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Click here for the full text of this decision FACTS:Michael Joseph Bennett’s aggravated sexual assault trial began on Jan. 8, 2007. During voir dire, Bennett’s attorney asked the venire panel whether any of them knew any of the witnesses who were likely to testify at trial, including Don and Diana Shipley. Three venirepersons disclosed that they knew one or both of the Shipleys, but venireperson Bobby Albert remained silent. The parties subsequently selected Albert to serve on the jury, which was immediately sworn in. The Shipleys testified the next day. After their testimony, Albert notified the trial court that he knew the Shipleys. Outside the presence of the jury, the trial court allowed each side to question Albert as to whether he could set aside his relationship with the Shipleys and be a fair and impartial juror. Although he affirmed that he could render a fair and impartial verdict based on the evidence, he also responded to a question posed by Bennett’s counsel that he “wouldn’t have any doubt that what they [the Shipleys] were saying was true.” At the conclusion of the questioning, Bennett’s attorney moved to have Albert struck from the jury. The trial court overruled the challenge, and the trial continued. A counselor and a psychologist subsequently testified for the state about their treatment of the complainant. In response to the state’s questioning and over Bennett’s objection, both opined that the complainant had been truthful about the events constituting the alleged sexual assaults. Before the state rested, however, it alerted the trial court that the counselor’s and psychologist’s testimony about the complainant’s veracity may not have been admissible and that a limiting instruction addressing this issue either read to the jury or included in the jury charge would “probably . . . be appropriate.” At the charge conference, Bennett moved for a mistrial on two separate grounds. First, Bennett requested a mistrial because the trial court allowed Albert to remain on the jury despite Albert’s belated disclosure that he knew the Shipleys. The trial court responded that it would “take that under advisement” and that it would be “decided tomorrow morning.” Second, Bennett requested a mistrial because, according to him, the limiting instruction included in the jury charge regarding the inappropriate testimony elicited by the state about the complainant’s veracity would be insufficient to cure any possible harm. The trial court clearly and unambiguously denied Bennett’s request for a mistrial on the second ground. The trial court heard arguments from each side the next day on Bennett’s request for a mistrial due to Albert sitting on the jury. Bennett testified that he was not willing to proceed with the trial with only 11 jurors. The trial court then struck Albert from the jury and declared a mistrial. Bennett filed his application for writ of habeas corpus seeking relief from double jeopardy and motion to dismiss the indictment based on the previous mistrial. At the hearing on his writ of habeas corpus, Bennett testified that he would have continued on with the trial with only 11 jurors had the trial court struck Albert from the jury when first requested to do so. Bennett argued that he was forced to request the mistrial because of the state’s questions inquiring into whether the counselor and psychologist thought the complainant was being truthful. The trial court denied Bennett’s requested relief. An appeal followed. HOLDING:Affirmed. Bennett argued that the protection against double jeopardy barred his retrial because the state’s questioning the counselor and psychologist about their opinions of the complainant’s truthfulness was “intended to provoke the defendant into moving for a mistrial.” The double jeopardy clause of the U.S. Constitution, the court stated, provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The primary guarantee offered by this constitutional provision is protection against being subjected to successive prosecutions for the same criminal offense. Conceptually, the Texas and federal double jeopardy provisions are identical. When a trial court, the court stated, grants a defendant’s motion for mistrial, the double jeopardy clause is not violated unless the state’s conduct giving rise to the motion was “intended to goad” the defendant into moving for a mistrial. The record, the court stated, demonstrated that Bennett requested a mistrial on the first ground, because Albert remained on the jury after he had disclosed to the trial court that he knew the Shipleys, which occurred after Albert had failed to inform Bennett’s counsel at voir dire that he knew the Shipleys. Consequently, the court found that double jeopardy did not bar Bennett’s retrial, because his successful motion for a mistrial on the first ground was prompted by Albert’s own oversight regarding his relationship with the Shipleys, not by any prosecutorial conduct intended to goad Bennett into requesting a mistrial. OPINION:Holman, J.; Livingston, Dauphinot and Holman, JJ.

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