State v. Lee

STATE Texas LEE, Appellee. David Allen

No. 168-98. Appeals of Texas.

Court of Criminal

April Paul, Austin,

ney, Atty., Matthew State’s for State.

OPINION MEYERS, J., opinion delivered the of Court, MANSFIELD, joined by PRICE, WOMACK JOHNSON. Appellee charged was with the offense indecency pled with a child. He guilty empaneled and a was her During opening sworn. statement jury, made the follow- ing assertions: early The evidence will be that on Raleeh, investigation, Detective be- filed, any charges fore were while being investigated, case still called said, I [appellee] and have-—there are charges, complaint has been filed some against you, and I’m in talk- interested ing you about it. [appellee]

And that he wasn’t in- said in talking terested about it and to call Jett, attorney, gave his him Craig phone number. objected Appellee to the statements on the they improper com grounds that were appellee’s right ments on invocation of his right to counsel and his to remain silent. objec appellee’s The trial court sustained motion for a mistrial. tions and his retry pur attempted appellee The State Appellee indictment. suant to same pretrial application for writ of habe- filed a pre corpus, claiming double retrying vented the State from him. The hearing applica trial held a ultimately granted pursuant tion and relief (Tex. to Bander v. 921 S.W.2d (“Bander /”), Crim.App.1996) dismissing prejudice. the indictment with trial appealed, arguing The State Schneider, Houston, Stanley G. amicus on barring court erred in retrial based curiae. jeopardy. Appeals double Court Jett, Dallas, appellant. Craig J. Lee, affirmed. State v. 971 S.W.2d 1997). Horn, ar- (Tex.App.- L. First Asst. State State Jeffrey Van —Dallas Austin, O’Connell, correctly applied I Atty., gues Dist. Bander was not Atty., Tom Chavez, Appeals.1 The State main- Atty., Dist. McKin- the Court Asst. Carrie "DA”) (hereinafter Attorney discretionary were filed the District 1. Petitions for review tains that the of Appeals applied prosecutor’s clearly Court statement was [T]he n wrong in determining law whether improper because it a com constituted error, prosecutor’s comments were appellee’s ment on on his invocation statements were not er- right to counsel. Hardie v. See ror, error, if they any and even were error (Tex.Crim.App. could have been cured an to instruction 1991) in (holding evidence of accused’s disregard, finally, and that the statements right vocation of to counsel inadmissible were deliberately recklessly. not made State, guilt); as evidence of Rezac I, 1986) Bander we held that (Tex.App. S.W.2d —Dallas (holding ... that invocation of prosecution a successive constitutional is right may barred to counsel not be relied on as [under Texas Constitution] after declaration of a mistrial at the guilt), evidence of rev’d on other request, only defendant’s when the grounds, 782 (Tex.Crim.App. S.W.2d 869 objectionable prosecutor conduct of the 1990); see also Tex.Code CRiM. PROC. was intended to induce a motion for (Vernon Pamph.1998) art. 38.38 Ann. mistrial[, the Fifth Amendment standard (noting prosecutor that in criminal case Oregon Kennedy, under may not comment on fact that defendant (1982),] 72 L.Ed.2d 416 attorney). has retained but prosecutor also when the was aware Lee, 971 S.W.2d at 556. The further consciously disregarded the risk that prejudicial concluded the error it was so objectionable event for which he was could not have been cured an instruc- responsible require would a mistrial at tion to disregard. Finally, Id. the court request. the defendant’s upheld the trial court’s conclusion that the Bander, 921 S.W.2d at 699. We subse- prosecutor “was aware consciously [of] but quently clarified that the critical questions disregarded the risk that an to be addressed in this context are: event for which responsible [she] was hand, ... on the one appel- whether the would require [the] mistrial.” Id. lant’s motion for mistrial was a choice he response made in ordinary to reversible Appeals While the Court of that the held conviction, error in order to avoid ap- prosecutor’s statement an improper reversal, peal, Or, and retrial. appellee’s comment on invocation of his hand, other required was he to move for counsel, right to a closer look reveals mistrial because the deliber- by appellee it was not an effort to invoke ately or recklessly crossed “the line be- right his to counsel: legitimate tween gamesman- adversarial [appellee] ... said that he wasn’t inter- ship manifestly improper methods” in talking ested about it and to call his ... that rendered trial jury before the Jett, attorney, Craig gave him unfair to such a degree” judicial that no phone number. admonishment could have cured it? Bander, parte Ex 974 S.W.2d 732 Appellee asking attorney; was not for his (“Bander ”). (Tex.Crim.App.1998) II rather, appellee was expressing his desire not to talk to Raleeh and dismissed Raleeh Appeals The Court of held the prosecutor’s him by referring attorney. statements to his The amounted to er ror: accurately statement is most viewed as an (hereinaf State, Prosecuting Attorney and the State (Tex.Crim.App. 915 S.W.2d "SPA”). petitions. ter 1996); both The Lemell 915 S.W.2d urges overruling SPA of Bauder I. Be (Tex.Crim.App.1995); n. 2 Connor v. grounds dispositive, cause the DA’s are we do (Tex.Crim.App. 328 n. 1 arguments.

not reach the SPA’s The SPA's 1994). grounds for review are dismissed. Schweinle attempt by ... trial appellee convey proper his rendered desire methods’ silent,2 remain degree before the unfair such a judicial that no admonishment could have II, The question under Bauder See cured it?” at 732. then, whether, hand, is on the one admis Appeals held Court of sion, guilt,3 as substantive evidence of of a making recklessly acted the comments.4 pre-Miranda prearrest defendant’s si Appeals But to take failed Court lence, in the questioning by police face of appropriate into account substantive during investigation crime law assessing when men- suspect, which the defendant is a “ordi Or, question tal of a defendant’s state. nary reversible error.” on the other hand, prearrest, evidence, pre-Miranda is one of on such did silence commenting prosecutor deliberately impression or first for this Court and one on recklessly “the legitimate appeals ‘the between adver which the federal courts of are cross[ ] line law, gamesmanship manifestly split.5 sarial im- of this state of the the view 269, (6th Coyle, Appeals’ prosecutor’s In Combs v. 205 F.3d 279 conclusion as to the Cir.2000), state, questioned by police a question when inves a central to an mental which is tigator, investigator the accused told the inquiry Bauder II. under my lawyer.” "talk to The federal court ex plained that was best as this statement viewed Sixth, First, 5.The Tenth Circuits Seventh and silent, communicating a desire remain pr prearrest, hold is not that e-Miranda silence communicating rather than a for the desire guilt. admissible as substantive evidence of Combs, assistance of counsel: 283; Burson, at v. 952 United States Although petitioner’s] [the re- statement th 1196, (10 F.2d 1200-1201 cert. Cir.1991), not to his right ferred to silence but to an 997, 1702, denied 503 U.S. 112 S.Ct. 118 attorney, admissibility of the statement Powell, (1992); Coppola L.Ed.2d 411 v. 878 properly analyzed pre- aas comment on st 1562, Cir.), (1 493 F.2d 1568 cert. denied Wainwright arrest silence. See v. Green- 418, 969, 383 U.S. (1989); 110 S.Ct. 107 L.Ed.2d 13, 284, field, 474 n. U.S. 295 Lane, Savory States ex United rel. 634, ("With (1986) respect 88 L.Ed.2d 623 1011, Cir.1987). (7th 832 F.2d 1017-18 ‘silence,’ post-Miranda warnings Fifth, Eleventh have held Ninth and Circuits point muteness; only out that silence does not mean prearrest, pr that e-Miranda silence is admissi a it includes statement of guilt. ble as evidence of United substantive desire to as well as a remain silent of desire 1061, 1066-67 Oplinger, States v. 150 F.3d attorney to remain silent until an consulted.”). has been th Zanabria, (9 Cir.1998); 74 United States v. petitioner’s] statement is [The th 1996); (5 States v. Riv th F.3d 590 Cir. United communicating best understood as a desire era, 1563, Cir.1991). (11 944 F.2d 1568 presence to remain of silent outside an split among of general For a discussion attorney. courts, underlying rationale the federal Id. holdings, analysis and a of their historical deciding 3. We assume that a com- without Amendment, Ber the Fifth see Maria Noelle by opening ment made in Note, Scope Privilege ger, Defining the of statement amounts to substantive evidence. Against Prearrest Should Self-Incrimination: California, We note Griffin Silence Evidence be Admissible Substantive 613, 1229, 609, 85 14 L.Ed.2d 106 S.Ct. (1999). L 1015 1999 U. Ill. Rev. Guilt? of (1965), Supreme Court considered issue, split with also State courts are closing prosecutor’s arguments, comments prearrest, holding pre-Mi- some courts acquiescence and the trial in such com- court's substantive randa is not admissible as silence ments, to to evidence: formal amount "No Moore, guilt, State v. 131 Idaho evidence of situations; proof other offer of is made as in 814, 174, (1998); v. Dunk 180 State 965 P.2d prosecutor’s comment and the court's but the 425, el, (Minn.Ct.App. 466 N.W.2d 428-29 acquiescence equivalent of offer of are the 1991); Rowland, 846, 452 State v. 234 Neb. acceptance.” evidence and its (1990); People DeGeorge, 73 N.W.2d 758 11, N.E.2d N.Y.2d 543 N.Y.S.2d Appeals 4. We note that the Court of viewed Commonwealth, (1989); Hartigan v. involving two-step approach, Bauder I as (1999), Va.App. S.E.2d approach disapproved this was of in Bau- Easter, reh’g granted; Wash.2d State v. por- at 731. der II. That (1996); Tortolito 1291-92 opinion, 922 P.2d Appeals’ of the tion Court of howev- er, (Wyo.1995), P.2d does not affect our review the Court context, actions could not have been or act within reckless this he must (1) intentional or reckless. have either the evidence “believe[d materially improve his chances of would] explained have what is meant conviction, obtaining a and the law consid- by intentional and reckless conduct this prejudicial objection- ers the effect of such A prosecutor intentionally context. acts able evidence to be incurable even when: judicial firm jury[;]” admonishment to the ... believing that he cannot obtain (2) consciously or been “aware but disre- conviction under the circumstances with garded objectionable the risk that an event confronted, which he is given responsible for which he was would re- admissible evidence disposal, then at his a mistrial at the quire request” defendant’s deliberately objectionable offers evi- consciously have been aware but disre- materially dence which he believes will garded the risk that a mistrial would be improve obtaining his chances of a con- “reasonably certain” to occur as a result viction, and the law preju- considers the his conduct. dicial effect of such evi- dence to be incurable even firma in this case be judicial admonishment to jury[,] lieved that appellee because un or when: der custodial interrogation, the evidence ... the conduct of the was legitimate admissible.6 This was a prosecutor was intended to induce a mo- view of law interpreted by the as some tion for mistrial.... courts, federal including the Fifth Circuit.

Bauder, 921 S.W.2d at prosecutor 699. A Oplinger, (“[p]rior 150 F.3d at 1067 recklessly acts when: here, custody or govern indictment the ... prosecutor was aware but con- ment made no compel effort to defen [the sciously disregarded the risk that speak dant] to [and the consti therefore] objectionable event for which he was privilege against tutional compelled self- responsible require would a mistrial at play”); incrimination did not come into request!,] defendant’s Zanabria, 74 (holding prose F.3d at 593 ... [when] he is aware [his is conduct] prearrest cutor’s comment on defendant’s th reasonably certain to result in a mistri- amendment); silence did not violate 5 al!,] Rivera, 944 F.2d at (“government 1568 when he ... [or aware that is] his con- may comment on a defendant’s silence if it duct a creates risk that a mistrial is prior occurred to the túne that he ar is occur, reasonably certain to con- [but] rested and given warnings”). his Miranda sciously disregards that risk ... that Given the law on this constitutional Thus, Id. in order prosecutor’s for a issue had not addressed offer been the Unit of evidence to be viewed as an Supreme intentional ed States Court or this holding other prearrest, courts that pre-Mi- During hearing 6. presence outside of the implicate randa Amendment, trial, silence does not the Fifth prosecutor argued of the at that Leecan, 517, State v. 198 Conn. a mistrial should not be because the 480, (1986); Key-El 504 A.2d investigator questioning appellee wasn’t "in 811, 1305, 1310-11(Md.), 349 Md. 709 A.2d interrogation,” simply custodial but was "in- 917, 267, cert. denied 525 U.S. 119 S.Ct. vestigating subsequent the case.” At a hear- (1998); Masslon, L.Ed.2d 220 State v. matter, ing testified that 618, S.W.2d 626 (Mo.Ct.App.1988); State v. she did not believe her statements amounted

Dreher, J.Super. 302 N 695 A.2d appellee’s ato comment on invocation his (App.Div.1997) cert. denied 152 N.J. rights. emphasized appellee's The State (1997) denied, A.2d 349 and cert. pre- statement was made “in the context of a (1998); 141 L.Ed.2d 723 phone investigator. arrest call” with the Helgeson, State v. 303 N.W.2d 348-49 (N.D.1981). ous, any there was Court,7 it cannot be said that split among view of or reckless dis- to induce a mistrial intent appeals, federal courts of reasonably be that a mistrial would regard disregard a that a mistrial did not “risk” Appeals The Court certain to occur.9 or even that a mistri “required” would be a retrial holding erred in “reasonably certain” to occur.8 al would be of the Court of judgment barred.10 prosecutor have intend Neither could the and the trial court’s Appeals is reversed mistrial, given the fact that ed to induce in this dismissing order the indictment has not been held inadmis such evidence is set aside. cause Court, indeed been by this and has sible by the Fifth Circuit and held admissible courts. of the other federal

some J., KEASLER, concurring delivered McCORMICK, P.J.

opinion, joined by prosecutor’s state Because KELLER, J. pre concerning appellee’s prearrest,

ment HOLLAND, J., participating. not clearly errone- silence was not Miranda evidentiary involved a violation of an Although rendered a Bauder this Court has never stated, dicta, issue, rule, alleges Concur holding he this case involves. we have on constitutionally Judge "[p]rearrest ring opinion Keasler incorrect silence is at 927. inquiry.” got permissible area of Waldo Bauder relief ly assumes the defendant in (Tex.Crim.App.1988)(is- in Bauder did The defendant on his claim. postarrest, was comment on sue before Court relief; upheld was not get the mistrial silence). Bauder, post-Miranda parte that case. Ex 1999) (denying relief (Tex.App. Antonio —San Bauder forth in on under standard set merits Judge Keasler believes (Tex. II); parte 974 S.W.2d 729 Ex objectionable event constituted "an comment (clarifying analysis Bauder Crim.App.1998) responsible prosecutor] was for which [the State, 936 S.W.2d appeal); the com- on Bauder Bauder” due to the fact that I under 1996)(holding mistri (Tex.App. Criminal Procedure Antonio ment violated Code of —San jeopardy opinion so no Conewring at 927. have been article 38.38. al need not State, bar); S.W.2d 696 agree prosecutor’s state- Bauder v. We do not that the 927-28, pp. new stan (Tex.Crim.App.1996)(setting 38.38. See forth ment violated article did, supra. assuming analyzing prosecutorial it article 38.38 is misconduct But dard for State, Constitution); evidentiary of evidentia- in nature. Violations Bauder under Texas generally ry provisions (Tex.App. are curable Antonio rules and 880 S.W.2d 502 —San rejecting appel Waldo, disregard. Kennedy with an instruction to 1994)(applying standard). ("It general long the at 752 has been S.W.2d state plea for less strenuous lant’s that error ‘well since [1916] rule and settled may gen- admitting improper evidence be that Generally, the error was such in whether by and an in- erally by a withdrawal an corrected cured instruction it could not have been ”). disregard did not ...' Bauder struction to acted in reckless prosecutor the and whether Bauder, at 698 change "essentially this rule. factu- disregard are of such error judicial that ad- (emphasizing presumption S.W.2d at 700. question[s].” al efficacious, Waldo). citing case, however, are monishments the answers to In the instant extremely admission of rare that It would be of the law. questions on the state these turn be "so of a would such, evidence in violation statute the give to deference we need not As inflammatory curative in- emotionally that ruling. trial court's Guzman likely prevent to the are not structions (Tex.Crim.App.1997). 87-89 against the defen- being unfairly prejudiced dant,” viola- of a constitutional in the absence was not appellee’s for mistrial As motion 38.38, Thus, in a violation of article tion. con- by or intentional precipitated reckless implicate what has that do not circumstances under the part prosecutor, the the duct on constitutional violation established as a been test, mistrial appellee's motion for Bauder II well, present a "risk” that simply does not response he made in therefore "a choice was reasonably certain to "be a mistrial would order to avoid ordinary error in reversible to occur.” reversal, conviction, and retrial.” appeal, however, note, in this not even clear that it is says compels Bauder Judge also Keasler law, case, the given state of the unsettled this case because upholding the mistrial in KEASLER, J., majority But the overlooks concurring disregard.” delivered a to McCORMICK, which P.J. and Bauder also involved opinion, the fact that KELLER, J., (Rule 404, join. an evidentiary violation of rule Evidence). only dif- Texas Rules of majority muddles Today further rule that Lee we have a ference is jeopardy clinging double law while Texas passed legislature, Bauder while ill-conceived, unsound, historically to an ma- dealt with a court-made rule. Is the imprecise precedent. aban- Rather than that jority saying rules enacted State,1 majority Bauder v. doning legislature important not as as those are eye blind holding says a to its turns Apparently promulgate? so. I apply that it does not to facts. these Lee in- agree that should answer to the Bauder

dictment, Held and that What jeopardy double does just his I prohibit not retrial. do not see we held for the first Bauder majority can justify how the its conclusion prosecutor time that a need not intend language under the of Bauder. for a goad counsel into moving defense Regardless invoking of whether Lee was jeopardy double retri- mistrial for to bar a right invoking his remain silent or his pro- al. that retrial We said will also be counsel, right question he was without aware hibited “when was police referring lawyer, to his consciously disregarded the risk jury. mentioned this fact to the event he for which prosecutor’s argument violated Art. responsible require would at the a mistrial provides 38.38. That statute “[e]vi- request.”3 defendant’s So conse- person dence that has or re- contacted quences under Bauder attach to reckless attorney tained an is not on the admissible negligent prosecutorial or grossly conduct person issue of whether the committed as well as intentional behavior. may offense” and prosecutor criminal not “comment fact that defendant Stare Decisis attorney has contacted or retained an I that we should overrule realize The trial the case.” this recognized precedent lightly.4 But did Bauder itself statutory violation as one of its reasons just “lightly that. decision in Bauder Our mistrial; granting it found that precedent ways: in two overruled” prosecutor’s comment “also Art. violated of the Texas seventy-five 38.38 Code of Criminal Proce- years For almost (cid:127) dure.” The of interpreted violation this the had Texas Constitu- was “an statute event for meaning tion to have the same as prosecutor] which responsible”2 [the was the United States Constitution. granting Bauder. trial under The court’s aside over of brushed seven decades directly of the mistrial on these grounds precedent.5 implicates holding our in Bauder. years For fourteen we embraced (cid:127) footnote, majority attempts plurality’s holding Oregon

In a the in the by say- Bauder distinguish Kennedy,6 from this which held that unless case the ing merely goad that Article 38.38 is “evidentia- the intended to mistrial, ... into ry seeking in nature curable an instruction defendant a prosecutor's the amounted 4. whether statement Awadelkariem 1998). (Tex.Crim.App. at all. to error Bauder, (McCormick, (Tex.Crim.App.1996). 1. S.W.2d 696 5. S.W.2d at 709 P.J., dissenting). 921 S.W.2d at 699. 6. 456 U.S. 72 L.Ed.2d (1982). Ibid. swept foregoing was not Art. 19. The article will retrial barred.7 We ex- trial, person empt the no from a second away requirement. intent who illegal has been convicted on an instru- In determining whether the Texas Con- information, judgment ment or and the accords than the protection stitution more arrested, thereupon nor where a new States, of the five fac- Constitution United defendant, trial has been to the text; tors are relevant: the constitutional a jury nor where has been discharged intent; history appli- Framers' the the verdict, nor for rendering any without a provision; com- cation of constitutional legal other than that of a convic- case states; parable jurisprudence from other tion. practical be- policy and the considerations By of the provisions Art. 20. Con- provision. light hind the constitutional stitution, an acquittal of defendant Bander n rationale considerations, of those trial, exempts him a from second or a is flawed. offense, prosecution second for the same irregular proceedings may however The Text Constitutional been; have if the defendant shall The Texas Consti- and 1866 trial, upon have been in a acquitted provided person, for the “[n]o tutions of having jurisdiction no the of- Court offense, in put jeopar- same shall be twice nevertheless, fense, prose- may, he be limb, dy person of life or be nor shall jurisdic- again having cuted a Court offense, trial again put upon the same for tion. of not in a court of guilty after verdict were provisions of carried Section competent jurisdiction.” In 1869 Tex- as the 1879 forward Section Code Constitution, the were words “or limb” years just Criminal Procedure three after version, In the the words omitted. adoption. state present constitution’s liberty” following “or were inserted initially our state So constitution word “life.” The Fifth Amendment of trials interpreted prohibit only second “... nor United States Constitution states legal acquittal. or And after conviction any person subject shall be for the same legal there is no historical basis put life jeopardy twice offense be contention the Texas Constitution ...” nor the or limb Neither the Texas protec- provides greater double specifi- texts United States Constitutional than Constitution. tion the United States of mistri- cally consequences addressed apply wording certainly does not dou- Its als. where a jeopardy consequences ble discharged reaching has been without Intent Framers’ see, indeed, And as we shall verdict. look actions legislative When we at way being applied their this did not idea of our constitutions around the time state jurisprudence until appear constitutional adopted, we see that the 1856 Code were century. into the next well Procedure provided: Criminal Application of the Constitutional of- person Art. No for the same 18. Provision jeopardy be put ] fence can twice [sic century, nation’s courts have to mean In this our life or limb. This is intended protection. jeopardy person subjected expanded to double that no can be offense, prohib- protection double prosecution for the same Classic second prosecution the same of- prosecuted in its a second for having after been once prosecution competent duly acquittal, after a second jurisdiction fense Court of conviction, and after the same offense convicted. State, State, v. (Tex. (Tex.Crim.App.1982); Anderson v. S.W.2d 655 288 703 Crawford State, (Tex.Crim.App.1982). S.W.2d 722 Collins v. Crim.App.1986); 635

929 multiple punishments by judge prosecutor’ for the same of- faith conduct ‘[hjarassment years, fense.8 In recent “acquit- the word threatens the of an accused tal” expanded has been prosecutions include cases successive or declaration where conviction is prosecution reversed because the of a mistrial so as to afford evidence at trial was insufficient to convict opportunity a more favorable to convict’ Also, as a matter of law.9 if a verdict at the defendant.”11 When the State be- necessarily trial includes the determination acquittal likely lieves that an is and it of an fact ultimate issue in the defendant’s attempts acquittal by to avoid the goading favor, if proof of that mistrial, issue is neces- moving defendant into for a sary prosecution for the thereby to convict the prematurely terminating pro- defendant in a subsequent proceeding, ceeding, it put effort to the defendant then prosecution is estopped from re- in jeopardy. twice For a double jeopardy issue, litigating that occur, and the defendant is violation to the trial court must acquitted of that offense.10 grant the mistrial. And must it grant prosecution’s as a result of the protection The kind of double jeopardy acting with intent pro- terminate the involved in Bander and in this case is the ceedings in an effort to acquittal. avoid an species.” “mistrial Supreme Court of the United “pro- States described it as Comparable Jurisprudence tect[ing] against a defendant governmental From Other States actions provoke intended to mistrial re- quests and thereby subject defendant to overwhelming majority our sister substantial imposed burdens by multiple Oregon Kennedy states follow v. in inter- prosecutions. It bars retrials where ‘bad preting their state constitutions.12 Some Pearce, 711, (Iowa Muck, 1988); See North Carolina v. 395 U.S. 754 State v. 262 Kan. 717, 2072, 2076, 656, 459, 89 S.Ct. (Kan.1997); 23 L.Ed.2d 664 Stamps 939 P.2d 896 v. (1969). Comm., (Ky.1983); 648 S.W.2d 868 State v. Brossette, (La.App. 634 So.2d 1309 3 Cir. States, 1, 9. Burks v. United 437 U.S. 98 S.Ct. 1994), denied, (1994); writ 640 So.2d 1344 2141, (1978); 57 Massey, L.Ed.2d 1 Greene v. (Me.1985); State Chapman, v. 496 A.2d 297 19, 2151, 437 U.S. 98 S.Ct. 57 L.Ed.2d 15 State, 722, Md.App. Fields v. 96 626 A.2d (1978). 1993); Comm., (Md.App. 1037 Poretta v. 409 763, (Mass.1991); Mass. 569 N.E.2d 794 Swenson, 436, 10. See Ashe v. 397 U.S. 90 State, (Miss. 1992); Wheat v. 599 So.2d 963 1189, (1970). S.Ct. 25 L.Ed.2d 469 Clover, (Mo.1996); State v. 924 S.W.2d 853 Court, Forsyth State ex rel. v. District 216 Dinitz, 600, 611, 11. United States v. 424 U.S. 480, (Mont.1985); Mont. 701 P.2d 1346 State 1075, 1081, 267, 96 S.Ct. 47 L.Ed.2d 276 Kula, 962, (Neb. v. 254 Neb. 579 N.W.2d 541 (1976). 1998); State, 174, Melchor-Gloria v. 99 Nev. (Nev. 1983); Duhamel, 660 P.2d 109 State v. State, (Ala.Cr. 12. Oliver v. 479 So.2d 1385 199, (N.H.1986); 128 N.H. 512 A.2d 420 State, (Alas App.1985); Piesik v. 572 P.2d 94 DeMarco, 421, N.J.Super. State v. State, 211 511 1977); 710, ka Jackson v. 322 Ark. 911 (N.J.Super.A.D.1986); A.2d 1251 (Ark. 1995); Davis v. People 578 v. Valenzuela- Brown, 626, 819, Gonzales, 728, 87 N.Y.2d 641 N.Y.S.2d 664 Cal.App.3d 195 Cal.Rptr. White, (N.Y.App.1996); N.E.2d Dist.1987); State v. (Cal.App. People Espino (N.C.1988); za, (Colo. 322 N.C. 1983); 369 S.E.2d 813 666 P.2d 555 Aillon v. Man Loza, son, State v. St.3d (Conn.1986); Ohio 641 N.E.2d 201 Conn. 519 A.2d 35 1994), denied, (Ohio cert. (Del.Supr.1992); Sudler v. 611 A.2d 945 (1995); Iglesias, L.Ed.2d 871 State (Fla.App. State 374 So.2d 1060 Girts, Dist.1979); Dinning App.3d 121 Ohio 700 N.E.2d 267 Ga. (Ohio Dist.1997), (1997); Fairchild, App. appeal S.E.2d 395 8 not al 464 State v. 121 lowed, 1424, 960, (Idaho 80 App.1992); Idaho 829 P.2d 550 Ohio St.3d 685 N.E.2d 237 Ramirez, 125, (1997); (Okla. McCarty People v. v. 114 Ill.2d 102 904 P.2d 110 Ill.Dec. 392, Diaz, (Ill.1986), denied, Cr.App.1995); 500 N.E.2d 14 State v. 521 A.2d 129 cert. 1053, 2189, (R.I.1987); Anderson, 360, 107 S.Ct. 95 L.Ed.2d State v. 309 S.C. (1987); (S.C.App.1992), 845 Wilson v. 422 S.E.2d 697 N.E.2d 466 161 rev’d on other (Ind.1998); Rademacher, 185, (S.C. grounds, State 433 N.W.2d 312 S.C. 439 S.E.2d 835

930 being right requires unique. Sometimes the issue direct- states have not addressed Nevertheless, they might their caselaw indicates to stand alone. ly, but us Kennedy when the probably step (cid:127)will follow us everyone if is out wonder arises.13 issue our states when 88% to 92% of sister use) (depending you on which numbers than Texas that the five states other Of disagree. Kennedy, follow two have have declined to Bander. New Mex- a stricter test than Policy

ico, con- under the state Practical Considerations retrial is barred intends to if the official “either stitution It be clear that the “mistrial” should or acts in willful disre- provoke a mistrial species jeopardy logically ex- of double resulting mistrial”14 The gard of the protection acquittal from actual tended the disregard” great- that “willful is explained It probable. acquittal to cases where recklessness, or indif- negligence, than er prosecutorial behavior was meant to deter Instead, it connotes a “con- ference.15 badly sabotage going a trial intended to to dismiss purposeful decision scious it cases where To extend to for the State. Pennsylvania’s constitu- any concern.”16 intent and prosecutor has no such prohibits if “the conduct tion retrial of the trial is probable outcome where the intentionally is undertaken But that utterly absurd. unknown is point of the prejudice the to the defendant n language what does. Bander 17 fair trial.” Both these states denial of a minimum, intent on the require, at a some Conclusion respect part of the with Arizona, Hawaii, Only causing a mistrial. result, majority a ridiculous To avoid jeopardy stan- Oregon have double effect, say what really didn’t says, “We those set out Ban- dards as broad as fact that we have in Bander.” The we said is con- our decision Bander der.18 So language disavow its clarify had to authority trary great weight to the again to- “Bander II"19 twice—in the United States. around imprecise and dif- day how —demonstrates specifically should state, apply ficult it is to course, sovereign is a Of Texas set return to the standard being overrule it and cringe from and we should Bear, 1993); N.W.2d 15. Ibid. v. Catch the 352 State Tucker, (S.D.1984); 728 S.W.2d State v. 637 27 Trafny, (Tenn.Cr.App.1986); 799 State 16. Ibid. 1990) (Utah (applying test as same P.2d 704 ); mentioning Kennedy Kennedy Rob- without 177, Smith, 615 A.2d 532 Pa. 17. Comm. v. 551, Comm., Va.App. S.E.2d 439 inson v. 622, 17 (Pa. 1992). 321 814, rehearing, Va.App. 447 S.E.2d on 18 Cochran, (1994); Wash.App. 51 State v. 542 98, Court, Ariz. 677 Superior 139 18. Pool 116, (Wash.App.), review de- P.2d 751 1194 261, (Ariz.1984) (“indifference to a 271 P.2d nied, (1988); ex rel. 1017 State 110 Wash.2d danger or re resulting of mistrial significant 119, Abbot, 590 W.Va. 375 S.E.2d Bass v. 180 260, versal”); Kennedy, 666 620, 295 Or. Quinn, State v. (W.Va.1988); Wis.2d State v. 169 1316, (Or.1983) (“indifferent denied, to the P.2d 1326 (Wis.App.), review 486 N.W.2d 542 reversal”); (1992). v. Ro State resulting mistrial or 491 N.W.2d 768 (1999) (re 405, 984 P.2d 1231 gan, Haw. Colton, A.2d 234 Conn. State v. “prosecutorial misconduct where trial barred (Conn.1995) Kennedy appel (applying that, objective view egregious from an was so denied, reversals), U.S. late cert. right clearly denied the defendant point, it (1996); State L.Ed.2d 892 trial”). to a fair Swartz, (Iowa App. 541 N.W.2d Dawson, 1995) (same); 431 Mich. State v. (Tex. parte Ex 1988). (Mich. 427 N.W.2d Crim.App.1998). Breit, 930 P.2d 122 N.M. 14. State v. (N.M.1996). not, Supreme forth plurality only Court in do I concur in the result reached so, Oregon by majority. Kennedy. doing would return to the our mainstream of jurisprudence.

nation’s Texas Consti-

tution by history pro- its terms and its

vides the identical protection against dou-

ble as does the United States

Constitution. We say should so. Since we

Case Details

Case Name: State v. Lee

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 12, 2000

Citation: 15 S.W.3d 921

Docket Number: 168-98

Court Abbreviation: Tex. Crim. App.