Ex Parte Peterson’s Empirical Analysis

Citation profile

77 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 77 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “(1) Was the misconduct a reaction to abort the trial that was “going badly for the State”? The record did not demonstrate that the trial was “going badly for the State,” nor did it reasonably appear that appellant would likely have obtained an acquittal in the first trial. (2) Was the misconduct repeated despite admonitions from the trial court? The defense counsel’s cross-examination of Linda Stewart elicited the first reference to appellant being in prison. Sergeant Thompson’s non-responsive answer to the prosecutor’s question (“What happened then?”) was only the second reference to extraneous offenses. (3) Did the prosecutor provide a reasonable, “good faith” explanation for the conduct? The prosecutor argued that appellant’s application for writ of habeas corpus should be denied because the prosecutor was simply trying to have Sergeant Thompson “tell his story” by asking him: “What happened then?” The prosecutor’s question, asked by trial lawyers in every trial, did not require the non-responsive answer that Sergeant Thompson gave. (4) Was the conduct “clearly erroneous”? Asking “What happened then?” was not clearly erroneous. (5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety? Having Sergeant Thompson testify to the chronology of events was a plausible basis for the prosecutor’s question. (6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were t”

   5 later decisions quote this exact passage · from the majority
   e.g. Ex Parte Wheeler · Bowen v. State

2. “(1) Did manifestly improper prosecuto-rial misconduct provoke the mistrial? (2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard? (3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial 5 or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial 6 ?”

   5 later decisions quote this exact passage · from the majority
   e.g. Ex Parte Wheeler · Bowen v. State

3. “Prosecutorial misconduct reasonably reaches only that conduct which is qualita tively more serious than simple error and connotes an intentional flouting of known rules or laws.” Ex Parte Peterson, 117 S.W.3d 804, 816-17 (Tex.Crim.App.2003). 4 .”

   2 later decisions quote this exact passage · from the concurrence
   e.g. Robinson v. State · Ketchum v. State