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Click here for the full text of this decision FACTS:In 1999, the defendant ran over David Mitchell as he crossed the road in front of his house. At the time, the defendant was driving roughly 65 m.p.h., � 20 m.p.h. over the speed limit. The defendant was charged with manslaughter and criminally negligent homicide. Both parties secured pretrial motions in limine prohibiting either side from asking any witness for declarations or statements made by someone other than the witness or asking for opinions from witnesses who were not expert witnesses without first approaching the bench. They were also not supposed to mention settlements or the existence or payment of insurance. Both sides called accident reconstruction experts. After extensively cross-examining the defendant’s expert, and after the defendant’s redirect, the trial court asked the prosecution if it had anything else. The state said it had one more question, and then proceeded to ask the expert, “Are you aware that her [the defendant] insurance carrier found her at fault?” The defendant’s attorney immediately asked to approach the bench, to which the trial court responded that there was no need to approach because the jury was being sent out. After the jury left, the court asked the state if there wasn’t a motion in limine prohibiting the question. Though the state hesitated, the defense said there was. The trial court then asked the defendant if she wanted a mistrial. She said she did. The same visiting judge who had presided over the trial thenheard arguments on the motion for mistrial and granted the motion. The regular presiding judge reset the case for a second trial the following month. The defendant filed a motion to dismiss with prejudice and a petition for a pretrial writ of habeas corpus. The presiding judge denied relief. This court reversed the trial court on double jeopardy grounds, but the Court of Criminal Appeals remanded the case for this court to reconsider it in light of Ex Parte Peterson, 117 S.W.3d 804 (Tex.Crim.App. 2003), which was issued after this court’s opinion. HOLDING:Reversed and rendered. Peterson clarified the standards under which the double jeopardy provision of the Texas Constitution prohibits retrial after the defense successfully requests a mistrial. Under normal conditions, a second prosecution is not barred, but the Peterson court held that, when the mistrial results because of improper actions of the prosecutor, a second prosecution may be barred, even if the defendant consents to the mistrial. The prosecutorial misconduct triggering this bar can be either intentional or reckless. The Peterson court devised a three-part test for analyzing double jeopardy claims stemming from prosecutorial misconduct: 1. Did manifestly improper prosecutorial misconduct provoke the mistrial? 2. Was the mistrial required because the prejudice produced by that misconduct could not be cured by an instruction to disregard it? 3. Did the prosecutor engage in the conduct intending to goad the defendant into requesting a mistrial, or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial? Applying the test to the facts, the court finds that no prior question of fault had been asked or answered in regard to an insurance investigation or the results of such an investigation, so the defense had not opened the door to the state’s question. The court also finds the question prohibited by Texas Rule of Evidence 411 and 403. Rule 411 does not allow evidence of insurance coverage to be introduced in most circumstances. In this case, the state’s question not only mentioned the existence of insurance, it addressed insurance coverage in the context of fault finding, and the state should have known the question was prohibited by Rule 411 and was more prejudicial than probative under Rule 403. Under the second prong of the Peterson test, the court dismisses the state’s contention that the evil complained of and to be cured is a violation of Rule 411. The evil is more than that, the court finds. It is the combination of both a question that asks an expert to testify on improper evidence combined with a question that presupposes the answer that makes the question itself so prejudicial. “Not only was the question improper because it asked for inadmissible evidence, but the question itself also disclosed inadmissible evidence because the prosecutor asked the question in a way that conveyed the actual insurance investigation result. Thus, the nature of the error is great.” The court also concludes that the prosecutor’s conduct was “flagrant and weighty,” and that no instruction could have cured the prejudice that must have flowed from the prosecutor’s question. Under the third Peterson prong, the court notes that that case also instructs an appeals court to consider several more factors: “1) Was the misconduct a reaction to abort a trial that was ‘going badly for the State?’ In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal? 2) Was the misconduct repeated despite admonitions from the trial court? 3) Did the prosecutor provide a reasonable, ‘good faith’ explanation for the conduct? 4) Was the conduct ‘clearly erroneous’? 5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety? 6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional or reckless misconduct?” The court finds all six factors weigh against the state. In its closing comments, the court commends the visiting judge, who “knew when the prosecution had”kicked the dog’ as opposed to ‘stumbling over it.’ “ OPINION:Livingston, J.; Livingston, Dauphinot and Walker, JJ.

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