# Ex Parte Davis

> Court of Criminal Appeals of Texas · September 17, 1997 · 957 S.W.2d 9

URL: https://www.frixlaw.com/law-library/cases/9777589

## Case

- **Full name:** Ex Parte Jack Warren DAVIS
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 17, 1997
- **Citations:** 957 S.W.2d 9; 1997 Tex. Crim. App. LEXIS 66; 1997 WL 573160
- **Precedential status:** Published
- **Opinion:** Concurrence by McCORMICK
- **Judges:** Mansfield, McCormick, Meyers, Baird, Keller, Overstreet
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777589

## How later opinions describe it (automated extraction)

- holding retrial was proper after reversal on appeal for due process violations
- holding that jeopardy does not apply to bar a retrial where defendant’s conviction is reversed on appeal due to prosecutorial misconduct
- noting that in general, double jeopardy does not prevent the State from retrying a defendant who succeeds in getting his first conviction set aside because of some error in the proceedings leading to conviction
- observing that, generally, double jeopardy does not bar retrial after reversal but noting exception when conviction reversed for legally insufficient evidence
- stating Bauder only applies where a mistrial had been granted due to reckless or intentional prosecutorial misconduct

## Opinion text

McCORMICK, Presiding Judge,
concurring.
I join the majority opinion in this case. I write separately to respond to the philosophically judicial activist approach to constitutional interpretation advocated in the dissenting opinion.
The majority opinion adopts as a matter of state constitutional law the well-settled rule that is applied in almost every state and federal jurisdiction in this country: double jeopardy principles do not bar a reprosecution when a conviction is reversed on appeal for ordinary “trial error.” This rule strikes a proper balance between the community’s legitimate interest in fighting crime and a defendant’s legitimate double jeopardy interests.
The dissenting opinion would adopt as a matter of state constitutional law a mostly unprecedented rule that double jeopardy principles bar a reprosecutiori when a conviction is reversed on appeal for what the dissenting opinion calls “prosecutorial misconduct.” This rule would not be limited to just this case and these facts but would be applicable in every case where at least five judges on this Court believed “prosecutorial misconduct” occurred. This is an awesome power the dissenting opinion advocates the judiciary should reserve for itself especially when one considers that most times “prosecutorial misconduct” is not so easily defined. 1 For example, the author of the dissenting opinion has taken the position that “prosecutorial misconduct” occurs and factually and legally guilty criminals walk free even when the prosecution does not intend to engage in misconduct and makes an honest mistake. See Bauder v. State, 921 S.W.2d 696, 701-02 (Tex.Cr.App.1996) (Baird, J., concurring) (prosecutors are “responsible” for their “misconduct” without regard for their mens rea ). 2
*16 Our citizens have other • remedies aside from judicially imposed rules for dealing with “prosecutorial misconduct.” See Bauder, 921 S.W.2d at 706 fn. 5 (McCormick, P.J., dissenting). Absent clear intent to the contrary in Texas’ constitutional double jeopardy provisions, our duty is to leave the remedy for “prosecutorial misconduct” to the legislative and political processes for the citizens to decide.
Most questions of constitutional interpretation involve giving effect to the intent of the voters who adopted the constitutional provision at issue. See Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Cr.App.1993); Bauder, 921 S.W.2d at 708 (McCormick, P.J., dissenting). This means the judiciary when interpreting the Constitution has no power to legislate its own policy preferences behind the Legislature’s back. See Bauder, 921 S.W.2d at 705-08 (McCormick, P.J., dissenting). Questions of constitutional interpretation often involve a delicate process of balancing the interests of the community and the interests of the individual. See Bauder, 921 S.W.2d at 705-08 (McCormick, P.J., dissenting).
When the dissenting opinion speaks of “breathing life” into our Constitution by effectively interpreting it to provide “more protection” to criminals, the community’s interest in protecting ourselves from dangerous criminals also suffers. See Bauder, 921 S.W.2d at 703 fn. 2 (McCormick, P.J., dissenting). Interpreting our Constitution to provide “more protection” to criminals also necessarily puts “more restrictions” on the community’s efforts to combat crime. If we are to interpret our Constitution effectively to provide “more protection” to criminals, then the constitutional .provision at issue should clearly require us to do so.
Texas’ double jeopardy clause contains a simple command or prohibition. The “plain” language and history of this clause indicates it was intended to bar a reproseeution when a case has proceeded to a final verdict of guilty or acquittal. 3 See Bauder, 921 S.W.2d at 706 fn. 5 (McCormick, P.J., dissenting). Texas’ double jeopardy clause actually provides “less protection” than that provided by its federal counterpart, at least as interpreted by the Supreme Court. See Bauder, 921 S.W.2d at 706 fn. 5 (McCormick, P.J., dissenting). This also applies to other Texas constitutional provisions. See Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. at 956-74. This interpretation of Texas’ double jeopardy provision strikes a proper balance between the competing interests.
Completely absent from the approach to constitutional interpretation in the dissenting opinion is any consideration of the legitimate interests of the community or any sense of judicial restraint. See Autran v. State, 887 S.W.2d 31, 43-49 (Tex.Cr.App.1994) (McCormick, P.J., dissenting). When the reader strips away the dissenting opinion’s rhetorical flourish and its discussion of out-of-state cases that have little, if anything, to do with interpreting our Constitution, the reader should realize that the author of the dissenting opinion is attempting to legislate his own policy preferences under the guise of constitutional interpretation. This approach has less to do with interpreting the Constitution and more to do with legislating behind the Legislature’s back.
Finally, the dissenting opinion seems enamored with Justice Brennan’s approach to constitutional interpretation. I would not adopt Justice Brennan’s brand of judicial activism for interpreting our Constitution. Such an approach has never heard of judicial restraint, knows no bounds to the limits of judicial power and shows no respect to the legislative process or to the legitimate interests of law-abiding citizens. See Jeff Jacoby, Justice Brennan’s Legacy: An Imperious Judiciary; The Houston Chronicle (for over 34 years on the bench, Justice Brennan “repeatedly shoved aside text and precedent, *17 trampling the rights of citizens and legislatures in order to chisel his own notions of justice into American law” with his chief legacy being “his judicial authoritarianism: his assertion that in any political controversy, judges have the last word—not voters, not lawmakers, not elected representatives”). 4
With these comments, I join the majority opinion’s exercise in judicial restraint.
. This concurring opinion addresses "prosecuto-rial misconduct” in general and not the particular conduct in this case. This case does not present the issue of whether “prosecutorial misconduct” occurred, so it is unnecessary to engage in a feel-good and pointless exercise of "openly condemning” the conduct that occurred in this case as footnote seven of the dissent would have us do.
. Of course, the position taken by this author in Bauder garnered only one vote and, therefore, does not constitute the law of this State even *16 though the author of the dissenting opinion attempted to pass his concurring opinion in Bauder off as the majority holding of the Court. See Bauder, 921 S.W.2d at 701-02 (Baird, J., concurring) (one-judge plurality opinion with no prece-dential value).
. When a case is reversed on appeal for ordinary "trial error,” the case has not proceeded to a final verdict.
. The author of the dissenting opinion has labeled this discussion as an "ad hominem ” or personal attack on the late Justice Brennan. It is not. What it is is a discussion of my perception of the role of the judiciary and a criticism of those who serve on high courts and attempt to wield the philosophical sword of judicial activism.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777589. Public record. Not legal advice.