Ex Parte Peterson

¶1OPINION

¶2In this case we clarify the standards under which the Texas constitutional double jeopardy provision, as explained in Bauder v. State,1prohibits 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.

¶3*808I.

¶4James 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.

¶5According 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.

¶6According 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.

¶7The 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.

¶8The 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.

¶9The 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, un*809dercover 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.

¶10The defense did not object.

¶11The 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.

¶12The 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.

¶13Mr. 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.

¶14*810The 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.

¶15Without explanation, the trial court granted habeas relief on the possession with intent to deliver count, but denied

¶16relief 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

¶17I.

¶18Both 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 *811forbid 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.

¶19It 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.

¶20A. Federal double jeopardy principles bar retrial when the prosecutor intended to goad the defendant into requesting a mistrial.

¶21The 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,14the 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?

¶22In Oregon v. Kennedy,17a 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

¶23In 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, *812the 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

¶24The 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.

¶25The 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

¶26Justice 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

¶27Four 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 *813two-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

¶28All 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.

¶29B. Under Bauder, Texas’ double jeopardy provision also bars retrial when the prosecutor’s reckless misconduct requires a mistrial.

¶30For fourteen years, this Court followed the federal double jeopardy standard set out in Kennedy.32In Bauder v. State *814(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.

¶31In 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-*815ríes 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.

¶32We 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

¶33The 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 *816does 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

¶34Thus, 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

¶35On 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

¶36In State v. Lee,50this 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

¶37Thus, 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.

¶38In 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

*8172) 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)?

¶39To 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

¶40The 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-*818mg 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.

¶41C. Under either federal or Texas double jeopardy provisions, the defendant must prove his claim by a preponderance of the evidence.

¶42In 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.

¶43Trial 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.

¶44Some 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?

*8194) 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

¶45In 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.

¶46*820III.

¶47In 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.

¶48The 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.

¶49However, 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.