# Ex Parte Mitchell > Court of Criminal Appeals of Texas · November 19, 1997 · 977 S.W.2d 575 URL: https://www.frixlaw.com/law-library/cases/9684861 ## Case - **Full name:** Ex Parte Andrew Lee MITCHELL, Applicant - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 19, 1997 - **Citations:** 977 S.W.2d 575; 1997 Tex. Crim. App. LEXIS 92; 1997 WL 716683 - **Precedential status:** Published - **Opinion:** Dissent by Baird - **Judges:** Mansfield, Meyers, Price, Baird, Keller, Davis, Overstreet - **Cited by:** 110 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Criticized by John Hamilton Leib, Jr. v. State (2002). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684861 ## How later opinions describe it (automated extraction) - explaining that double-jeopardy provisions from United States Constitution and Texas Constitution “provide substantially identical protections” - holding that the proper remedy after a finding of prosecutorial misconduct is a reversal of conviction and remand for new trial - noting the Court’s long-standing precedent holding that the double-jeopardy provisions of both constitutions provide “substantially identical protections” ## Opinion text BAIRD, Judge, dissenting. The State contends the protections against double jeopardy do not guarantee a trial free from prosecutorial misconduct. (State Pros *583 ecuting Attorney’s Brief at 12.) Specifically, the State argues that “it is not enough to show that the State engaged in the misconduct intending to avoid an acquittal.” Id., at 16. Under the State’s argument, the only way for the double jeopardy protections to bar retrial is to show “that the State engaged in the misconduct intending to avoid an acquittal by terminating the proceedings short of disposition by the court or jury.” Ibid. (Emphasis in original.) The majority accepts this argument, stating: “Where the prosecutor’s actions are engaged in with the intent to persuade the factfinder to convict, instead of acquit, there is no double jeopardy violation under the Fifth Amendment. This is true even if the conviction is due in part to reversible errors, including intentional misconduct on the part of the State.” Ante at 579. 1 I cannot agree. Believing the United States and Texas Constitutions should bar retrial based upon prosecutorial misconduct, regardless of whether the proceedings reached a verdict, and irrespective of whether the misconduct was amenable to immediate discovery or covert and discoverable only after trial, I dissent. I. The beliefs I hold regarding this issue were stated recently in Ex parte Davis, 957 S.W.2d 9 (Tex.Cr.App.1997) (BAIRD, J., dissenting). However, I write in this case to again address the serious legal flaw the majority makes. The majority would have us believe because applicant fails to direct us to a United States Supreme Court case on point, he loses. Ante at 579. We have never held that as the legal standard in this Court. 2 The inquiry into whether our State Constitution provides greater protection than its Federal counterpart is no easy task and the resolution of such an issue should not be taken lightly. This Court’s duty as final interpreter of the State Constitution demands more from us, and we should not shirk our responsibilities simply because there is no ease on point. See, Crittenden v. State, 899 S.W.2d 668, 677 (Tex.Cr.App.1995) (BAIRD, J., dissenting). The majority argues “that most state high courts have declined to interpret their state constitutions so as to bar, on double jeopardy grounds, retrials following reversals due, in whole or in part, to prosecutorial misconduct.” Ante at 581, n. 6. For this proposition, three cases are cited. Ibid. However, at least five states have held their constitutions do bar retrial after reversal for prosecutorial misconduct. See, State v. Smith, 532 Pa. 177 , 615 A.2d 321 (1992) (The double jeopardy clause of the Pennsylvania Constitution prohibits retrial not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial); State v. Breit, 122 N.M. 655 , 930 P.2d 792 (1996) (Retrial is barred under New Mexico Constitution when improper official conduct is so unfairly prejudicial that it cannot be cured by means short of a mistrial or motion for new trial.); State v. Colton, 234 Conn. 683 , 663 A.2d 339 (1995) (Retrial is barred if the defendant proves the State engaged in prose-cutorial misconduct undertaken with the deliberate purpose of depriving the defendant of his double jeopardy protections.); Collier v. State, 103 Nev. 563 , 747 P.2d 225 (1987) (The Oregon v. Kennedy exception has also been extended to cases in which the motion for mistrial was denied and the judgment was subsequently reversed because of the *584 prosecutorial misconduct which precipitated the motion for mistrial.); State v. Cochran, 51 Wash.App. 116 , 751 P.2d 1194 (1988) (Although the Oregon v. Kennedy rule generally applies to mistrials, the exception should apply with equal weight to appellate reversals resulting from prosecutorial misconduct.). Further, a majority of the federal circuits agree that certain narrowly defined acts of prosecutorial misconduct may bar retrial after appellate reversal. See, Robinson v. Wade, 686 F.2d 298 (5th Cir.1982); United States v. Doyle, 121 F.3d 1078 (7th Cir.1997); United States v. Wallach, 979 F.2d 912 (2nd Cir.1992); United States v. Quinn, 901 F.2d 522 (6th Cir.1990); United States v. Singer, 785 F.2d 228 (8th Cir.1986); United States v. Curtis, 683 F.2d 769 (3rd Cir.1982); and United States v. Rios, 637 F.2d 728 (10th Cir.1980). In the instant case, the hidden malfeasance of the State was not discovered until years after applicant’s trial. Therefore, applicant could not have requested a mistrial based upon prosecutorial misconduct. A rogue prosecutor or inept jurist should never be able to deny applicant his constitutional guarantees. See, Davis, supra; Cook v. State, 940 S.W.2d 623, 629 (Tex.Cr.App.1996) (BAIRD, J., concurring and dissenting opinion). III. It is no inconsequential matter that the United States Constitution begins: “We the People of the United States, in Order to form a more perfect Union, establish Justice .... ” The goal of our judicial process should be fairness, not falsehoods. The people of Texas deserve prosecutors who seek justice, not unjust convictions. In a democracy, when justice is denied to some, it is denied to all. If our Constitutional rights are to remain secure, they must be preserved. It is not popular but it is our duty. With these comments, I dissent. OVERSTREET, J., joins this opinion. Appellant’s motion for rehearing of petition for discretionary review denied. . All emphasis is supplied unless otherwise indicated. . This Court has held the Texas Constitution provides greater rights than the United States Constitution in at least four cases. See, Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App.1996); Autran v. State, 887 S.W.2d 31 (Tex.Cr.App.1994); Richardson v. State, 865 S.W.2d 944 (Tex.Cr.App.1993); and, Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). See also, O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex.1988) (We are free to read our own Constitution more broadly than the Supreme Court reads the Federal Constitution, or to reject the mode of analysis used by the Supreme Court in favor of a different analysis of its corresponding constitutional guarantee.) (citing City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 , 102 S.Ct. 1070, 1077 , 71 L.Ed.2d 152 (1982)); and, LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex.1986) (The Texas Bill of Rights affords protection beyond that provided by the United States Constitution.). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684861. Public record. Not legal advice.