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Click here for the full text of this decision FACTS:On July 21, 1999, Herman West was driving down a rural road in southwest Tarrant County when he saw Dr. David Mitchell standing near the rear of his parked truck, ready to walk across the road to his mailbox. A few seconds later, West saw a white Ford Mustang pass him in the opposite direction. Eighteen-year-old Kristin Wheeler was driving that Mustang. West heard the squeal of brakes, and, looking in his rear-view mirror, saw Mitchell flying through the air above the Mustang. He immediately turned his truck around and drove back to the accident scene. Mitchell later died from his injuries, and Wheeler was charged with manslaughter and criminally negligent homicide. The primary contested issue at trial was, “Who was at fault in causing this accident and Dr. Mitchell’s death?” The state’s theory was that Wheeler caused the accident, because she was speeding and failed to exercise proper control of her car. The defense theory was that Mitchell failed to look before he walked into the road and he failed to yield the right-of-way to the oncoming car. The trial was a battle between the state and defense accident-reconstruction experts. After the state put on its case-in-chief, the defense called Alan B. Weckerling, an expert in accident-reconstruction analysis. After a long round of questioning, the defense passed its witness for the third time. The state then asked Weckerling if he knew that Wheeler’s insurance carrier found her at fault. As a result of this question, the judge eventually granted a motion for mistrial. The defense later filed an application for a pretrial writ of habeas corpus and a plea of double jeopardy. The trial court later denied the defendant’s double jeopardy motion and pretrial writ application and the defense appealed. The court of appeals reversed the trial court and dismissed the charges. The Court of Criminal Appeals (CCA) then granted the state’s petition for discretionary review and remanded the case for reconsideration under Ex Parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003), the newly announced clarification of the Texas double-jeopardy analysis set out in Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996). The court of appeals, using the Peterson analysis, once again concluded that the trial judge abused her discretion in denying Wheeler’s double-jeopardy claim based on manifestly improper prosecutorial conduct which forced the defense to request a mistrial. HOLDING:Reversed and remanded. If a defendant requests a mistrial, double jeopardy normally does not bar reprosecution. Under the federal double jeopardy clause, a retrial is prohibited after the defendant requests and is granted a mistrial only if the prosecution intentionally commits manifestly improper conduct with the intent to provoke that mistrial. In Bauder, the CCA held that under the Texas Constitution double jeopardy principles bar reprosecution when the prosecution acts, not only with the intent to goad the defendant into requesting a mistrial, but also when the prosecutor’s reckless misconduct requires a mistrial. In sum, the CCA agreed with the court of appeals that the visiting judge did not abuse his discretion in granting the mistrial when the prosecutor asked a manifestly improper question. But, viewing the objective facts in the light most favorable to the trial judge’s ruling, the CCA did not find that the trial judge abused her discretion in denying relief on Wheeler’s double-jeopardy claim. The court stated: “Factually, this is a close case, and, had the trial judge ruled that double jeopardy did bar any retrial, we would, of course, uphold that ruling as well. Rational people can differ about whether, given these facts, it is a reasonable inference that the prosecutor was intentionally goading the defense into asking for a mistrial . . . or acting with conscious disregard of a substantial risk that the trial court would be required to declare a mistrial.” The CCA continued: “From all appearances, the prosecutor could well have thought that the trial was going fine. It is reasonable to conclude that he was, in his own mind, just giving the coup de grace to the defense expert. We cannot disagree with the trial judge’s implicit conclusion that this was a question that was asked in good faith, albeit an impetuous, perhaps even stupid, question. The trial judge saw the prosecutor and could judge his credibility and integrity; she was entitled to conclude that the prosecutor acted with unwarranted zeal rather than malice or reckless disregard for the defendant’s rights.” OPINION:Cochran, J., delivered the opinion of the court, in which Meyers, Price, Womack, Johnson and Holcomb, J.J., joined. CONCURRENCE:Keller, P.J. “I join the Court’s opinion to the extent that it holds that appellant fails the third prong of the Peterson test, because the habeas trial court was within its discretion to believe that the prosecutor did not act intentionally or recklessly with respect to the mistrial. I disagree, however, with the Court’s conclusions regarding the first two prongs of the Peterson test. The prosecutor’s conduct was not manifestly improper and any alleged error was curable.” Keasler, J., filed an additional concurring opinion joined by Keller, P.J., and Hervey, J. “Once again the majority has refused to address whether Bauder and its progeny should be overruled even though the issue is before us.” Keasler urged a return to the standard forth by the U.S. Supreme Court in Oregon v. Kennedy [456 U.S. 667, (1982)], which he stated was followed by almost all other jurisdictions.

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