Ex Parte Peterson

117 S.W.3d 804, 2003 Tex. Crim. App. LEXIS 534, 2003 WL 22300275

• Court: Court of Criminal Appeals of Texas
• Decided: October 8, 2003
• Docket: 0201-02
• Status: Published

Opinions

OPINION

PER CURIAM.

In this case we clarify the standards under which the Texas constitutional double jeopardy provision, as explained in Bauder v. State,1 prohibits a retrial after the defense successfully requests a mistrial. Here, the trial judge granted defendant’s motion for mistrial when the prosecutor asked a question of her first witness that appellant claimed was improper. The defense then filed a pretrial double jeopardy motion to bar any retrial which, after a hearing, the trial judge also granted in part. Both the State and the defendant appealed and the court of appeals affirmed the trial court’s ruling.² We granted the State’s petition for discretionary review to address two issues: 1) Should the Bauder line of cases be abandoned? and 2) Did the court of appeals properly apply Bauder to this case? Because we conclude that the courts below were mistaken in their application of Bauder to this situation, we need not today address the broader question of whether Bauder and its progeny should be overruled.³ We therefore dismiss the State’s first ground for review as improvidently granted. Instead, we clarify the three-pronged analysis by which trial and appellate courts review Bauder claims, as well as set out a non-exhaustive fist of objective factors for courts to consider when evaluating them.

I.

James Michael Peterson was charged with two offenses: possession of cocaine with intent to deliver and possession of cocaine. His attorney filed a discovery motion, requesting notice of any statements that Peterson made to law enforcement agents and copies of any recordings. The State agreed to provide both. The prosecutor gave defense counsel a copy of the written arrest summary which was all that she had at the time of the discovery request. That summary stated, in part:

On 02/17/20 [sic], Det. Speaks and other members of the Plano Narcotics Unit had conducted surveillance on a suspect identified as James M. Peterson WM 11/13/76. Det. Spears had spoken to Peterson who had informed her that he had 3.0 grams of cocaine in his possession. Narcotics officers set up surveillance on Peterson’s residence and followed him when he left his residence in route to Plano.

According to the summary, when those officers saw Peterson commit traffic violations, they requested other, uniformed, officers to stop him, and “[t]he traffic stop and conversation with Peterson were video tape[d] and recorded.” Peterson consented to a search of the car, during which the officers found a marijuana pipe, a baggie of marijuana, and a small suede pouch containing approximately 3 grams of crack cocaine.

According to the prosecutor’s testimony at the habeas corpus hearing, she thought that there was a video tape of the traffic stop because of the statements in the arrest summary. She also thought there might be an audio tape of the original conversation between Officer Spears and Peterson, so she asked her investigator to check “several places” for tapes. The investigator was told that the videotape had been recycled and no longer existed.

The prosecutor met with Officer Spears a week before the trial and asked about the existence of any tapes. Officer Spears told her that “she [Officer Spears] could not recall any such [video] tape, only audiotapes of her conversations.” Officer Spears agreed to check and, on the day of trial, she arrived with audiotapes of the telephone conversations she had with Mr. Peterson as well as the videotape of the traffic stop. Officer Spears told the prosecutor that she had kept them in her personal files when she left the narcotics department about a year and a half earlier.

The prosecutor testified that she became aware of the tapes only about half an hour before the trial started. She immediately told the defense attorney of their existence and offered to let him view them.⁴ He did not want to, nor did he want to say anything to the trial judge. The prosecutor said:

I asked him if he wanted to approach the judge and ask the judge to give us maybe half an hour before the trial commenced to look at them to see if that would change his position in any way .... and he said that no, at that time he didn’t choose to do that, that we would just go ahead and go through with the trial and deal with it later.

The prosecutor then told the defense attorney that she would not use the audio or video tapes at trial because she had not produced them during discovery. The trial began and, during her opening statement, the prosecutor told the jury:

You are going to hear that on February 17th of the year 2000 Rose Spears, undercover narcotics officer — well, m a time period before this — was in contact with the defendant, James Michael Peterson. She had been put on him through a third party, and she had called him to set up a buy of cocaine. They had several conversations with regard to its availability, when she needed it, how much she needed, could he get it for her, and he said that he could, and they set up a buy.

The defense did not object.

The State called Officer Spears as its first witness. She testified that she had been given appellant’s name “and [was] basically introduced over the phone to him by a confidential informant.” The prosecutor then asked: “Did you ever have occasion to discuss with the defendant an opportunity to purchase cocaine?” At that point, defense counsel objected, citing his pretrial motion in limine and motion for discovery, and said that the trial court had ordered the State to turn over any of Peterson’s statements. The prosecutor responded that she did not ask about the content of any statement made by appellant: “I asked her if she had any opportunity to talk with him about the purchase of cocaine.” The trial court overruled the defense objection, but instructed the prosecutor to limit her questions to the material in the arrest report summary.⁵

The prosecutor then continued:

Had you had conversations with the defendant with regard to the purchase of cocaine? <y

Yes, I did. H>

And who was — who was to purchase the cocaine? <©

I was to purchase it from him. í>

Okay. And how did you go about asking him for that? «©

I just asked him if he could get me, I believe it was an eight ball of powdered cocaine.

And did he agree that he could do that? <0

Yes. He stated he could.

The defense objected: “Violation of the discovery order.” The trial court sustained the objection, instructed the jury to disregard, and then granted the defendant’s request for a mistrial,⁶ telling the prosecutor:

Well, the Court is going to grant the mistrial, give you another opportunity to give discovery to the defendant so we can have a full disclosure to the defense about what you intend to present.

Mr. Peterson filed a pretrial habeas corpus application that same day and asserted that any retrial was barred by the Double Jeopardy Clause of the United States and Texas Constitutions and article 1.10 of the Code of Criminal Procedure.

The trial court held a hearing on this motion in which the prosecutor was the only witness. She outlined her actions and the rationale for them as set out above. She also agreed with defense counsel that the audio and video tapes significantly added to the strength of her case and were, when coupled with the other evidence, “pretty damaging.” She disagreed with defense counsel that the arrest summary did not contain any statements by Mr. Peterson offering to sell cocaine, although she agreed that this is how the trial court interpreted that summary. She stated, on cross-examination, that she was not aware that she was taking any risk that would require a mistrial nor did she think that she had done anything that was objectionable. Under oath, she denied that she had been aware of, but consciously disregarded, the risk that an objectionable event for which she was responsible would require a mistrial at the defendant’s request. She testified that she was not attempting to secure a mistrial and she had no belief that her questions to Officer Spears would cause a mistrial, especially since the defense had not objected to her opening statement nor to some of her questions to Officer Spears. She stated that she was perfectly willing to go forward with the original trial without the video and audiotapes; indeed that had been her own suggestion to defense counsel, made before jeopardy attached.

Without explanation, the trial court granted habeas relief on the possession with intent to deliver count, but denied

relief on the simple possession count. Both the defense and the State appealed.⁷ The court of appeals relied upon this Court’s decision in Ex parte Bauder, 974 S.W.2d 729 (Tex.Crim.App.1998)(B(mder II), and concluded that:

From this record the trial judge could have concluded appellant’s motion [for mistrial] was not a choice made in response to ordinary reversible error to avoid conviction, appeal, reversal, and retrial, but was precipitated by the prosecutor deliberately or recklessly crossing the line between legitimate adversarial conduct and manifestly improper methods. Furthermore, the trial judge could have concluded the prosecutor’s conduct rendered the trial so unfair that no judicial admonishment could have cured it. Under these facts and circumstances, we cannot conclude the trial court erred in granting appellant habeas relief.⁸

I.

Both the Double Jeopardy Clauses of the Fifth Amendment and of Art. 1, section 14 of the Texas Constitution “protect a criminal defendant from repeated prosecutions for the same offense.”⁹ Although a defendant has a “valued right to have his trial completed by a particular tribunal,”¹⁰ neither constitutional provision guarantees that the State “will vindicate its societal interest in the enforcement of the criminal laws in one proceeding.”¹¹ Thus, double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that: (1) was justified under the manifest necessity doctrine;¹² or (2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial.

It is this second prong — a mistrial requested by the defendant who asserts that he was compelled to do so because of prosecutorial misconduct — that is at issue in the present case. The underlying principle is that a mistrial which the defense freely chooses to request does not bar retrial. A mistrial that the defense is compelled to request because of manifestly improper prosecutorial conduct may, under certain circumstances, bar retrial.

A. Federal double jeopardy principles bar retrial when the prosecutor intended to goad the defendant into requesting a mistrial.

The United States Supreme Court has long recognized that even if a mistrial is consented to or requested by the defendant, double jeopardy will bar a retrial under some limited circumstances.¹³ In United States v. Dinitz,14 the Supreme Court held that “the Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.”¹⁵ Although that statement seemed relatively clear, the Court immediately added that the Double Jeopardy Clause “bars retrials where ‘bad-faith conduct by judge or prosecutor’ ... threatens the ‘harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.”¹⁶ These two statements created confusion: did double jeopardy bar retrial only for “government actions intended to provoke mistrial requests” or also for “bad faith conduct” or “harassment” by the judge or prosecutor?

In Oregon v. Kennedy,17 a divided Supreme Court resolved this confusion and held that “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.”¹⁸

In Kennedy, the State charged the defendant with theft of an oriental rug.¹⁹ The prosecution called an expert on Middle Eastern rugs to testify about the value and identity of the stolen rug.²⁰ During cross-examination and in an attempt to establish the witness’ bias, defense counsel asked the expert if he had filed criminal charges against Kennedy. On redirect, the prosecutor asked the witness to explain why he had filed those charges, but when the trial court sustained the defendant’s objections, the following occurred:

Prosecutor: Have you ever done business with the Kennedys?

Witness: No, I have not.

Prosecutor: Is that because he is a crook?²¹

The trial court immediately granted the defendant’s motion for mistrial. Kennedy then ihoved to have the charges dismissed based on double jeopardy, but the trial court denied that motion, finding that the prosecutor did not intend to cause a mistrial.²² The Oregon Supreme Court reversed, concluding that, even if the prosecutor had not intended to cause the mistrial, his actions were motivated by bad faith or to harass or prejudice the defendant.²³ The Supreme Court, in turn, reversed the Oregon court.

The Supreme Court rejected its earlier “bad faith” language in Dinitz, and reasoned that an “intent” test was necessary to have “a manageable standard to apply” in mistrial situations.²⁴ This intent standard “merely calls for the [trial] court to make a finding of fact ... using the familiar process in our criminal justice system [of] inferring the existence or nonexistence of intent from objective facts and circumstances ....”²⁵ The broader “bad faith” standard, by contrast, would be at issue in virtually every mistrial situation because “[e]very act on the part of a rational prosecutor during a trial is designed to ‘prejudice’ the defendant by placing before the judge or jury evidence leading to a finding of his guilt.”²⁶ Furthermore, any test broader than “intent to goad a mistrial” would be counterproductive because trial judges would be loath to grant legitimate mistrial requests in fear that doing so would “all but inevitably bring with it an attempt to bar a second trial on grounds of double jeopardy....” ²⁷

Justice Powell joined the Court’s opinion and also wrote separately to underscore the importance of relying “primarily upon the objective facts and circumstances of the particular case” in determining the prosecutor’s subjective intent, which may often be unknowable.²⁸ He noted three objective facts which supported the trial court’s conclusion that the prosecutor did not intend to goad the defendant into a mistrial: 1) the lack of repetitive misconduct; 2) the prosecutor seemed surprised by the mistrial request and resisted the defendant’s motion; and 3) the trial court believed the prosecutor’s testimony that he had no intent to cause a mistrial²⁹

Four justices disagreed with the majority’s analysis, although they joined in its judgment. They believed that it should be “sufficient that the court is persuaded that egregious prosecutorial misconduct has rendered unmeaningful the defendant’s choice to continue or to abort the proceeding.” ³⁰ Instead of relying upon the prosecutor’s intent, these justices proposed a two-pronged requirement: (1) “deliberate misconduct” by the prosecutor; and (2) resulting prejudice that “virtually eliminated, or at least substantially reduced, the probability of acquittal in a case in which the trial was going badly for [the prosecutor].” ³¹

All members of the Supreme Court apparently agreed that, for double jeopardy to apply, the defense must show that the prosecutor committed “deliberate misconduct” and that this misconduct had the result (whether specifically intended or not) of seriously prejudicing a defendant who, absent that misconduct, would likely have a “probability of acquittal.” The Kennedy standard continues to apply to all double jeopardy claims based upon the federal constitution in the defense-requested mistrial situation.

B. Under Bauder, Texas’ double jeopardy provision also bars retrial when the prosecutor’s reckless misconduct requires a mistrial.

For fourteen years, this Court followed the federal double jeopardy standard set out in Kennedy.32 In Bauder v. State (Bauder I),³³ however, this Court held that, although the double jeopardy concerns in both constitutions were the same,³⁴ the Kennedy federal double jeopardy standard did not necessarily provide the outermost limits of a defendant’s rights under the corresponding Texas constitutional provision.³⁵ Thus, this Court extended the Kennedy double jeopardy bar to include both those situations in which the prosecutor specifically intended to goad the defendant into requesting a mistrial, and those in which “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.” ³⁶ Thus, either “intent to goad” or “conscious awareness of the risk of a required mistrial” suffices under Bauder I.

In Bauder I, this Court based its state constitutional expansion of Kennedy on two grounds. First, we perceived no constitutionally significant difference between a prosecutor’s conduct by which he intends to cause a mistrial and conduct of which “he is aware is reasonably certain to result in a mistrial.”³⁷ Second, we perceived practical advantages of what we said was “a less subjective rule,” because it would permit “a more certain application of the rule in most cases.”³⁸ However, because the Bauder standard relies upon proof of the prosecutor’s “reckless” mental state, and proof of a reckless act is no less subjective a standard than proof of an intentional act,³⁹ this second rationale car-ríes force only if trial and appellate courts focus primarily upon the objective facts and circumstances of the prosecutor’s conduct and the events which led to that conduct.

We also emphasized, in Bauder I, that conditions requiring a mistrial “should be considered very unusual in any adversary system.”⁴⁰ Prosecutors are entitled to, indeed expected to, zealously represent the State and to offer “prejudicial” evidence.⁴¹ Thus, even when a prosecutor offers objectionably and unfairly prejudicial evidence or commits other errors of judgment, these acts will not suffice to necessitate a mistrial unless they are “manifestly improper prosecutorial methods.”⁴² It is only when the prosecutor crosses that line and uses “manifestly improper prosecuto-rial methods,” either deliberately or recklessly, that the Double Jeopardy Clause of the Texas Constitution will bar retrial.⁴³

The Bauder I standard has not always proven easy to apply. In our second review of Mr. Bauder’s conviction, Ex Parte Bauder (.Bauder II j,⁴⁴ this Court held that the question of whether the trial court correctly granted a mistrial request was not the proper focus of a defendant’s state constitutional double jeopardy claim.⁴⁵ But both Kennedy and Bauder I operated from the premise that it is only when the trial court is compelled by the prosecutorial misconduct to grant a defendant’s request for a mistrial,⁴⁶ that the defendant does not himself make a free election. Nonetheless, this Court in Bauder II emphasized that 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.⁴⁷

Thus, under Bauder II, the proper inquiry is whether the defendant was

required to move for a mistrial because the prosecutor deliberately or recklessly crossed ‘the line between legitimate adversarial gamesmanship and manifestly improper methods’ that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it[.]⁴⁸

On the other hand, if the defendant’s “motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial,” then he exercised his free choice in requesting the mistrial and double jeopardy does not bar retrial.⁴⁹

In State v. Lee,50 this Court declined to abandon the Bauder standard.⁵¹ Instead, we re-affirmed that it is only when the defendant is required to move for a mistrial “because the prosecutor deliberately or recklessly crossed ‘the line between legitimate adversarial gamesmanship and manifestly improper methods’... that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it” that the Texas double jeopardy provision bars a retrial.⁵² In Lee, this Court reversed the trial court and court of appeals which had both held double jeopardy barred a retrial because both lower courts “failed to take into account the appropriate substantive law when assessing the prosecutor’s mental state.”⁵³ We explained that if the prosecutor has a “legitimate” view of the law (or of the facts), even if that view is ultimately incorrect, his actions cannot be considered intentional or reckless misconduct.⁵⁴

Thus, under Bauder I, Bauder II, and Lee, the prosecutor’s mens rea is pivotal, just as it is under Kennedy. The only significant difference between the Supreme Court’s decision in Kennedy and the Bauder line of cases is the specific mens rea required to set up a double jeopardy bar. Under Kennedy, the critical inquiry is whether the prosecutor’s misconduct intended to goad the defendant into requesting a mistrial, and under Bau-der and its progeny, a prosecutor must at least be aware that his manifestly improper misconduct is likely to result in a mistrial, but he nonetheless consciously ignores that likelihood and commits the misconduct.

In sum, under Kennedy or Bau-der and its progeny, trial and appellate courts analyzing a double jeopardy mistrial claim make the following three-part analysis:

1) Did manifestly improper prosecutorial misconduct provoke the mistrial?⁵⁵

2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard? ⁵⁶ And

3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial (Kennedy standard) or -with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial (Bauder standard)?

To erect a jeopardy bar, it is not sufficient that the prosecutor’s incurably prejudicial misconduct was the result of inadvertence, sloppiness, or even simple negligence. A prosecutor’s blunder that precipitates a successful motion for mistrial does not bar a retrial. As we explained in Bauder II, blunders, even manifestly prejudicial blunders, act as a trigger for a defendant’s “free choice” mistrial request because of “ordinary reversible error” based on prosecutorial misconduct.⁵⁷ It is, after all, the right to appeal, not the double jeopardy clause, that protects defendants from trial error. “The double jeopardy clause serves not to punish pros-ecutorial misconduct; it simply ensures that the defendant, not the government, gets to choose whether to go to verdict.”⁵⁸

The third prong, the prosecutor’s intent or recklessness, is the most problematic. As noted by Justice Powell in Kennedy, a person’s mens rea is frequently difficult to divine. Intent or recklessness is rarely clear-cut. No one is immune to mistakes or lapses in judgment. Especially during the “rough and tumble” of a jury trial, courts must expect that much rule-violat-mg conduct is unplanned, inadvertent, or impulsive.⁵⁹ But just as a dog knows the difference between being kicked and being stumbled over, judges can distinguish between intentional or reckless misconduct and inadvertent or negligent mistakes.

C. Under either federal or Texas double jeopardy provisions, the defendant must prove his claim by a preponderance of the evidence.

In raising a Kennedy/Bauder double jeopardy claim on a pretrial writ of habeas corpus, the burden of proof is on the habeas applicant, as it is in any habeas corpus proceeding.⁶⁰ Thus, the defendant must present sufficient evidence to prove his double jeopardy claim by a preponderance of the evidence.⁶¹ That means that the defendant must satisfy all three prongs of the analysis set out above.

Trial and appellate courts should focus primarily upon the objective facts and circumstances surrounding the events which led to the mistrial in deciding whether the prosecutor’s alleged misconduct was both manifestly improper and committed with the requisite intent or recklessness. Although it is not legally required, a trial judge is well-advised to set out his factual findings on the record in support of his ruling on a Kennedy/Bauder double jeopardy motion. As we recently stated in a different context, courts should “show their work”⁶² so that their ultimate factual and legal conclusions are clear to the parties and to reviewing courts.

Some of the objective facts and circumstances that trial and appellate courts might consider in assessing the prosecutor’s mens rea include, but are not limited to:

1) Was the misconduct a reaction to abort a trial that was “going badly for the State”? In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal? ⁶³

2) Was the misconduct repeated despite admonitions from the trial court?

3) Did the prosecutor provide a reasonable, “good faith” explanation for the conduct?

4) Was the conduct “clearly erroneous”? ⁶⁴

5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety?⁶⁵

6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional or reckless misconduct?⁶⁶

In reviewing the trial court’s decision, appellate courts review the facts in the light most favorable to the trial judge’s ruling and should uphold it absent an abuse of discretion.⁶⁷ Reviewing courts, including this Court, should “afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.”⁶⁸ We also afford that same level of deference to a trial court’s ruling on “ ‘application of law to fact questions,’ also known as ‘mixed questions of law and fact,’ if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.”⁶⁹ But appellate courts review de novo those “mixed questions of law and fact” that do not depend upon credibility and demeanor.⁷⁰ Although reviewing courts should also grant deference to “implicit factual findings” that support the trial court’s ultimate ruling, they cannot do so if they are unable to determine from the record what the trial court’s implied factual findings are.

III.

In this case, the trial court did not make any explicit findings of fact, did not comment on the prosecutor’s mens rea, or set out the legal basis for his grant of the defendant’s double jeopardy motion. He granted it without comment or explanation.

The court of appeals, left without any guidance from the trial court concerning the rationale for its ruling, relied upon two isolated pieces of information in the record, without discussing other facts and evidence in the record which are important under any Bauder analysis. First, it noted that the trial record showed that “the prosecutor proceeded to inquire about Spear’s conversations with appellant concerning the purchase of narcotics, despite specific court instructions not to stray from the arrest summary.”⁷¹ Second, it stated that “the prosecutor knew the tapes were ‘severely damaging’ to appellant and that admission of the tapes “would have substantially increased [the State’s] chances of securing a conviction.’ ”⁷² From those two pieces of record information, plus a statement that the State did not contend that “the state of the law in this case is not well-settled,” the court of appeals held that “the trial judge could have concluded appellant’s motion was not a choice made in response to ordinary reversible error to avoid conviction, appeal, reversal, and retrial, but was precipitated by the prosecutor deliberately or recklessly crossing the line between legitimate adversarial conduct and manifestly improper methods.”⁷³ We cannot agree that this legal conclusion naturally flows from the objective facts and circumstances in the record.

However, because the court of appeals did not have the benefit of the three-prong analysis that we set out today or the nonexclusive, suggested objective criteria by which to gauge those three prongs, we vacate the court of appeals’ decision and remand the case to that court for further proceedings consistent with this opinion.

COCHRAN, J., concurs in the judgment. KEALSER, J., filed a dissenting opinion, in which HERVEY, J., joined. HERVEY, J., filed a dissenting opinion, in which KELLER, P.J., and KEASLER, J., joined.

1 . 921 S.W.2d 696 (Tex.Crim.App.1996).

2 . Ex parte James Michael Peterson, Nos. 05-01-01093-CR, 05-01-01286-CR, 2001 WL 1671157, 2001 Tex.App. LEXIS 8407 (Tex. App.-Dallas 2001) (not designated for publication).

3 . See State v. Lee, 15 S.W.3d 921, 922 n. 1 (Tex.Crim.App.2000) (declining to reach question of whether Bauder should be overruled because it was unnecessary to disposition of case); see also Watts v. State, 99 S.W.3d 604, 615 (Tex.Crim.App.2003) (Keasler, J., concurring) (stating that “appellate courts should strive for prudence.... ‘Prudence counsels judges not to reach out and decide large, controversial issues in the absence of a necessity to do so. The prudent jurist will typically decide cases on the narrowest, surest ground available, leaving tougher calls, with broader implications, for future cases that squarely present them.’ ”).

4 . At that time, the jury members had been selected but not sworn in; thus, jeopardy had not attached at the time the tapes were produced, at the time the prosecutor told the defense attorney about them, or at the time the defense declined to review them.

5 . The prosecutor explained at the habeas hearing that, based upon the trial judge’s ruling, she thought it was “okay” to talk about that conversation. She said: "I pointed out areas in the discovery responses which I believe had supported my position that I was able to go into that area. And then the objection was overruled and I was allowed to proceed if it was based on that, and my belief was because I had pointed it out in support of my talking about the conversation between Rose Spears and the defendant with regard to the purchase of narcotics that I was going to be allowed to continue that line of questioning.”

6 . When the defense asked for a mistrial, the prosecutor explained that she thought that the arrest summary put the defendant on notice "that these were the statements that he was making with regard to the purchase of cocaine. .. .Your Honor, in the context of this where she’s contacting him with regard to that and that he’s going to meet her, I think it’s clear that_” At that point the trial judge interrupted and granted the mistrial.

7 . The defense appealed the trial court’s denial of his double jeopardy claim on the simple possession of cocaine count. The court of appeals affirmed the trial court’s ruling on this issue.

8 . Slip op. at 8 (*12-13) (citations omitted).

9 . See Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996).

10 . Kennedy, 456 U.S. at 671-72, 102 S.Ct. 2083 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)); see also Bauder, 921 S.W.2d at 697-98.

11 . Kennedy, 456 U.S. at 672, 102 S.Ct. 2083.

12 . See, e.g., Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Ex parte Little, 887 S.W.2d 62 (Tex.Crim.App.1994).

13 . See United States v. Jorn, 400 U.S. 470, 483-84, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality op.) (double jeopardy may bar retrial when the circumstances prompting mistrial are "attributable to prosecutorial or judicial overreaching”).

14 . 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

15 . United States v. Dinitz, 424 U.S, 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

16 . Id. (citations omitted).

17 . 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

18 . Id. at 676, 102 S.Ct. 2083.

19 . Id. at 669, 102 S.Ct. 2083.

20 . Id.

²¹

22 . Id. at 669-70, 102 S.Ct. 2083.

23 . Id. at 670, 102 S.Ct. 2083.

24 . Id. at 674-75, 102 S.Ct. 2083.

25 . Id. at 675, 102 S.Ct. 2083.

26 . Id. at 674, 102 S.Ct. 2083.

²⁷

28 . Id. at 679-80, 102 S.Ct. 2083 (Powell, J., concurring).

29 . Id. at

30 . Id. at 689, 102 S.Ct. 2083 (Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ., concurring).

31 . Id., at 690, 102 S.Ct. 2083. The dissenters also noted that "[d]eliberate misconduct generally must be inferred from the objective evidence. The more egregious the prosecuto-rial error, and the harsher its impact on the defendant, the more readily the inference could be drawn.” Id. n. 29, 102 S.Ct. 2083.

32 . See Hart v. State, 634 S.W.2d 714, 716 (Tex.Crim.App.1982) (noting Kennedy with approval and stating that "[t]he unrebutted testimony of the prosecutor on the second trial conclusively shows the prosecutor did not intend his conduct to provoke the appellant into moving for a mistrial”; finding that prosecutor’s failure to comply with pretrial discovery order was a mere oversight because of overloaded docket and the "great excitement” of arguing a case), overruled on other grounds by Cane v. State, 698 S.W.2d 138 (Tex.Crim.App.1985); Anderson v. State, 635 S.W.2d 722, 726, 730-31 (Tex.Crim.App.1982) (rejecting defendant's contention that the State "intended to cause a mistrial” by "the direct overreaching and unacceptable conduct of the prosecution”; dissenters apply Kennedy standards and reasoning in addressing "whether, by deliberately asking the question forming the basis for the mistrial, the prosecutors intended to provoke the accused into requesting that result”); Collins v. State, 640 S.W.2d 288, 290 (Tex.Crim.App.1982) (stating that "[ajlthough the opinion of the [trial] court did not cite Oregon v. Kennedy, this court recently held that the same standard will be applied in Texas to cases involving a plea of former jeopardy after the defendant asked for a mistrial”; noting that "the determination of the intent of the prosecutor is a factual question to be decided by the trier of fact” and reversing conviction because the jury, as factfinder, was not given the question); Crawford v. State, 703 S.W.2d 655, 661 (Tex.Crim.App.1986) (relying on Kennedy as standard for double jeopardy after mistrial and concluding that “[bjecause there was no evidence of intent to provoke appellant into moving for a mistrial, there was no fact issue to present to the jury, and the trial court correctly overruled both the plea of former jeopardy and appellant’s request to submit the issue to the jury”). Texas intermediate courts had also applied the Kennedy standard to double jeopardy claims in the mistrial situation. See, e.g., Mahavier v. State, 644 S.W.2d 129 (Tex.App.-San Antonio 1982, no pet.) (relying on Kennedy in finding no double jeopardy bar to retrial because no evidence that prosecutor intended to provoke defendant into requesting mistrial); Collins v. State, 672 S.W.2d 588, 598 (Tex.App.-Fort Worth 1984, no pet.) (applying Kennedy double jeopardy standard to situation in which trial court denies mistrial motion but that denial is reversed because of prosecutorial misconduct); Fielder v. State, 683 S.W.2d 565, 568 (Tex.App.-Fort Worth 1985) (applying Kennedy as “controlling authority” to double jeopardy claim in context of defense-requested mistrial), rev’d on other grounds, 756 S.W.2d 309 (Tex.Crim.App.1988); Ex parte May, 852 S.W.2d 3, 4-6 (Tex. App.-Dallas 1993, pet. ref'd) (holding that Kennedy standard applies to double jeopardy claims brought under both Texas and United States Constitutions and holding that only when the prosecutor intends to goad the defendant into moving for a mistrial will retrial be barred); Creekmore v. State, 860 S.W.2d 880, 890-92 (Tex.App.San Antonio 1993, pet. ref'd) (stating that “Texas cases interpreting article I, section 14 of the Texas Constitution are consistent with Oregon v. Kennedy ”); Demouchete v. State, T34 S.W.2d 144, 146 (Tex. App.-Houston [1st Dist.] 1987, no pet) (applying Kennedy standard to double jeopardy claim under Texas Constitution).

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34 . Id. at 698 (stating that "[t]he Texas Double Jeopardy Clause, like its federal counterpart, is meant to restrain the government from subjecting persons accused of crimes to the mental, emotional, and financial hardship of repeated trials for the same offense”).

35 . Id. at 699. We stated:

[Wjhen the government, acting through its representatives, purposefully forces termination of a trial in order to repeat it later under more favorable conditions, we agree with the Supreme Court that the Double Jeopardy Clause is violated. But, unlike the Supreme Court, we do not think the prosecutor's specific intent is a relevant aspect of the inquiry.

Id. at 698-99.

36 . Id. at 699.

37 . Id. We explained that making the defendant’s right against double jeopardy dependent entirely upon the prosecutor’s specific intent to provoke a mistrial does not serve the purpose of that constitutional right. Id. The distinction between a person’s "intent” to cause a mistrial and his awareness or knowledge that his conduct “would require a mistrial at the defendant’s request” is one that applies to motive or ultimate goal. In the first, the prosecutor's goal is to terminate a first trial which is going badly. In the second, the prosecutor's goal is to "win at any price,” either by mistrial and a subsequent retrial, or by using manifestly improper means to obtain a conviction in the first trial that he likely would not have been achieved otherwise and the prosecutor is aware that his conduct requires a mistrial if the defendant should request it. Id.

38 . Id. We noted that, although subjective intent is an important issue in a wide variety of contexts, "[gjauging the subjective intent of a prosecutor is not an easy thing to do.” Id.

39 . Judge Meyers’ majority opinion in Bauder defined the type of prosecutorial "recklessness” required in this context according to the usual Penal Code definition of the culpable mental state of recklessness, i.e., as being "aware but consciously disregardfing] the risk that an objectionable event for which [the prosecutor] was responsible would require a mistrial at the defendant’s request.” Id. at 699; see also id. at 702 (Maloney, J., concurring); see generally Tex Penal Code § 6.03(c).

40 . Bauder, 921 S.W.2d at 700.

41 . See Kennedy, 456 U.S. at 674, 102 S.Ct. 2083 ("[e]very act on the part of a rational prosecutor during a trial is designed to 'prejudice' the defendant by placing before the judge or jury evidence leading to a finding of his guilt”); United States v. Taylor, 54 F.3d 967, 976-77 (1st Cir.1995) (“prosecutors need not pull their punches; they may indeed, they should present their cases to criminal juries zealously. Forcefulness in the pursuit of justice is to be admired rather than condemned”); United States v. Wexler, 79 F.2d 526, 529-30 (2d Cir.1935) (L.Hand, J.) ("[i]t is impossible to expect that a criminal trial shall be conducted without some show of feeling; the stakes are high, and the participants are inevitably charged with emotion. Courts make no such demand; they recognize that a jury inevitably catches this mood”).

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44 . 974 S.W.2d 729 (Tex.Crim.App.1998).

45 . Ex Parte Bauder, 974 S.W.2d 729, 731-32 (Tex.Crim.App.1998). This Court in Bauder I had explicitly stated:

Under this rule, the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant’s motion. But he is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.

921 S.W.2d at 699. While the issue of whether the trial court correctly granted a mistrial is not directly the issue in a double jeopardy claim, the fact that a mistrial is not an obvious necessity is nonetheless highly relevant to a consideration of the prosecutor’s mental state in pursuing his line of inquiry or other conduct. If an appellate court doubts that a mistrial was "required” by the prosecutor’s actions, then it may be reasonable to conclude that the prosecutor was not consciously aware of the likelihood that his conduct would require a mistrial.

46 . See Kennedy, 456 U.S. at 673, 102 S.Ct. 2083 (explaining that the “intentional goading” standard was designed to protect a defendant whose motion for mistrial could not fairly be considered a result of his own free will; "[i]n such a case, the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances”); Bauder I, 921 S.W.2d at 698 (stating that “when a prosecutor’s deliberate or reckless conduct renders the trial before the jury unfair to such a degree that no judicial admonishment can cure it, an ensuing motion for mistrial by the defendant cannot fairly be described as the result of his free election”).

47 . Bauder II, 974 S.W.2d at 732 (quoting Bauder I, 921 S.W.2d at 700).

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50 . 15 S.W.3d 921 (Tex.Crim.App.2000).

51 . State v. Lee, 15 S.W.3d 921, 922 n. 1 (Tex.Crim.App.2000).

52 . Id. at 923 (quoting Bauder II, 974 S.W.2d at 732).

53 . Id. at 924.

54 . Id. at 924-25.

55 . Prosecutorial misconduct reasonably reaches only that conduct which is qualitatively more serious than simple error and connotes an intentional flouting of known rules or laws. See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 647-48, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1973) (noting the distinction between "ordinary trial error of a prosecutor” and "egregious misconduct”); John Jay Douglass, Ethical Issues in Prosecution 341 (1988) ("[a] violation of a rule of evidence is not ipse dixit unprofessional conduct unless it was a deliberate attempt to avoid the rule. Motive and intent play a role in determining whether the action of the prosecutor is unprofessional”); Bruce A. Green, The Ethical Prosecutor and the Adversary System, 24 Crim. L. Bull. 126, 138 (1988) ("[t]he term ‘misconduct’ has pejorative overtones-it suggests that the prosecutor has acted erroneously with intent if not with malice”; suggesting that "the term 'misconduct' should be reserved for behavior that intentionally deviates from reasonably attainable standards of propriety”).

If the prosecutor’s conduct, viewed objectively, was not “manifestly improper,” then the double jeopardy inquiry ends at this first stage. If, for example, the law itself is unsettled or the application of the law in the particular situation is debatable, the prosecutor’s conduct cannot be said to be manifestly improper. See Lee, 15 S.W.3d at 924 — 25.

56 .As this Court noted in Lee:

[vjiolations of evidentiary rules and provisions are generally curable with an instruction to disregard. Bauder did not change this rule. It would be extremely rare that admission of evidence in violation of a statute [or evidentiary rule] would be "so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant,” in the absence of a constitutional violation.

Lee, 15 S.W.3d at 926 n. 8 (citations omitted).

57 . If the jury's guilty verdict is significantly influenced by a prosecutor asking legally improper and prejudicial questions, offering inadmissible evidence, or making improper remarks to the jury, that verdict will be reversed on appeal regardless of whether the prosecutor intentionally or recklessly struck a foul blow. As one court put it, "it hurts the defendant just as much to have prejudicial blasts come from the trumpet of the angel Gabriel.” United States v. Nettl, 121 F.2d 927, 930 (3d Cir.1941). Double jeopardy does not bar retrial when the misconduct, causing a reversal or a mistrial, is committed by the inadvertent Gabriel; double jeopardy bars retrial only when caused by the intentional or reckless misconduct by a consciously aware Beelzebub.

58 . Beringer v. Sheahan, 934 F.2d 110, 113 (7th Cir.1991).

59 . See, e.g., United States v. Etsitty, 130 F.3d 420, 424 (9th Cir.1997) (holding that prosecutor’s mischaracterization of identification evidence in summation was no reason to believe that the prosecutor intended to mislead the jury); United States v. Millar, 79 F.3d 338, 343 (2d Cir.1996) (noting that a reference to an exhibit not admitted in evidence was unintentional and harmless oversight); United States v. Wihbey, 75 F.3d 761, 770 (1st Cir. 1996) (describing a reference to defendant’s failure to testify as a slip of the tongue).

60 . Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App.1993) (defendant-applicant bears the burden of proof at a habeas hearing to show a constitutional violation); see also Ex parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim. App.1995) (”[t]he burden of proof in a writ of habeas corpus is on the applicant to prove by a preponderance of the evidence his factual allegations”); Ex parte Adams, 768 S.W.2d 281, 287-88 (Tex.Crim.App.1989).

61 . See Anderson v. State, 635 S.W.2d 722, 725 (Tex.Crim.App.1982); Wockenfuss v. State, 521 S.W.2d 630, 631 (Tex.Crim.App.1975) (defendant has burden to go forward with evidence in support of his double jeopardy allegation).

62 . Sims v. State, 99 S.W.3d 600, 604 (Tex.Crim.App.2003) (stating that, when rejecting a defendant’s factual sufficiency claim, TRAP 47.1 "suggests that the courts of appeals should ‘show their work,' much as we had to when learning long division in elementary school”).

63 . A prosecutor may try to rescue a case that is going badly by goading a mistrial or consciously risking one with manifestly improper methods, but ”[s]cuttling a trial at dockside poses few if any risks to the defendant’s legitimate interests.” United States v. Jozwiak, 954 F.2d 458, 460 (7th Cir.1992).

64 . See Lee, 15 S.W.3d at 926.

65 . See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 645-47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (acknowledging that prosecutor’s remark during closing argument was "admittedly an ambiguous one”; although it might have been intended to convey its most prejudicial meaning, there were other, less damaging interpretations; when conflicting interpretations are present, "a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning”); United States v. Neufeld, 949 F.Supp. 555, 560-61 (S.D.Ohio 1996) (noting that even though the government’s stance on admissibility of "homosexual lover” evidence "was ultimately found unpersuasive does not render it wholly implausible or an attempt to goad a mistrial.... Hence, the Court must be cautious in labeling courtroom conduct as an intent ‘to subvert the protections afforded by the Double Jeopardy Clause' ”), aff'd, 149 F.3d 1185 (6th Cir.1998).

66 . See, e.g., Neufeld, 949 F.Supp. at 561 ("[vjiewed through the filter of the prosecutor’s subjective belief, many of the facts upon which defendants rely to indicate an intent to provoke a mistrial instead become further evidence of the strength of the prosecutor’s belief. His actions show considerable consistency”).

67 . In reviewing a trial judge's decision to grant or deny relief on a writ of habeas corpus, we afford almost total deference to a trial judge’s determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999). However, if the trial court’s ruling is not supported by the record, this Court may make contrary findings. See Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Crim.App.1989) (“[i]f the record will not support the trial judge’s conclusions, then this Court may make contrary findings”).

68 . Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The trial court may accept or reject any or all of any witness’s testimony. See Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim.App.1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991). In any habeas corpus hearing, a trial court may enter oral or written findings of fact. This practice is especially helpful if the trial court rejects unrebut-ted testimony as incredible or unworthy of belief.

69 . Guzman, 955 S.W.2d at 89.

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71 . Ex parte Peterson, slip op. at 7(*12).

72 . Id. at 7-8(*5).

73 . Id. at 8(*12).