Ex Parte Lewis

• Decision Date: 10 January 2007
• Docket Number: No. PD-0577-05.,PD-0577-05.
• Citation: 219 S.W.3d 335
• Parties: Ex parte Swanda Marie LEWIS, Applicant.
• Court: Texas Court of Criminal Appeals

219 S.W.3d 335

Ex parte Swanda Marie LEWIS, Applicant.

No. PD-0577-05.

Court of Criminal Appeals of Texas.

January 10, 2007.

Rehearing Denied April 18, 2007.

Danny Burns, Fort Worth, TX, for Appellant.

Jeffrey L. Van Horn, First Asst. State's Attorney, Matthew Paul, State's Attorney, Austin, TX, for State.

OPINION

KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

In Oregon v. Kennedy, the United States Supreme Court held that the Fifth Amendment's Double Jeopardy Clause barred retrial after a defendant successfully moved for mistrial only when it was shown that the prosecutor engaged in conduct that was "intended to provoke the defendant into moving for a mistrial."¹ In Bauder v. State, we interpreted the Double Jeopardy provision of the Texas Constitution more expansively, to cover "reckless" conduct, holding that retrial would also be barred "when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request."² We granted review to reexamine Bauder's holding.³ We conclude that Bauder should be overruled and that the proper rule under the Texas Constitution is the rule articulated by the United States Supreme Court in Oregon v. Kennedy.

I. BACKGROUND

Appellant called 911 after killing her husband. When officers arrived, they placed her in a patrol car, and eventually she was taken to the police station. At the scene and at the station, appellant gave statements after receiving Miranda⁴ warnings. At trial, the prosecutor asked three sets of questions that the court of appeals deemed relevant to its analysis. First, the prosecutor asked the crime scene officer, "When you met with [Appellant] Swanda Wiley, is that the name that she was giving you then?"⁵ Second, while the prosecutor cross-examined appellant, the following occurred:

Q. Did you ever tell the 911 operator [Kenneth Wiley] had been raping [you], he had been attacking [you]?

A. No.

Q. In fact, you never told any law enforcement about the rape?⁶

The next day, during further cross-examination of appellant, the following occurred:

Q. After speaking with [Detective] John McCaskill on August 10th of the year 2000, did you have occasion to learn the next day, on August 11th of the year 2000, John McCaskill wanted to speak with you again?

A. Yes.

Q. And you denied him opportunity to speak —⁷

After the first question, and after the last question in each of the two succeeding sequences, defense counsel objected that the prosecutor had commented on the defendant's post-arrest silence in violation of Article 38.08 of the Texas Code of Criminal Procedure, Article I, § 10 of the Texas Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution.⁸ All three objections were sustained, and instructions to disregard were requested and given in connection with the second two sets of questions.⁹ A mistrial was not requested on the first question, was requested and denied with regard to the second set of questions, and was granted after the third set of questions.¹⁰

Appellant later filed a pretrial habeas application, claiming that any subsequent prosecution was barred under double jeopardy principles, but the trial court denied relief.¹¹ After discussing this Court's latest opinion on the Bauder standard,¹² the court of appeals reversed, holding that "the prosecutor, at the least, engaged in this conduct with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial."¹³

II. STARE DECISIS

In conducting a re-examination of precedent, we keep in mind the strong preference for adhering to past decisions: "Often it is better to be consistent than right."¹⁴ Precedent can be overruled, however, if the reasons for doing so are weighty enough.¹⁵ Some factors supporting the overruling of precedent are: (1) that the original rule or decision was flawed from the outset,¹⁶ (2) that the rule's application produces inconsistent results,¹⁷ (3) that the rule conflicts with other precedent, especially when the other precedent is newer and more soundly reasoned,¹⁸ (4) that the rule regularly produces results that are unjust, that are unanticipated by the principle underlying the rule, or that place unnecessary burdens on the system,¹⁹ and (5) that the reasons that support the rule have been undercut with the passage of time.²⁰

The State points to, and disputes, two currently accepted legal propositions upon which Bauder's holding rests. The first is that the Texas double jeopardy protection embraces the mistrial setting. The second is that the Texas double jeopardy protection imposes a different standard than its Fifth Amendment counterpart for determining when a defense-requested mistrial can properly be attributed to the State for the purpose of barring further prosecution. Overruling either of these legal propositions would result in eliminating the rule announced in Bauder. We will examine each proposition in light of the factors articulated above.

III. MISTRIALS

A. The Issues

The State contends that, properly construed, the Texas double jeopardy provision does not apply to the mistrial setting. This contention has also been advanced in dissenting opinions in Bauder and its progeny.²¹ If this interpretation were adopted the result would be to hold that, in some respects, the Texas constitutional provision actually provides less protection than its Fifth Amendment counterpart, and as a result of the way in which it provides less protection, would obviate any inquiry in this case into whether it might be more expansive in other respects.²² In the language of Hulit, if the mistrial setting is not part of the state double jeopardy "building," then one has no occasion to determine whether that building contains a recklessness "floor" not found in the federal double jeopardy building.²³

The State makes two basic arguments in support of its position. First, the State claims that the "mistrial species" of double jeopardy jurisprudence was not part of the common law that formed the basis for the Texas constitutional provision. Relying upon Justice Powell's dissenting opinion in Crist v. Bretz,²⁴ the State contends that, instead, the "mistrial species" traces its lineage through English common law to an independent rule of jury practice, formulated by Lord Coke, that prohibited needless discharges of the jury. The State further asserts that "a bar to re-prosecution because of a premature termination of the first trial because of mistrial did not even emerge as a constitutional principle of double jeopardy jurisprudence until 1949 when the Supreme Court delivered its opinion in Wade v. Hunter,"²⁵ which imported Lord Coke's rule. Consequently, the State concludes, "it becomes almost ludicrous for one to truly believe that the framers of the Texas constitution in 1876 had contemplated a double jeopardy protection that did not even come into existence until more than seventy years later." In line with the State's position, the dissent in Peterson II had concluded that "during the approximately 150 years before our decision in Bauder I, our state constitutional double jeopardy provision had never been interpreted as having any application to the mistrial setting."²⁶

Second, the State contends that legislation passed in 1856 — defining double jeopardy solely by conviction or acquittal — reflected the intent of the framers of the Texas Constitution. The State points out that this legislation was passed a mere eleven years after the Texas Constitution of 1845 (containing a predecessor of the current double jeopardy provision) and twenty years before the Constitution of 1876 (containing the current double jeopardy provision). The dissents in Peterson II and Lee II made the same argument.²⁷

Finally, we include in this discussion a third argument, made by former Presiding Judge McCormick in his dissent in Bauder: that the state double jeopardy provision's language suggests that it applies only to acquittals.²⁸ His opinion quotes the state provision with the following in italics, suggesting that he believed that the italicized clause modifies the entire provision rather than the immediately preceding clause: "no 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 offense, after a verdict of not guilty in a court of competent jurisdiction."²⁹

B. Before the 19th Century

The Fifth Amendment's Double Jeopardy Clause provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."³⁰ This provision was framed in light of a long history of the concept of double jeopardy in English common law. The development of double jeopardy law in England and the history of its incorporation into the United States Constitution is discussed in various Supreme Court and state court opinions. There seems to be no dispute between the majority and dissent in Bretz regarding the historical developments, so we rely heavily upon Justice Powell's dissent, along with information from other sources.

In English common law, "jeopardy" referred to the principle underlying the doctrines of autrefois acquit and autrefois convict.³¹ A defendant was considered to be placed twice in jeopardy upon a second trial only if there existed a prior conviction or acquittal.³² Essentially, the doctrine embodied "a res judicata policy" for criminal cases.³³ That policy required an actual acquittal or conviction for its implementation.³⁴ The debates in 1789 on the Bill of Rights confirmed that the framers of the United States double jeopardy provision understood that it would operate in such a manner.³⁵

There is also some historical indication that the phrase "life or limb" in the Fifth Amendment was intended to perform a limiting function. One commentator has...