OPINION
The sole issue in this appeal is whether the recent opinion in Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996), alters the rule that jeopardy does not attach under the Double Jeopardy Clause of the Texas Constitution1 until the petit jury is impaneled. David Brian Hayes appeals the trial court's denial of habeas corpus relief, claiming thatBauder changed the timing of jeopardy attachment in cases where the prosecution's deliberate or reckless conduct requires a mistrial at the defendant's request, and a mistrial is so granted. We disagree and affirm the trial court's denial of Hayes's writ of habeas corpus.
Hayes was indicted on the charge of aggravated sexual assault of a child. Hayes's case was called for trial, a venire was seated, and voir dire began. During voir dire, prosecutor Mickey Klein pointed his finger at Hayes while defense counsel questioned the venire about credibility of witnesses. No mention of this conduct was made at the time of its occurrence. The venire was dismissed from the courtroom, and the State and Hayes filed their lists containing their respective preemptory challenges with the clerk. As the trial judge prepared to seat and swear the petit jury, defense counsel requested a hearing on prosecutor Klein's conduct during voir dire. Hayes testified that he saw Klein point at him while defense counsel questioned the venire about credibility of witnesses.2 The trial judge called the entire venire and asked them as a group whether anyone had seen any of the attorneys pointing during the voir dire examination. After a show of hands, a venireperson, outside the presence of the venire, corroborated Hayes's allegation that prosecutor Klein pointed at Hayes while defense counsel was questioning the venire about credibility of witnesses. The trial judge then granted Hayes's motion for a mistrial.
Hayes filed a writ of habeas corpus claiming that the Double Jeopardy Clauses of the United States and Texas Constitutions barred retrial. The habeas judge denied the writ, finding that jeopardy had not attached in the prior proceeding. Hayes now appeals that ruling to this court claiming that the Texas Double Jeopardy Clause precludes prosecution.
Article I, Section 14 of the Texas Constitution provides that "[n]o person, for the same offense, shall twice be put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." TEX. CONST. art. I, § 14. Once jeopardy attaches, a defendant has a right, guaranteed by the Texas Double Jeopardy Clause, to be tried by the first jury impaneled. Dinkins v. State, 894 S.W.2d 330, 343 (Tex.Crim.App.), cert. denied, ___, U.S. ___, ___, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995);Smithwick v. State, 732 S.W.2d 768, 769 (Tex.App.— Fort Worth 1987, pet. ref'd). If a trial court grants a defendant's motion for a mistrial after jeopardy has attached, the Texas Double Jeopardy Clause is not violated unless the event requiring a mistrial is a result of the deliberate or reckless conduct of the prosecutor.Bauder, 921 S.W.2d at 699.
In every appeal involving an issue of double jeopardy, the threshold question this court must address is whether the defendant was ever placed in jeopardy, because there can be no double jeopardy unless the defendant has previously been placed in danger of conviction for the same offense. Ex parteGeorge, 913 S.W.2d 523, 525 (Tex.Crim.App. 1995);State v. Torres, 805 S.W.2d 418, 420 (Tex.Crim.App. 1991); Rameriz v. State, 171 Tex.Crim. 507, 352 S.W.2d 131, 132-33 (App. 1961); Scholtes v. State,691 S.W.2d 84, 87 (Tex.App.— Houston [1st Dist.] 1985, pet. ref'd). In a jury trial, the oft-stated rule is that jeopardy attaches when a jury is impaneled *Page 723 and sworn to try the case. Crist v. Bretz,437 U.S. 28, 37, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 32 (1978); Exparte Little, 887 S.W.2d 62, 64 (Tex.Crim.App. 1994). Hayes argues that the Texas Court of Criminal Appeals inBauder changed the timing of jeopardy attachment when it stated:
Bauder, 921 S.W.2d at 699 (emphasis added). Hayes contends that, under the rule set forth in Bauder, the Texas Double Jeopardy Clause bars his retrial because at the time the trial judge granted a mistrial both the State and Hayes had turned in their respective peremptory challenges, effectively selecting the jury, and thereby attaching jeopardy. We disagree with both Hayes's application and interpretation ofBauder.We therefore hold that a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request. . . . When this happens, we think the government should bear responsibility for denying the defendant his right, secured by the Texas Double Jeopardy Clause, to be tried in a single proceeding by the first jury selected.
The facts and issues presented in Bauder are distinguishable from the instant case. In Bauder, after the petit jury was impaneled, the prosecutor elicited testimony concerning uncharged extraneous misconduct in violation of a motion in limine. Bauder v. State, 880 S.W.2d 502, 503 (Tex.App.— San Antonio 1994),rev'd, 921 S.W.2d 696, 700 (Tex.Crim.App. 1996). The trial court granted the defendant's motion for a mistrial.Id. The habeas judge refused to dismiss the prosecution after finding that the prosecution did not intend to goad the defendant into requesting a mistrial.Bauder, 921 S.W.2d at 697.3 The Fourth Court of Appeals affirmed. Bauder, 880 S.W.2d at 504. The Court of Criminal Appeals, limiting its review to a single issue, reversed, holding that the Texas Double Jeopardy Clause prevents retrial after a mistrial granted on a defendant's request when the mistrial was required due to the government's intentional or reckless misconduct. Bauder, 921 S.W.2d at 699.
In contrast, the sole issue presented to this court in this appeal is whether jeopardy attached before the grant of a mistrial. The record and the trial court's unchallenged findings indicate that Hayes was granted a mistrial before the petit jury was impaneled. Therefore, the trial court's finding that prosecutor Klein should have known that pointing at Hayes while defense counsel questioned the venire on credibility of witnesses was an objectionable event that would require a mistrial at the defendant's request is of no consequence because jeopardy had not attached.
Additionally, we disagree with Hayes's interpretation of and reliance on the term "selected," as used by the Court of Criminal Appeals in Bauder. A brief review of the history of the traditional rule that jeopardy does not attach until the petit jury is impaneled and sworn reveals that a jury is not selected, as the trier of fact, until the petit jury has been impaneled. This rule was adopted on the federal level inCrist v. Bretz, where the Court stated:
*Page 724In Illinois v. Somerville, a case involving the application of the Double Jeopardy Clause through the Fourteenth Amendment, the Court said that "jeopardy 'attached' when the first jury was selected and sworn." Today we explicitly hold what Somerville assumed: The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part
of the constitutional guarantee against double jeopardy.Crist, 437 U.S. at 38, 98 S.Ct. at 2162, 57 L.Ed.2d at 32 (internal citations omitted) (emphasis added). This passage is instructive because the United States Supreme Court drew no substantive distinction between the terms empaneled4 and selected. Texas has explicitly applied the standard set forth in Crist to the Texas Double Jeopardy Clause.McElwee v. State, 589 S.W.2d 455, 459 (Tex.Crim.App. 1979); see also Alvarez v. State, 864 S.W.2d 64, 65 (Tex.Crim.App. 1993). We find no substantive difference between the terms "selected," as used by the Court of Criminal Appeals in Bauder, and the term impaneled.5
A jury is not selected as the trier of fact, and a defendant is not placed in jeopardy of a conviction until the jury has been impaneled. A Texas jury is considered impaneled only after "all twelve jurors (plus any alternates) have been qualified and accepted and the jury, as a whole, is given the requisite oath." Rousseau v. State, 824 S.W.2d 579, 581 (Tex.Crim.App. 1992), cert. denied,510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). Thus, the trial judge, not the attorneys, selects the jury only after ensuring that its members are qualified, accepted by the parties in the case, and all its members are sworn.6 Therefore, we hold that Hayes's prosecution is not jeopardy barred because the jury was never impaneled in the prior proceeding.
Accordingly, we overrule Hayes's sole point of error and affirm the trial court's denial of habeas relief.