virtues,

holding among its main opinion. familiarity, application, historical ease of PRICE, J., reliance,

long-standing dissenting which predictability, and HOLCOMB, JJ., precision. joined. MEYERS I, As the in Payne agree Court stated I that Article 14 of the Section Tennessee, been, “Stare decisis is not inex- Texas Constitution has and should command,” be, orable “it principle apply rather is continue to read to the mistri- policy.”22 policy applicable setting. That al I agree least therefore with Parts I adjudication, through opinion. constitutional because III of the Court’s I dis- 827, 808, Payne 19. Id. 501 U.S. Tennessee 2597, (1991) (citations S.Ct. 115 L.Ed.2d 720 omitted). Majority Opinion 20. See at 364-69. Payne, 501 U.S. S.Ct. 2597 (Tex. 21. Malik v. 953 S.W.2d (internal omitted). quotations Crim.App.1997). Rehnquist Chief Justice ex- plained: preferred Stare decisis is the because course evenhanded, promotes predictable, Id. at 111 S.Ct. 2597. development legal princi- and consistent decisions, ples, judicial reliance fosters on 25. 482 U.S. 107 S.Ct. 96 L.Ed.2d perceived and contributes to the actual and integrity judicial process. Adhering 805, 2207, policy, precedent usually to the “is wise 26. 490 U.S. 109 S.Ct. 104 L.Ed.2d (1989). impor- because most matters is more 876 applicable tant that the rule of law be set- 828-29, Payne, right.” tled than it 27. 501 U.S. at 111 S.Ct. 2597. be settled

377 tribunal”5 than by particular however, justifica- completed agree, of apply to Fifth ignoring interpreted tions stare decisis for I overruling v. State.1 support Oregon Bander v. Kenned to afford Amendment IV, to to the dissent Part therefore Now, years ten after little more than y6 of I would majority’s disposition this case. Bauder, our con majority declares reject that Bauder the State’s contentions I, repre 14 to Article Section struction of overruled, ought to its proceed to be “ideal,” and declares that an elusive sent review, majori- ground third for which the Supreme Court’ ideal” is the the “real dismisses, to whether ty determine instead not Kennedy,7 I do believe standard Bau- appeals properly applied the court of in favor of majority1 arguments belated Be- der the facts of instant case. sufficiently compel “ideal” are the federal not, ultimately majority cause does I stare decisis.8 ling justify disregarding dissent. majority develops in Part III of

theAs predecessor, this Court’s opinion, its I. FEDERALISM Appeals, long ago held that Texas Court beyond It has now been established as embodied in concept jeopardy, in construing provi serious debate that I, 14 of now Article Section what is sions own constitution “we must of our Constitution, enough to is broad Texas ultimately our own We lights.”2 follow right proceed a defendant’s protect may provi our own construe constitutional verdict, final once has been im- jury sions their protectively either more than long and sworn.9 It did so before paneled as we counterparts, federal constitutional first Supreme Court ex- the United States Bauder, protectively, did in or less as we 1949, recognized, in criminal pressly did in v. State.3 In Bauder we Hulit right” has a under the defendant “valued I, Article 14 Tex construed Section his trial com- a Fifth Amendment “to have as Constitution4 to be more solicitous right particular trial tribunal.”10 But pleted by defendant’ “valued to have his 1. (Tex.Crim.App.1996). Op. 921 S.W.2d 696 at 371. State, 756, (Tex. is precedent Olson v. 484 S.W.2d 762 than "ideal” no 8. That less State, it, Crim.App.1969). overruling construing See also Heitman v. even when basis law, (Tex.Crim.App.1991); 815 681 Bauder S.W.2d stare de- in which context constitutional State, J., (Clinton, supra, v. at 700-01 concur weight. carries the least Dickerson v. cisis ring). States, 428, 443, 530 120 S.Ct. United U.S. (2000). 147 L.Ed.2d 405 (Tex.Crim.App.1998). 3. 982 S.W.2d 431 (1884). Ct.App. 345 17 Tex. 9. Powell Const, I, (“No § person, for the art. Tex. offense, put be Hunter, same shall twice supra. See also Crist v. 10. Wade again put liberty, person life nor shall a Bretz, 28, 31, U.S. 98 S.Ct. offense, upon the same after a verdict trial for (1978) ("The holding reason for L.Ed.2d jurisdic- guilty competent in a court of jury is jeopardy attaches when the em- tion.”). protect paneled the need to and sworn lies in retaining a cho- interest of accused in Hunter, 684, 689, id., (Pow- 45-47, 69 S.Ct. Wade v. U.S. jury.”); 98 S.Ct. sen (1949). ell, J., ("defendant’s L.Ed. 974 right dissenting) valued particular completed by a to have his developed first as constitutional 72 L.Ed.2d tribunal” 456 U.S. 102 S.Ct. during century, 19th state courts doctrine

once the Fifth Amendment’ jeopar- Washington,16 double and Arizona v. which dy protection to applicable was found to backdrop formed the doctrinal Oregon for incorporation through states Kennedy, v. all during were decided this Amendment, 1969,11 Fourteenth interim. It was a gloss new on double Court, many like state courts across the jeopardy question law. The in Kennedy country, Supreme allowed the to go gloss was how far to with that new take in developing jeopar- the lead Amendment, under the Fifth consistent Thus, dy 1980s, doctrine. in the 1970s and principles jeopardy. of double until along, Bander came we were content squarely presented And to this Court for precedent, follow the dictates of federal the first time in Bander was whether to including Oregon Kennedy, v. aas matter I, adopt gloss at all under Article law, of federal without address- 14, and, so, if Section how far to take it ing independent question of whether consistently understanding with our own ought we analogous construe our state the proper scope jeopardy pro of double provision any constitutional differently.12 tections. That is all the majority has done Federal law had become the today. simply disagrees majori It with the template for required decision. Bander us ty that decided Bander. whether, in applying decide our own provision a case of first im- II. PROSECUTORIAL MISCONDUCT pression, we would conform to the federal right The criminal defendant’s to have template or lights.” “follow our own completed by original- his trial the tribunal majority acknowledges that an his fate, ly jeopar- selected decide his once analysis jeopardy provi torical of our own attached, dy regarded has has never been any light ques sion would not shed on the Indeed, recognized absolute. when first tion, either or at the now time Bander was Hunter, by the Supreme Court Wade v. question decided.13 The whether double right immediately balanced jeopardy protection implicated by prose- is against public’s “the interest fair trials cutorial provokes misconduct that a defen designed just to end in judgments.”17 request dant to a mistrial during arose This is the reason that “manifest interim necessi- deferring when state courts were ty” justify to the will even in the template. federal Cases like United event Jom,14 Dinitz,15 ordinary judicial prosecutorial States v. United States v. or error. only acknowledged by acquittal, may later reprosecution well be Wade). barred.”). Court in 600, 609, 1075, 784, 15. 424 U.S. 96 S.Ct. Maryland, Benton 395 U.S. 89 S.Ct. (1976) ("The 2056, important L.Ed.2d 267 ation, consider- 23 L.Ed.2d 707 purposes Jeopardy of the Double State, (Tex. E.g., Chvojka v. 582 S.W.2d 828 Clause, primary retain is that defendant State, Crim.App.1979); Anderson v. control over the course to be followed in the 1982); 722 (Tex.Crim.App. S.W.2d Collins v. error.”). [judicial prosecutorial] event of or State, (Tex.Crim.App.1982); 640 S.W.2d 288 497, 508, 16. 434 U.S. S.Ct. (Tex.Crim. 703 S.W.2d 655 Crawford ("[T]he (1978) L.Ed.2d 717 strictest [constitu- App.1986). scrutiny appropriate is ... when there tional] Op. at 354. is reason to believe that the using superior resources of the State to 14. 400 U.S. 485 n. 91 S.Ct. advantage harass or to achieve a tactical over (1971) ("[W]here L.Ed.2d 543 a defendant’s accused.”). by judicial mistrial motion is necessitated prosecutorial impropriety designed S.Ct. 834. to avoid 336 U.S. avoidance Clause—the Jeopardy for the Double explained Stevens Su- As Justice delay occa- Washington: anxiety, expense, in v. the and preme Court Arizona of multiple prosecutions.20 by sioned the circumstances variety Because may necessary discharge make it to defendant’s, to-wit: the The choice must be conсluded, a and jury before trial is his in avoid- he believes interest whether do in- those circumstances because delay and is better expense, ing anxiety, variably create to ac- unfairness the the to by proceeding served verdict cused, right his to have the trial valued by tribunal, possible or acquittal, first by tribunal is particular concluded in order cutting short prosecution the first public the in- sometimes subordinate to a sec- expeditiously with proceed to more affording prosecutor terest the one context, important ond. And “[t]he opportunity present full and fair to his consideration, purposes the Double for jury. to an Yet in impartial evidence Clause, defendant Jeopardy is that the importance right, view of the primary control that deci- retain over” by any fact that frustrated the it is sion.21 prosecutor the must shoulder of justifying the burden the mistrial if he course, ordinary prose- At point, some the is to avoid double bar. His may cutorial rise to the level of error heavy is a one. The burden And, prosecutorial misconduct. at some necessity” must demonstrate “manifest prosecutorial may be- point, misconduct objec- mistrial declared over the fairly it be come so cannot egregious tion of the defendant.18 pri- retained said that the defendant has mary whether to control over decision need not inquire Courts about manifest proceed proceed- or mistrial, however, to verdict abort necessity for a when ings. question Oregon for decision The defendant himself asks for or consents to identify prosecuto- v. how to signals Kennedy it. The defendant’s consent his forego manipulative rial that is so right proceed election to his to to misconduct deprives “meaningful” with the defendant of a though verdict first tribunal even his prejudicial may injected option protects error been choice have of which best proceedings, jeop- avoiding possible into the and there is no interest as much as ardy reprosecution.19 bar to anxiety, expense, delay inherent making this de- prosecution.22 criminal reasonably defendant may conclude termination, a court must mindful of pro-

that a continuation of the tainted that are at stake —on competing values ceeding would in a result conviction fol- hand, right one defendant’s and, valued by lengthy appeal lowed if a tribunal, secured, proceed verdict with the first prosecu- reversal second other, circumstances, val- equally and on the the State’s tion. In such defen- objectives right opportunity full and fair mistrial has ued to “one request dant’s present impartial evidence not unlike interests served to an [its] Kennedy, Oregon supra, 18. Id. at S.Ct. 824. 22.See J., (Stevens, concurring in the S.Ct. 2083 (it judgment) is sufficient to invoke Dinitz, supra. 19. United States per- jeopardy protections that "the court is prosecutorial egregious miscon- suaded that S.Ct. unmeaningful defen- duct rendered has dant's to continue to abort choice Id. at S.Ct. proceedings”). jury.”23 At point prosecutorial what does one full and fair opportunity present his misconduct cause the tip case, scale to favor so that the State’s interest can no of the right, notwithstanding defendant’s longer outweigh be said to the defen- that it requested was he who the mistrial? if specific dant’s—even he did not harbor a provoke intent to a If mistrial. his inten- Oregon

In Kennedy, v. tion inject was to manifest unfairness into query Court answered this for Fifth proceeding, consciously and he was purposes by holding Amendment that a respect indifferent with to whether criminal primary defendant loses control illegitimately intentional misconduct in- over the critical choice proceed whether to only gaining to verdict or abort creased his govern- “where the chances conviction mental conduct in question provoked is intended to asking the defendant into for ‘goad’ moving into for a defendant argument practically as mistrial[,]” only and that “may then de- compelling that he has forfeited his one fendant raise the bar of double to full opportunity present and fair to his having second trial after succeeded in case as when it was specific his intent to aborting the first on his own motion.”24 provoke way, a mistrial. Either a reason- why But should this be so? It is not self- argument prose- able can be made that the specific evident that the provoke intent to manipulated cutor has the defendant’s request only a mistrial should be the de- longer choice to such an extent that it is no gree prosecutorial culpability sufficient defendant’s, primarily the and the State reinvigorate to the defendant’s valued can longer no show that its interest out- right proceed to to verdict with the first weighs the defendant’s the constitution- despite tribunal the fact that he asked for al balance. the mistrial. The State is entitled to one is, essence, This what we held full and fair opportunity present its Bauder,25 It not an unreasonable or jury. evidence to an It can rea- impartial It holding. certainly an outlandish other, sonably argued be lesser de- unique holding.26 may not a It even have grees of prosecutorial culpability should logical holding, given been the more justify suffice to the conclusion that principles constitutional involved.27 abused, forfeited, State has and therefore event, manifestly it was not such a errone- opportunity. When holding justify overruling ous can intentionally we commits misconduct he knows just seriously compromise majority will because there is a fairness of trial, has arguably squandered presently willing he his Court to do so. I next 505, Washington, supra, degree prosecutorial culpability v. 98 sufficient Arizona trigger jeopardy protection. E.g., S.Ct. 824. 260, Kennedy, State v. 295 Ore. 666 P.2d 1316 Court, 98, (1983); 676, Superior v. Ariz. Pool 139 24. 456 U.S. at 102 S.Ct. 2083. (1984); 677 P.2d 261 Commonwealth v. Smith, 177, (1992); A.2d 321 532 Pa. 615 25. 921 S.W.2d at 699. Breit, 655, P.2d State v. 122 N.M. (1996); Rogan, Hawai'i State v. courts, 26. Other state both before and after Batts, (1999); People P.2d v. 30 Cal.4th Bauder, holding our have construed their Cal.Rptr.2d 68 P.3d jeopardy provisions own state constitutional protectively Oregon Kennedy more than Kennedy, Oregon supra, 689- protection, 27.See construed the Fifth Amendment J., (Stevens, concurring essentially finding goad each that an intent to 102 S.Ct. 2083 only judgment). in the the defendant into mistrial is not the his one full sufficient to forfeit culpability I the ma- understand address what majority The does opportunity.29 fair jority’s doing reasons so. asserted reason- me that this cannot not convince level regarded a sufficient ably be III. DISREGARDING protection. justify jeopardy culpability STARE DECISIS majority’s opinion, As I break down argues that our eаrliest majority in the essentially it has six flaws identified termi- premature law deemed the case that, are analysis together, taken Bauder jeopardy to con- implicate of a trial nation justify I do enough to its demise. serious the functional only cerns because was I any not of those will share concerns. a acquittal,30 prosecu- an and equivalent of in turn. respond to them objective conscious is not neces- tor whose a cannot be said sarily provoke to mistrial Only Specific A. a Intent to Provoke equivalent of sought have functional to Triggers Jeopardy Mistrial But acquittal.31 this is not self-evident Concerns prosecutor A has con- me either. who to disregarded risk that sciously a substantial Oregon Court in Like provoke a majority spe- a his deliberate misconduct would Kennedy, the believes that consciously disregarded also provoke cific intent a mis- mistrial has prosecutorial to to risk his conduct would determining “is critical whether the substantial rather than the defen- of an ac- prosecutor], equivalent [the cause the functional dant, necessarily over primary has exercised control if that not his quittal, even rea- sought.”28 objective. whether a mistrial is For It is conscious To reiterate: not conclude, already explained, specific sons I have a a for court to we unreasonable only Bauder, provoke intent to mistrial is not the prosecutor did in such a has degree abused, forfeited, can prosecutorial culpability of his one full and therefore reasonably jeopardy found to trigger opportunity fair at a verdict favorable and majority protection. explain The not does to the State.

why degree slightly prosecutori- a lesser of justify al could not a court culpability also Bauder Is Due Process Double B. prosecutor for- concluding has Jeopardy Clothing full and to opportunity feited his one fair case, that, focusing

present majority thus on tipping his the balance The claims degree slightly that a lesser the defendant’s favor on the double the fact essentially culpability specific than in- prosecutorial scale. Bauder we consciously may compromise also the defendant’s held that a who dis- tent a fair trial the first tribunal regards right a known risk that his deliberate before selected, if the Court in Bauder “conflates provoke misconduct will a even with more necessarily jeopardy protection a conscious the double mistrial was his process notions due due objective, degree generalized a nevertheless harbors added.) (Emphasis quar- I have no Op. mistrial. adjustment rel whatsoever with standard, joined majority per and I curiam Peterson, parte In Ex 117 S.W.3d Peterson. (Tex.Crim.App.2003), we elevated the level prosecutorial culpability disre- to "conscious State, supra, at 351. 30. See Powell gard prosecu- risk that” the for substantial provoke Op. would tor’s deliberate misconduct course of law.”32 Elsewhere it has been vindicated. It is true that the fairness suggested that to apply lesser standard process due and due course of law culpability specific justify than intent to guarantee may also be vindicated and that jeopardy relief merely for means prosecutor may being feel he is made punish prosecutors, courts to rather than pay heavy price for his misconduct. scrupulously serve double to, But these consequences are incidental principles.33 I disagree on both counts. displace, do not means jeopardy analysis.

Both the defendant and the State are entitled to one full fair opportunity trial. Ordinarily, entitles C. Later Case Law Is Inconsistent proceed defendant to to verdict with with Bauder

the first tribunal selected. Manifest neces- majority complains that if we were sity or the may defendant’s own consent correct in prosecu- Bauder to find a lesser interest, suffice to defeat his constitutional culpability torial to trigger be sufficient to but not otherwise. This means some- jeopardy in in protection the context which times the defendant must experience the grants the trial court a defendant’s motion anxiety, expense, delay aof second mistrial, held, we should also have as trial even when his first trial was rendered jurisdictions done, other have that even unfair for reasons unattributable to him. erroneously when the trial court denies But he necessarily should not have to suf- mistrial, we should bar retrial after the consequence fer that when the retrial was successfully challenges defendant con- his attributable to deliberate misconduct on on appeal.34 parte viction In Ex Davis35 part prosecutor. When that Mitchell,36 parte and Ex we de- expressly compromised misconduct so the fairness of clined to do so. We held that the defen- inevitable, trial as to render mistrial dant had not deprived been of his valued prosecutor consciously was at least right proceed to result, to verdict with the first may indifferent to that the State tribunal, prosecuted since his trial was to a reasonably be said to have abused its one conclusion, may full fair albeit conviction. This opportunity present to its well tribunal, represent logical inconsistency evidence to an impartial and it so, longer carry applies can no our case law.37 But if it its burden to demon- equal illogic prosecutor strate that its interest whether the con- defendant’s, outweighs sciously balance even intended to cause a mistrial or he requested consciously disregarded when it was the defendant who a substantial risk Thus, a mistrial. jeopardy principles are his misconduct provoke would a mistrial.38 Op. (Tex.Crim.App.1997). 35. 957 S.W.2d 9 Henning, 33. See Peter J. Prosecutorial Mis- (Tex.Crim.App.1997). 36. 977 S.W.2d 575 Remedies, conduct and Constitutional U.L.Q. 713, (1999) (state 811-817 cases Wash. Bierschbach, Note, 37. See Rick A. One Bite at extending jeopardy pro- state constitutional Apple: Reversals Convictions Tainted degrees prosecuto- tections to cover lesser Prosecutorial and the Ban Misconduct on Dou- culpability Oregon Kennedy rial than v. found Jeopardy, ble 94 Mich. L.Rev. 1346 jeopardy implications to have for Fifth purposes "really responding Amendment are Davis, parte supra, ("Applicant 38. See Ex at 13 problem finding to the broader effective any has not directed us to cases ... where the misconduct”). punish prosecutorial means to explicitly Court has extended Ore- 359, 364-65, Op. gon Kеnnedy apply v. to to instances where Thus, legal logical- to the these makes little sense to discard a stan extent cases are Bauder, after, they equally barely years in the ordi ly unfaithful are dard three law, Oregon Kennedy stan- we nary unfaithful evolution of our decisional perfected dard. It seems to me that if of our finally have it. scrutiny, precedent deserves closer that, agree majority I cannot with the Mitchell,

would be Davis and not Bauder. perfected, the standard articulated even adequately equip pros- in Peterson will not D. The Bauder Standard to be to tell that deliberate ecutors able Amorphous Is Too trigger misconduct sufficient protection from that deliberate majority I do not disagree with not.42 A misconduct which is mistrials that result in a bar engage in he should never deliber- knows ought relatively to be rare occurrences.39 say, ate misconduct—that is to it should standard, particularly The Bauder as it objective design never be his and conscious parte was later elaborated Ex Peter recognizes mis- to commit what he to be son, produce jeopardy only should bars Bauder/Peterson, if he conduct. Under very slightly greater cases number of objective does so with the conscious Oregon than the standard. Kennedy provoke a or with a conscious majority complains that some of the disregard for substantial it would risk language Bauder seemed to blur jeopardy protec- cause recklessness, concept of creating danger can apply. tions will Either state of mind might that it something be understood as refuted) (or by express be established prosecutorial “overreaching” akin to the from prosecutor, by assertion evi- Supreme flatly standard that surrounding of the dence circumstances rejected in Oregon Kennedy.41 Again, v. misconduct those enu- his such as that we imprecision may whatever in have inhered in risk degree merated The itself, Peterson.43 specific and language Bauder prosecutor’s that deliberate miscon- it may engen whatever confusion have dered, largely duct will result in a mistrial is was later remedied our prejudice I function of amount of unfair any Peterson. do not think reasonable injects into more prosecutor proceedings. it The would now mistake the stan explicitly prejudice dard set out in as a rule unfair his deliberate misconduct Peterson imposing jeopardy injects, compelling bar on be the the basis of more will prosecutorial mere It risk “overreaching.” inference he was aware of the guilty ap- right verdicts have been reversed on ed—is the to be tried to verdict accused’s misconduct, tribunal, peal prosecutorial right due to and the first afforded to him holding Fifth therefore retrials the double clause of the Mitchell, Amendment, barred.”); violated.”). parte supra, Ex & at 579 ("Appellant any does not direct us to explicitly Op. at 362. cases where the Court has Oregon Kennedy apply extended to in- 117 S.W.3d at 816-817. guilty stances where verdicts of have been appeal, part reversed on due in whole or in misconduct, thereby Op. at prosecutorial and hold- 362-63. barred.”) ing ("Only retrials as intentional, prosecutor’s Op. delib- 42. at 363-64. where goads erate misconduсt into mov- accused grant- ing for a is 117 S.W.3d at 818-19. mistrial —and motion (because was, objectively speaking, so, more law is that a trial court will do not that obvious), consciously disregarded it.44 it will not.47 amorphous This standard is not so that it majority The observes this tenden- fairly imposed upon cannot responsible cy it perceives trial courts to want to prosecutors. avoid mistrials could have been “amelio- held, rate[d].”48 We could have in Davis Stop E. Trial Court Will Mitchell, jeopardy protec- that double Granting Mistrials apply tions also when a conviction re- appeal versed on due to the failure of the majority overly fears that grant trial court to a meritorious mistrial “broad” standard in Bauder will cause trial following misconduct unduly courts to grant hesitate to meritori- disregard committed with conscious ous mistrials on account the jeopardy substantial risk that it would cause a mis- I do not believe the Bau- consequences.45 holding trial. Such a would have created standard, especially der as solidified Pe- at least some disincentive for trial courts terson, is so much broader than that of granting to avoid meritorious mistrials.49 Oregon Kennedy that it will substantial- If I majority’s premise shared the that we ly public pres- increase whatever or media law, cannot trust trial courts to follow the sure trial courts feel to eschew meritorious event, ques- observation would cause me to I mistrials. do not share the (and Court’s) tion the correctness of our majority’s Kennedy cyni- decisions Mitchell, cal judges distrust of trial to follow their Davis and not the correctness of oaths to A uphold the law.46 conscientious our decisions in Bauder and Peterson. always trial court should exercise its dis- cretion grant any motion for mistrial F. Bauder Has Proven Unworkable fairly meritorious,

that it judges to be regardless majority length The documents at some potential for later double “messy jeopardy consequences. presumption jurisprudence flowing The from Bauder, that, that in we should institutionalize our case It since is true Bauder.”50 say judgment) (complaining majority' not to that the This is fact finder could as- not, circumstances, reasonably under some sumption that trial courts will be deterred simply conclude that the was un- granting from "irra- meritorious mistrials is risk, though aware of the substantial even an tional”). ordinary prosecutor ought to have been it, perceive aware of and his failure to Moreover, argument that the Bauder gross constitutes a deviation from the stan- help than standard will hurt defendants more ordinary prosecutor dard of care that an them because it will make trial courts reluc- would exercise under the circumstances. See grant tant meritorious mistrials was 6.03(d). § To borrow from Tex Pen.Code Presiding Judge squarely McCor- raised in Peterson, supra, “just what we said in at 818: dissenting opinion. S.W.2d at mack’s dog being aas knows the difference between argument 704. The Court this considered over, being [prosecutors] kicked and stumbled rejected the time and it. distinguish can between intentional reck- negligent and less conduct inadvertent or mis- Op. at 364. takes.” Op. at 364-65. 49. Id. at 364. 46. See Kennedy, Oregon supra, at 687 n. (Stevens, concurring Op. 102 S.Ct. 2083 J. in the at 365-68. APPLICATION OF always entirely IV. has not been

the Court BAUDER/PETERSON in stan- articulation of the consistent its But a amount of fine-tun- certain dard.51 causе originally remanded this We in the of deci- is inevitable evolution ing for its reconsideration appeals of the court Peterson, down law.52 I do not understand which had come light sional of opin- original appeals’ the court of after that our recent majority to hold most Thus, of was appeals the court ion.57 fact, quite was a failure—in clarification the re- analysis under to conduct an first it is least acknowl- opposite, since ap- court of Peterson standard. The fined Bander meant “reck- edged what meticulously applied the Peterson peals in Ex firmly nailed down lessness” our constitu- to conclude that state factors I cannot parte agree Peterson.53 applied to bar jeopardy protection tional CPeterson) barely years three old case on the petition its its brief retrial. on the ought ground to be overruled merits, disagrees with the court State proven unworkable. had no it has We conclusion, but identi- appeals’ does not applying it in our recent deci- problems flaw in its fy any application substantial Wheeler,54 parte In that case sion Ex I do expounded the law as Peterson. court of and re- appeals we overruled the any, affirm find and would therefore court’ had ruling, instated which judgment. its only double The denied relief. point real of contention this between CONCLUSION appeals the court seems to majority’s bottom-line appeals whether court of had erred too standard is Bauder/Peterson failing give to the proper deference broad, le- adequately and not tethered to trial court’s application the Bauder/Pe- principles.58 gitimate There confu- terson standard.55 was no But, develop Ias have endeavored to proceed- sion evident at level of the basis opinion, II of the doctrinal Part to the ings as substance that standard. more that standard is than evident can point, only At this time tell whether eminently rea- enough, and it embodies necessary.56 further “refinement” will be I, construction of Article Section sonable I cannot fathom majority’s haste provi- our state constitutional dispatch determination to so standard I therefore dissent Part TV sion. managed, soon after we have least to its disposition Court’s success, apparent the kinks work third proceed case. I would the State’s hold the court out of it. for ground review Peterson, parte supra, Op. 51. Id. at 367. Ex 53. at 368-69. See 823-25, J., (Hervey, dissenting). 829-30 (Tex.Crim.App.2006). 54. 203 S.W.3d Oregon One need further look no than Kennedy that it itself to see often takes 55. Id. at 325-26. opinions multiple to hone Kennedy the Su- constitutional standard. Op. at 370-71. rejected language preme Court from a num- pro- opinions earlier ber of would have Lewis, parte Ex 165 S.W.3d at 381-82. protection federal mistrials vided for by prosecutorial "overreaching.'' 456 caused 677-79, 58.Op. at 370-71. U.S. at 102 S.Ct. 2083. of appeals did not err in application its standard. Because Bauder/Peterson disposition

the Court’s instead moots that I

inquiry, respectfully dissent.

The STATE of Texas

Craig JOHNSON, Appellee. Hill

No. PD-1094-06.

Court of Appeals Criminal of Texas.

Feb.

Rehearing April Denied Wadsworth, D.A.,

Steven A. Asst. Kerr- ville, appellant. for Scharmen, Antonio, George San Mat- Paul, Austin, Attorney, thew State’s appellee.

KELLER, P.J., delivered the PRICE, WOMACK, the Court which KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined. violate

Does motorist the law when plate license frame or partially obscures aspect ‍​‌‌‌‌​​‌​‌​​‌​​​​‌‌​​‌​​‌​‌‌​‌‌‌‌​‌​​​​​​‌​‌​‌‌‌‍original obscures some de- sign plate, of the license such as the name

Case Details

Case Name: Ex Parte Lewis

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 10, 2007

Citation: 219 S.W.3d 335

Docket Number: PD-0577-05

Court Abbreviation: Tex. Crim. App.