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Click here for the full text of this decision FACTS:In September 2001, a grand jury indicted James S. Masonheimer for murdering his daughter Lucy’s boyfriend. James S. Masonheimer claimed that he killed the victim in self-defense and in defense of Lucy. During a pretrial hearing before the first trial, Masonheimer’s attorneys advised the court and the prosecution that they planned to show that Masonheimer shot the victim in self-defense and in defense of Lucy. Defense counsel argued that he was entitled to show past bad acts of the victim as evidence of why Lucy was terrified of the victim and why Masonheimer had a reasonable belief that use of deadly force was necessary that day when Masonheimer shot the victim five times in the back with a .38 revolver in the driveway of Lucy’s home. Masonheimer’s first trial in December 2002 was before a jury. Soon after Masonheimer’s first trial began, the defense discovered during its cross-examination of state’s witness Timothy Marshall that the state had failed to disclose a statement that Marshall made to the police shortly after the offense. In this statement, Marshall, who was a neighbor of Lucy’s, told the police that Masonheimer told him minutes after the shooting that the victim “had threatened his daughter and it was either him or her.” Masonheimer moved for a mistrial, but the trial court granted Masonheimer a continuance and ordered the state to re-examine its file for exculpatory evidence that should be disclosed to the defense. The trial court later granted another defense-requested mistrial “in the interest of justice,” because a death in the family of one of the prosecutors caused the trial court to extend the continuance. Masonheimer’s first trial, therefore, ended in a defense-requested mistrial in part because of the state’s failure to disclose the Marshall statement. Soon after this, the lead prosecutor in the case left the district attorney’s office to become a county court-at-law judge. The assistant prosecutor in the first trial then became the lead prosecutor in the second trial. During a pretrial conference before the second trial, Joiner disclosed to the defense a statement from Lucy’s ex-husband Billy Glenn Williams that the state previously neglected to disclose to the defense. In that statement, Billy Williams related, inter alia, that Lucy had asked him to keep their children during the afternoon of the day before the boyfriend was shot; that, when he called Lucy around 6 p.m., she “broke down and told me about the trouble she had been having with [the victim]“; and that Billy told her to go to the police and get a restraining order. Masonheimer subsequently pled nolo contendere to the murder charge without an evidentiary stipulation, requiring the state to present evidence establishing Masonheimer’s guilt. During this proceeding or second trial before the trial court in April 2003, Joiner revealed to the defense more previously undisclosed evidence. This undisclosed evidence was a statement from one of the victim’s friends, which prompted another mistrial motion by Masonheimer. The victim’s friend related finding steroids belonging to the victim. In July 2003, the trial court held a hearing on Masonheimer’s mistrial motion. After hearing the parties’ arguments, which addressed whether the proceeding was a plea hearing or a trial, the trial court granted Masonheimer’s request for another mistrial. The trial court also made an oral finding on the record that three statements including the Marshall and Williams statements “are all exculpatory evidence under Brady v. Maryland” and that the state’s failure to disclose this exculpatory evidence before the first trial was “reckless conduct.” Masonheimer subsequently filed a pretrial writ of habeas corpus “seeking relief from double jeopardy.” This motion sought to bar any further prosecution of Masonheimer. At the conclusion of the hearing on Masonheimer’s pretrial writ of habeas corpus, the trial court made an oral finding that “double jeopardy has attached” and ordered the case dismissed with prejudice. The trial court later signed an order dismissing the case with prejudice based on its finding that trial of “the instant offense is barred by the Double Jeopardy Clause of the United States and Texas Constitutions.” The state appealed, and the 11th Court of Appeals decided that further prosecution of Masonheimer was not jeopardy-barred under either the state or federal constitutions. The 11th Court decided that there was no evidence that the “new lead prosecutor in the second trial” acted “intentionally, a critical mens rea” for federal constitutional purposes or “recklessly, a critical mens rea” under state constitutional purposes. Masonheimer filed a petition for discretionary review with the Court of Criminal Appeals (CCA). HOLDING:The CCA reversed the judgment of the 11th Court of Appeals and affirmed the judgment of the trial court. The CCA majority stated: “Keeping in mind that we are required to view the evidence in the light most favorable to the trial court’s ruling that prosecuting Masonheimer a third time is jeopardy-barred, we are constrained to decide that the extensive portions of the record set out in this opinion support a finding that Masonheimer’s mistrial motions were necessary primarily by the state’s”intentional’ failure to disclose exculpatory evidence that was available prior to appellee’s first trial with the specific intent to avoid the possibility of an acquittal.” Under 1982′s Oregon v. Kennedy, 456 U.S. 667, the CCA stated, “this deliberate conduct, accompanied by this specific mens rea, bars a retrial.” The CCA stated that in a case like this, a defendant suffers the same harm as when the state intentionally “goads” or provokes the defendant into moving for a mistrial. Under the unique circumstances of this case, the CCA decided that a third prosecution of Masonheimer was jeopardy-barred under state and federal constitutional double-jeopardy principles. OPINION:Hervey, J., delivered the opinion of the court in which Meyers, Price, Johnson, Keasler and Holcomb, J.J., joined. CONCURRENCE:Meyers, J. “Obviously here the actions of the State in withholding exculpatory evidence were intentional. Appellee was goaded into requesting the mistrial by this improper, intentional conduct, and therefore I agree with the majority that retrial is jeopardy-barred.” DISSENTS:Keller, P.J., filed a dissenting opinion. “The Court nevertheless holds that double jeopardy can bar retrial when the prosecutor does not intend to provoke a mistrial. The Court finds in the present case that the prosecutor withheld information “with the intent to avoid the possibility of an acquittal” and construes Kennedy to erect a double jeopardy bar to retrial. I believe that Kennedy does not support this conclusion.” Womack, J., filed a dissenting opinion in which Keller, P.J., joined. “I agree that the prosecutor was wrong, wrong, wrong in not giving the discovery that was ordered. But I do not see that it caused a violation of either the federal or the state jeopardy clause. I respectfully dissent.” Cochran, J., filed a dissenting opinion. “The holding in Kennedy is crystal clear: double jeopardy bars a retrial only if the prosecutor commits manifestly improper conduct with the intent to goad the defendant into moving for a mistrial. This case, however, involves a prosecutor who, it is asserted, intends to”win at any price’ before a first jury, not one who intends to”get rid of this jury’ so that he would have a better chance to win before a second one. The result is the same � the defendant loses his right to a fair trial before his chosen jury � but the prosecutor’s”foul’ intent is different, and, under Kennedy, that distinction is crucial for double-jeopardy purposes.”

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