NO. 168-98







Keasler, J. delivered a concurring opinion, in which McCormick, P.J and Keller, J. join.


Today the majority further muddles Texas double jeopardy law while clinging to an ill-conceived, historically unsound, imprecise precedent. Rather than abandoning Bauder v. State,(1) the majority turns a blind eye to its holding and says that it does not apply to these facts. I agree that Lee should answer to the indictment, and that double jeopardy does not prohibit his retrial. I just do not see how the majority can justify its conclusion under the language of Bauder.

Regardless of whether Lee was invoking his right to remain silent or invoking his right to counsel, he was without question referring the police to his lawyer, and the prosecutor mentioned this fact to the jury. The prosecutor's argument violated Art. 38.38. That statute provides that "[e]vidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense" and a prosecutor may not "comment on the fact that the defendant has contacted or retained an attorney in the case." The trial court recognized this statutory violation as one of its reasons for granting the mistrial; it found that the prosecutor's comment "also violated Art. 38.38 of the Texas Code of Criminal Procedure." The prosecutor's violation of this statute was "an objectionable event for which [the prosecutor] was responsible"(2) under Bauder. The trial court's granting of the mistrial on these grounds directly implicates our holding in Bauder.

In a footnote, the majority attempts to distinguish Bauder from this case by saying that Article 38.38 is merely "evidentiary in nature...curable by an instruction to disregard." But the majority overlooks the fact that Bauder also involved the violation of an evidentiary rule (Rule 404, Texas Rules of Evidence). The only difference is that in Lee we have a rule passed by the legislature, while Bauder dealt with a court-made rule. Is the majority saying that rules enacted by the legislature are not as important as those we promulgate? Apparently so.

What Bauder Held

In Bauder v. State, we held for the first time that a prosecutor need not intend to goad defense counsel into moving for a mistrial for double jeopardy to bar a retrial. We said that retrial will also be prohibited "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."(3) So jeopardy consequences under Bauder attach to reckless or grossly negligent prosecutorial conduct as well as intentional behavior.

Stare Decisis

I realize that we should not overrule precedent lightly.(4) But Bauder itself did just that. Our decision in Bauder "lightly overruled" precedent in two ways:

In determining whether the Texas Constitution accords more protection than the Constitution of the United States, five factors are relevant: the constitutional text; the Framers' intent; the history and application of the constitutional provision; comparable jurisprudence from other states; and the practical policy considerations behind the constitutional provision. In light of those considerations, Bauder's rationale is flawed.

The Constitutional Text

The 1845, 1861, and 1866 Texas Constitutions provided that "[n]o person, for the same offense, shall be twice put in jeopardy of life or limb, 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." In the 1869 Texas Constitution, the words "or limb" were omitted. In the 1876 version, the words "or liberty" were inserted following the word "life." The Fifth Amendment of the United States Constitution states "...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb..." Neither the Texas nor the United States Constitutional texts specifically addressed the consequences of mistrials.

The Framers' Intent

When we look at legislative actions around the time our state constitutions were adopted, we see that the 1856 Code of Criminal Procedure provided:

Art. 18. No person for the same offence [sic] can be twice put in jeopardy of life or limb. This is intended to mean that no person can be subjected to a second prosecution for the same offense, after having been once prosecuted in a Court of competent jurisdiction and duly convicted.

Art. 19. The foregoing article will exempt no person from a second trial, who has been convicted on an illegal instrument or information, and the judgment thereupon arrested, nor where a new trial has been granted to the defendant, nor where a jury has been discharged without rendering a verdict, nor for any case other than that of a legal conviction.

Art. 20. By the provisions of the Constitution, an acquittal of the defendant exempts him from a second trial, or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial, in a Court having no jurisdiction of the offense, he may, nevertheless, be prosecuted again in a Court having jurisdiction.

The provisions of Section 19 were carried forward as Section 20 of the 1879 Code of Criminal Procedure just three years after the present state constitution's adoption.

So our state constitution was initially interpreted to prohibit second trials only after legal conviction or acquittal. And there is no legal or historical basis for the contention that the Texas Constitution provides greater double jeopardy protection than the United States Constitution. Its wording certainly does not apply double jeopardy consequences where a jury has been discharged without reaching a verdict. And indeed, as we shall see, the idea of their being applied this way did not appear in constitutional jurisprudence until well into the next century.

Application of the Constitutional Provision

In this century, our nation's courts have expanded double jeopardy protection. Classic double jeopardy protection prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.(8) In recent years, the word "acquittal" has been expanded to include cases where a conviction is reversed because the evidence at trial was insufficient to convict as a matter of law.(9) Also, if a verdict at trial necessarily includes the determination of an ultimate fact issue in the defendant's favor, and if proof of that issue is necessary for the prosecution to convict the defendant in a subsequent proceeding, then the prosecution is estopped from relitigating that issue, and the defendant is acquitted of that offense.(10)

The kind of double jeopardy protection involved in Bauder and in this case is the "mistrial species." The Supreme Court of the United States described it as "protect[ing] a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendant to substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad faith conduct by judge or prosecutor' threatens the '[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant."(11) When the State believes that an acquittal is likely and it attempts to avoid the acquittal by goading the defendant into moving for a mistrial, thereby prematurely terminating the proceeding, it is an effort to put the defendant twice in jeopardy. For a double jeopardy violation to occur, the trial court must grant the mistrial. And the court must grant it as a result of the prosecution's acting with intent to terminate the proceedings in an effort to avoid an acquittal.

Comparable Jurisprudence From Other States

The overwhelming majority of our sister states follow Oregon v. Kennedy in interpreting their state constitutions.(12) Some states have not addressed the issue directly, but their caselaw indicates that they will probably follow Kennedy when the issue arises.(13)

Of the five states other than Texas that have declined to follow Kennedy, two have a stricter test than Bauder. In New Mexico, retrial is barred under the state constitution if the official "either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial"(14) The court explained that "willful disregard" is greater than recklessness, negligence, or indifference.(15) Instead, it connotes a "conscious and purposeful decision to dismiss any concern."(16) Pennsylvania's constitution prohibits retrial if "the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial."(17) Both these states require, at a minimum, some intent on the part of the prosecutor with respect to causing a mistrial. Only Arizona, Hawaii, and Oregon have double jeopardy standards as broad as those set out in Bauder.(18) So our decision in Bauder is contrary to the great weight of authority around the United States.

Of course, Texas is a sovereign state, and we should not cringe from being unique. Sometimes being right requires us to stand alone. Nevertheless, we might wonder if everyone is out of step but us when 88% to 92% of our sister states (depending on which numbers you use) disagree.

Practical Policy Considerations

It should be clear that the "mistrial" species of double jeopardy logically extended the protection from actual acquittal to cases where acquittal was probable. It was meant to deter prosecutorial behavior intended to sabotage a trial going badly for the State. To extend it to cases where the prosecutor has no such intent and where the probable outcome of the trial is unknown is utterly absurd. But that is what Bauder's language does.


To avoid a ridiculous result, the majority says, in effect, "We really didn't say what we said in Bauder." The fact that we have had to clarify or disavow its language twice -- in "Bauder II"(19) and again today -- demonstrates how imprecise and difficult it is to apply We should specifically overrule it and return to the standard set forth by the Supreme Court plurality in Oregon v. Kennedy. In doing so, we would return to the mainstream of our nation's jurisprudence. The Texas Constitution by its terms and by its history provides the identical protection against double jeopardy as does the United States Constitution. We should say so. Since we do not, I concur only in the result reached by the majority.


DATE DELIVERED: April 12, 2000

1. 921 S.W.2d 696 (Tex. Crim. App. 1996).

2. Bauder, 921 S.W.2d at 699.

3. Ibid.

4. Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex. Crim. App. 1998).

5. Bauder, 921 S.W.2d at 709 (McCormick, P.J., dissenting).

6. 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

7. Crawford v. State, 703 S.W.2d 655 (Tex. Crim. App. 1986); Collins v. State, 640 S.W.2d 288 (Tex. Crim. App. 1982); Anderson v. State, 635 S.W.2d 722 (Tex. Crim. App. 1982).

8. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664 (1969).

9. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

10. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed. 469 (1970).

11. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 276 (1976).

12. Oliver v. State, 479 So.2d 1385 (Ala.Cr.App. 1985); Piesik v. State, 572 P.2d 94 (Alaska 1977); Jackson v. State, 322 Ark. 710, 911 S.W.2d 578 (Ark. 1995); People v. Valenzuela-Gonzales, 195 Cal.App.3d 728, 241 Cal.Rptr. 114 (Cal.App. 4 Dist. 1987); People v. Espinoza, 666 P.2d 555 (Colo. 1983); Aillon v. Manson, 201 Conn. 675, 519 A.2d 35 (Conn. 1986); Sudler v. State, 611 A.2d 945 (Del.Supr. 1992); State v. Iglesias, 374 So.2d 1060 (Fla.App. 3 Dist. 1979); Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997); State v. Fairchild, 121 Idaho 960, 829 P.2d 550 (Idaho App. 1992); People v. Ramirez, 114 Ill.2d 125, 102 Ill.Dec. 392, 500 N.E.2d 14 (Ill. 1986), cert. denied, 481 U.S. 1053, 107 S.Ct. 2189, 95 L.Ed.2d 845 (1987); Wilson v. State, 697 N.E.2d 466 (Ind. 1998); State v. Rademacher, 433 N.W.2d 754 (Iowa 1988); State v. Muck, 262 Kan. 459, 939 P.2d 896 (Kan. 1997); Stamps v. Comm., 648 S.W.2d 868 (Ky. 1983); State v. Brossette, 634 So.2d 1309 (La.App. 3 Cir. 1994), writ denied, 640 So.2d 1344 (1994); State v. Chapman, 496 A.2d 297 (Me. 1985); Fields v. State, 96 Md.App. 722, 626 A.2d 10377 (Md.App. 1993); Poretta v. Comm., 409 Mass. 763, 569 N.E.2d. 794 (Mass. 1991); Wheat v. State, 599 So.2d. 963 (Miss. 1992); State v. Clover, 924 S.W.2d 853 (Mo. 1996); State ex rel. Forsyth v. District Court, 216 Mont. 480, 701 P.2d 1346 (Mont. 1985); State v. Kula, 254 Neb. 962, 579 N.W.2d. 541 (Neb. 1998); Melchor-Gloria v. State, 99 Nev. 174, 660 P.2d 109 (Nev. 1983); State v. Duhamel, 128 N.H. 199, 512 A.2d. 420 (N.H. 1986); State v. DeMarco, 211 N.J.Super. 421, 511 A.2d 1251 (N.J.Super.A.D. 1986); Davis v. Brown, 87 N.Y.2d 626, 641 N.Y.S.2d 819, 664 N.E.2d 884 (N.Y.App. 1996); State v. White, 369 S.E.2d 813 (N.C. 1988); State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (Ohio 1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1983, 131 L.Ed.2d 871 (1995); State v. Girts, 121 Ohio App.3d 539, 700 N.E.2d 395 (Ohio App. 8 Dist. 1997), appeal not allowed, 80 Ohio St.3d 1424, 685 N.E.2d 237 (1997); McCarty v. State, 904 P.2d 110 (Okla.Cr.App. 1995); State v. Diaz, 521 A.2d 129 (R.I. 1987); State v. Anderson, 422 S.E.2d 161 (S.C.App. 1992), rev'd on other grounds, 439 S.E.2d 835 (S.C. 1993); State v. Catch the Bear, 352 N.W.2d 637 (S.D. 1984); State v. Tucker, 728 S.W.2d 27 (Tenn Cr.App. 1986); State v. Trafny, 799 P.2d 704 (Utah 1990) (applying same test as Kennedy without mentioning Kennedy); Robinson v. Comm., 17 Va.App. 551, 439 S.E.2d 622, on rehearing, 18 Va.App 814, 447 S.E.2d 542 (1994); State v. Cochran, 51 Wash.App. 116, 751 P.2d 1194 (Wash.App.), review denied, 110 Wash.2d 1017 (1988); State ex rel. Bass v. Abbot, 180 W.Va. 119, 375 S.E.2d 590 (W.Va. 1988); State v. Quinn, 169 Wis.2d 620, 486 N.W.2d 542 (Wis.App.), review denied, 491 N.W.2d 768 (1992).

13. State v. Colton, 234 Conn. 683, 663 A.2d 339 (Conn. 1995) (applying Kennedy to appellate reversals), cert. denied, 516 U.S. 1140, 116 S.Ct. 972, 133 L.Ed2d 892 (1996); State v. Swartz, 541 N.W.2d 533, 537 (Iowa App. 1995) (same); State v. Dawson, 431 Mich. 234, 427 N.W.2d 886 (Mich. 1988).

14. State v. Breit, 122 N.M. 655, 930 P.2d 972, 803 (N.M. 1996).

15. Ibid.

16. Ibid.

17. Comm. v. Smith, 615 A.2d 321 (Pa. 1992).

18. Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261, 271 (Ariz. 1984) ("indifference to a significant resulting danger of mistrial or reversal"); State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1326 (Or. 1983) ("indifferent to the resulting mistrial or reversal"); State v. Rogan, 91 Ha. 405, 984 P.2d 1231 (1999) (retrial barred where "prosecutorial misconduct was so egregious that, from an objective viewpoint, it clearly denied the defendant the right to a fair trial").

19. Ex parte Bauder, 974 S.W.2d 729 (Tex. Crim. App. 1998).