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Click here for the full text of this decision FACTS:Swanda Marie Lewis called 911 after killing her husband. When officers arrived, they placed her in a patrol car and eventually took her to the police station. At the scene and at the station, Lewis gave statements after receiving Miranda warnings. During the trial, Lewis’ defense counsel objected that the prosecutor in three different sets of questions commented on the defendant’s post-arrest silence in violation of Texas Code of Criminal Procedure Art. 38.08, Texas Constitution Art. I, �10, and the Fifth and 14th amendments of the U.S. Constitution. The trial court sustained all three objections and gave instructions to disregard in connection to two sets of questions by the prosecutor. Lewis did not request a mistrial on the first set of questions, sought but was denied a mistrial with regard to the second set of questions, and successfully obtained a mistrial for the third set of questions. Lewis later filed a pretrial habeas application, claiming that any subsequent prosecution was barred under double jeopardy principles, but the trial court denied relief. After discussing the Court of Criminal Appeals’ latest opinion interpreting the standard set forth in Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996), the 2nd Court of Appeals reversed the trial court’s denial of habeas relief because “the prosecutor, at the least, engaged in this conduct with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial.” HOLDING:Reversed and remanded. In Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996), the Court of Criminal Appeals (CCA) interpreted the double jeopardy provision of the Texas Constitution more expansively than federal constitutional law to cover “reckless” conduct, holding that retrial would also be barred “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.” In adopting a tougher standard for defendants, the CCA abandoned Bauder, which bars a second trial if prosecutors recklessly cause a mistrial, for the rule articulated by the U.S. Supreme Court in Oregon v. Kennedy, 456 U.S. 667 (1982), which bars a second trial only when prosecutors intentionally cause the mistrial. In Kennedy, the Supreme Court held that the defendant’s valued right to complete his trial before the first jury would be a “hollow shell” if retrial were permitted after the prosecution, through its conduct, intentionally precipitated a mistrial. Thus, the court held that under the Kennedy standard and now Texas law, a prosecutor who intentionally causes a mistrial also succeeds in barring further prosecution. OPINION:Keller, P.J., delivered the opinion of the court in which Womack, Keasler, Hervey, and Cochran, J.J., joined. CONCURRENCE:Cochran, J., filed a concurring opinion. “Because Texas courts have dealt with Bauder for ten years and this Court has clarified and reclarified it several times, stare decisis might counsel against jettisoning it now. It is said, in defense of stare decisis, that sometimes ‘it is better to be consistent than right.’ But Bauder is neither consistent nor right.” DISSENT:Price, J., filed a dissenting opinion in which Meyers and Holcomb, J.J., joined. “I disagree . . . that any of the justifications for ignoring stare decisis apply to support overruling Bauder v. State. I therefore dissent to Part IV, and to the majority’s disposition of this case. I would reject the State’s contentions that Bauder ought to be overruled, and proceed to its third ground for review, which the majority instead dismisses, to determine whether the court of appeals properly applied Bauder to the facts of the instant case. Because the majority does not, I ultimately dissent.” Johnson, J., dissented separately without an opinion.

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