Ex Parte Davis

BAIRD, Judge,

dissenting.

In the criminal justice system, the prosecutor “is a trained attorney who must aggressively seek convictions in court on behalf of a victimized public. At the same time, he must place foremost in his hierarchy of interests the determination of truth.” United States v. Bagley, 473 U.S. 667, 696 , 105 S.Ct. 3375, 3391 , 87 L.Ed.2d 481 (1985) (Brennan, J., dissenting). Believing art. I, § 14 of the Texas Constitution bars retrial following the erroneous denial of a motion for mistrial .based on prosecutorial misconduct, I dissent.

I.

Texas and Federal Double Jeopardy

A.

Art. I, § 14 of the Texas Constitution guarantees “[n]o person, for the same offense shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offence, after a verdict of not guilty in a court of competent jurisdiction.” Similarly, the Fifth Amendment to the United States Constitution guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” These guarantees protect criminal defendants against a second prosecution for the same offense after an acquittal, against a second prosecution for the same offense after a conviction, and against multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440 , 109 S.Ct. 1892, 1897 , 104 L.Ed.2d 487 (1989). The basis of these safeguards is the belief .that “the State *21 with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957).

B.

An integral protection of the Double Jeopardy Clause is the bar to retrial after a mistrial due to prosecutorial misconduct. In United States v. Dinitz, 424 U.S. 600, 606-607 , 96 S.Ct. 1075, 1079 , 47 L.Ed.2d 267 (1976), the Supreme Court stated:

... Where ... a mistrial has been declared, the defendant’s “valued right to have his trial completed by a particular tribunal” is also implicated. Since Mr. Justice Story’s 1824 opinion for the court in United States v. Perez, 9 Wheat. 579, 580 , 6 L.Ed. 165 , this Court has held that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on whether “there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.” (Internal citations omitted.)

The Court made the distinction between the defendant’s request for a mistrial and the sua sponte granting of one by the trial judge. Even with error, the defendant has the choice of proceeding to verdict with the first jury, unless the defense requests the mistrial. In explaining why misconduct invokes the guarantee of the Fifth Amendment the Court stated:

... But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant’s mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause—the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions. 1

Id., 424 U.S. at 608 , 96 S.Ct. at 1080 . Because of the absolute right and significant interest for having the first jury decide the case for the defendant, the Double Jeopardy Clause protects defendants from prosecutorial misconduct which results in a mistrial. Id.

In Oregon v. Kennedy, 456 U.S. 667, 675-676 , 102 S.Ct. 2083, 2089 , 72 L.Ed.2d 416 (1982), the Court re-examined Dinitz , holding, “[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Consequently, when the mistrial was granted as a result of prose-cutorial misconduct intended to goad the defendant into seeking a mistrial, retrial is barred under the Fifth Amendment.

However, the Texas Constitution provides protections greater than Kennedy. Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App.1996). The Bauder Court held, “a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant’s request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware of but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request.” Id., at 699 . The Kennedy Court required an understanding of the scienter of the prosecution, while the Bauder Court held conduct which recklessly results in a mistrial will bar retrial. In other words, under the Texas Constitution, there is no distinction between intentionally and recklessly forcing a defendant to request a mistrial.

The issue in this case is whether the Double Jeopardy Clause of the Texas Constitu *22 tion bars retrial following the erroneous denial of a mistrial based upon prosecutorial misconduct. 2

II.

Other Jurisdictions

A.

State

In Pennsylvania v. Smith, 532 Pa. 177 , 615 A.2d 321 (1992), the Pennsylvania Supreme Court held under the Pennsylvania Constitution, prosecutorial misconduct directed at securing a conviction is a possible double jeopardy bar to retrial. In Smith , the prosecution withheld potentially exculpatory physical evidence and denied the existence of an agreement with the State’s chief witness, whereby the witness would receive favorable sentencing treatment for testifying against Smith. Id., 615 A.2d at 322 . The reasoning of the Court rested on the egregiousness and bad faith on the part of the prosecution which “violate[d] all principles of justice and fairness embodied in the Pennsylvania Constitution’s double jeopardy clause.” Id., at 324 . Citing their own case, the Court stated their standard:

The United States Supreme Court has enunciated principally two types of prose-cutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

Id., at 324 (citing Commonwealth v. Starks, 490 Pa. 336, 341 , 416 A.2d 498, 500 (1980)). The reasoned holding of the Court was “the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant 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.” Id., at 325.

In New Mexico, the Supreme Court has adopted a test which is not dependent upon when the prosecutorial misconduct is discovered. Their test is “when a defendant moves for mistrial, retrial, or reversal because of prosecutorial misconduct, retrial is barred under Article II, Section 15 of the New Mexico Constitution, when improper official conduct is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or a motion for new trial, and if the official knows that the conduct is improper and prejudicial, and if the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial or reversal.” New Mexico v. Breit, 122 N.M. 655 , 930 P.2d 792, 803 (1996). In coming'to this decision, the Breit Court relied upon the memorandum decision of the trial court. The prosecutor made several egregious remarks during the trial and the trial court granted Breit’s motion to dismiss further prosecution upon double jeopardy grounds. The trial judge discussed the role of the prosecution by quoting Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with *23 earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Breit, 930 P.2d at 807 . 3

In Connecticut, the Superior Court established the following test to determine whether retrial was barred. The defendant must prove “the state engaged in prosecutorial misconduct ‘undertaken with the deliberate purpose of depriving the defendant of double jeopardy’s shield, that is to say, only a highhanded wrong intentionally directed against the defendant’s constitutional right will trigger his right not to be twice put in jeopardy for the same offense.’ ” Connecticut v. Colton, 1997 WL 219996 , at *1 (Conn.Super.Ct.1997) (citing Colton II, 663 A.2d at 339). The Court stated the defendant must also prove that “the misconduct of the prosecutor is undertaken not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” Id. The rationale of the court emphasized few cases would meet the standard, however they held:

We can see no principled justification for a distinction between prosecutorial misconduct that is clandestine, and therefore not discoverable until after a verdict or on appeal, and prosecutorial misconduct that is visible, and so can be remedied by a motion for mistrial or on direct appeal.

Connecticut v. Colton (Colton II), 234 Conn. 683 , 663 A.2d 339, 347 (1995).

In Nevada, the Court ruled double jeopardy would bar retrial in “cases in which the motion for retrial was denied and the judgment was subsequently reversed because of the prosecutorial misconduct which precipitated the motion for mistrial.” Collier v. Nevada, 103 Nev. 563 , 747 P.2d 225, 226 (1987).

B.

Federal

The Fifth Circuit considered the implication of retrial after reversal based upon pros-ecutorial misconduct. Robinson v. Wade, 686 F.2d 298, 307 (5th Cir.1982). The Court discussed the “unjustness of ... preclusive effect simply by the point in the judicial process at which a charge of overreaching is found meritorious.” Id., 686 F.2d at 307 . The Court went on to make a distinction between the holding in Burks, supra, and the problem with prosecutorial misconduct:

Nor is the rationale of Burks inconsistent with application of the “prosecutorial overreaching” exception to bar retrial where the overreaching caused a tainted verdict to be set aside, rather than a tainted proceeding to be aborted. Burks ’ holding, resting on a perceived dichotomy between reversals for evidentiary insufficiency, indicated that, as the former hold no implication for the guilt or innocence of the defendant, they would raise no bar to future prosecution. Burks, 437 U.S. at 14-15, 98 S.Ct. at 2149. That distinction does not necessarily hold true where trial error is attributable to intentional prosecutorial overreaching. The extreme tactics which constitute prosecutorial overreaching offend the double jeopardy clause at least in part because they unfairly deprive the defendant of possible acquittal, by heightening, in a manner condemned by law, the jury’s perception of the defendant’s guilt.... Whether the tactic condemned is successful in its objective of securing a mistrial, or unsuccessful, but causes the return of a verdict of conviction, would seem to be of little significance in development of a law of preclusion designed to protect this interest.

*24 Robinson, 686 F.2d at 308 . 4

In dicta, the Second Circuit has suggested the Double Jeopardy Clause would bar retrial if the prosecutorial misconduct was undertaken with the intent of preventing an acquittal the prosecutor reasonably believed, at that time, was likely absent such misconduct. United, States v. Wallach, 979 F.2d 912, 916 (2nd Cir.1992). Their rationale compellingly argued for an extension of Kennedy :

... If jeopardy bars a retrial where a prosecutor commits an act of misconduct with the intention of provoking a mistrial motion by the defendant, there is a plausible argument that the same result should obtain where he does so with the intent to avoid an acquittal he then believes is likely. The prosecutor who acts with the intention of goading the defendant into making a mistrial motion presumably does so because he believes that completion of the trial will likely result in an acquittal. That aspect of the Kennedy rationale suggests precluding retrial where a prosecutor apprehends an acquittal and, instead of provoking a mistrial, avoids the acquittal by an act of deliberate misconduct. Indeed, if Kennedy is not extended to this limited degree, a prosecutor apprehending an acquittal encounters the jeopardy bar to retrial when he engages in misconduct of sufficient visibility to precipitate a mistrial motion, but not when he fends off the anticipated acquittal by misconduct of which the defendant is unaware until after the verdict. There is no justification for that distinction.

Id., at 916. 5

In United States v. Rios, 637 F.2d 728, 729 (10th Cir.1980), the Court held “that double jeopardy considerations applicable after a mistrial has been granted are indeed applicable in the same manner when prosecutorial misconduct requires reversal of a conviction for lack of a fair trial after a mistrial motion has been denied.” The Court denied Rios’ appeal, however, because the Court ruled the prosecution did not intend to provoke the defense into seeking a mistrial. Again, the scienter of the prosecution was seen as para *25 mount in determining whether or not jeopardy bars retrial. In dissent, Judge McKay vehemently argued against this scienter standard, stating, “[t]o suggest that the double jeopardy clause is not violated unless the defendant can show (presumably only through the prosecutor’s confession) that the subjective purpose of the prosecutor was to obtain a mistrial invites the prosecution to go as far as it wishes, knowing that the only sanction it faces is a new trial.” Id, at 731.

The Third Circuit expressly held double jeopardy would bar retrial upon reversal for prosecutorial misconduct, however, only in very narrow circumstances. United States v. Curtis, 683 F.2d 769, 776 (3rd Cir.1982). In reaching their decision, the Curtis Court discussed Justice Stevens’ concurrence in Kennedy and his obvious problem with allowing retrial after appellate reversal:

... Justice Stevens, who was joined by three other Justices, also observed that the plurality’s reasoning was “premised on the assumption that an appellate court that concluded not only that the defendant’s mistrial motion should have been granted but also that the prosecutor intended to provoke a mistrial would not be obligated to bar reprosecution as well as reverse the conviction.” Justice Stevens termed such an assumption “irrational.”

Curtis, 683 F.2d at 774 (citing Kennedy, 466 U.S. at 687, n. 22, 102 S.Ct. at 2095, n. 22 ). Even in consideration of Burks ’ “apparently preclusive language,” Curtis, 683 F.2d at 776 , the Court held “the double jeopardy clause should not be read to forbid a retrial following an appellate reversal for prosecutorial misconduct if a retrial would be barred.” Ibid.

In United States v. Singer, 785 F.2d 228, 240 (1986), the Eighth Circuit, in a case of first impression, discussed at length the double jeopardy issue in a case they ultimately determined did not implicate jeopardy concerns. However unwilling the Court was to address the issue of whether jeopardy barred retrial after reversal for appellate misconduct, in dicta, they discussed their rationale:

There is good reason to argue that a criminal defendant whose conviction over a timely motion for mistrial is reversed because of any sort of governmental misconduct should be placed on equal footing with a defendant whose motion was properly granted. The defendant obtains mistrial only if the trial judge apprehends the sufficiently prejudicial misconduct. In reversing, the appellate court simply corrects the trial court’s error. The right of a criminal defendant not to be twice placed in jeopardy should not hang on which court correctly determines that misconduct infected the trial.

Id., at 239 . 6

III.

Facts

The State sought the death penalty in this case. Appellant was convicted of capital murder and ultimately sentenced to life in prison. His conviction was reversed by the Court of Appeals and a new trial was ordered. Davis v. State (Davis I), 831 S.W.2d 426 (Tex.App.—Austin 1992). Appellant filed a pretrial writ of habeas corpus alleging retrial was barred by the Double Jeopardy Clause of the Texas Constitution. Relief was denied by the trial court and the Court of Appeals. Ex parte Davis (Davis II), 893 S.W.2d 252 (Tex.App.—Austin 1995). We granted review to determine whether art. I, § 14 of the Texas Constitution bars retrial following the erroneous denial of a motion for mistrial based on prosecutorial misconduct.

The majority opinion has laid out the relevant facts. Important are the habeas court’s findings of fact and conclusions of law regarding the actions of Bill Reimer, the Comal County District Attorney. The court’s findings were:

1. Bill Reimer is the elected district attorney of Comal County, Texas.

*26 2. Reimer, acting in his official capacity as district attorney of Comal County, personally prosecuted Applicant at his first trial.

3. Reimer has disqualified himself from further prosecution in this cause and Ray Taylor has been named special district attorney to prosecute Applicant and Taylor is completely independent of the Comal County District Attorney’s Office.

4. The Court of Appeals has found that Reimer engaged in prosecutorial misconduct and suborned perjury. That finding is binding upon this Court and is accepted herein and that finding serves as a basis for this Court’s conclusions of law. See generally, Davis v. State, 831 S.W.2d 426 (Tex.App.—Austin 1992, pet. ref d).

5. Reimer presented the following facts to the jury in Applicant’s trial:

a. Certain evidence was not tested because of the cost to Comal County. This statement was incorrect because Comal County only paid for'Zain’s testimony.

b. That the police investigation was excellently conducted and outstanding while before the trial he wrote New Braunfels city officials complaining of the lost evidence and negligence of the police investigation.

These findings, while accurate, do not fully state the scope of egregious misconduct committed by Reimer.

In suborning perjury, Reimer coerced and threatened Carolyn Toth, a witness for the State. Toth testified she saw appellant and the victim’s sister exchange an embrace after the body was discovered. Davis I, 831 S.W.2d at 435 . Reimer, feeling this testimony damaged the State’s case, ordered a police officer to contact Toth. Id., at 436 . Toth ultimately arrived at the district attorney’s office and was told by Reimer there was a conflict between her testimony and that of other witnesses. Reimer told Toth:

... that if he could not resolve this conflict he would present the matter to the grand jury; and that if the officers had lied, he would indict the officers, or “the reverse if she had not told the truth.” He also told her that he had “already put one person in jail for lying on the stand last year.” He said he then asked her if she might have been mistaken about having seen a completed embrace. She said she had been mistaken.

Id. Reimer also directed Toth to testify that she had called him about changing her testimony. Id., at 437 . The next day, Toth was again called to the stand where she changed her testimony to conform with Reimer’s mandate. Id., at 436 . When crossexamined, Toth denied being coerced to change her testimony. Id.

After Toth was recalled as a witness, but before the end of the trial, the defense learned Reimer had threatened Toth with a grand jury indictment for perjury. At that point, the defense moved for a mistrial on the ground of prosecutorial misconduct. Id. The trial judge conducted a hearing outside the presence of the jury. Id. Toth was given immunity and testified she had only changed her testimony because of Reimer’s threats. Id., at 436 . She further testified the district attorney’s manner frightened and intimidated her and she feared going to jail unless she changed her testimony. Id. On crossexami-nation by the State, Toth testified she was fearful when Reimer showed up where she lived and thoroughly frightened by a police officer who attempted to get her to “ride into the country with him.” Id. After this hearing, the trial judge concluded “that there had not been prosecutorial misconduct that would justify a mistrial.” Id., at 437 . The trial judge instructed the jury to ignore Toth’s second round of testimony. Id.

The appellate court summarized the damage to the credibility of Toth: “In light of Toth’s changing stories, we think it likely that the court’s instruction to ignore part of her testimony had the effect of convincing at least some jurors that she was simply not a credible witness and that all of her testimony should be ignored.” Id., at 439 (emphasis in original).

Equally outrageous is the conduct of the State’s forensics expert, Fred Zain. The unreliability of Zain’s expertise was not made known until after the reversal. Although *27 Zain invoked his Fifth Amendment privilege against self-incrimination at the hearing on appellant’s pretrial writ of habeas corpus, the habeas judge made the following pertinent findings of fact:

1. Fred Zain was an employee of the Bexar County Forensic Science Center who testified for the State in Applicant’s trial.

2. Comal County paid the Bexar County Medical Examiner for Zain’s services as an expert witness and not for the performance of any scientific testing of evidence in Applicant’s trial.

3. Zain testified at the trial that he performed the scientific tests on blood and other evidence in connection with this ease.

4. Zain did in fact not conduct the DNA tests noted in his report.

5. It is highly probable that Zain committed aggravated petjut'y in testifying at Applicant’s trial concerning the results of some or all of the scientific tests he said he conducted. Specifically, Zain committed aggravated perjury in the following ways:

a. He testified that he had personally conducted scientific tests when in fact he did not.

b. He testified that certain pieces of physical evidence contained Applicant’s blood when in fact he knew or should have known that these pieces of evidence did not contain Applicant’s blood.

6. Zain is not credible under oath.

7. At the hearing on Applicant's application for writ of habeas corpus, Zain invoked his right against self incrimination as guaranteed by the Fifth Amendment after being admonished of his rights by the trial court and after admitting that his employment had been terminated because of evidence in his possession being lost.

8. Zain’s scientific evidence was not reliable.

9. Zain’s reports and testimony served as the basis for the opinions, testimony and conclusions of Lt. Ed Richards.

10. The State’s theory of prosecution was premised on the testimony of Lt. Richards and Zain. Zain misled Lt. Richards regarding the forensic facts, thus causing Lt. Richards’ testimony and conclusions to be probably inaccurate.

11. Zain was employed by the Comal County District Attorney to conduct the serology testing of the evidence in this case.

12. Zain’s conduct was intentional and outrageous and shocked the conscience of the court.

13. The Court is familiar with the holdings of the West Virginia Supreme Court in The Matter of the West Virginia State Police State Police Crime Laboratory Serology Division, No. 93-Misc.-402 [ 190 W.Va. 321 , 438 S.E.2d 501 ] (W.Va. Nov. 10, 1993) (not yet reported). The Court agrees with the general factfindings of the West Virginia Supreme Court concerning Zain’s competence, abilities and reliability and finds that there is a significant danger that similar conduct occurred in Texas.

14. Zain was terminated from the Bexar County Forensic Science Center for mishandling of evidence and because of the result of Dr. Stone’s audit.

Davis II, 893 S.W.2d at 258-259 . Again, the findings do not fully represent the extent of the misconduct.

Zain testified that appellant’s blood was on physical evidence when it was not. There were no eyewitnesses to this crime, therefore Zain’s testimony was critical to the State’s case. And, it was based entirely on lies. Beyond Zain’s obviously perjured testimony, there were other irregularities with the evidence. Crucial hair evidence was lost, a crucial tape perhaps exculpating appellant was erased by the New Braunfels police and blood samples were improperly stored. Id., at 259 .

The Court of Appeals determined the actions of Reimer denied appellant a fair trial and violated appellant’s due process rights. Davis I, 831 S.W.2d at 439 . In sum, perjured testimony was presented at the behest of Reimer. Id., at 438 . The scientific evidence presented at trial was completely un *28 reliable. Davis II, 893 S.W.2d at 258 . Possible exculpatory evidence was destroyed by the police. Davis I, 831 S.W.2d at 442 . It is almost incomprehensible the lengths Comal County went to in order to convict appellant. And the State readily admits intentionally committing misconduct in their attempt to convict appellant. The State actively deprived appellant of his opportunity for a fair trial.

After Reimer coerced Toth to change her testimony, appellant moved for a mistrial. The trial court ruled the prosecutorial misconduct did not justify a mistrial. That decision was reversed by the Court of Appeals. Id., 831 S.W.2d at 439-440 . The trial judge’s erroneous decision was reversed. 7

IV.

Analysis

The majority follows the lead of the Court of Appeals in holding the Texas Constitution does not prevent retrial after reversal for prosecutorial misconduct. Ante, at 14. In reaching this holding the .majority states: “Appellant has not directed us to any cases, however, where the Supreme Court has explicitly extended Oregon v. Kennedy to apply to instances where verdicts of guilty have been reversed on appeal due to prosecutorial misconduct, and therefore holding retrials as jeopardy barred.” Ante, at 12. 8 In other words, because appellant cannot cite a case directly on point, he loses. That type of rationale is devoid of reason and reflects poorly on any court of last resort.

The majority fails to recognize the jurisdictions that have extended Kennedy did not have a Supreme Court opinion on point to justify their extension. What those jurisdictions did have was a grasp of the problems inherent in not extending Kennedy . For example, the Pennsylvania Supreme Court correctly recognized that this type of prose-cutorial misconduct was not an inevitable part of the trial process, but was instead a breakdown of the integrity of the judicial proceeding that the double jeopardy clause was designed to protect against. Smith, 615 A.2d at 324 . And, the Fifth Circuit has noted that “extreme tactics which constitute prosecutorial overreaching offend the double jeopardy clause.” Robinson, 686 F.2d at 308 .

Moreover, this Court did not have a case directly on point when it decided Bander, and held the harm incurred when the prose *29 cution engages in misconduct to deprive a defendant of a fair trial, is the type of harm art. I, § 14 is meant to protect against. And, when this occurs, the prosecution should bear the responsibility for denying the defendant a fair trial:

... Under such circumstances, mistrial is not a necessary concession to the exigencies of trial, nor the unavoidable consequences of events beyond the prosecutor’s control, but an immediate result of conditions produced by the government’s representative which force upon a defendant the expense and embarrassment of another trial unless he is willing to accept an incurable unfair one. When this happens, we think the government should bear the responsibility for denying the defendant his right, secured by the Texas Double Jeopardy Clause, to be tried in a single proceeding by the jury first selected.

Bauder, 921 S.W.2d at 699 .

The Double Jeopardy Clause has evolved from its simplest understanding to the cases discussed here in section II., supra. The protections for the defendant are based on fundamental principles of fairness; to protect against the power of the state and not subject any individual to repeated attempts at conviction causing undue burden, expense and anxiety. Burks v. United States held a defendant could not be retried if an appellate court held there was insufficient evidence, because the State had previously “been given one fair opportunity to offer whatever proof it could assemble.” Burks, 437 U.S. at 16, 98 S.Ct. at 2149-2160.

In the instant ease, the prosecution had their day in court. On that day, the prosecutor stood before twelve jurors and represented every individual in this State, and was given the opportunity to offer whatever proof could be assembled. The State chose not to be fair, but to engage in egregious misconduct. Had the trial judge correctly granted a mistrial, further prosecution would have been jeopardy barred. Bauder v. State, supra.

However, the majority holds there is no double jeopardy violation because there was not a mistrial, only a reversal. But, there is no rationale for this type of distinction. United States v. Wallach, 979 F.2d at 916 ; and, Connecticut v. Colton, 663 A.2d at 347 . If the requested mistrial was erroneously denied and that error is found on appeal, why should the defendant be subjected to retrial? Why should a defendant, due to an incorrect ruling by the trial judge, lose this constitutional protection? It is simply inconceivable that the valuable double jeopardy protections suddenly vanish when the case enters the appellate process. 9 The right of a defendant to be free from double jeopardy should not be determined by which court correctly determines that misconduct infected the trial. See, Singer, 785 F.2d at 239 . A constitutional guarantee should not morph into a “non-right” depending upon the point in the judicial process an individual finds himself. The trial judge, through an erroneous ruling, should not be allowed to forfeit an individual’s valuable constitutional right. Accordingly, I would hold art. I, § 14 of the Texas Constitution bars retrial following the erroneous denial of a motion for mistrial based on prosecutorial misconduct.

Conclusion

“The genius of the Constitution resides not in any static meaning that it had in a world that is dead and gone, but in its adaptability to interpretations of its greatest principles that cope with current problems and current needs.” William J. Brennan, Constitutional Adjudication, 40 Notre Dame Law, 559, 568 (1965). 10 The guarantees inherent in our *30 Constitution mirror what we as a society respect and revere, and what we live and die for. What we refuse to tolerate oftentimes speaks volumes more about our government’s concept of freedom and ordered liberty than what we accept.

The State openly admits it engaged in egregious misconduct in order to convict appellant. (State’s brief pp. 13, 18.) This misconduct shakes the very foundation upon which our system of justice rests. I would expect condemnation from every member of this Court. Instead, the majority refers to “reprehensible” actions by the prosecutor, Ante, at 13, but blindly affirms the judgment of the Court of Appeals. To hold the Double Jeopardy Clause is not violated when the State intentionally commits prosecutorial misconduct invites the prosecution to go as far as it wishes, knowing the only sanction it faces is a new trial—a second bite at the apple. See, Rios, 637 F.2d at 731 (McKay, J., dissenting). But, affording the State a second opportunity to convict under these circumstances is exactly what the Fifth Amendment is supposed to protect against. Moreover, the retrial sanction begs the question: if in the first instance the State was willing to commit misconduct in order to improperly convict, why would the State stray from that path a second time?

Believing appellant’s retrial is jeopardy barred under art. I, § 14 of the Texas Constitution, I would reverse the judgment of the Court of Appeals. Because the majority does not, I dissent.

. All emphasis supplied unless otherwise indicated.

. The concurring opinion argues adoption of this opinion would create a "broad rule” that would jeopardy bar all cases where the conviction was reversed as a result of prosecutorial misconduct. Ante, at 15 (McCormick, P.J., concurring). This is not true. This opinion is limited to the issue presented, namely whether art. I, § 14 of the Texas Constitution bars retrial when the trial judge erroneously denies a mistrial based on pros-ecutorial misconduct.

. The majority states the prosecutorial misconduct in the case sab judice, "while significant, is by no means comparable to that which took place in Breit.” Ante, at 14 n. 5. I disagree. While the prosecution in Breit made numerous egregious remarks throughout the trial, appellant has suffered from a lying district attorney, forced perjury, false physical evidence and destruction of exculpating evidence. It is far easier to defend against open assault than covert falsehoods and manipulations.

. In an earlier opinion, the Fifth Circuit considered the issue of barring retrial after reversal for prosecutorial misconduct and determined, ‘‘[t]he argument has some support in logic.” United States v. Opager, 616 F.2d 231, 235 (5th Cir.1980). However, the Opager Court ultimately determined no prosecutorial misconduct had occurred, so the issue was left for another day. An interesting footnote by Judge Gewin stated: “In sum, Burks may be read to not completely foreclose the application of the double jeopardy clause to cases in which reversal after conviction has been obtained where Kessler type bad faith overreaching exists.” Id., at 236, n. 13 .

In United States v. Kessler, 530 F.2d 1246 (5th Cir.1976), the Court:

found that intentional misconduct by the government in presenting false evidence to the court seriously prejudiced the defendant and held that "such intentional misconduct is 'prosecutorial overreaching’ and is one of the 'types of oppressive practices at which the double jeopardy prohibition is aimed.’ ” Opager, 616 F.2d at 234 (citing Kessler, 530 F.2d at 1257-58 , quoting Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834, 837 , 93 L.Ed. 974 (1949)).

The Fifth Circuit also made a distinction between “prosecutorial misconduct" and "bad faith prosecutorial overreaching,” preferring the overreaching phrase as connotative of the bad intent of the prosecution versus merely unintentional misconduct. Id., at 236, n. 13. In this Court we have simultaneously used both terms with no distinction in their meaning. See, Penry v. State, 903 S.W.2d 715 (Tex.Cr.App.1995); Higginbotham v. State, 807 S.W.2d 732 (Tex.Cr.App.1991); State v. Yount, 853 S.W.2d 6 (Tex.Cr.App.1993); State v. Frye, 897 S.W.2d 324 (Tex.Cr.App.1995); Cook v. State, 940 S.W.2d 623 (Tex.Cr.App.1996); and Bauder v. State, supra.

. The majority has referred to United States v. Oseni, 996 F.2d 186 (7th Cir.1993), ante, at 12 n. 3, for the proposition that the 7th Circuit has "specifically rejected the Second Circuit’s holding in Wallach." The majority also cites United States v. Doyle, 121 F.3d 1078 (7th Cir.1997), regarding the bar to retrial after reversal for insufficient evidence. Ante, at 11. However, in Doyle , the 7th Circuit made specific comments regarding their holding in Oseni which the majority has failed to acknowledge:

... First, our case law impliedly suggests that this Circuit does not subscribe a Wallach-type extension of Kennedy . See United States v. Oseni, 996 F.2d 186, 187-88 (7th Cir.1993). Second, although today we do not decide whether we would adopt the Wallach exception under other circumstances, Doyle does not, nor can he, show how he could meet the Kennedy or the Wallach exception to the traditional double jeopardy analysis, even if either case were to apply ... We expressly reserve the question of whether Wallach would apply in other circumstances..

Doyle, at 1085, 1087.

. The concurring opinion refers to the cases discussed in this section as representing a "mostly unprecedented rule.” Ante at 15 (McCormick, PJ. concurring). However, to support that position, the concurring judge cites only his dissent-mg opinion in Bauder v. State, 921 S.W.2d 696, 703 (Tex.Cr.App.1996) (McCormick, P. J., dissenting), which garnered only one vote, his own and, therefore, is void of any precedential value.

. The concurring opinion states the prosecutorial misconduct may not be "easily defined," ante, at 16 (McCormick, P. J., concurring), I pause to note that every judge who has been involved with this case has not only easily recognized the misconduct but openly condemned the misconduct.

. The majority also states that it is not clear the State knew or should have known Zain' testimony was false. Ante, at 12. This statement is incorrect for at least two reasons. First, there is evidence Reimer knew Zain had not conducted any of the DNA tests which he testified about. Davis II, 893 S.W.2d at 259 . Second, even if Reimer did not know the testimony was false, Reimer had imputed knowledge of the falsity because Zain was the State’s forensic expert and, therefore, a part of the prosecutorial team. In Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972), the Supreme Court held in certain circumstances, knowledge of perjured testimony may be imputed to the prosecutor who lacks actual knowledge of the falsity. In Ex parte Adams, 768 S.W.2d 281, 292 (Tex.Cr.App.1989), the Court "declined to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team' which includes both investigative and prosecutorial personnel.” As such, Reimer was responsible for Zain’s conduct. See also, Ex parte Castellano, 863 S.W.2d 476 (Tex.Cr.App.1993) (Off duty peace officer who was not assigned to an arson case but took it upon himself to assist and engage in perjury was a part of the prosecutorial team.). Under this rationale the State is responsible for the evidence in its case. In Kyles v. Whitley, 514 U.S. 419 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995), the Supreme Court held:

... This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case ... Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial’s outcome as to destroy confidence in its result.

Id., at 437-439 , 115 S.Ct. at 1567-1568 . See also, Zule v. State, 802 S.W.2d 28, 33 (Tex.App.-— Corpus Christi 1990) (The State is responsible for disclosing favorable evidence known by its agents, including police officers, even if the particular evidence is not known to the prosecuting attorney.).

. See, Stone v. Powell, 428 U.S. 465, 511 , 96 S.Ct. 3037, 3060 , 49 L.Ed.2d 1067 (1976) (Brennan, J., dissenting).

. Judge McCormick spends a large portion of his concurrence in an ad hominem attack on Justice Brennan who died less than two months ago. Rather than respond in kind, I refer the reader to the comments of Chief Justice Rehnquist upon Justice Brennan’s retirement:

The enduring legacy of Justice Brennan—the high value which he placed on claims of individual constitutional rights asserted against the authority of majoritarian self-government—is in no danger of being forgotten or disregarded simply because he has left the bench.

Future historians and jurists may disagree as to Justice Brennan's legacy, but foremost he was *30 a man who served this country admirably for many years.