Opinion issued June 20, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00656-CR
                          ———————————
                    ARTHUR LEE JACKSON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1331423


                         MEMORANDUM OPINION

      In 2009, a jury convicted Arthur Lee Jackson of murder and assessed

punishment at twenty years’ confinement. After the verdict, Jackson learned that

the State had withheld potentially exculpatory evidence—photographs and video of

a bloodspot at the scene of the murder that the State had linked to Jackson with
DNA evidence. He moved for a new trial based on Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194 (1963). The trial court granted Jackson’s motion for new trial.

Jackson subsequently filed a pretrial writ of habeas corpus, contending that a

second trial for the same offense violates his rights under the United States and

Texas Constitutions. The trial court denied relief. Jackson appeals, contending that

a second trial is barred by double jeopardy and violates his right to effective

assistance of counsel, due process, and due course of law. Finding no error, we

affirm.

                                    Discussion

Standard of Review

      We review the denial of a writ of habeas corpus for an abuse of discretion,

viewing the facts in the light most favorable to the trial court’s ruling. Ex parte

Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).

Double Jeopardy

      The Double Jeopardy Clauses of the United States and Texas Constitutions

prohibit subsequent prosecution for the same offense after acquittal or final

conviction. See State v. Lee, 15 S.W.3d 921, 928 (Tex. Crim. App. 2000); see also

U.S. CONST. amend. V; TEX. CONST. art. I, § 14. Double jeopardy does not bar the

State from seeking a retrial of an accused whose conviction for the same offense

has been set aside, unless the conviction was set aside due to insufficient evidence.


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Ex parte Queen, 877 S.W.2d 752, 755 (Tex. Crim. App. 1994). By granting a

motion for new trial, setting aside the verdict, and vacating its judgment, a trial

court restores the case to its position before the earlier trial, and the initial jeopardy

continues. See Lofton v. State, 777 S.W.2d 96, 97 (Tex. Crim. App. 1989).

      The trial court granted Jackson’s motion for new trial, because the

prosecutor had failed to disclose Brady evidence, and not due to insufficient

evidence. See Queen, 877 S.W.2d at 755. Because the trial court has restored the

case to its position before the former trial, jeopardy continues. See Lofton, 777

S.W.2d at 97.

      Jackson responds that setting aside the verdict due to prosecutorial

misconduct post-trial is comparable to a prosecutor inducing a mistrial before the

verdict to avoid acquittal of the defendant. See Oregon v. Kennedy, 456 U.S. 667,

102 S. Ct. 2083 (1982). Double jeopardy bars a retrial if the prosecutor, through

his intentional or reckless misconduct, induces the defense to move for a mistrial to

avoid an acquittal. Kennedy, 456 U.S. at 676, 102 S. Ct. 2083; Ex parte Mitchell,

977 S.W.2d 575, 580 (Tex. Crim. App. 1997); Bauder v. State, 921 S.W.2d 696

(Tex. Crim. App. 1996).

      We reject Jackson’s comparison to cases in which the prosecution engaged

in conduct intended to draw a mistrial to avoid an acquittal. Double jeopardy does

not bar a retrial if a trial proceeds to conclusion, resulting in a conviction, and the


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conviction is later set aside due to procedural error and not a lack of evidence—

whether on appeal or by the trial court’s granting of a new trial. Ex parte Davis,

957 S.W.2d 9, 15 (Tex. Crim. App. 1997) (holding that jeopardy does not apply to

bar a retrial where defendant’s conviction is reversed on appeal due to

prosecutorial misconduct); Ex parte Legrand, 291 S.W.3d 31, 40–41 (Tex. App.—

Houston [14th Dist.] 2009, pet ref’d) (holding that jeopardy does not apply to bar

retrial where defendant’s motion for new trial is granted due to prosecutorial

misconduct).

      In Legrand, the Fourteenth Court of Appeals held that the concerns

expressed in Kennedy about mistrials induced by the prosecution to avoid

acquittal—deprivation of the option to go to the first jury and potentially end the

dispute with an acquittal—are not present when the case is brought to conclusion

and the jury renders a verdict. Legrand, 291 S.W.3d at 40–41.

      Similarly, in this case, the State’s misconduct in failing to disclose Brady

evidence caused the trial court to set aside the verdict. See Legrand, 291 S.W.3d at

40–41. The State did not induce a mistrial to avoid an acquittal. See Davis, 957

S.W.2d at 14–15. Instead, Jackson’s trial proceeded to a jury verdict, which could

have ended the dispute with an acquittal. See Legrand, 291 S.W.3d at 41.

Following Davis and Legrand, we hold that double jeopardy does not bar a retrial.

See Davis, 957 S.W.2d at 15; Legrand, 291 S.W.3d at 41.


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Due Process, Due Course of Law, and Right to Counsel

      The state’s failure to disclose evidence material to Jackson’s guilt or

punishment is a due process violation under Brady, 373 U.S. at 87, 83 S. Ct. at

1196–97. If the defendant’s due process rights have been violated, we examine the

record to identify any prejudice caused by the violation or adverse effect upon the

effectiveness of counsel’s representation; courts must tailor relief to appropriately

neutralize it. United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667–68

(1981); Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1996). A new trial

generally remedies the State’s withholding of Brady evidence in a prior trial,

because the defendant may investigate and develop other potential defenses based

on the excluded evidence in the second trial. See Mitchell, 977 S.W.2d at 578;

Cook, 940 S.W.2d at 627–28.

      Jackson was unable to examine the Brady evidence that the prosecution

withheld before the first trial, or to consult with an expert about its impact on his

defensive strategy. But Jackson may now hire an expert and examine the

previously excluded evidence, eliminating any prejudice caused by its previous

unavailability. See Cook, 940 S.W.2d at 628. Jackson also notes that he testified

during the trial in reliance on the then-existing state of the evidence. During a

second trial, Jackson may refuse to testify, and the trial court must fashion a

remedy limiting harm relating to the defendant’s decision to waive his Fifth


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Amendment right and testify in the first trial. See Sweeten v. State, 693 S.W.2d

454, 457 (Tex. Crim. App. 1985) (en banc) (quoting Harrison v. United States, 392

U.S. 219, 223, 88 S. Ct. 2008 (1968)) (holding that to admit defendant’s testimony

in previous trial for same offense in which defendant’s rights were violated, State

must show that its illegal action did not impel that testimony).

      Relying on State v. Frye, Jackson further contends that the State’s

knowledge of his defenses, gained through its misconduct, violates his right to due

process and due course of law, and precludes his counsel from providing effective

assistance in a subsequent trial. 897 S.W.2d 324 (Tex. Crim. App. 1995). In Frye,

the prosecution violated the defendant’s right to counsel by contacting the

defendant directly, even though the prosecution knew the defendant was

represented by counsel. See id. at 326. The prosecutor then questioned the

defendant about the case against him. See id. During the defendant’s conversations

with the prosecution, the defendant revealed his defensive evidence and strategies.

Id. at 331. The Court of Criminal Appeals held that the prosecutor had violated the

defendant’s Sixth Amendment right to counsel by contacting him without his

counsel present. Id. The Court further concluded that dismissal of the indictment

was the only remedy that would “insure the reverence of [the defendant’s] Sixth

Amendment right to counsel,” given the nature and extent of the information the

defendant had conveyed to the prosecutor. Id.


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      In contrast, Jackson presented his case in the first trial with the advice of

counsel. His defensive strategy was not revealed through a violation of his Sixth

Amendment right to counsel, as in Frye, but in open court. See Frye, 897 S.W.2d

at 326. In every case for which a new trial is granted, whether after reversal on

appeal or the granting of a motion for new trial, the prosecution is aware of the

defendant’s strategy and evidence in the earlier trial. See, e.g., Mitchell, 977

S.W.2d at 578. Jackson points to no specific harm that will occur in his retrial due

to the disclosure of strategy in the first trial, and the trial court is in the best

position to ameliorate any specific harm that occurs due to that disclosure. We

thus conclude that the State’s knowledge gained in the previous trial, in which

counsel represented Jackson, does not unduly prejudice him so as to prevent a new

trial from going forward.




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                                    Conclusion

      We hold that the trial court properly concluded pre-trial that a second trial is

not barred by double jeopardy, and that the defendant has shown no harm

irreparable by a new trial. Accordingly, we affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).




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