¶1dissenting.
¶2In the present case, this Court must address the circumstances under which a mistrial, granted on the defendant’s motion, implicates the protection found in the Texas Constitution’s double jeopardy clause. The Court of Appeals held that the protection found in our state constitution is not implicated unless the trial judge was required to grant the mistrial. Bauder v. State, 936 S.W.2d 19, 21 (Tex.App.—San Antonio 1996). That court opined that a trial judge is “required” to grant a mistrial if the trial judge would have abused his discretion in denying the mistrial motion. Id.And, the court held, a trial judge does not abuse his discretion in denying a mistrial if “any reasonable view of the record supports not granting the mistrial. Id. at 22. In determining whether “any reasonable view of the record supports denying a mistrial,” the Court of Appeals explained that “our system presumes that judicial admonishments to the jury are efficacious.” Id.The court then compared the present case with other cases in which instructions to disregard were held to cure error. Id.The court concluded that the present case was less severe than those cases, and hence, the trial court was not required to grant a mistrial. Id.The majority contends that the Court of Appeals applied the wrong standard in resolving the double jeopardy issue. Because I believe the Court of Appeals did in fact apply the standard announced by the majority today I must dissent.
¶3*734In Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), we held that the prosecutor is accountable only for mistrials that the trial court was required to grant:
We therefore hold that 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 but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request. Under this rule, the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant’s motion. But he is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.
¶4Id. at 699 (emphasis added). The emphasized language appears plain and deliberate: if the trial court need not have granted a mistrial, no jeopardy bar occurs, even though the trial court’s granting of the mistrial may have been within its discretion.
¶5In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Court explained that the “intentional goading” standard was designed to protect a defendant whose motion for mistrial could not fairly be considered a result of his own free will:
[I]t may be wondered as a matter of original inquiry why the defendant’s election to terminate the first trial by his own motion should not be deemed a renunciation of that right for all purposes. We have recognized, however, that there would be great difficulty in applying such a rule where the prosecutor’s actions giving rise to the motion for mistrial were done ‘in order to goad the [defendant] into requesting a mistrial.’” [citation omitted]. In such a case, the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances.
¶6Id. at 673, 102 S.Ct. 2083 (“defendant” in brackets in original; all other bracketed material inserted; emphasis added). Under the United States Constitution, it is not enough that there exist sufficient grounds for a mistrial; the defendant must in essence be forced to move for one:
Where the prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.”
¶7Id. at 676, 102 S.Ct. 2083 (brackets in original; citation omitted). The “intentional goading” situation was seen by the Supreme Court as the only instance in which the defendant loses primary control over the course to be followed. Id.
¶8In finding that the Texas Constitution confers more protection than the federal constitution, this Court argued in Bauder that there were other circumstances in which the defendant was deprived of freedom of choice on the course of action to be followed:
[Although our system does not guarantee the right to a trial free of errors and mistakes, we think it clear that, when a prosecutor’s deliberate or reckless conduct renders the trial before the jury unfair to such a degree that no judicial admonishment can cure it, an ensuing motion for mistrial by the defendant cannot fairly be described as the result of his free election.
¶9921 S.W.2d at 698. Hence Bauder accepted the premise in Kennedythat the mistrial must be an inevitable consequence of the prosecutor’s misconduct.
¶10But a mistrial is not “inevitable” if the trial court had discretion to grant or deny it. Only where the trial court would have been compelled to grant the mistrial, can a defendant reasonably claim that the mistrial was not fairly a product of his own election.
¶11An analogy can be drawn to double jeopardy situations involving the sufficiency of the evidence. As in the case where a mistrial is granted on the defendant’s motion, a finding of insufficient evidence by an appellate court is a resolution of the proceeding ostensibly for the benefit of the defendant. Where the evidence is legally insufficient to support the *735conviction, double jeopardy “bars the prosecutor from making a second attempt at conviction.” Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But, where an appellate court merely reverses a conviction because it is against the weight of the evidence, jeopardy presents no bar to reprosecution. Id. at 42-44, 102 S.Ct. 2211. Where the evidence is legally insufficient, an appellate court has no choice but to overturn the verdict, but where the verdict is against the weight of the evidence, overturning the verdict is an exercise of appellate discretion. Hence, in the sufficiency context, a jeopardy bar occurs only when the appellate court constitutionally lacks discretion to uphold the conviction:
Just as the Double Jeopardy Clause does not require society to pay the high price of immunity for every defendant whose first trial was tainted by prosecutorial error, it should not exact the price of immunity for every defendant who persuades an appellate panel to overturn an error free conviction and give him a second chance at acquittal.
¶12Id. at 44, 102 S.Ct. 2211. By analogy, a discretionary grant of a mistrial cannot produce a jeopardy bar. The defendant in that situation has obtained adequate relief through the mistrial itself.
¶13As I understand the majority opinion, it holds that a mistrial upon the defendant’s request produces a jeopardy bar only upon a showing of three elements: (1) prosecutorial misconduct provokes the mistrial, (2) the mistrial is required because the prejudice produced cannot be cured by an instruction to disregard, and (3) the prosecutor engaged in the conduct with the intent to provoke a mistrial or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial. In determining the second element, at issue in the present case, an appellate court should rely upon the rules commonly employed for determining whether an instruction to disregard would cure misconduct or error. If this summary of the majority holding is correct, then I join that holding. However, I cannot join the majority’s disposition because I believe that the Court of Appeals has evaluated the case in accordance with the above standards. The majority may disapprove of the some of the language in the Court of Appeals opinion, but the analysis supporting that court’s holding is essentially the same analysis required by the majority opinion. I would affirm the judgment of the Court of Appeals.
¶14With these comments, I respectfully dissent to the majority’s disposition.
¶15McCORMICK, P.J., joins.