March-April 2007

A wooden stake for Bauder

Charles Mallin

Assistant Criminal District Attorney in Tarrant County

Remember Bram Stoker’s Dracula, where Count Dracula is finally done in by the Professor Abraham Van Helsing gang? There, Van Helsing and his band of vampire hunters finally pursued Dracula back to Transylvania. They chased down and cornered him. Armed with knives (not really wooden stakes), Jonathan Harker and Quincy Morris decapitated Dracula and impaled his heart. Dracula’s body then crumbled to dust.

Well, similarly, the Court of Criminal Appeals cornered Bauder and impaled its heart; thus, an entire body of ill-conceived double jeopardy jurisprudence supposedly predicated on the Texas Constitution crumbled to dust.1

Under the harsh Bauder standard, a prosecutor’s statement in the heat of battle could, by itself, obliterate the chance to ever try that defendant again. The reasoning was that courts were trying to prevent prosecutors from throwing a trial they were certain they were about to lose and so made an objectionable comment to provoke a mistrial and get a second crack at the defendant.

But a standard as strict as Bauder isn’t necessary to protect against this (assuredly) rare occurrence. The federal standard (set out in Oregon v. Kennedy, which is explained in more detail later in this article) protects when prosecutors do this deliberately.

Football provides an easy-to-understand comparison between the two standards. In the National Football League, if a defender commits pass interference in the end zone, the penalty is to give the offense the ball on the one-yard line, which is the equivalent of the federal standard. Bauder, on the other hand, would simply hand the offense a touchdown without allowing the defense another chance to prevent an offensive score.

More details

Bauder and its progeny interpreted the double jeopardy provision of the Texas Constitution to bar retrial following a defense-requested mistrial “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 This construction of Tex. Const. art. I, §143 was much more expansive than the interpretation of the federal double-jeopardy provision by the United States Supreme Court. The federal interpretation of its double-jeopardy counterpart was articulated in Oregon v. Kennedy,4 where the 5th Amendment’s Double Jeopardy Clause was construed to bar retrial after a defendant successfully moved for mistrial only when it was demonstrated that the prosecutor engaged in conduct “intended to provoke the defendant into moving for a mistrial.” Prior to the initial Bauder opinion, the Court of Criminal Appeals used the federal standard to resolve double-jeopardy issues following a defense-requested mistrial.5

Bauder proved difficult to apply, and Texas prosecutors uniformly criticized it. In fact, I wrote an article6 in this publication advocating that the court reverse Bauder and return to the standard formulated under the 5th Amendment in Oregon v. Kennedy.7 That article pointed out several defects in the path the Court of Criminal Appeals chose to follow in holding that the Texas Constitution provided more double jeopardy protection than the federal constitution. Chief among the complaints about the court’s formulation under Bauder and its progeny was its almost impossible application and the re-clarification quagmire the court undertook. Bauder proved to be like a broken-down 1958 Edsel that was constantly in the shop for repairs. It was pointed out:

The first time the court attempted to clarify the initial decision in Bauder I, it noted that the question of whether the trial court correctly granted a mistrial request was not the proper focus of a double jeopardy claim based on the state constitution.8 Rather, the critical inquiry is whether the defendant made a free choice to request a mistrial, rather than being compelled to do so because of the prosecutor’s “manifestly improper methods . . . deliberately or recklessly” committed.9 Apparently, this meant that the prosecutor’s conduct crossed the line between “legitimate adversarial gamesmanship and manifestly improper methods” that rendered the trial before the jury so unfair that no instruction to disregard the prosecutor’s conduct could have cured the error.10

Notwithstanding the resulting confusion and misapplication by both trial courts and intermediate appellate courts, the Court of Criminal Appeals had steadfastly refused to abandon the Bauder standard.11 Before Lewis, the latest review of Bauder came in Ex parte Peterson. After discussing the significant differences between the Bauder and Kennedy standards, the Peterson Court summarized a three-pronged analysis appropriate for both the trial and appellate courts in analyzing a double-jeopardy-mistrial claim: 1) Did manifestly improper prosecutorial misconduct provoke the mistrial? 2) Was the mistrial required because the prejudice produced from that conduct could not be cured by an instruction to disregard? and 3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial (Kennedy standard) or with the conscious disregard for a substantial risk that the trial court would be required to declare a mistrial?12 While the standard articulated in Peterson seemed workable, it resulted in as much confusion as its predecessors.

Not only the did the Lewis Court recognize the practical difficulties in Bauder’s application, it systematically dismantled Bauder’s supposed underpinnings.13 First, the court conducted an in-depth constitutional analysis of Texas’ double-jeopardy provision and concluded that the provision does not apply only to situations where the defendant is acquitted. The historical framework of the provision protects a defendant against the premature termination of a trial except where there is a manifest necessity for a mistrial or where the defendant consents.14 In its analysis, the court thoroughly dissected the Texas double-jeopardy provisions from Texas’ first version to the present version.15 The court fortified its conclusion with well over 100 years of precedent,16 starting with Lord Coke’s Rule extending double jeopardy protection to premature termination of a trial and including an early-19th-century state court decision that hewed a traditional early understanding implicating double jeopardy protections only after a previous conviction or acquittal.17 Finally, the court exhaustively analyzed Texas caselaw interpreting the various Texas double jeopardy provisions promulgated from the initial Texas independent republic, the first state constitution, constitutional provision adopted when Texas became a member of the Confederate States, provision after the defeat of the Confederacy, Reconstruction provision, and present state constitutional provision.18

Probably the most important analysis came when the court tackled the second issue concerning the practical application of Bauder and its progeny. Judge Cochran, in her concurring opinion, immediately points out that Ex parte Wheeler,19 which she authored, attempted to “split the difference” between Kennedy, Bauder, and Ex parte Peterson by opting for a middle course amid the “harsh” Supreme Court rule and the “kinder, gentler” but ambiguous Texas rule.20 However, the rule crafted under the Texas Constitution was not “workable.”21 This thought was the thrust of the majority opinion with its systematic decimation of the Bauder guarantees extracted from Tex. Const. art. I, §14.

Simply put, the court, in overruling Bauder, found that there were no Texas constitutional underpinnings to support a conclusion that the framers of the Texas Constitution intended the Bauder standard. The court found fault with Bauder for a bevy of reasons:

1.The majority and concurring opinions in Bauder just got it wrong. Those opinions did not cite legal materials (cases, treatises, statutes, etc.) preceding the 1876 constitution that influenced the provision’s wording or reflected the framers’ intent to support the “reckless” standard.22

2. Bauder did not accurately reflect the purposes of double-jeopardy protections. The law concerning the Texas double-jeopardy provision really depends on the vitality of Powell v. State23 and Moseley v. State.24 These cases advanced reasonable propositions, were correct as a historical matter, and should not have been overturned.25

3. The Bauder Court’s justification for its articulated “reckless” standard was faulty. “[T]he remedy of a new trial” is “sufficient to vindicate both the citizen interest in a fair trial and the societal interest in bringing those properly found guilty to punishment.” The question for double jeopardy is not whether the trial is fair, but whether the request for a mistrial is the defendant’s decision. In reality, the only time this decision is not the defendant’s is when the prosecutor intends to provoke the mistrial to seek the termination of the trial.26

4. The Bauder “reckless” standard is confusing because the language of the case suggested that the defendant’s right to a fair trial was important but that the prosecutor’s specific intent was “irrelevant.” This was neither a less subjective nor a less complex analysis. Moreover, the opinion actually suggested that granting a defendant’s requested mistrial would usually result in a double-jeopardy bar by emphasizing the distinction between legitimate adversarial gamesmanship and manifestly improper prosecutorial methods. Setting aside confusing language in the Bauder opinion, the “reckless” standard poses some practical problems in this context. “Every act on the part of a rational prosecutor during a trial is designed to ‘prejudice’ the defendant” in front of the jury so that it will convict him. The prejudice should be fair rather than foul, but in the heat of battle prosecutors may overstep their bounds. While a prosecutor clearly knows he should not try to cause a mistrial, he may be a lot less certain what conduct an appellate court would decide carried a substantial risk of a mistrial that the prosecutor consciously disregarded. In his Bauder dissent, Presiding Judge McCormick doubted that prosecutors would “know with any certainty what conduct is prohibited by this rule.”27

5. The Bauder standard was so confusing and its application so difficult that the court struggled unsuccessfully at least three times to clarify it. But even with these repair jobs, the Bauder standard conflicted with other legal precedents holding that a retrial is not barred by double jeopardy following the grant of a new trial on appeal. In this regard, the court was concerned with the internal inconsistency of the stricter standard. In Texas, the prosecutor who obtained a conviction, notwithstanding that he engaged in reckless conduct, would not be barred from further prosecution following an appellate court reversal. Five other jurisdictions recognizing a broader rule than the one set out in Kennedy have addressed the issue by also applying the mistrial rule to convictions overturned on appeal.28

6. The standard set forth in Oregon v. Kennedy is workable, is appropriately narrow, and comports with the purpose of the double-jeopardy provision’s application to the mistrial setting.29 Bauder wrongly conflated generalized notions of due process and due course of law with double-jeopardy protection. Double jeopardy is not a form of due-process protection; due course of law can be ensured by granting a mistrial and conducting a retrial. The appropriate question for double-jeopardy purposes is not whether the defendant’s trial was fair but whether requesting a mistrial was ultimately the defendant’s decision. Bauder wrongly suggested that a defendant’s decision in a “recklessness” situation would not be a free decision. To the contrary, as Lewis points out, when a prosecutor is merely reckless, one cannot say that the prosecutor has made the decision to seek a mistrial. Only when the prosecutor intends to provoke the defendant’s mistrial motion can it be said that the prosecutor has exercised primary control over the decision to seek the trial’s termination.30

The point of setting out the underpinnings and foundation of the holding of Lewis in overruling Bauder is that the court undertook to completely—on every constitutional level and rationale—dismantle and destroy the Bauder decision. Like the stake through Dracula’s heart, the outcome is the same. Bauder has turned to dust, never to be resurrected.

Future prosecutions

The holding in Lewis will greatly diminish the ability of the courts of appeals to hold that prosecutorial conduct bars a future retrial under the Texas Constitution’s double jeopardy provisions. As the Court of Criminal Appeals states, relief under the Oregon v. Kennedy standard (now the standard under the Texas Constitution) will (and should) be rarely granted, and the rare granting of relief does not make this standard inadequate to protect the defendant’s double-jeopardy guarantees. The court points out that it is aware of no decisions granting relief without either a State concession or a favorable trial court finding. However, this is acceptable and to be expected in dealing with such an extreme remedy essentially amounting to an acquittal.31 The court reaches this conclusion on the basis of its good-faith belief that prosecutors do not ordinarily attempt to throw cases or to instigate a mistrial when they encounter problems with their cases.32 Under the sweeping and confusing Bauder standard, prosecutors were often left uncertain as to what conduct an appellate court would later conjure up to be deemed reckless. Courts of appeals were prone to overstepping the appropriate scope of review—regardless of trial court findings that the prosecutorial conduct causing the mistrial was not reckless—to bar retrial based on double jeopardy.33 I hope that under Lewis, prosecutors will be able to determine with more certainty the scope of conduct that falls within the rule, and barring retrials will be a rare exception reserved for the most egregious prosecutorial conduct as envisioned by Oregon v. Kennedy.

Just a thought

It seems that the Court of Criminal Appeals has gotten into another quagmire in the area of reviewing factual sufficiency, which suffers the same infirmities as double jeopardy under Bauder. The modern-day notion of factual sufficiency was set out in Clewis v. State,34 which predicated its holding on the “factual conclusivity clause of Tex. Const. art. V, §6.”35 Under Clewis, an appellate court reviews the factfinder’s weighing of the evidence and is authorized to disagree with the factfinder’s determination. Of course, the courts of appeals were to be appropriately deferential to avoid an appellate court’s substituting its judgment for that of the jury. But that did not happen. What happened was that Clewis empowered the courts of appeals to act as the “13th juror” and to disagree with the factfinder’s determination (while at the same time being deferential to the jury’s judgment). As with Bauder, the standard articulated by the Clewis Court was ambiguous, contradictory, and from the beginning impossible to apply.

Clewis does not accurately reflect what a sufficiency review should be in a criminal case,36 the justifications for a factual-sufficiency review in criminal cases are faulty, the holding is confusing, there have been practical difficulties in its application from the get-go, lower appellate courts have had difficulty correctly interpreting and applying it, and the Court of Criminal Appeals has obviously struggled to clarify it. Because the court has absolutely jumbled the distinction between a factual-sufficiency review and a legal-sufficiency review, it has been compelled on several occasions to clarify, redefine, refine, and re-clarify Clewis.37 Each time the court has engaged in this futile effort, it has been unable to explain the real distinction between a legal sufficiency review and a factual sufficiency review, except that one leads to an acquittal and the other does not.

Clewis, like Bauder, is impossible to apply practically and consistently and results in a windfall for the appellant who receives a new trial notwithstanding that the evidence was legally sufficient. In fact, the Florida Supreme Court, which started the rush to review factual sufficiency in criminal cases, quickly realized that it was a bunch of bunk. Although the United States Supreme Court in Tibbs v. Florida38 concluded that a reversal of a conviction because the verdict is against the great weight of the evidence does not trigger double jeopardy, the Florida Supreme Court ruled that Florida appellate courts may no longer reverse convictions on the ground that the evidence is factually insufficient to support the verdict. This was because such a review amounted to nothing more than the appellate court substituting its judgment for that of the jury.39 Frankly, this is what the Court of Criminal Appeals needs to do.

Now that Bauder is gone, the focus should be the demise of Clewis because it is impractical, confusing, and cannot be substantively interpreted, clarified, or refined. Lewis provides us a template and a road map for the attack.


1 Ex parte Lewis, 2007 WL 57823 (Tex. Crim. App. January 10, 2007). In her concurring opinion, Judge Cochran accurately sets out the historical facts of this case: “Swanda Lewis was charged with murdering her husband. During the trial, the prosecutor asked her, on three separate occasions, whether she had told the 911 operator, the crime scene officer, or the detective to whom she had given a post-arrest statement, anything about her trial-time testimony that her husband had raped her immediately before she killed him. Each time the defense objected, stating that these questions improperly commented on her post-arrest silence. After the third such question, the trial court granted a defense-requested mistrial. Ms. Lewis then filed an application for a writ of habeas corpus, arguing that retrial was barred by the Texas constitutional double-jeopardy provision under this Court’s decision in Ex parte Bauder. The trial court denied relief, but the court of appeals held that the trial court abused its discretion in failing to find that the prosecutor’s questions were manifestly improper and were asked “with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial.” The court of appeals held that the State was prohibited from retrying Ms. Lewis. We granted review to decide, inter alia, whether to reconsider our decision in Bauder. I join the Court in overruling Bauder.” Ex parte Lewis, 2007 WL 57823 at *27 (Cochran, J., concurring) (footnotes omitted).
2 Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996)(Bauder I).
3 Article I, §14 states: “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.”
4 456 U.S. 667, 679 (1982).
5 See Crawford v. State, 703 S.W.2d 655 (Tex. Crim. App. 1986).
6 Mallin, “The Future of Bauder and Its Progeny? It Shouldn’t Have One!” The Texas Prosecutor, July-August 2005.
7 456 U.S. at 679.
8 Ex parte Bauder, 974 S.W.2d 729, 731-32 (Tex. Crim. App. 1998)(Bauder II).
9 Bauder II said: “Under this rule, the prosecutor is not accountable for mistrials when the judge need not have granted the defendant’s motion. But he was accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.” Ex parte Bauder, 974 S.W.2d at 731-32.
10 Ex parte Bauder, 974 S.W.2d at 731-32.
11 Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003); State v. Lee, 15 S.W3d 921 (Tex. Crim. App. 2000).
12 Ex parte Peterson, 117 S.W.3d at 816-17.
13 The State Prosecuting Attorney made two claims: First, the Texas double jeopardy provision did not encompass mistrial situations because of the language in Tex. Const. art. I, §14. Second, the Texas double jeopardy provision did not impose a different standard than its 5th Amendment counterpart for determining when a defense-requested mistrial would, if granted by the trial court, result in barring further prosecution. Ex parte Lewis, 2007 WL 57823 at *3.
14 Ex parte Lewis, 2007 WL 57823 at *18. See also Powell v. State, 17 Tex. Ct. App. 345 (1884).
15 See Rep. Tex. Const. Decl. Rts. §9 (1836); Tex. Const. art. I, §12 (1845); Tex. Const. art. I, §12 (1861); Tex. Const. art. I, §12 (1866); Tex. Const. art. I, §12 (1869); Tex. I, §14 (1876).
16 Id. at *3-14.
17 See State v. Garrigues, 2 N.C. 241, 241-42 (1795). Compare Commonwealth v. Fells, 36 Va. 613, 619 (1838); People v. Shotwell, 27 Cal. 394, 398-99 (1865).
18 Ex parte Lewis, 2007 WL 57823 at *7.
19 203 S.W.3d 317 (Tex. Crim. App. 2006).
20 Ex parte Lewis, 2007 WL 57823 at *27 (Cochran, J., concurring).
21 Id.
22 Ex parte Lewis, 2007 WL 57823 at *19, 23.
23 17 Tex. Ct, App. 345 (1884).
24 33 Tex. 671 (1877).
25 Ex parte Lewis, 2007 WL 57823 at *18.
26 Id. at *23-24 (quoting United States v. Dinitz, 424 U.S. 600, 673 (1976)).
27 Ex parte Lewis, 2007 WL 57823 at *29.
28 Id. at *24-25.
29 Id. at *27.
30 Id. at *17.
31 Id. *19-20.
32 Id.
33 See Ex parte Wheeler, 146 S.W.3d 238 (Tex. App.—Fort Worth 2004), rev’d, 203 S.W.3d 317 (Tex. Crim. App. 2006).
34 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).
35 Article V, §6 states: “Provided, that the decision of said courts [of appeals] shall be conclusive on all questions of fact brought before them on appeal or error.”
36 See Jackson v. Virgina, 99 S. Ct. 2781 (1979).
37 1) Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996); 2) Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); 3) Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); 4) Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001); 5) Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003); 6)  Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); 7) Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006).
38  102 S.Ct. 2211, 2218 (1982).
39  Tibbs, 397 So. 1120 (Fla. 1981).