ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
AND STATE'S CROSS-PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
Meyers, J., filed a concurring opinion.
In this case, the conduct of the State was questionable, but we are stuck with the old standard from twenty-five years ago when the Supreme Court addressed this question in Oregon v. Kennedy, 456 U.S. 667 (1982). As we know, that case is not very clear on how to analyze whether a prosecutor's actions were intended to goad the defendant into requesting a mistrial. In response to the difficulties in applying the Oregon v. Kennedy standard, we came up with a new standard in Ex Parte Bauder, 921 S.W.2d 696 (Tex. Crim. App. 1996). In that case, we held that prosecution after the granting of a defense-requested mistrial is jeopardy-barred not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware of, but consciously disregarded, the risk that his conduct would lead the defendant to request a mistrial. Id. at 699. Even though the State never lost a Bauder case, they still petitioned us numerous times to do away with Bauder. So we did, in Ex Parte Lewis, No. PD-0577-05, 2007 Tex. Crim. App. LEXIS 33 (Tex. Crim. App. January 10, 2007), holding that Bauder was too expansive, and the Double Jeopardy provision in the Texas Constitution should be treated the same as the Fifth Amendment's Double Jeopardy Clause. Now we are back to the Oregon v. Kennedy standard and the same problems with attempting to apply it.
My reading of Oregon v. Kennedy is that if the State's intentional actions goad the defendant into requesting a mistrial, then retrial is jeopardy-barred. Rather than considering whether the State actually wanted a mistrial, we look to see if the improper conduct of the State was intentional. In most cases, the circumstances leading a defendant to request a mistrial are accidental, such as a State's witness blurting out unelicited, inadmissible testimony. However, if we look at the State's actions and see that the prosecutors are intentionally doing things that they should anticipate would lead a judge to grant a mistrial if the defendant requested one, then it does not matter whether the State actually wanted a mistrial. The prosecutors may say that they did not want a mistrial, but if their actions were intentional rather than accidental or careless, and they should have known that a mistrial would be granted, then the Oregon v. Kennedy standard is met and retrial is jeopardy-barred. Rather than trying to determine the subjective intent of the prosecutor, we can objectively look at the actions of the State to determine if the actions were intentional.
Obviously here the actions of the State in withholding exculpatory evidence were intentional. Appellee was goaded into requesting the mistrial by this improper, intentional conduct, and therefore I agree with the majority that retrial is jeopardy-barred. With these comments, I join the majority opinion.
Meyers, J.
Filed: March 21, 2007
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