Ex Parte Mitchell

OPINION ON APPLICANT’S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

Applicant, Andrew Lee Mitchell, was convicted of the offense of capital murder alleged to have been committed on or about December 26, 1979. His conviction was affirmed on direct appeal. Mitchell v. State, 650 S.W.2d 801 (Tex.Crim.App.1983). Subsequently, applicant sought postconviction relief by filing a petition for writ of habeas corpus. Applicant alleged in his petition the State had withheld material exculpatory evidence, thereby denying his rights to due process and due course of law. This Court granted applicant’s claim for relief and vacated his conviction and sentence. Ex parte Mitchell, 853 S.W.2d 1 (Tex.Crim.App.1993) (Mitchell I).

The State then scheduled applicant’s case for retrial. Applicant, in order to prevent his retrial, filed the present petition for writ of habeas corpus. In his petition, applicant alleged the State’s reprosecution of him for capital murder would violate his double jeopardy rights under both the United States and Texas Constitutions. Furthermore, applicant averred his reprosecution would violate his rights to due process and due course of law under the federal and state constitutions. The trial court denied relief, and the Twelfth Court of Appeals affirmed. Mitchell v. State, *577963 S.W.2d 532 (Tex.App.—Tyler 1996) (Mitchell IT).

Applicant, in his petition for discretionary review, alleged six grounds for review. We granted his petition for discretionary review to consider only the following two grounds:

1. The Court of Appeals erred in holding that applicant’s reprosecution is not barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution due to the intentional prosecutorial misconduct that formed the basis of this Court’s reversal of applicant’s prior conviction.

2. The Court of Appeals erred in holding that applicant’s reproseeution is not barred by the double jeopardy clause of Article I, Section 14 of the Texas Constitution due to the intentional (or reckless) prosecutorial misconduct that formed the basis of this Court’s reversal of applicant’s prior conviction.

We affirm the judgment of the Court of Appeals, thereby overruling both of applicant’s grounds for review and denying relief.

In reversing applicant’s conviction in Mitchell I, in a unanimous decision, this Court found the State suppressed material exculpatory evidence which could have been used to impeach the State’s accomplice witnesses and the suppression of which undermined confidence in the verdict. The suppressed evidence consisted of statements by a game warden, Ralph East, and a Smith County deputy sheriff, Kelly Stroud. East and Stroud, in their statements, indicated they observed the victim alive (“as far as they could tell”) sometime around midnight at the fireworks stand where he worked.1 These statements contradicted testimony of the State’s accomplice witnesses, who testified the offense was committed at least three hours prior to midnight. Other evidence introduced by the State placed appellant in the company of friends at midnight and thereafter at a club and motel in Tyler.

At the 1989 hearing held pursuant to the writ application which resulted in Mitchell I, it appeared that the existence of East’s and Stroud’s statements (which were in the possession of the Smith County Sheriffs Department) was not known to the Smith County District Attorney’s Office. This Court found, however, the statements of East and Stroud were concealed by the Smith County Sheriffs Department. We found further the statements were material and exculpatory as they impeached the testimony of the accomplice witnesses on the critical issue of when applicant allegedly killed the victim. Thus, relying on our decision in Thomas v. State, 841 S.W.2d 399, 404-405 (Tex.Crim.App.1992), we vacated applicant’s conviction.

However, at the hearing held pursuant to the present writ application in July of 1996, it was revealed that the lead prosecutor at applicant’s 1981 trial had knowledge of East’s observations at the time of trial. Handwritten notes of the lead prosecutor referred to East’s observations. It is therefore reasonable to conclude that not only did the Sheriffs Department fail to reveal East’s potentially exculpatory statement to applicant at both the time of his trial as well as at the time of the 1989 hearing conducted as part of Mitchell I, but that the Smith County District Attorney’s Office also failed to reveal East’s statement to applicant despite having knowledge of its existence at the time of the 1981 trial. It is not clear whether the Smith County District Attorney’s Office was aware of Stroud’s statement either at the time of the 1981 trial or at the time of the 1989 hearing.2

*578It is well-established that the State has an affirmative duty to make available to an accused, in a timely manner, exculpatory evidence which is in its possession. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Supreme Court, in Brady, held that “suppression by the prosecution ... violated due process ... irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97.

Brady has been extended to include the required revelation to an accused of material exculpatory evidence in the possession of police agencies and other parts of the “prosecu-torial team.” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Evidence whose value is limited to that of impeachment must also be divulged to the accused if the failure to do so by the State undermined confidence in the trial’s outcome. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

It is significant to note the Supreme Court has consistently treated the failure by the State to divulge potentially exculpatory evidence (whether directly exculpatory or exculpatory as having impeachment value) as a violation of an accused’s due process right to a fair trial where the failure undermined confidence in the trial’s outcome. The remedy prescribed in such cases is reversal of his conviction and remand of the cause to the trial court for further proceedings. Brady v. Maryland, supra; Kyles v. Whitley, supra; United States v. Bagley, supra.

In numerous cases, most recently Ex parte Davis, 957 S.W.2d 9 (Tex.Crim.App.1997), this Court has found reversal, and remand to the trial court for further proceedings, to be the proper remedy where the first trial was unconstitutionally tainted by prose-cutorial misconduct. For example, in Cook v. State, 940 S.W.2d 623 (Tex.Crim.App.1996), we found prosecutorial misconduct, which included withholding of several pieces of potentially exculpatory evidence, combined with the false and misleading testimony of the prosecution’s expert, violated applicant’s rights under the Due Process Clause of the United States Constitution as well as his rights under the due course of law provisions of the Texas Constitution. In Davis, the prosecutorial misconduct included misleading the jury as to the quality of the police investigation, the misrepresentation by the prosecution as to his interrogation of a key witness (as to why she changed her testimony) and the use of false and perjured testimony by the State’s expert witness. While finding the behavior of the prosecutor to be reprehensible, we rejected applicant’s contention that he was entitled to anything more than he had already received: reversal of his conviction on appeal.3

Applicant contends, however, that the double jeopardy clause of the Fifth Amendment to the United States Constitution bars his retrial because the reversal of this conviction was a result of intentional and egregious prosecutorial misconduct.

The United States Supreme Court has consistently held that when a trial proceeds to conclusion (i.e., a verdict) despite a legitimate claim of serious prejudicial error and the conviction is reversed on appeal, retrial is not automatically jeopardy-barred. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). A retrial is barred on jeopardy grounds only if there is insufficient evidence to support the conviction. United States v. Ball, supra; Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Toteo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). The Supreme Court has held that where the State has in bad faith destroyed evidence favorable to the accused, retrial of the accused may be barred if the accused’s due process rights are violated. Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S.Ct. *579333, 337-38, 102 L.Ed.2d 281 (1988). The Court left open the question of whether, in such instances, retrial would be jeopardy-barred.

Underlying the Supreme Court’s application of double jeopardy principles to instances where convictions have been reversed on appeal is the concept of “continuing jeopardy.” Continuing jeopardy means, in effect, an accused may be retried after his conviction has been reversed on appeal because the proceedings against him never stopped. Price v. Georgia, supra; Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984); Montana v. Hall, 481 U.S. 400, 402-403, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354 (1987).

It is a venerable principle of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the conviction [citation omitted], poses no bar to further prosecution on the same charge.... Corresponding to the right of the accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they are now in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interests.

Montana v. Hall, 481 U.S. at 400, 402-03, 107 S.Ct. at 1825, 1826, citing United States v. Toteo, 377 U.S. at 463, 466, 84 S.Ct. at 1587, 1589.

Viewed in the context of the concept of “continuing jeopardy” the Supreme Court’s holding in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) is logically consistent. In Oregon v. Kennedy the Court held the double jeopardy clause of the Fifth Amendment is not offended by a second prosecution for the same offense where the earlier proceeding was terminated as a result of the defendant’s motion for mistrial unless the State deliberately set out to provoke the defendant’s motion for mistrial, thereby violating the defendant’s right under the double jeopardy clause to have his trial decided by the first tribunal. The granting of a motion for mistrial tei’minates the proceeding; the defendant’s subsequent prosecution is a new proceeding. A retrial following a reversal, in contrast, is one uninterrupted proceeding.

Appellant does not direct us to any cases where the Supreme Court has explicitly extended Oregon v. Kennedy to apply to instances where verdicts of guilty have been reversed on appeal, due in whole or in part to prosecutorial misconduct, and thereby holding retrials as jeopardy-barred. The Second Circuit has held that double jeopardy would bar retrial after reversal “only where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” United States v. Wallach, 979 F.2d 912, 916 (2nd Cir.1992), cert. denied, 508 U.S. 939, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993). See also, Robinson v. Wade, 686 F.2d 298 (5th Cir.1982).4

Where the prosecutor’s actions are engaged in with the intent to persuade the factfinder to convict, instead of acquit, there is no double jeopardy violation under the Fifth Amendment. This is true even if the conviction is due in part to reversible errors, including intentional misconduct on the part of the State. The accused’s right under the double jeopardy clause to have his trial completed by the first tribunal is clearly protected where, as in the present case, it proceeded *580to conclusion, i.e., a verdict. Only where the prosecutor’s intentional, and deliberate misconduct goads the accused into moving for a mistrial — and that motion is granted — is the accused’s right to be tried to verdict by the first tribunal, a right afforded him by the double jeopardy clause of the Fifth Amendment, violated.5 As there was no mistrial in the present case, we hold applicant’s double jeopardy rights under the United States Constitution are not violated by the State’s retrial of applicant following reversal of his conviction. To hold otherwise would be inconsistent with applicable Supreme Court precedent which we are not free to ignore. Applicant’s first ground for review is overruled.

We turn next to applicant’s second ground for review which posits his retrial is barred by the double jeopardy clause of the Texas Constitution. Applicant is correct in his assertion that this Court, as well as the Texas Supreme Court, has held the Texas Constitution gives greater protection in some instances to Texas citizens than does its federal counterpart. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991); Autran v. State, 887 S.W.2d 31 (Tex.Crim.App.1994) (plurality op.); Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992).

We have consistently held, however, that the Texas and United States constitutions’ double jeopardy provisions provide substantially identical protections. Phillips v. State, 787 S.W.2d 391 (Tex.Crim.App.1990); Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990). Until recently, we had applied the standard of review set forth by the United States Supreme Court in Oregon v. Kennedy, supra, to double jeopardy claims arising out of instances where mistrials were provoked by the State. Thus, retrial was not barred by the Fifth Amendment’s double jeopardy clause where the earlier proceeding was terminated by mistrial at the defendant’s request unless the State deliberately set out to provoke the defendant’s motion for mistrial. Crawford v. State, 703 S.W.2d 655 (Tex.Crim.App.1986); Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982).

In Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), this Court held the following under the Texas Constitution’s double jeopardy clause:

[A] second prosecution is jeopardy-barred after declaration of a mistrial at the defendant’s request, not only where the objectionable conduct of the prosecutor was intended to produce a motion for a mistrial but also where the prosecutor was aware but consciously disregarded the risk that an event for which he was responsible would require a mistrial at the defendant’s request_ He is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.

Bauder, supra, at 699. Thus under the Texas Constitution, a retrial is jeopardy-barred not only where the State deliberately provoked the defendant’s motion for mistrial (and such motion was granted), but also where the defendant’s motion for mistrial was due to reckless behavior on the part of the State (and said motion was granted).

Recently we refused to extend our holding in Bauder to a case similar to the present case, Ex parte Davis, supra. In Davis, applicant contended Bauder should apply where a verdict of guilty has been reversed on appeal due, at least in part, to intentional or reckless prosecutorial misconduct. Thus, *581retrial would be barred under the double jeopardy clause of the Texas Constitution regardless of whether there had been a mistrial or a reversal of conviction on appeal following a completed trial. This Court, however, declined to extend our holding in Bander, limiting it to cases where a mistrial has been granted due to intentional or reckless prosecutorial misconduct.

Applicant, in the present ease, does not persuade us that our holding in Davis is erroneous or that the traditional remedy of reversal of the conviction on appeal — where an accused’s trial has been rendered constitutionally unfair due to prosecutorial misconduct — is insufficient under the Texas Constitution. Accordingly, we hold that the double jeopardy clause of the Texas Constitution does not bar retrial of an accused whose conviction for the same offense has been reversed on appeal, or as the result of a post-conviction writ of habeas corpus proceeding, due to prosecutorial misconduct.6’7

We affirm the judgment of the Court of Appeals.

KELLER, J., concurs in the result.

. The victim was found shot to death at the fireworks stand where he was employed. The indictment averred he was killed during a robbery of the fireworks stand. The two accomplice witnesses testified applicant shot and killed the victim at about 8:30 PM. There was no corroboration of the accomplice witnesses’ testimony as to the time of the killing of the victim. East and Stroud did not speak to the victim; their conclusions that the victim was alive were based on seeing the victim sitting in front of a television at the fireworks stand as they drove by.

. Applicant was notified before his 1981 trial that Ralph East was a witness; East was called and testified at the trial. The prosecutor, though he testified at the 1989 hearing, did not testify at the 1996 hearing, though he was available to do so. In Mitchell I, we held East’s and Stroud’s statements, which investigators for the Sheriff’s Department claimed were equivocal and therefore not believable, should nonetheless have been revealed to applicant. Mitchell I, 853 S.W.2d at 4-5.

. We have similarly found in at least two other instances, that reversal of applicant’s conviction and remand to the trial court for further proceedings to be the proper remedy where applicants’ trials were tainted by serious prosecutorial misconduct. Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989); Ex parte Brandley, 781 S.W.2d 886 (Tex.Crim.App.1989).

. The Seventh Circuit, however, concluded the double jeopardy clause does not bar a retrial following reversal of a defendant’s conviction on appeal due to prosecutorial misconduct. Beringer v. Sheahan, 934 F.2d 110, 114 (7th Cir.1991). See also, United States v. Doyle, 121 F.3d 1078 (7th Cir.1997).

. As noted in the concurring opinion, the court of appeals emphasized Oregon v. Kennedy's key point, that the defendant’s right under the double jeopardy clause to have his case tried to verdict by the first tribunal is denied where he is forced into moving for a mistrial due to intentional prosecutorial misconduct. "Where the prosecution goads a defendant into moving for a mistrial, the accused no longer retains that important primary control over the course of his trial; instead, he is forced to seek a mistrial before a verdict is reached.” Mitchell II, at 537, citing Oregon v. Kennedy, 456 U.S. at 674-76, 102 S.Ct. at 2089. As there was no mistrial in the present case, the court of appeals concluded correctly that while the prosecutorial misconduct complained of constituted a routine due process violation under Brady v. Maryland and its progeny, entitling applicant to a new trial, there was no infringement of applicant’s rights under the double jeopardy clause which would bar his retrial. See Mitchell II, at 537-538.

. We note the level of alleged prosecutorial misconduct in the present case is far less than that shown to have occurred in Ex parte Davis and in Cook v. State. While we do not condone what appears to be an act of deception committed by the prosecutor at the 1989 hearing (Mitchell I), we do note that East was called as a witness at applicant's trial and thus applicant had an opportunity to cross-examine East as to the time he last saw the victim alive. Nowhere in the proceedings below is there any indication the prosecutor was aware of Stroud’s statement; nor was there any indication the Smith County Sheriff’s Department intentionally, in bad faith, withheld it. This Court essentially found the two statements, though relevant on the important issue of time of death and having impeachment value, were somewhat equivocal, though we found they should have been furnished to applicant. Mitchell I, 853 S.W.2d at 4-5. Given this, it is difficult to accept applicant's assertion the State intentionally or knowingly suppressed evidence it knew would result in applicant’s acquittal.

. We note further the cases cited by applicant in support of his contention that we should interpret the double jeopardy clause of the Texas Constitution to bar retrial where an accused’s conviction has been reversed on appeal due to prosecutorial misconduct involve instances where prosecutorial misconduct was pervasive, intentional and tainted nearly every phase of the trial. State v. Breit, 122 N.M. 655, 930 P.2d 792 (1996); State v. White, 85 N.C.App. 81, 354 S.E.2d 324, 329 (1987), aff’d, 322 N.C. 506, 369 S.E.2d 813 (N.C.1988). At least one state high court has held retrial to be barred under its state constitution’s double jeopardy clause where the prosecution specifically took actions to prejudice the defendant to the point of denying him a fair trial. Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). Applicant does not demonstrate the existence of pervasive prosecutorial misconduct or intentional prosecutorial actions which were designed to deprive him of a fair trial in the present case.

We further note that most state high courts have declined to interpret their state constitutions so as to bar, on double jeopardy grounds, retrials following reversals due, in whole or in part, to prosecutorial misconduct. Fugitt v. State, 253 Ga. 311, 319 S.E.2d 829 (1984); State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987); State v. Chase, 335 N.W.2d 630 (Iowa 1983).