Bauder v. State

¶1concurring.

¶2Today a majority of the Court holds that the rule of law pronounced in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), applying the federal double jeopardy clause is not the only standard under which the State may be precluded from retrial when it has intentionally committed error resulting in mistrial; but that the double jeopardy clause of the Texas Constitution, when the prosecutor is either intentional or reckless in causing a mistrial, will also prevent retrial. The Court defines recklessness as it is defined in the Penal Code, as being “aware but consciously disregard[ing] the risk that an objectionable event for which [the prosecutor] was responsible would require a mistrial at the defendant’s request.” Majority opinion at 699. See and compare Tex.Penal Code Ann. § 6.03(c).

¶3The dissent takes issue with this holding and with the rule that the Texas Constitution provides greater protection than the double jeopardy clause of the federal constitution. The federal double jeopardy provision derived from the common law notions of autre-fois acquit and autrefois convict:

The origin and history of the Double Jeopardy Clause are hardly a matter of dispute. See generally [U.S. v.] Wilson; supra, [420 U.S. 332] at 339-340[, 95 S.Ct. 1013, 1019-1020, 43 L.Ed.2d 232 (1975) ]; Green v. United States, 355 U.S. 184, 187-188[, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199] (1957); id., at 200[, 78 S.Ct. at 230] (Frankfurter, J., dissenting). The constitutional provision had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon. These three pleas prevented the retrial of a person who had previously been acquitted, convicted or pardoned for the same offense.

¶4United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 2192, 57 L.Ed.2d 65 (1978). The double jeopardy clause contained in the Fifth Amendment to the United States Constitution reads: “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb[J” Article I, section 14 of the Texas Constitution provides that

No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.

¶5The Interpretive Commentary to Article I, section 14, although not authority, is instructive in explaining that the Texas Constitution is broader than the common law:

The guaranty in this section of the Texas Constitution is broader in scope [than the common law], for not only can a person not be put on trial a second tíme for an offense of which he has once been acquitted or convicted, but he may not be put on trial a second time for an offense of which he has once been placed in jeopardy. Hence, jeopardy, meaning danger or hazard, can be based upon a prosecution discharged for valid causes without a verdict, while *703former conviction and acquittal are based upon verdicts rendered. Anderson v. State, 24 Tex.App. 705, 7 S.W. 40 (1886); Steen v. State, 92 Tex.Crim. 99, 242 S.W. 1047 (1922).

A person is in jeopardy, then, when he is put on trial before a court of competent jurisdiction on an indictment or information sufficient to sustain conviction, a jury has been charged with his deliverance, the indictment or information read to the jury, and the plea of the accused heard. See Johnson v. State, 73 Tex.Crim. 133, 164 S.W. 833 (1914); Steen v. State, supra.

¶6Tex. Const, art. I, § 14 interp. commentary (Vernon 1984) (citations omitted).1

¶7With these remarks, I join the opinion of the Court.

¶9dissenting.

“ ‘This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.’ ” Miranda v. Arizona, 384 U.S. 436, 526, 86 S.Ct. 1602, 1654-55, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting).

¶10This is another one of those Heitman1 eases where the majority discovers yet another important State constitutional right that until now has gone unnoticed. Under the guise of interpreting our State Constitution, the majority’s agenda here is to provide criminal defendants “more protection” 2 than that provided by the United States Constitution by imposing their personal views upon what the majority perceives to be an unenlightened citizenry. See Autran v. State, 887 S.W.2d 31, 43-49 (Tex.Cr.App.1994) (McCormick, P.J., dissenting).

¶11In this case, the majority declines to adopt as a matter of State constitutional law the majority holding in Oregon v. Kennedy. This holding creates an exception to the federal constitutional rule, which also has been understood to be the rule under the Texas Constitution,3 that a defendant’s successful motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution. See Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088. The majority opinion in Kennedy holds that where a prosecutor intentionally provokes a defendant into successfully moving for a mistrial, double jeopardy principles prohibit a successive prosecution because in such a situation the prosecutor seeks to obtain an advantage by intentionally subverting a defendant’s double jeopardy interests in having his guilt or innocence determined before the first trier of fact. See Kennedy, 456 U.S. at 669-79, 102 S.Ct. at 2086-92. The concurring opinion in Kennedy would extend this exception to situations involving prosecu-torial “overreaching” or “harassment.” See Kennedy, 456 U.S. at 681-93, 102 S.Ct. at 2092-98 (Stevens, J., concurring in the judgment) (to invoke the exception for overreaching, it is sufficient that egregious prose-cutorial misconduct has rendered unmean-*704ingful the defendant’s choice to continue or abort the proceeding).

¶12For purposes of Texas constitutional law, the majority opinion in this case further extends the majority and minority holdings in Kennedy to “not only when 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 objectionable event for which he was responsible would require a mistrial at the defendant’s request” — a sort of recklessness standard. The majority claims its holding is “slightly more expansive” than Kennedy. This is not so for it is interesting to note that none of the members of the Kennedy court would vote for the majority opinion in this ease.4 See Kennedy, 456 U.S. at 669-98, 102 S.Ct. at 2086-98. That, more than anything else, should cause the majority to pause before once again kneeling and worshipping before the golden calf of Heitman.

¶13In addition, the majority’s interpretation of the Texas Constitution actually provides less protection to criminal defendants than that provided by the Federal Constitution or at least that provided in Kennedy. This is so because:

“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 more loath to grant a defendant’s motion for mistrial. (Footnote Omitted). 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. (Footnote Omitted). But some of the advantages secured to him by the Double Jeopardy Clause — the freedom from extended anxiety, and the necessity to confront the government’s case only once — would be to a large extent lost in the process of trial to verdict, reversal on appeal, and subsequent retrial. (Citations Omitted).” Kennedy, 456 U.S. at 676-77, 102 S.Ct. at 2090.

¶14Of course, trial courts, rather than appellate courts, are in the best position to make the call of whether a mistrial is warranted. See Kennedy, 456 U.S. at 676 fn. 7, 102 S.Ct. at 2089-90 fn. 7. That is why appellate courts should and do give great deference to a trial court’s assessment of the need for a mistrial. See id. The rule the majority adopts today has the real potential of harming a criminal defendant in two ways. First, when a trial court fails to grant a mistrial because of the rule the majority adopts, a defendant loses many of the protections afforded by double jeopardy principles even if he successfully appeals the grounds for which he urged the mistrial. See id. Second, because of the deferential standard appellate courts apply to a trial court’s assessment of the need for a mistrial, a defendant probably will not be able to overturn on appeal a trial court’s decision denying a mistrial when otherwise in all fairness the defendant may have been entitled to a mistrial.

¶15The majority also rationalizes its holding by explaining that there should not be a “distinction of constitutional significance between conduct of a prosecuting attorney in which he intends to cause a mistrial and conduct of a prosecuting attorney which he is aware is reasonably certain to result in a mistrial.” The majority then explains their rule has “practical advantages” by “permitting a more certain application of the rule in most cases.”

¶16The majority opinion in Kennedy adequately responds to these points. See Kennedy, 456 U.S. at 674-75, 102 S.Ct. at 2088-89. Remember, the rule the majority adopts prohibits a successive prosecution after a defendant successfully moves for a mistrial “when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible *705would require a mistrial at the defendant’s request.” Does everyone understand the exact circumstances under which the majority’s rule will apply? I doubt prosecutors will know with any certainty what conduct is prohibited by this rule. And, trial and appellate courts will be just as much in the dark as to what multiple findings will be necessary to resolve the various claims falling under this rule. See Kennedy, 456 U.S. at 674-75, 102 S.Ct. at 2088-89. The majority’s amorphous rule offers virtually no standards or practical advantages in its application.

¶17The bottom line here is the majority says our Constitution requires the release of a defendant back into society where he successfully obtains a mistrial and meets some amorphous standard that the prosecutor recklessly presented prejudicial evidence before the jury that caused a mistrial. However, it is a prosecutor’s job to present “prejudicial” evidence before a jury.

“Every 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. Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evidence by the prosecutor or by the defendant’s attorney will not be found objectionable by the trial court.” Kennedy, 456 U.S. at 674-75, 102 S.Ct. at 2089.

¶18Double jeopardy and legitimate prosecuto-rial interests are not served when this Court assumes the role of second-guessing prosecu-torial decisions on which evidence to present and which evidence not to present. The rule set out in the majority opinion in Kennedy does not require trial and appellate courts to do this because that rule turns on the prosecutor’s intent to provoke a defendant into moving for a mistrial and not on whether a prosecutor recklessly presents “prejudicial” evidence that causes a mistrial. See Kennedy, 456 U.S. at 674-75, 102 S.Ct. at 2088-89.

¶19In addition, when a prosecutor injects unfair prejudicial evidence into the proceeding, the defendant’s choice “to continue the proceeding despite the taint” is still a meaningful one because “many juries acquit defendants after trials in which reversible error has been committed, and many experienced trial lawyers will forego a motion for a mistrial in favor of having his case decided by the jury.” Kennedy, 456 U.S. at 685 fn. 15, 102 S.Ct. at 2095 fn. 15 (Stevens, J., concurring). Therefore, there should be a huge “distinction of constitutional significance between conduct of a prosecuting attorney by which he intends to cause a mistrial and conduct of a prosecuting attorney which he is aware is reasonably certain to result in a mistrial.” In the former situation, a prosecutor is intentionally subverting a defendant’s double jeopardy interests; in the latter situation, the prosecutor is not intentionally subverting a defendant’s double jeopardy interests. This should be an important distinction for double jeopardy purposes.

¶20In addition, United States Supreme Court decisions in the mistrial setting have “accommodated the defendant’s double jeopardy interests with legitimate prosecutorial interests.” See Kennedy, 456 U.S. at 682, 102 S.Ct. at 2093 (Stevens, J., concurring). However, the majority does not mention or discuss how their holding strikes any kind of accommodation with legitimate prosecutorial and law enforcement interests. Under the majority’s approach to State constitutional interpretation, it seems as if the law exists for the sole benefit and protection of criminal defendants. So, it is irrelevant to the majority that when they use Heilman to provide “more protection” to criminal defendants, they also are providing “less protection” to law-abiding citizens. However, the Constitution does not exist solely to protect the rights of the accused. See Miranda, 384 U.S. at 537-39, 86 S.Ct. at 1661 (White, J., dissenting) (the most basic function of the criminal law is to provide for the security of the individual and his property) and at 384 U.S. at 518-20 fn. 16, 86 S.Ct. at 1651 fn. 16 (Harlan, J., dissenting):

“[Jjustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. (Citations Omitted).”

¶21And, it should come as no surprise that the rule the majority adopts today strikes no accommodation with legitimate prosecutorial *706interests. Prosecutors will not know exactly what conduct is prohibited by the majority’s rule. This may cause prosecutors to withhold legally admissible evidence reducing their chances for a conviction. See Miranda, 384 U.S. at 540-43, 86 S.Ct. at 1662-63 (White, J., dissenting) (criminal trials, no matter how efficient the police are, are not sure bets for the prosecution). And, in those situations where a trial court declines to grant a mistrial, because of the rule the majority adopts, the prosecution will have to go to the expense of another trial if the defendant successfully appeals the grounds for which he urged the mistrial. See Kennedy, 456 U.S. at 685-86, 102 S.Ct. at 2094-95. The majority’s rule has the real potential of frustrating legitimate prosecutorial efforts to protect the public.

¶22Based on the foregoing, I would adopt for this case the holding of the United States Supreme Court majority opinion in Kennedy. It is better-reasoned than the majority opinion and strikes a proper balance between a defendant’s double jeopardy interests and legitimate prosecutorial interests. A prosecutor’s “recklessness” in “causing” a defense-granted mistrial should not implicate double jeopardy interests.5

¶23I also would use this case as an opportunity to lay Heitman to rest for good. For at least 75 years this Court generally has followed the lead of the United States Supreme Court in interpreting similar provisions of our Constitution. See, e.g., Autran, 887 S.W.2d at 43-49 (McCormick, P.J., dissenting) (and the numerous cases and other authorities cited therein). This court should continue this practice. This approach offers several advantages. It provides for consistency in application and results. In addition, “judicial review can be more precise, but, most important, it gives law enforcement authorities the parameters within which they can legally operate.” See McCambridge v. State, 778 S.W.2d 70, 76 (Tex.Cr.App.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990). Also, it is counterproductive to require trial and appellate courts to first engage in some type of federal constitutional analysis and then, having overcome that hurdle, to engage in some type of independent State constitutional analysis.

¶24Also, United States Supreme Court decisions from the 1950s and 1960s found so many rights in the Federal Constitution that are applicable to the States that I really do not see the point in engaging in any independent State constitutional analysis. See Autran, 887 S.W.2d at 43-49 (McCormick, P.J. dissenting). There can be no question that these federal constitutional decisions strike a *707proper balance between the freedoms all constitutions, state and federal, are intended to secure and legitimate prosecutorial and law enforcement interests. The federalization of this State’s procedural and substantive criminal law in the 1950s and 1960s should, as a practical matter, preclude any independent State constitutional analysis. See id.

¶25This point cannot be overemphasized. This Court and the other state courts in the nation since the 1950s and 1960s have had to follow Supreme Court federal constitutional decisions. Heitman, in effect, allows us to disagree with the Supreme Court in finding “more protection” for criminals under our State Constitution. However, we are not free to disagree with the Supreme Court when it comes to finding “less protection” for criminals in our Constitution than that provided by the Federal Constitution.

¶26Heitman, therefore, is a one-way street. We should not use Heitman to find “more protection” in our Constitution unless the states are free to disagree with the Supreme Court when it comes to finding “less protection” in their state constitutions. For example, in this case, one might disagree with the majority opinion in Kennedy and argue that intentionally provoked mistrials by the prosecution do not implicate double jeopardy interests under our Constitution because a defendant still has a choice of continuing the proceeding despite the taint and preserving his objection for appeal, and our citizens have other mechanisms for dealing with prosecutors who intentionally cause mistrials. See Kennedy, 456 U.S. at 685-86, 102 S.Ct. at 2094—95 (Stevens, J., concurring). Such a rule arguably might strike a proper balance between a defendant’s double jeopardy interests and society’s interest in obtaining a verdict of guilt or innocence. However, with the federalization of this State’s criminal law in the 1950s and 1960s, this Court is not really free to adopt such a rule under our Constitution.

¶27Judge Clinton’s concurring opinion opines that we are at liberty to construe the Texas Constitution “less protectively” than the Federal Constitution. Technically, he is correct. But, as a practical matter, this power is illusory. My point is that the federalization of this State’s criminal law in the 1950s and 1960s has, in effect, preempted any independent State constitutional analysis on matters of common subject. Justice Hecht of the Texas Supreme Court said it best when he noted, “ ‘virtually all New Federalism proponents are motivated by the bare desire to achieve a liberal political agenda.’” See Davenport v. Garcia, 834 S.W.2d 4, 43 (Tex.1992) (Hecht, J., concurring in the judgment). He also said that “a non-legal influence has been brought to bear on judicial decision making.” Id.I could not agree with him more.

¶28Practically, Heitman frustrates legitimate prosecutorial interests without promoting any of the interests or values our Constitution is meant to protect. And, Heitman promotes contempt for majoritarian political processes by encouraging appellate judges to read their personal views into our Constitution which is an impermissible basis for constitutional interpretation and a usurpation of legislative power. See Autran, 887 S.W.2d at 43-49 (McCormick, P.J., dissenting). And that is exactly what is going on here. One need only count the number of times the majority uses “we believe,” “it seems to us,” “in our view,” or “we think” to realize the basis of their decision is nothing more than their personal views about how things ought to be. I would leave it up to our citizens through the legislative process to make these types of determinations.6

¶29*708Instead of taking another leap into the Heitman quagmire, this Court ought to be exercising judicial restraint and reaffirming our prior cases that this Court generally will follow the lead of the United States Supreme Court in interpreting our Constitution. See Autran, 887 S.W.2d at 43-19 (McCormick, P.J., dissenting). Principles of stare decisis alone require this. See id.If citizens are unhappy with our holdings, they can change them either through the legislative process or Constitutional amendment. For the most part, they have not exercised this option for at least 75 years when this Court has said it generally will follow the lead of the United States Supreme Court in interpreting our Constitution. On the contrary, I can only recall situations where our citizens have acted when this Court refused to follow the Supreme Court’s lead. See, e.g., Garcia v. State, 829 S.W.2d 796, 800-803 (Tex.Cr.App.1992) (Clinton, J., concurring). It is one thing for our citizens through the legislative process to require us to do a certain thing when we have refused to do so by judicial fiat. It is quite another thing for our citizens through the legislative process to reverse this Court’s judicial fiats which is what they might do to the majority’s opinion in this case.

¶30All the reader really needs to know about Heitman is that it is intended to provide more rights to criminal defendants.

“As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.” Miranda, 384 U.S. at 542-43, 86 S.Ct. at 1663 (White, J., dissenting).

¶31Finally, it should not go unnoticed what appears to be a substantial change in the law the majority opinion has made with respect to how this Court interprets the Texas Constitution. In Heitman, this Court announced what actually has been the rule since Texas became a State: this Court is not bound by United States Supreme Court decisions in interpreting the Texas Constitution. See Heitman, 815 S.W.2d at 691. But, Heitman failed to provide any real guidance or framework on how to analyze “independent state grounds” issues. See id.

¶32However, in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Cr.App.1993), a majority of this Court agreed “that the primary goal in the interpretation of a constitutional provision is to ascertain and give effect to the apparent intent of the voters who adopted it.” This standard is more or less an “original intent” framework that does not embroil this Court into becoming a “super-legislature” and intruding upon the Legislature’s “lawmaking” power. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). And, there is nothing new or radical about this approach. For example, when courts interpret a statute, their duty is to give effect to the intent of those who enacted the statute. See id.When courts interpret a contract or a will, their duty is to give effect to the intent of the parties to those documents. It should be no different when this Court interprets a constitutional provision; we should give effect to the intent of the voters who adopted it. See Lanford, 847 S.W.2d at 585.

¶33More or less consistent with Lanfordand the “original intent” theory of constitutional interpretation, a plurality of this Court in Autran v. State, 887 S.W.2d 31, 37 (Tex.Cr.App.1994), set out various factors for this Court to consider when interpreting the Texas Constitution. These factors include a textual examination, the Framers’ intent, the *709history and application of the constitutional provision at issue, comparable jurisprudence from other states, and practical policy considerations behind the constitutional provision at issue.7 See id.These factors are not even mentioned in the majority opinion in this case.

¶34The standard for constitutional interpretation the majority adopts here has degenerated from the one set out in Lanfordto “we do not think,” “it seems to us,” “in our view,” “we think,” “we do not perceive,” “we do not believe,” and “as we see it.” This is a lawless standard.

“Whether the agenda is ‘liberal’ or ‘conservative’ or something else altogether makes no difference. The vice is that a non-legal influence has been brought to bear on judicial decision making. This is not ‘new federalism’; it is ‘new judicial-ism.’ ” Davenport v. Garcia, supra, at 43 (Hecht, J., dissenting).

¶35I respectfully dissent.

¶46dissenting.

¶47The issue presented in this cause is whether Article I, Section 14 of the Texas Constitution provides greater protection against double jeopardy than the Fifth Amendment to the United States Constitution. In my opinion, it does not.

¶48Appellant was charged with misdemeanor driving while intoxicated. His first trial ended in a mistrial. His second trial also ended in a mistrial, granted at his request, after the State introduced evidence before the jury of a criminal act committed by appellant other than that charged in the information. Before the State could try appellant for the third time, appellant filed an application for writ of habeas corpus, alleging the third trial was jeopardy barred under both the United States and the Texas Constitutions.

¶49The habeas judge found that while the State did adduce testimony of the extraneous criminal act improperly in order to prejudice the jury against appellant, it did not do so with the intent to goad appellant into moving for a mistrial. Furthermore, appellant moved for the mistrial. The habeas judge refused to dismiss the prosecution against appellant. The Fourth Court of Appeals affirmed. Bander v. State, 880 S.W.2d 502 (Tex.App.—San Antonio 1994).

¶50The Fifth Amendment to the United States Constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.” (Emphasis added.)

¶51Texas Constitution Article I, Section 14 provides: “Double Jeopardy. No person for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

¶52In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the United States Supreme Court held the Double Jeopardy Clause of the Fifth Amendment generally does not bar the retrial of the defendant following the granting of a mistrial upon the defendant’s own motion. “Prosecutorial 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 ... Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant *710raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Kennedy, 456 U.S. at 675-76, 102 S.Ct. at 2089. Therefore, appellant, to prevail under the federal constitutional standard established by Kennedy, is required to show that the prosecutorial conduct giving rise to his successful motion for mistrial was intended to provoke or “goad” him into moving for a mistrial. Appellant concedes, on page fifteen of his brief in support of his petition for discretionary review, that he cannot prevail under the federal standard.

¶53Appellant avers nonetheless that Article I, Section 14 of the Texas Constitution provides greater protection than the Double Jeopardy Clause of the Fifth Amendment.

¶54This Court, in Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), held it was not bound to construe state constitutional provisions in the same way that the United States Supreme Court construes comparable provisions in the federal constitution. We held that in interpreting Article I, Section 9 of the Texas Constitution, we will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue. Heitman, at 690. Thus, we are free to find that provisions of the Texas Constitution provide more rights to the citizens of Texas than under comparable provisions of the federal constitution.

¶55An examination of the Fifth Amendment and Article I, Section 14 shows the two are very similar. We have previously stated that “conceptually the State and Federal double jeopardy provisions are identical.” Stephens v. State, 806 S.W.2d 812, 815 (Tex.Crim.App.1990). See also Phillips v. State, 787 S.W.2d 391, 393, n. 2 (Tex.Crim.App.1990). Appellant’s contention that the Texas Constitution provides more double jeopardy protection than its federal counterpart is not supported by its language.

¶56Appellant concedes in his brief that he can find no indication the framers of the Texas Constitution intended to provide greater protection from double jeopardy than that provided by the Fifth Amendment.

¶57Both the State’s and the Appellant’s briefs recognize that the Bill of Rights of the Texas Constitution has its origins in various sources, such as the British common law, Spanish law, the U.S. Constitution and the constitutions of several states.

¶58Several state supreme courts have explicitly adopted the Oregon v. Kennedy standard under their state constitutions, including Virginia (Robinson v. Commonwealth, 18 Va.App. 814, 447 S.E.2d 542 (1994)); Kentucky (Stamps v. Commonwealth, 648 S.W.2d 868 (Ky.1983); North Carolina (State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988)). We have also held that we will use a standard substantially identical to the Oregon v. Kennedy standard in cases where appellant claims jeopardy after having asked for and been granted a mistrial. Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982).

¶59The only two states that have adopted appellant’s position — that mere prosecutorial indifference to appellant’s rights resulting in a mistrial should prevent a retrial on double jeopardy grounds — are Oregon (State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983)); and Arizona (Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984)). In my opinion, appellant has not, based on jurisprudence from other jurisdictions, provided adequate cause for us to reverse our prior decision in Andersonto adopt the Oregon v. Kennedy standard.

¶60The Oregon v. Kennedy standard, which provides that a retrial is not barred by the federal double jeopardy clause of the Fifth Amendment following granting of a mistrial on appellant’s motion absent a showing the State intended to goad him into requesting a mistrial, has worked effectively since it was set forth thirteen years ago. Appellant’s suggested indifference standard — if adopted — may well lead to unfortunate consequences. In my opinion, it is based on a sort of negligence theory and could lead to a bar to retrials following granting of mistrials due to aggressive prosecutorial tactics made in good faith in the heat of trial, but found by trial judges to have prejudiced defendants’ rights. In effect, the majority opinion could very well lead to a bar to a retrial, on double jeopardy grounds, in any case where, due to *711prosecutorial error that the trial court determines cannot be cured by a jury instruction, a mistrial is granted on the defendant’s motion. Requiring, in order to avoid a retrial and thus have the charges against him dismissed, a criminal defendant to show the State intentionally goaded him into moving for a mistrial is not an unreasonable standard and it has worked to protect both the rights of a criminal defendant not to be subjected to unjustified multiple trials as well as the right of the State to a full and fair opportunity to present its case against that defendant.

¶61For the reasons above, it is my opinion that Article I, Section 14 of the Texas Constitution provides the same protection against double jeopardy as the Fifth Amendment to the United States Constitution. Furthermore, this Court should continue to apply the standard established in Oregon v. Kennedy in cases where appellants allege retrials are jeopardy-barred following granting of mistrials on appellants’ own motions.

¶62I respectfully dissent.