Full opinion text
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW MANSFIELD, Judge. Applicant, Jack Warren Davis, was convicted of capital murder and sentenced to life in prison. The court of appeals reversed and remanded the cause to the trial court for a new trial. Davis v. State (“Davis I”), 831 S.W.2d 426 (Tex.App.-Austin 1992, pet. ref d). Applicant subsequently filed a pretrial writ of habeas corpus, averring the double jeopardy clauses of the Texas and United States constitutions barred his retrial. The habeas court denied relief, and the court of appeals affirmed. Ex parte Davis (“Davis II”), 893 S.W.2d 252 (Tex.App.-Austin 1995). This Court granted applicant’s petition for discretionary review to consider the following ground for review: Does the rationale of Bander v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), barring a retrial on state double jeopardy grounds following the granting of a mistrial because of prosecutorial misconduct, apply when the cause goes to a verdict but is reversed on appeal? At applicant’s trial, Fred Zain testified for the State as an expert witness. He testified as to DNA tests he allegedly performed on blood and other evidence, testimony which was found by the court at the habeas hearing to be false. The habeas court also found that the testimony of Lt. Richards, another State witness, was probably inaccurate, as it was based on Zain’s testimony. The habeas court concluded Zain’s conduct was intentional, outrageous and shocked the conscience of the court. The court of appeals, in reversing applicant’s conviction {Davis I), sustained applicant’s contention the district attorney intimidated a witness, Toth, and, in effect, suborned perjury. Toth testified on direct examination she observed applicant and the victim’s sister embrace shortly after the murder was discovered. The significance of this testimony is that it supported applicant’s version as to how the victim’s blood and saliva got onto applicant’s vest (the victim’s sister attempted to revive her by giving her CPR; while doing so blood from the victim’s wounds stained the clothing she was wearing when she embraced applicant thus staining applicant’s vest). On redirect examination she confirmed her earlier testimony as to the embrace. The next day the State recalled Toth. She testified then that, on second thought, she did not actually see applicant and the victim’s sister embrace. She testified she saw what she assumed was a just-concluded embrace. Defense counsel asked Toth if anyone had asked her to change her testimony or had threatened her if she did not do so; she said no one had done so. Upon learning there had been contact between Toth and the district attorney after her testimony on the first day, applicant moved for a mistrial on the ground of prose-cutorial misconduct. The trial court conducted an informal hearing outside the presence of the jury. The district attorney told the court he reviewed statements by two police officers which said applicant had only come halfway up the stairs to the victim’s apartment (Toth testified initially the embrace occurred at the top of the stairs). He also reviewed the sister’s testimony that she did not embrace applicant. Subsequently, he asked a police officer to contact Toth and for her to call his office. Upon her arrival, he informed her there was a conflict between her testimony and that of other witnesses and that he would present the matter to the grand jury if he could not resolve the conflict. He said he would indict the officers if they had lied, “or the reverse if she had not told the truth.” He told her he had already put one person in jail for lying on the stand last year. He finally asked her if she might have been mistaken about having seen a completed embrace; she said she had been mistaken. The court then asked Toth, after granting her immunity from prosecution for perjury and assuring her she was not going to jail, if she had changed her testimony in response to the threat from the district attorney to have her brought before the grand jury. She answered, under oath, “that’s why I changed it.” She also told the court the district attorney had frightened and intimidated her. The district attorney and an employee of his office, Filkins, who was present when Toth appeared at his office to discuss her trial testimony, both testified there was no berating or intimidation of Toth; he only expressed his interest in cleaning up the inconsistencies in the testimony of Toth and the police officers. The district attorney did testify he would take anyone involved who was lying to the grand jury. After the hearing, the trial court ruled there had not been prosecutorial misconduct that would justify a mistrial. He did indicate he would instruct the jury not to consider Toth’s second day of testimony for any purpose, which he subsequently did. The court of appeals acknowledged “it is not improper per se for a trial court judge or pro-secuting attorney to advise prospective witnesses of the penalties for testifying falsely.” Davis I, supra, at 437, citing United States v. Blackwell, 694 F.2d 1825, 1334 (D.C.Cir.1982). The court of appeals characterized the actions of the district attorney as having gone far beyond a cautious or judicious warning to Toth to tell the truth or risk a perjury charge, noting the meeting took place outside the presence of the trial judge. The court of appeals criticized strongly the district attorney for giving the jury the impression that it was Toth who first contacted him because she thought her initial testimony was misleading when the opposite was true. The court of appeals found this to be the knowing use of perjured testimony, found it to have denied applicant a fair trial and violated his due process rights, and held the trial court erred in denying applicant’s motion for mistrial. At the habeas hearing, the court’s findings of fact noted: (1) certain key items of evidence were lost or mishandled, including hair and blood samples; (2) a taped statement of Marei French, made the night of the homicide, was erased by the police. French, a witness who testified at trial, did make a second taped statement the day after the homicide; (3) a second witness, Hanus, testified the two statements were contradictory as to French’s description of the persons she observed leaving the victim’s apartment the night of the crime; and (4) Zain committed aggravated perjury and tainted all of the evidence he handled. The court of appeals, in affirming the denial of habeas relief, concluded “when a trial proceeds to conclusion despite a legitimate claim of serious prejudicial error and the conviction is reversed on appeal, retrial is not jeopardy-barred.” Davis II, 893 S.W.2d at 254. See Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). The Supreme Court has held on several occasions that the concept of “continuing jeopardy” is applicable where an individual has obtained a reversal of his conviction. That is because he was not denied his right under the double jeopardy clause to have the charges against him tried to a verdict before the first tribunal. Whereas, where a mistrial takes place, he is denied the opportunity to have the case decided by the first tribunal. Therefore, retrial after reversal of his conviction is not barred by the double jeopardy clause of the United States Constitution. Price v. Georgia, supra; Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984); Montana v. Hall, 481 U.S. 400, 402-403, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354 (1987). It is a venerable principle of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict (citation omitted), poses no bar to further prosecution on the same charge ... Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they are now in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interests. Montana v. Hall, 481 U.S. at 402-03, 107 S.Ct. at 1826; citing United States v. Toteo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). In general, double jeopardy “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265 (1988). There are a few exceptions to this rule. For example, if a conviction is reversed because the evidence is legally insufficient to convict, retrial is barred because, for double jeopardy purposes, this is equivalent to a judgment of acquittal. See United States v. Doyle, 121 F.3d 1078, 1083 (7th Cir.1997), citing Lockhart v. Nelson, 488 U.S. at 39, 109 S.Ct. at 290. It is clear applicant’s retrial is not barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution. We note initially that this Court, as well as the Texas Supreme Court, has held that the Texas Constitution gives greater protection in some instances to Texas citizens than does its federal counterpart. Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992); Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991); Autran v. State, 887 S.W.2d 31 (Tex.Crim.App.1994) (plurality op.). However, until recently, we have consistently held the Texas and United States constitutions’ double jeopardy provisions provide substantially identical protections. Phillips v. State, 787 S.W.2d 391 (Tex.Crim.App.1990); Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990). Prior to our opinion in Bauder, supra, we have applied the standard of review set forth by the United States Supreme Court in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), to double jeopardy claims arising out of instances where mistrials were provoked by the State. Crawford v. State, 703 S.W.2d 655 (Tex.Crim.App.1986); Collins v. State, 640 S.W.2d 288 (Tex.Crim.App.1982) (panel op.); Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982). The Supreme Court held the double jeopardy clause of the Fifth Amendment is not offended by a second prosecution for the same offense where the earlier proceeding was terminated by mistrial at the defendant’s request unless the State deliberately set out to provoke the defendant’s motion for mistrial. Oregon v. Kennedy, supra. In Bauder we held that, under the Texas Constitution’s double jeopardy clause, “a second prosecution is jeopardy barred after declaration of a mistrial at the defendant’s request, not only where the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an event for which he was responsible would require a mistrial at the defendant’s request ... 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.” Bauder, supra, at 699. Bauder, however, is not dispositive with respect to the present case due to a most significant difference: applicant in the present ease had his conviction reversed after a full trial on the merits whereas in Bauder applicant’s trial was never completed (on two occasions) due to State-provoked mistrials. At least one federal appellate court has held that “[double jeopardy would bar retrial after reversal] only where 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.” United States v. Wallach, 979 F.2d 912, 916 (2nd Cir.1992), cert. denied, 508 U.S. 939, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993). The Second Circuit noted that this standard embraced that set forth by the Supreme Court in Oregon v. Kennedy to bar retrial after a mistrial caused by egregious and intentional prosecu-torial misconduct. Applicant 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. Applicant contends that, under Bander, if mistrial had been granted in this case, retrial of applicant would have been barred. However, this is not the ground on which applicant’s petition for discretionary review was granted; as noted earlier we granted review to consider whether the Texas Constitution’s double jeopardy protections, as interpreted by this Court in Bander, apply where an applicant has obtained a reversal of his conviction on appeal, due at least in part to prosecutorial misconduct at trial. With respect to the testimony of Fred Zain, we note the habeas court did not make any findings of fact indicating the State knew, or should have known, Zain’s testimony was false or perjured. Indeed, the habe-as court found Zain misled Lt. Richards, a key State witness, regarding the forensic facts, thus causing Lt. Richards’ testimony and conclusions to be probably inaccurate. While we are not bound by the findings of fact and conclusions of law of the habeas court, we generally defer to them if they are supported by the record, and, in this instance, find them to be reliable, supported by the record, and entitled to such deference. Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Crim.App.1977); Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Crim.App.1989); Ex parte Mowbray, 943 S.W.2d 461 (Tex.Crim.App.1996). We hold that the State did not intentionally or recklessly cause applicant’s trial to be tainted by Zain’s perjured testimony or Lt. Richard’s inaccurate testimony. The habeas court also found the police mishandled certain key items of physical evidence and also erased a tape recorded statement of Marci French that may have been exculpatory or otherwise may have been useful to applicant to impeach French. There is no question that applicant would have been entitled to access to the missing tape. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The record does not support any assertion that the erasure of the tape or the mishandling of physical evidence was the result of intentional or reckless misconduct by the State. Bander does not stand for the proposition that retrial is barred by the Double Jeopardy Clause of the Texas Constitution where a mistrial is granted due to the prosecutor’s simple negligence or mere sloppiness. Bander certainly does not forbid, on state constitutional jeopardy grounds, a retrial following a reversal on appeal. Furthermore, the sloppiness and negligence was on the part of the police; the proper remedy for such police actions that, in effect, denied applicant due process of law is retrial. Brady v. Maryland, supra; Kyles v. Whitley, supra. The actions of the prosecutor in the present case were reprehensible. The habeas court found the prosecutor misled the jury as to why certain evidence was not tested and misled the jury as to the quality of the investigation conducted by the police (he told the jury it was excellent when he had, before trial, complained in writing about the lost evidence and negligence of the police department). As to his out-of-court conversation with witness Toth, while we find it was poorly and coercively handled, we do not agree with the court of appeals in Davis I that Toth was encouraged to perjure herself or otherwise misrepresent her observations to the jury. We are troubled by the false impression given to the jury that Toth approached the prosecutor out of concern that her initial testimony was potentially misleading when it was the prosecutor who approached her. Still, we are not persuaded that the actions of the prosecutor were so egregious as to bar the retrial of applicant on Texas constitutional double jeopardy-grounds, as he has already been accorded the relief to which he was entitled: reversal of his conviction on appeal. Applicant cites a recent decision of the New Mexico Supreme Court in support of his contention that the holding of Bander be extended to cases involving prosecutorial misconduct where convictions have been reversed on appeal (thereby barring retrial by the Texas Constitution’s double jeopardy provisions). State v. Breit, 122 N.M. 655, 980 P.2d 792 (1996). In Breit, applicant’s conviction was reversed, and, on double jeopardy grounds, the court ordered applicant discharged from any further prosecution in that cause. The court emphasized that “when a trial is severely prejudiced by prosecutorial conduct, the double jeopardy analysis is identical, whether the defendant requests a mistrial, a new trial, or, on appeal, a reversal.” Breit, supra, 930 P.2d at 797. Yet, the court fails to cite any federal appellate court opinions or opinions of other state high courts in support of its holding that double jeopardy principles are applicable where a defendant has obtained a reversal of his conviction on appeal due, at least in part, to prosecutorial misconduct during his first trial, thereby barring his retrial. What took place in the present case is, in many respects, similar to what we found to compel reversal on due process grounds in Cook v. State, 940 S.W.2d 623 (Tex.Crim.App.1996). In Cook, we found prosecutorial misconduct, which included withholding of potentially exculpatory evidence, combined with the false and' misleading testimony of a state’s expert witness concerning fingerprint evidence, violated applicant’s rights under the Due Process Clause of the United States Constitution, as well as his rights under the due course of law provisions of the Texas Constitution (Art. I, Secs. 13 and 19). We declined, however, to accept applicant’s contention the prosecution’s misconduct was so egregious as to bar retrial on either state or federal double jeopardy grounds. As the court of appeals noted, “in considering other cases where the facts and circumstances were fully as outrageous and shocking as those in this case, the Court of Criminal Appeals has ordered a retrial and not the dismissal of charges and an acquittal.” Davis II, 893 S.W.2d at 257, citing Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989); Ex parte Brandley, 781 S.W.2d 886, 887 (Tex.Crim.App.1989). We agree with the court of . appeals that retrial, not dismissal of the charge and acquittal, is the proper remedy. Fundamentally, this is a due process ease. It has long been the law that where a defendant’s due process rights have been violated to the extent that he has been denied a fair trial, the proper remedy is reversal of his conviction and remand of the cause to the trial court for further proceedings. Brady v. Maryland, supra; Kyles v. Whitley, supra; United States v.Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We decline applicant’s invitation to extend our interpretation of the Texas Constitution’s double jeopardy protections in Bander to instances like the present case which involve due process concerns for which the well-established remedy of reversal is intended to address. Bander applies only where a mistrial has been granted due to reckless or intentional prosecutorial misconduct; therefore it does not apply to the present case as no mistrial was granted and we further find no abuse of discretion on the part of the trial court in its denial of applicant’s mistrial motion. Accordingly, we decline to apply our holding in Bauder to instances, like the present case, to bar a retrial, on Texas constitutional double jeopardy grounds, where an applicant has had his conviction reversed on appeal due, at least in part, to prosecutorial misconduct. We affirm the judgment of the court of appeals. KELLER, J., concurs in the result. OVERSTREET, J., dissents. . Given the importance of Toth’s initial testimony and the taint resulting from the actions of the district attorney, the court of appeals (Davis /) found the instruction to the jury to disregard Toth’s subsequent testimony insufficient. The court of appeals also sustained applicant's tenth point of error (application for warrant to take a sample of applicant’s blood not supported by affidavit establishing probable cause; see Tex. Code Crim. Proc Art. 18.01) and his eleventh point of error (trial court erred in refusing to permit applicant an opportunity to impeach State witness Balonis as to bias or prejudice). . Several state supreme courts have explicitly adopted the Oregon v. Kennedy standard under their state constitutions. Robinson v. Commonwealth, 18 Va.App. 814, 447 S.E.2d 542 (1994); Stamps v. Commonwealth, 648 S.W.2d 868 (Ky.1983); State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988). The Pennsylvania Supreme Court’s reasoning in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992) is similar to that of Bauder. . But see, however, United States v. Oseni, 996 F.2d 186, 187-188 (7th Cir.1993), in which the court specifically rejected the Second Circuit’s holding in Wallach, extending Oregon v. Kennedy to bar retrial following a reversal due, in part, to prosecutorial misconduct. . The North Carolina Supreme Court did affirm the North Carolina Court of Appeals’ holding that a retrial following reversal on appeal should be jeopardy-barred where the reversal was due to prosecutorial overreaching or harassment aimed at prejudicing the defendant’s chances for acquittal, whether in the current trial or a retrial. State v. White, 85 N.C.App. 81, 354 S.E.2d 324, 329 (1987), aff’d, 322 N.C. 506, 369 S.E.2d 813 (N.C.1988). . The actions of the prosecutor in Breit were pervasively improper, intentional, and tainted nearly every phase of the trial, from opening statement to closing argument. See Breit, supra, Appendix. The prosecutorial misconduct in the present case, though significant, is by no means comparable to that which took place in Breit. .This evidence included evidence of misrepresentation of a deal between a convicted criminal and the State to testify (falsely, it turned out) against applicant, evidence pointing to another person as a viable suspect, and evidence concerning a key prosecution witness (Hoehne), which indicated he may have perjured himself. . The dissent fails to recognize the considerable adverse impact of a reversal of a conviction on the State. The State must decide whether or not to retry the cause, a decision often complicated by the passage of several years since the first trial, the possible loss of evidence over time and the fact that witnesses may no longer be available or their memories of the event may be less reliable, rendering their testimony less accurate. The cost to the State of a “second bite of the apple" is significant, financially and otherwise (indeed, the State often elects not to pursue a retrial following a reversal; see, e.g., Ex parte Brandley, supra); the dissent's implicit dismissal of this fact is troubling. Our holding in the present cause cannot be read as sanctioning prosecutorial misconduct, misconduct for which the well-established remedy of reversal was correctly applied in this case by the court of appeals. We should decline to create a new remedy, the expansion of Bauder to bar retrial on Texas constitutional grounds after reversal due to prosecu-torial misconduct, where there is no compelling need to do so. The well-established remedy of reversal has not been demonstrated as being inadequate to deter prosecutorial misconduct so as to justify an extension of Bauder. Finally, the evidence that the State intentionally acted in an improper manner at the first trial so as to avoid the risk of an acquittal is simply not supported by the record. Assuming, arguen-do, there was no prosecutorial misconduct during appellant’s trial, he does not persuade us the evidence was factually or legally insufficient to support a conviction, which would bar his retrial. Lockhart v. Nelson, supra.
McCORMICK, Presiding Judge, concurring. I join the majority opinion in this case. I write separately to respond to the philosophically judicial activist approach to constitutional interpretation advocated in the dissenting opinion. The majority opinion adopts as a matter of state constitutional law the well-settled rule that is applied in almost every state and federal jurisdiction in this country: double jeopardy principles do not bar a reprosecution when a conviction is reversed on appeal for ordinary “trial error.” This rule strikes a proper balance between the community’s legitimate interest in fighting crime and a defendant’s legitimate double jeopardy interests. The dissenting opinion would adopt as a matter of state constitutional law a mostly unprecedented rule that double jeopardy principles bar a reprosecutiori when a conviction is reversed on appeal for what the dissenting opinion calls “prosecutorial misconduct.” This rule would not be limited to just this case and these facts but would be applicable in every case where at least five judges on this Court believed “prosecutorial misconduct” occurred. This is an awesome power the dissenting opinion advocates the judiciary should reserve for itself especially when one considers that most times “prosecutorial misconduct” is not so easily defined. For example, the author of the dissenting opinion has taken the position that “prosecutorial misconduct” occurs and factually and legally guilty criminals walk free even when the prosecution does not intend to engage in misconduct and makes an honest mistake. See Bauder v. State, 921 S.W.2d 696, 701-02 (Tex.Cr.App.1996) (Baird, J., concurring) (prosecutors are “responsible” for their “misconduct” without regard for their mens rea ). Our citizens have other • remedies aside from judicially imposed rules for dealing with “prosecutorial misconduct.” See Bauder, 921 S.W.2d at 706 fn. 5 (McCormick, P.J., dissenting). Absent clear intent to the contrary in Texas’ constitutional double jeopardy provisions, our duty is to leave the remedy for “prosecutorial misconduct” to the legislative and political processes for the citizens to decide. Most questions of constitutional interpretation involve giving effect to the intent of the voters who adopted the constitutional provision at issue. See Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Cr.App.1993); Bauder, 921 S.W.2d at 708 (McCormick, P.J., dissenting). This means the judiciary when interpreting the Constitution has no power to legislate its own policy preferences behind the Legislature’s back. See Bauder, 921 S.W.2d at 705-08 (McCormick, P.J., dissenting). Questions of constitutional interpretation often involve a delicate process of balancing the interests of the community and the interests of the individual. See Bauder, 921 S.W.2d at 705-08 (McCormick, P.J., dissenting). When the dissenting opinion speaks of “breathing life” into our Constitution by effectively interpreting it to provide “more protection” to criminals, the community’s interest in protecting ourselves from dangerous criminals also suffers. See Bauder, 921 S.W.2d at 703 fn. 2 (McCormick, P.J., dissenting). Interpreting our Constitution to provide “more protection” to criminals also necessarily puts “more restrictions” on the community’s efforts to combat crime. If we are to interpret our Constitution effectively to provide “more protection” to criminals, then the constitutional .provision at issue should clearly require us to do so. Texas’ double jeopardy clause contains a simple command or prohibition. The “plain” language and history of this clause indicates it was intended to bar a reproseeution when a case has proceeded to a final verdict of guilty or acquittal. See Bauder, 921 S.W.2d at 706 fn. 5 (McCormick, P.J., dissenting). Texas’ double jeopardy clause actually provides “less protection” than that provided by its federal counterpart, at least as interpreted by the Supreme Court. See Bauder, 921 S.W.2d at 706 fn. 5 (McCormick, P.J., dissenting). This also applies to other Texas constitutional provisions. See Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. at 956-74. This interpretation of Texas’ double jeopardy provision strikes a proper balance between the competing interests. Completely absent from the approach to constitutional interpretation in the dissenting opinion is any consideration of the legitimate interests of the community or any sense of judicial restraint. See Autran v. State, 887 S.W.2d 31, 43-49 (Tex.Cr.App.1994) (McCormick, P.J., dissenting). When the reader strips away the dissenting opinion’s rhetorical flourish and its discussion of out-of-state cases that have little, if anything, to do with interpreting our Constitution, the reader should realize that the author of the dissenting opinion is attempting to legislate his own policy preferences under the guise of constitutional interpretation. This approach has less to do with interpreting the Constitution and more to do with legislating behind the Legislature’s back. Finally, the dissenting opinion seems enamored with Justice Brennan’s approach to constitutional interpretation. I would not adopt Justice Brennan’s brand of judicial activism for interpreting our Constitution. Such an approach has never heard of judicial restraint, knows no bounds to the limits of judicial power and shows no respect to the legislative process or to the legitimate interests of law-abiding citizens. See Jeff Jacoby, Justice Brennan’s Legacy: An Imperious Judiciary; The Houston Chronicle (for over 34 years on the bench, Justice Brennan “repeatedly shoved aside text and precedent, trampling the rights of citizens and legislatures in order to chisel his own notions of justice into American law” with his chief legacy being “his judicial authoritarianism: his assertion that in any political controversy, judges have the last word—not voters, not lawmakers, not elected representatives”). With these comments, I join the majority opinion’s exercise in judicial restraint. . This concurring opinion addresses "prosecuto-rial misconduct” in general and not the particular conduct in this case. This case does not present the issue of whether “prosecutorial misconduct” occurred, so it is unnecessary to engage in a feel-good and pointless exercise of "openly condemning” the conduct that occurred in this case as footnote seven of the dissent would have us do. . Of course, the position taken by this author in Bauder garnered only one vote and, therefore, does not constitute the law of this State even though the author of the dissenting opinion attempted to pass his concurring opinion in Bauder off as the majority holding of the Court. See Bauder, 921 S.W.2d at 701-02 (Baird, J., concurring) (one-judge plurality opinion with no prece-dential value). . When a case is reversed on appeal for ordinary "trial error,” the case has not proceeded to a final verdict. . The author of the dissenting opinion has labeled this discussion as an "ad hominem ” or personal attack on the late Justice Brennan. It is not. What it is is a discussion of my perception of the role of the judiciary and a criticism of those who serve on high courts and attempt to wield the philosophical sword of judicial activism.
MEYERS, Judge, concurring. Appellant claims the prosecutor engaged in misconduct sufficiently egregious to have warranted the granting of his motion for a mistrial and a consequential jeopardy bar to retrial. Even though his mistrial motion was not granted and the trial proceeded to verdict, appellant says retrial should be barred because it would have been barred if the trial court had ruled properly and granted his mistrial motion instead of erroneously denying it. The Court of Appeals held that when a trial court proceeds to a verdict despite a legitimate claim of serious prosecutorial misconduct and the conviction is reversed on appeal due to the misconduct, retrial is not jeopardy barred. Ex parte Davis, 893 S.W.2d 252 (Tex.App.—Austin 1995). We granted review to decide whether the Court of Appeals erred in this holding. It is not altogether clear on what basis the majority resolves this case. A great deal, if not most, of the Court’s opinion is devoted to re-analyzing whether the prosecutor’s actions were sufficiently reprehensible to have warranted the granting of appellant’s motion for mistrial under Bander v. State, 921 S.W.2d 696 (Tex.Crim.App.1996). That is not the ground upon which we granted review, however. The Court’s opinion contains some mention of double jeopardy principles and their application in the mistrial context, but there does not appear to be any analysis upon which the Court’s holding decisively rests. We fail the bench and bar in our role as a discretionary review court when we avoid directly grappling with the legal question presented in favor of resolving the case on its facts. This said, I will briefly outline the rationale which I believe supports the Court’s judgment today. The question upon which the parties have turned to this Court for guidance is whether a defendant is entitled to have retrial jeopardy barred after an appellate court determines that his motion for mistrial based on prosecutorial misconduct (whether it be misconduct repugnant to Kennedy, supra, or Bander v. State, 921 S.W.2d 696 (Tex.Crim.App.1996)) was erroneously denied. Analysis should begin with Kennedy. There the Supreme Court, albeit in dicta, assumed that double jeopardy would not bar retrial upon an appellate determination that the trial court erroneously denied the defendant’s motion for mistrial based on prosecu-torial misconduct: Were we to embrace the broad and somewhat amorphous standard adopted by the Oregon Court of Appeals, we are not sure that criminal defendants as a class would be aided. Knowing that the granting of the defendant’s motion for mistrial would all but inevitably bring with it an attempt to bar a second trial on grounds of double jeopardy, the judge presiding over the first trial might well be loath to grant a defendant’s motion for mistrial. If a mistrial were in fact warranted under the applicable law, of course, the defendant could in many instances successfully appeal a judgment of conviction on the same grounds that he urged a mistrial, and the Double Jeopardy Clause would present no bar to retrial. Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089-90 (footnotes omitted)(emphasis added). In a footnote to these comments, the Court farther noted that it had consistently held there is no jeopardy bar to retrial -when a defendant has been successful in getting a court to set his conviction aside unless it is reversed for insufficient evidence. Four judges in concurrence, referred to the majority’s assumption that an appellate court “would not be obligated to bar reprosecution as well as reverse the conviction” as “irrational.” Id. at 688 n. 22, 102 S.Ct. at 2095 n. 22 (Stevens, J., concurring, joined by Brennan, Marshall, and Blackmun, J.J.). The question is why would a majority of the Supreme Court consider jeopardy no bar to retrial after an appellate determination that a mistrial should have been granted for pros-ecutorial misconduct, while four other justices view that position as “irrational.” As is often the case in law, there are persuasive arguments on both sides of the matter. Several courts have set forth the competing sides of this issue, roughly reflecting the arguments presented by the parties in.this case. The 8th Circuit Court of Appeals addressed the issue with clarity in United States v. Singer, 785 F.2d 228 (8th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 273, 93 L.Ed.2d 249 (1986): 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 properly is 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. As the Supreme Court stated in Burks v. United States, [437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)], when explaining why double jeopardy concerns preclude retrial upon reversal for insufficient evidence, “[T]o hold otherwise would create a purely arbitrary distinction between those in petitioner’s position and others who would enjoy the benefit of a correct decision by the District Court.” But there is danger in drawing too much from Burks’ grudging exception. Indeed, in Burks itself, the Court stated that governmental misconduct was not among the grounds for reversal that implicated the double jeopardy clause. And as the Court added in Oregon v. Kennedy: “This Court has consistently held that the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of insufficiency of the evidence.” If the bedrock interest supporting the double jeopardy prohibition is protection of the defendant’s “valued right” to have a verdict rendered by the first jury,, then the dangers which the prohibition seeks to avoid are more attenuated when the first trial goes to verdict, since the defendant has not lost his chance for acquittal by the first jury. Thus it can persuasively be argued that the double jeopardy clause should not be read to impose the drastic remedy of dismissal of the indictment following reversal of a conviction on the basis of misconduct. Id. at 239-40 (citations omitted). Both sides of the issue have also been well articulated by the Fifth Circuit Court of Appeals: ... When a defendant moves for a mistrial because of a prosecutor’s misconduct ..., an appellate reversal based on that same misconduct seems equivalent to a determination that the district court erred in ruling on the mistrial motion. It seems anomalous to say that identical prosecutorial misconduct will create a constitutional bar to retrial when the district court correctly grants a mistrial but not when the district court erroneously denies the mistrial request. On the other hand, under Kennedy the double jeopardy clause is concerned only with prosecutorial misconduct that is intended to provoke a mistrial. When a mistrial is not declared, then the prosecutor’s efforts have been unsuccessful. The dangers that the Kennedy exception was intended to prevent—that the defendant might lose his “valued right to complete his trial before the first jury,” and that the prosecutor might be seeking a more favorable opportunity to convict—are more attenuated when the defendant is convicted by the first jury but an appellate court reverses for prosecutorial misconduct. In such a case, the defendant has not lost his chance for an acquittal by the first jury, and it seems unlikely that any prosecutor would intentionally lay a basis for appellate reversal in order “to subvert the protections afforded by the Double Jeopardy Clause.” United States v. Singleterry, 683 F.2d 122, 124 (5th Cir.), cert. denied, 459 U.S. 1021, 103 S.Ct. 387, 74 L.Ed.2d 518 (1982). To summarize, the argument in support of allowing a jeopardy bar after an appellate determination is based largely on the idea that a defendant’s jeopardy rights should not turn upon which court makes the determination that the government’s misconduct infected the proceedings. The argument in opposition to permitting a jeopardy bar after an appellate determination looks beyond the government conduct to the actual fruition of that action. In my view, the later position, while it may seem unfair, is more consistent with the purposes underlying the double jeopardy bar in Kennedy and Bauder situations. The Double Jeopardy Clause protects a defendant against multiple prosecutions for the same offense. In the mistrial context the Supreme Court has recognized that as part of the prohibition against multiple prosecutions, the Double Jeopardy Clause affords a defendant “the valued right to have his trial completed by a particular tribunal.” Kennedy, 456 U.S. at 671-72, 102 S.Ct. at 2087 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)). This right lies at the heart of the narrow exception permitting a jeopardy bar where a mistrial was granted pursuant to the defendant’s motion based upon prosecutorial misconduct of the nature discussed in Kennedy (or under the Texas Constitution, Bauder). In Bauder, we emphasized the right that is lost when a mistrial is granted as a result of prosecutorial misconduct, stating, “When this happens, we think the government should bear 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 (emphasis added). When the State’s conduct does not in fact invoke the mistrial, then the defendant gets his right to be tried in a single proceeding by the jury first selected, although admittedly the proceeding has been tainted. Once a proceeding to verdict has occurred, a defendant’s double jeopardy rights are not implicated by a mistrial situation. There has not been a mistrial. The fact that there should have been a mistrial is trial error that the defendant can raise on appeal, to which jeopardy principles do not apply. We addressed this issue over fifteen years ago in Durrough v. State, 620 S.W.2d 134 (Tex.Crim.App.1981), there rejecting the defendant’s claim that his retrial should be barred by double jeopardy because of prose-cutorial misconduct in an earlier trial: The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrials so as to afford the prosecution a more favorable opportunity to convict the defendant^ But when the trial proceeds to its conclusion despite a legitimate claim of serious prejudicial error, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is reversed on appeal. In the present case the alleged misconduct did not result in a mistrial. The appellant was found guilty of capital murder and sentenced to death. That judgment was reversed on appeal and the case was remanded for a new trial. We reject appellant’s contention that the alleged misconduct was a bar to further prosecution in this case. (citations omitted). Appellant’s argument focuses on the nature of the government’s conduct alone, rather than the circumstances provoked by the conduct. If conduct alone were at issue, the further question would be whether appellant need request a mistrial at all. But it is the circumstances arising from the government misconduct that justify a jeopardy bar under Kennedy and Bauder—it is the fact that the government misconduct leads to the granting of a mistrial and consequential denial of the defendant’s right to have , that jury render a verdict, that justifies the narrow exception to the rule that jeopardy does not bar retrial when mistrial arises from a defendant’s motion. I recognize that this view would place no small amount of responsibility on trial judges to conscientiously consider and rule on motions for mistrials based on prosecutorial misconduct under Kennedy or Bauder. But trial courts are better positioned than appellate courts to determine when circumstances cry out for a mistrial. I would trust trial courts to grant mistrials when required under the law irrespective of the jeopardy implications, knowing that a jeopardy bar would not be imposed if the mistrial were denied and such denial was found to be in error by an appellate court. For these reasons, I concur in the judgment of the Court. . Even the other concurring opinion recognizes that “this case does not present the issue of whether ‘prosecutorial misconduct' occurred.” McCormick, P.J., concurring at 15, n. 1. . After a verdict is rendered, whether a conviction or acquittal, the State cannot reprosecute for the same offense. The same is not true when the defendant has sought and received a reversal of his conviction (unless the reversal is based upon insufficient evidence under Burks). In these circumstances, the State can retry the defendant. When trial is aborted prior to a verdict pursuant to a mistrial over the defendant’s objection, double jeopardy does not bar retrial as long as the mistrial was justified by “manifest necessity.” When the mistrial is granted at the defendant's request, however, double jeopardy generally will not bar retrial. The one narrow exception to this rule was fashioned by the Supreme Court in Kennedy and, under the Texas Constitution by this Court in Bauder—when the mistrial motion granted at the defendant's request is based upon prosecutorial misconduct that was intended to induce a mistrial or when the prosecutor was aware but conscientiously disregarded the risk that his conduct would compel the defendant to request a mistrial. . The State suggests in its brief that evidence tainted by the prosecutorial misconduct should not be admitted on retrial. I would be inclined to leave this for the trial court to address when raised by the parties on retrial. See Cook v. State, 940 S.W.2d 623, 628 (Tex.Crim.App.1996)(plurality opinion)(stating that evidence tainted by prosecutorial misconduct in first trial not admissible on retrial based on due process and fundamental fairness). . For this proposition, we cited United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976), a pre-Kennedy opinion in which the Supreme Court stated, “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.” . A trial court's granting of a mistrial under Kennedy or Bauder, is not necessarily unreviewable. The State may seek to retry the defendant, whereupon the defendant may assert a claim of double jeopardy. The State can appeal from a determination that jeopardy lies. See TexCode Crim. Proc. Ann. art. 44.01 (a)(4)(state can appeal from order sustaining claim of former jeopardy).
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 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. 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 Constitution bars retrial following the erroneous denial of a mistrial based upon prosecutorial misconduct. 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 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. 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