IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
C O N C U R R I N G O P I N I O N
Once again the majority has refused to address whether Bauder (1) and its progeny should be overruled even though the issue is before us. The State's fifth ground for review provides: "Should this Court re-adopt the standard of review articulated in Oregon v. Kennedy?" (2) The majority concludes that "[b]ecause the resolution of this third prong [of the three-part Peterson (3) test] does not depend upon any distinction between the federal (Kennedy) and state (Bauder) constitutional standards, we do not address the State's fifth ground which asks this Court to re-adopt the single standard articulated in Kennedy." (4) The third part of the Peterson test asks: "Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial (Kennedy standard) or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial (Bauder standard)?" (5) Because the third part of the test includes the application of the Bauder standard, the resolution of the third part of the Peterson test does depend on the distinction between the federal and state constitutional standards. This is clear from the majority's conclusion that "We cannot say that the trial judge abused her discretion in finding that neither Kennedy nor Peterson would bar the defendant's retrial." (6) Perhaps the majority means to say that because the outcome is the same regardless of which standard, state or federal, is applied, there is no need to address the State's fifth ground for review. That rationale, however, provides a weak excuse for the Court's decision to adhere to the Bauder/Peterson standard. So while I concur in the result reached by the majority, as I have previously maintained in my concurring opinion in Lee v. State, (7) and in my dissent Ex parte Peterson, (8) Bauder and its progeny should be overruled--we should "return to the standard forth by the Supreme Court . . . in Oregon v. Kennedy[,]" (9) and followed by almost all other jurisdictions. (10)
DATE DELIVERED: October 4, 2006.
PUBLISH
1. 921 S.W.2d 696 (Tex. Crim. App. 1996).
2. 3. 117 S.W.3d 804, 817 (Tex. Crim. App. 2003).
4. 6. 7. 15 S.W.3d 921, 931 (Tex. Crim. App. 2000).
8. 117 S.W.3d at 820-21 (Tex. Crim. App. 2003) (Keasler, J., dissenting); 9. 10.