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Click here for the full text of this decision The court clarifies the three-pronged analysis by which trial and appellate courts review Bauder claims and sets out a non-exhaustive list of objective factors for courts to consider when evaluating them. FACTS:The trial judge granted defendant’s motion for mistrial when the prosecutor asked a question of her first witness that appellant claimed was improper. The defense then filed a pretrial double jeopardy motion to bar any retrial which, after a hearing, the trial judge also granted in part. The state and the defendant appealed, and the court of appeals affirmed the trial court’s ruling. HOLDING:Vacated and remanded. Under Oregon v. Kennedy, 456 U.S. 667 (1982), or Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996), and its progeny, trial and appellate courts analyzing a double jeopardy mistrial claim make the following three-part analysis: 1. Did manifestly improper prosecutorial misconduct provoke the mistrial? 2. Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard? 3. 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)? The trial court did not make any explicit findings of fact, did not comment on the prosecutor’s mens rea, or set out the legal basis for his grant of the defendant’s double-jeopardy motion. He granted it without comment or explanation. The court of appeals, left without any guidance from the trial court concerning the rationale for its ruling, relied upon two isolated pieces of information in the record, without discussing other facts and evidence in the record which are important under any Bauder analysis. First, it noted that the trial record showed that “the prosecutor proceeded to inquire about Spear’s conversations with appellant concerning the purchase of narcotics, despite specific court instructions not to stray from the arrest summary.” Second, it stated that “the prosecutor knew the tapes were `severely damaging’ to appellant and that admission of the tapes `would have substantially increased [the State's] chances of securing a conviction.’ ” From those two pieces of record information, plus a statement that the state did not contend that “ the state of the law in this case is not well-settled,” the court of appeals held that “the trial judge could have concluded appellant’s motion was not a choice made in response to ordinary reversible error to avoid conviction, appeal, reversal and retrial, but was precipitated by the prosecutor deliberately or recklessly crossing the line between legitimate adversarial conduct and manifestly improper methods.” The court cannot agree that this legal conclusion naturally flows from the objective facts and circumstances in the record. Because the court of appeals did not have the benefit of the three-prong analysis or the nonexclusive, suggested objective criteria by which to gauge those three prongs, the court vacates the court of appeals’ decision and remands the case to that court for further proceedings consistent with this opinion. OPINION:Per curiam. DISSENT:Keasler, J.; Hervey, J., joins. “I still think Bauder is ‘ill-conceived, historically unsound, [and] imprecise,’ and I continue to believe that we should overrule it. . . . “If the Court’s opinion does not actually address whether Bauder should be overruled, then it should. Its discussion of the law makes clear that Bauder is directly before us. And Bauder’s validity is an important issue which this Court must address. The State continues to ask us to overrule this terrible case. By refusing to directly address the issue, the Court keeps litigants and trial courts in limbo.” DISSENT:Hervey, J.; Keller, P.J., and Keasler, J., joins. “We granted discretionary review to re-examine our decision in Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App. 1996) (“Bauder I”). The Court, however, ducks this question choosing, instead, to “clarify” Bauder I. But, this is the fourth time in seven years that this Court has had to “clarify” state constitutional double jeopardy issues first addressed in Bauder I and this attempt fares no better than the previous three. This should be considered a strong clue that Bauder I is not a sound decision. The Court should overrule Bauder I and also hold that our state constitutional double jeopardy provision in Article I, Section 14, of the Texas Constitution, affords no greater protection than its counterpart in the Fifth Amendment to the United States Constitution and has no application to a mistrial setting or to when a criminal proceeding is terminated before a verdict is reached.”

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