Ex Parte Mitchell

MEYERS, Judge,

concurring.

I concur in the judgment of the Court. Once again somewhat befuddled as to the reasoning behind the majority’s holding, 1 I write briefly to express my opinion that the *582 jeopardy analysis is essentially the same in this ease as it was in Ex parte Davis, 957 S.W.2d 9 (Tex.Crim.App.1997), despite the factual differences between the two cases.

In Davis, supra, prosecutorial misconduct came to light during the trial, prompting the defendant to move for a mistrial. The mistrial was denied, although the Court of Appeals determined that it should have been granted. The question presented to this Court was “whether a defendant is entitled to have retrial jeopardy barred after an appellate court determines that his motion for mistrial based on prosecutorial misconduct (whether it be misconduct repugnant to Kennedy, supra, or Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), was erroneously denied.” Davis, at 17 (Meyers, J., concurring). The holding and reasoning of the majority in Davis is not abundantly clear to me, but in my view jeopardy was not a bar to retrial in the circumstances presented for the following reasons:

When the State’s conduct does not in fact invoke the mistrial, then the defendant gets his right to be tried in a single proceeding by the jury first selected, although admittedly the proceeding has been tainted. Once a proceeding to verdict has occurred, a defendant’s double jeopardy rights are not implicated by a mistrial situation. There has not been a mistrial. The fact that there should have been a mistrial is trial error that the defendant can raise on appeal, to which jeopardy principles do not apply.

Davis, at 19 (Meyers, J., concurring).

In the instant ease, appellant did not know of the prosecutorial misconduct until after, the trial. Clearly, it was too late to move for a mistrial. Appellant obtained a reversal of his conviction pursuant to a post-conviction writ of habeas corpus, and now claims in this pretrial writ that jeopardy should barr his retrial due to the prosecutorial misconduct which tainted his previous conviction. Appellant is wrong for the same reason the defendant in Davis was wrong — the prosecutorial misconduct did not result in a loss of the rights protected by the double jeopardy clause. Unfair as it may seem, double jeopardy does not bar retrial when the prosecuto-rial misconduct did not actually lead to a mistrial. It matters not whether'the mistrial did not take place because the defendant’s motion for mistrial was erroneously denied (Davis) or because the prosecutorial misconduct was not discovered until after the trial (the instant case). In either case, the defendant’s right to be tried in a single proceeding by the first jury selected was not abridged due to the State’s misconduct. 2

The Court of Appeals, although only mentioned in a footnote by the majority today, concluded appellant’s double jeopardy rights were not implicated because he was not denied his right to be tried by a particular tribunal. The Court of Appeals got the issue exactly right, even without the benefit of Davis.

I agree the judgment of the Court of Appeals should be affirmed.

. The majority offers a number of reasons which it says supports its holding. The most puzzling of these is the proposition that today’s holding is somehow supported by this Court’s opinions in Cook v. State, 940 S.W.2d 623 (Tex.Crim.App.1996), Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989), and Ex parte Brandley, 781 S.W.2d 886 (Tex.Crim.App.1989). Majority op. at 578 & fn 3. In Cook , the defendant claimed on direct appeal that a retrial should be barred because the prosecutorial misconduct would unfairly taint retrial under due process principles. Although a double jeopardy claim was mentioned, the Court never addressed how jeopardy principles might be implicated in such situation and appears to have disposed of the issue only by addressing the due process claim. Cook, 940 S.W.2d at 628 . Appellant presented a similar due process argument in support of his claim that retrial should be barred in this case, but we specifically declined to grant review of those grounds. See fn. 2, infra. While Adams and Brandley also involved prosecutorial misconduct, no claim of double jeopardy was made in those cases. In fact, the opinion in Adams notes that applicant there was requesting a new trial. Adams, 768 S.W.2d at 283 ("in his application for writ of habeas corpus, the applicant presents thirteen grounds to support his request for a new trial”). Although all of these cases involved prosecutorial misconduct, they have nothing to say about the issue on which we granted review in this case — a question of double jeopardy.

. A defendant is not without options when no mistrial has, for whatever reason, resulted from the alleged misconduct. He can still seek a reversal of his conviction based on the misconduct, as appellant did here, pursuant to a post-conviction writ of habeas corpus. See Mitchell, supra; see also Ex parte Kimes, 872 S.W.2d 700 (Tex.Crim.App.1993)(claim that prosecutor violated applicant's right to due process by failing to turn over Brady material was cognizable in post-conviction application for writ of habeas corpus). If the State elects to retry him after that reversal, and he is convicted, he may claim on appeal that his second trial was so tainted by the misconduct that it was unfair. He may also attempt to claim in a pretrial writ of habeas corpus that a retrial would not be fair on due process grounds because it would be tainted by the misconduct. Appellant presented such argument in grounds for review five and six of his petition for discretionary review, but those grounds were not granted. It may be that a pretrial writ is not an appropriate vehicle by which to raise such due process claims since arguably the issue could resolved on appeal after the retrial. See george E. dix, Robert o. Dawson, 43 texas practice § 47.61 (1995 ed).