                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00189-CR

                 EX PARTE ANTHONY CHARLES GRAVES,



                           From the 21st District Court
                             Burleson County, Texas
                             Trial Court No. 11136-B


                             DISSENTING OPINION


      Anthony Graves was deprived of a possible acquittal before the first jury when,

during his capital murder trial, the State did not disclose to the defense the exculpatory

statements of its “star witness,” Robert Carter, who had told the district attorney the

night before his inconsistent trial testimony that he alone had committed the murders,

along with his statement implicating his wife Theresa “Cookie” Carter in the murders.

To avoid a possible acquittal if the jury heard the exculpatory statements, the district

attorney also intentionally—“more egregiously,” as the Fifth Circuit put it—elicited

Carter’s false and misleading testimony that, except in his grand jury testimony, he had

always implicated Graves in the murders. The district attorney also elicited the false

and misleading testimony of Ranger Coffman that all of Carter’s statements except his
grand jury testimony had implicated Graves.            Graves was found guilty of capital

murder and sentenced to death. His conviction was affirmed. Graves v. State, No.

72,042 (Tex. Crim. App. April 23, 1997).

        Graves and his postconviction habeas attorneys did not learn of Carter’s

exculpatory statements to the district attorney for almost four years.                After an

evidentiary hearing, the United States Fifth Circuit Court of Appeals found a Brady due-

process violation, holding that the State withheld exculpatory and material evidence.

Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006), cert. denied, 127 S.Ct. 374 (2006).

        Oregon v. Kennedy provides a “narrow exception” to the general rule that there is

no jeopardy bar to a retrial after a defense-requested mistrial: A defense-requested

mistrial bars retrial only when the prosecutorial “conduct giving rise to the successful

motion for a mistrial was intended to provoke [or goad] the defendant into moving for

a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 673, 676, 102 S.Ct. 2083, 2088-90, 72 L.Ed.2d

416 (1982). I believe that a similar narrow exception should apply in those extremely

rare cases where the State intentionally withholds Brady evidence and intentionally

elicits false testimony relevant to that evidence with the intent to avoid the possibility of

an acquittal, and the conviction is later reversed or set aside for that Brady violation.

Because I believe that the Double Jeopardy Clause bars retrial under the established

facts of this case, I respectfully dissent.

                                 Background and Evidence

        The State is retrying Graves for capital murder and is seeking the death penalty,

and Graves’s appeal of the trial court’s denial of his habeas petition presents an


Ex parte Graves                                                                          Page 2
important matter of first impression post-Ex parte Masonheimer, 220 S.W.3d 494 (Tex.

Crim. App. 2007). The majority opinion inexplicably omits a discussion of the evidence

and the factual determinations that the federal court made in the collateral review of

Graves’s conviction, which is res judicata on the Brady issues resolved by the Fifth

Circuit and that form the basis for Graves’s habeas petition.1 I will thus quote at length

from the Fifth Circuit’s opinion:

               Anthony Graves was convicted of capital murder and sentenced to
        death in 1994 for the capital offense of murdering six people in the same
        transaction. The procedural history of Graves’ conviction, post-conviction
        appeals and writ petitions is presented in our previous opinions
        addressing Graves’ application for certificate of appealability. This court
        originally granted COA only on Graves’ Brady claim that the state failed to
        disclose to Graves that key prosecution witness and Graves’ co-defendant
        Robert Earl Carter informed the district attorney that Graves was not
        involved in the charged crime on the day before he testified to the
        contrary at Graves’ trial. Graves v. Cockrell, 351 F.3d 143 (5th Cir. 2003)
        (“Graves I”). On rehearing, this court modified its order and also granted
        COA on Graves’ claim that the state’s failure to disclose Carter’s alleged
        statement implicating his wife in the crimes violated Graves’ rights under
        Brady. Graves v. Cockrell, 351 F.3d 156 (5th Cir. 2003) (“Graves II”). The
        case was remanded to the district court
               for an evidentiary hearing to determine: (1) the substance of
               the alleged statement described above, along with Carter’s
               statement allegedly exonerating Graves; (2) whether Graves


1 The majority opinion’s view that no record evidence supports Graves’s arguments is incorrect. In
addition to our proper reliance on the legal and factual issues decided by the Fifth Circuit because they
are res judicata (and thus cannot be relitigated by the State), the record excerpts from Graves’s first trial
(which we have made a part of the record in this appeal at the request of both Graves and the State) are
properly before us; I believe that our review of the trial court’s ruling on the double jeopardy claim in
Graves’s habeas petition is de novo because that issue is a question of law. The resolution of the ultimate
questions turns on an application of legal standards absent any credibility questions, which is the case
given the federal court’s resolution of the relevant facts underlying Graves’s petition’s double-jeopardy
claim. See State v. Webb, 244 S.W.3d 543, 547 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also State v.
Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) (“The appellate court then reviews the trial court’s legal
ruling de novo unless the supported-by-the-record implied fact findings are also dispositive of the legal
ruling.”) (cited in Masonheimer, 220 S.W.3d at 506 n.14); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App.
1999) (“However, the instant case presents us with a question of law based on undisputed facts, thus we
apply de novo review.”).


Ex parte Graves                                                                                        Page 3
               was aware of these statements or exercised due diligence to
               discover these statements; (3) whether the state’s failure to
               disclose these statements was material to Graves’ defense
               under Brady; and (4) for a determination of whether Graves
               is entitled to relief on these claims.
        Graves II, 351 F.3d at 159. COA was denied on all other claims.

                On remand, an evidentiary hearing was held before Magistrate
        Judge Froeschner who, after reviewing briefly the facts of the crime, made
        the following factual findings in his report and recommendation.

                   Carter’s wife, Cookie, was also indicted for the offense of
           capital murder. Attorneys Calvin Garvie and Lydia Clay-Jackson,
           who defended Graves at trial, believed this indictment to be a sham
           based on false evidence presented to the grand jury and obtained
           only in order to pressure Carter to testify against Graves.
           Evidentiary Hearing Transcript (“EHT”) at 129, 168. Nevertheless,
           Burleson County District Attorney Charles Sebesta, who prosecuted
           Graves, insisted that the State believed from early on that Cookie
           participated in the killings and that all evidence pointed to the
           involvement of three people. Id. at 57, 98. Indeed, the State’s theory
           from the beginning of the trial was that at least three people had
           acted together in the murders. Id. at 174.1 Texas Ranger Coffman
           testified at trial that his investigation showed “at least three and
           possibly four” perpetrators were in the Davis home when the
           murders occurred. Trial Transcript (“TT”), vol. 38 at 3728.

                  1 This theory appears to be based on the number of victims,
                  six, and the number of murder weapons, three (a gun, knife
                  and hammer), not on any specific physical evidence.

                   Prior to the beginning of Graves’ trial, the District Attorney’s
           office had been in negotiations with Carter and his appellate
           attorney for Carter’s testimony against Graves. According to
           Sebesta, no final agreement on the terms had been reached prior to
           Carter’s arrival in Brazoria County for Graves’ trial, although any
           final plan was to involve the use of a polygraph exam before he
           testified. Id. at 51. The early discussions also involved Carter’s
           condition that the State would not ask him questions about his wife’s
           role in the murders. Id. at 54.

                      Sebesta met with Carter in the early evening of October 21,
           1994.2     According to Sebesta, Carter almost immediately claimed, “I


Ex parte Graves                                                                       Page 4
           did it all myself, Mr. Sebesta. I did it all myself.” Id. at 60. When
           Sebesta stated that he knew that was not true because of the number
           of weapons used, Carter quickly changed his story and claimed that
           he committed the murders with Graves and a third man called
           “Red.” Id. at 61, 94, 95. Carter had earlier implicated a person
           named “Red” during the murder investigation, and the State
           believed that Theresa Carter may have been known by that
           nickname. Petitioner’s Ex. 9 at 24. When Sebesta proposed that
           “Red” was actually Cookie, Carter denied it and agreed to take a
           polygraph exam. EHT at 95.

                  2 This was the evening of the second day of the
                  guilt/innocence phase of the trial.

                  Since the polygraph examiner had been out sick that day, he
           was called to come in to administer the exam. Id. at 96. The report
           states that Carter signed a polygraph release statement, had the
           exam explained to him, and then changed his story once more before
           the exam was given by stating that he had killed the Davis family
           with Graves but without “Red.” Petitioner’s Ex. 9 at tab 4. The
           interviewer then posed the following questions to Carter: (1) “[W]as
           your wife, Theresa, with you [at the time of the murders]?” and (2)
           “[W]hen you refer to ‘Red’ in your statement, are you talking about
           your wife, Theresa?” Id. Carter answered “no” to both questions.
           The polygraph examiner concluded that Carter was not being
           truthful in either response. Id. When the polygraph results were
           explained to him, Carter once more changed his story. He now
           admitted that Cookie was involved in the murders with himself and
           Graves. He also stated that he had invented the character “Red” but
           later admitted that Cookie was sometimes called “Red.” Id. When
           Sebesta asked him if Theresa had used the hammer in the murders,
           Carter answered “yes.” EHT at 96.

                  In addition to the tentative deal to forego questions about
           Cookie in exchange for testifying against Graves, the State had also
           been working on a broader agreement that would allow Carter to
           accept a life sentence rather than death if his case were reversed in
           appeal. This required Carter to testify against both Graves and
           Cookie. Id. at 67. By the time the October 21 meeting concluded, he
           had tentatively assented to do so, though no final agreement was
           reached. Id. at 62, 103, 105. The next morning, however, Carter
           refused to testify against Cookie and reverted to the initial terms
           already worked out with the State. Both Carter and Sebesta then


Ex parte Graves                                                                    Page 5
           accepted the tentative agreement as the final deal for his testimony.

                   At the evidentiary hearing, Garvie denied that he knew
           before, or at any time during, trial that Carter had told Sebesta he
           killed the Davis family himself. Sebesta testified that he mentioned
           the statement to Garvie on the morning Carter testified. Id. at 149.
           The Court accepts Garvie’s version of this event based on his
           credibility as a witness and as being consistent with his vigorous
           defense of Graves at trial. Sebesta did reveal part of the polygraph
           results on the morning of October 22 when he told the trial judge:
           “last night at 8:30 Mr. Carter took a polygraph[,] and the basic
           question involved his wife, Theresa. It shows deception on that
           polygraph examination. But, obviously, we can’t go into polygraphs
           here, but I think counsel is certainly entitled to know that.” TT, vol.
           35 at 3360. Garvie asked no questions about what the polygraph
           involved. Garvie’s co-counsel testified that it did not occur to the
           defense to inquire into Sebesta’s statement because they believed the
           indictment against Cookie was unfounded. EHT at 134. Nor did it
           fit the defense’s theory of the case. According to Ms. Clay-Jackson,
           the defense thought that at least two people were involved in the
           killings but that Cookie was not one of them. Id. at 122. The State
           then called Carter to the stand and revealed to the jury that he was
           testifying in exchange for an agreement that questions would not be
           asked about his wife. TT, vol. 35 at 3429.

                  Graves’ habeas attorneys appear to have first learned of
           Carter’s statement, “I did it all myself,” in 1998. On June 19, 1998,
           Graves’ former attorney took a deposition from Carter in which he
           claimed to have acted alone. Ex parte Graves, No. 40,812-01 at 97 ff.
           That statement was excluded from the record by the state court as
           inherently unreliable because Graves’ attorney failed to notify the
           State, as required by law, in order to allow cross-examination.
           Carter again recanted his trial testimony in a May 18, 2000,
           deposition attended by both Sebesta and Graves’ current counsel.
           Sebesta later appeared on the Geraldo Rivera show Deadly Justice on
           September 3, 2000, and repeated Carter’s self-confession. Sebesta
           stated: “yes, and at that point he [Carter] did tell us, ‘Oh, I did it
           myself. I did it.’ He did tell us that.” Petitioner’s Ex. 1.

              The magistrate judge found that Sebesta did not reveal Carter’s
        statement that he committed the murders alone to the defense and that
        because Graves’ attorneys had no way of knowing about the statement,
        they had no reason to exercise due diligence to discover it.


Ex parte Graves                                                                      Page 6
                                            …
               Graves bases his Brady claims on two suppressed statements the
        state admits Carter made on the evening before Carter testified at Graves’
        trial—first, that Carter committed the crimes alone, and second, that
        Carter’s wife Cookie was an active participant in the murders.

                No one disputes that Carter was the state’s star witness. Graves
        made no self-incriminating statements to the police before his trial. He
        testified before the grand jury denying all involvement and explaining his
        whereabouts on the night of the murders.             The only potentially
        incriminating statements allegedly made by Graves were heard over the
        jailhouse intercom system. The persons reporting these statements were
        effectively cross-examined on the reliability of the intercom system, their
        ability to recognize Graves’ voice since his cell could not be seen from
        their listening post, and their failure to make contemporaneous reports of
        the comments.

               The only physical evidence tied to Graves that was marginally
        linked to the crimes was a switchblade knife brought forward by Graves’
        former boss that was identical to one that he had given to Graves as a gift.
        The medical examiner testified that the knife wounds on the victims were
        consistent with that knife or a knife with a similar blade. Graves’ medical
        expert testified that a wide range of knives with similar dimensions to the
        switchblade were also consistent with the victims’ wounds including
        holes in skull caps of some of the victims. None of the murder weapons
        were recovered. Thus, it is obvious from the record that the state relied on
        Carter’s testimony to achieve Graves’ conviction. It is in this context that
        the materiality of the suppressed statements must be examined.

                  a. The suppressed statement by Carter that he committed the crimes alone.

               The district court found that Graves was not aware of Carter’s
        statement that he committed the crime by himself but found that the
        statement was not material.4 Our original assessment of this statement
        was that it “was extremely favorable to Graves and would have provided
        powerful ammunition for counsel to use in cross-examining Carter.”
        Graves I, 351 F.3d at 155. Although we did not have a completely accurate
        version of the events surrounding the statement at the time of our original
        opinion, under the facts as found by the district court on remand we reach
        the same conclusion.

                  4 District Attorney Sebesta contradicted Graves’ counsel and
                  testified at the habeas hearing that he told Graves’ defense


Ex parte Graves                                                                               Page 7
                  counsel Garvie of this statement outside the courtroom the
                  morning after Carter made the statement. The district court
                  did not find Sebesta credible on this point.

               Carter’s statement that he acted alone in committing the murders is
        particularly significant because it was the first statement Carter made that
        implicated himself without also implicating Graves. The only other
        statement Carter made pre-trial exculpating Graves was before the grand
        jury. In that statement Carter claimed that neither he nor Graves was
        involved in the murders. At trial the state recognized that its case
        depended on the credibility of Carter and the prosecutor emphasized
        Carter’s consistency in his various statements in naming Graves as an
        accomplice. In Carter’s grand jury testimony Carter testified that he only
        gave Graves’ name to investigators because he was coerced.5 The
        prosecutor explained Carter’s grand jury testimony by pointing out that
        Carter’s testimony, that neither he nor Graves was involved, followed
        threats by Graves.6 Carter’s suppressed mid-trial statement exculpating
        Graves was not coerced and would have undercut the state’s argument
        that Carter did not implicate Graves before the grand jury because Graves
        threatened him. The state’s case depended on the jury accepting Carter’s
        testimony. Given the number of inconsistent statements Carter had given,
        the state faced a difficult job of persuading the jury that Carter was a
        credible witness, even without the suppressed statement. Had the defense
        been able to cross-examine Carter on the suppressed statement, this may
        well have swayed one or more jurors to reject Carter’s trial version of the
        events.

                  5   Before the grand jury, Carter testified as follows:
                              I couldn’t harm anybody, but during
                        interrogation, between seven and eight hours or so, I
                        was told that they got enough evidence on me to
                        give me the death penalty. I know I haven’t done
                        anything wrong. I know I wasn’t in Somerville like
                        they say I was. They say they know that I didn’t do
                        it, but I know who did it and they wanted me to give
                        a name so I tried to tell them that I don't know
                        anybody.
                              And by being pressured, being hurt, confused
                        and didn’t know what to think, I said Anthony
                        Graves off the top of my head.

                  6 After eliciting testimony from Carter that Graves had
                  threatened him physically and verbally while they were


Ex parte Graves                                                                        Page 8
                  housed in the Burleson County Jail, the following exchange
                  took place between Sebesta and Carter as Carter testified at
                  Graves’ trial:
                      Sebesta: What did you do when you went to the
                      Burleson County grand jury?
                      Carter: Lied.
                      Sebesta: Why did you lie?
                      Carter: Because I was afraid.
                      Sebesta: How did you go about lying to them?
                      Carter: Saying that I made up the whole story, that
                      it didn’t take place.

                Perhaps even more egregious than District Attorney Sebesta’s
        failure to disclose Carter’s most recent statement is his deliberate trial
        tactic of eliciting testimony from Carter and the chief investigating officer,
        Ranger Coffman, that the D.A. knew was false and designed affirmatively
        to lead the jury to believe that Carter made no additional statement
        tending to exculpate Graves. District Attorney Sebesta asked Carter to
        confirm that, with the exception of his grand jury testimony where he
        denied everything, he had always implicated Graves as being with him in
        committing the murders. Carter answered in the affirmative. Sebesta also
        asked Ranger Coffman, after Carter testified, to confirm that all of Carter’s
        statements except the grand jury testimony implicated Graves. Sebesta
        also confirmed through Ranger Coffman that he understood his obligation
        to bring to the prosecutor's attention any evidence favorable to the
        defense. Although there is no factual finding regarding whether Ranger
        Coffman knew of Carter's statement that he committed the crimes alone,
        Sebesta clearly knew of the statement and used Ranger Coffman as well as
        Carter to present a picture of Carter's consistency in naming Graves that
        Sebesta clearly knew was false.

                  b. The suppressed statement by Carter that Cookie was an active
                  participant in the murders.

               The state stipulated that Carter told Sebesta, “Yes, Cookie was
        there; yes Cookie had the hammer.” This statement was also made the
        night before Carter testified in Graves’ trial. Sebesta did not inform
        Graves’ counsel of this statement. He did disclose to the court and
        counsel that Carter had failed a polygraph regarding Cookie’s
        involvement.7 The district court found that after hearing about the
        polygraph, Graves did not exercise due diligence to discover the
        substance of the statement. The district court also found that the
        statement was not exculpatory because it did not exculpate Graves.


Ex parte Graves                                                                          Page 9
        Rather it was consistent with the state’s three person theory, that the crime
        was committed by Carter, Cookie and Graves. We disagree on all points.

                  7 Sebesta made the following statement: “There is something
                  I need to put on the record from a[sic] exculpatory
                  standpoint. It cannot be used, but last night at 8:30 Mr.
                  Carter took a polygraph and the basic question involved his
                  wife, Theresa. It shows deception on that polygraph
                  examination. But, obviously, we can’t go into polygraphs
                  here, but I think Counsel is certainly entitled to know that.”

                  Due Diligence?

               The district court found that Sebesta’s in-court statement “was not
        so vague in light of the surrounding circumstances that they should not
        have inquired about it further.” However, Sebesta’s statement did not
        reveal or even imply that Carter gave a statement affirmatively naming
        Cookie as an active participant in the murders. The defense had
        specifically requested any information related to any party, other than
        Graves and Carter, who the state alleged was involved in the crime. They
        had no evidence that Cookie was involved in the crime and viewed her
        indictment as a tool to get Carter to testify. This assumption was
        confirmed by Sebesta’s discovery response. Sebesta’s response to the
        defense’s discovery request was that “there were some names that were
        given” to the State, but that “[t]hey’re not necessarily parties to the crime
        but they are people who may have—may possibly have some information
        on those.” Sebesta’s questioning of Carter at Graves’ trial about Cookie’s
        involvement also reinforced defense counsel’s belief that she was
        involved, if at all, after the crimes were committed. In Sebesta’s
        questioning of Carter, Sebesta asked Carter to confirm their agreement
        that he would not ask any questions about his wife and to confirm that he
        had “not asked [him] any question about what she may or may not know
        about it.” When the defense cross-examined Carter, they asked about
        Cookie’s whereabouts and who possessed the hammer.                    Carter’s
        testimony was obviously different than the statement he gave Sebesta the
        previous night that Cookie was there and Cookie had the hammer.

               We disagree with the district court’s conclusion that the defense
        did not exercise due diligence to discover the statement regarding
        Cookie’s involvement in the crimes. Graves’ counsel had specifically
        requested the information disclosed in the statement. We view Sebesta’s
        statement regarding the polygraph, his discovery responses and
        questioning of Carter as misleading and a deliberate attempt to avoid


Ex parte Graves                                                                          Page 10
        disclosure of evidence of Cookie’s direct involvement. At a minimum,
        Sebesta’s minimal disclosure was insufficient to put the defense on notice
        to inquire further, particularly in light of the state’s discovery disclosure.

                  Exculpatory?

              Graves next challenges the district court’s conclusion that the
        statement regarding Cookie’s involvement is not exculpatory because the
        statement implicated Graves as well.[ ] The district court found that the
        statement is not exculpatory because it implicated Graves based on the
        government’s three person theory. It also found that the statement would
        have contradicted the testimony of one of Graves’ witnesses, Tametra Ray,
        who testified that Cookie was home at the time of the murders. Again, we
        disagree.

                The statement regarding Cookie’s direct involvement in the crime
        is exculpatory for several reasons. First, each party’s theory about how
        many people were actively involved in the crime is just a theory based on
        the number of people killed and the number of weapons used. The
        defense had submitted that two people were probably involved and had
        specifically requested any information related to any party, other than
        Graves and Carter, who the state alleged was involved in the crime.
        Although Cookie had been indicted, the defense viewed the indictment as
        a tool to pressure Carter into testifying. As we noted in our prior opinion,
        “if Graves had been furnished with Carter’s statement, it could have
        provided him with an argument that those two persons were Carter and
        his wife rather than Carter and Graves.” Graves II, 351 F.3d at 159. Also,
        Carter’s statement, placing Cookie directly at the scene and actively
        involved in the murders, puts his deal with the state to testify only on the
        condition that he not be questioned about Cookie’s involvement in a
        different light. It provides a stronger argument to Graves that Carter was
        lying about Graves’ involvement to save Cookie.

               The district court did not reach the issue of materiality of the
        statement. That issue will be discussed in the following section regarding
        the effect of the two statements considered together.

                  c. The statements considered together?

              The sole remaining issue under Graves’ Brady claim is whether,
        considered together, the two statements—Carter’s claim that he did it
        himself and Carter’s statement directly implicating his wife Cookie in the
        murders—are material. We conclude that they are. If both statements had


Ex parte Graves                                                                          Page 11
        been timely furnished to Graves, he could have persuasively argued that
        (1) the murders were committed by Carter alone or by Carter and Cookie;
        and (2) Carter’s plan from the beginning was to exonerate Cookie, but a
        story that he acted alone was not believable, so he implicated Graves so
        the prosecution would accept his story and decline to prosecute Cookie.

                The state argues that the combined statements are not material
        because they are inconsistent and could have been damaging to Graves if
        the jury believed that the most credible account of the murders involved
        three killers, Carter, Cookie and Graves. The problem with the state’s
        argument is that it analyzes the significance of the suppressed evidence
        against a backdrop of how the defense presented its case at trial without
        the suppressed statements. If the two statements had been revealed, the
        defense’s approach could have been much different (as set forth above)
        and probably highly effective.
                                             ...
                Because the state suppressed two statements of Carter, its most
        important witness that were inconsistent with Carter’s trial testimony, and
        then presented false, misleading testimony at trial that was inconsistent
        with the suppressed facts, we have no trouble concluding that the
        suppressed statements are material. Carter made several inconsistent
        statements throughout the investigation and pre-trial period. In some he
        denied all involvement, in some he implicated himself and Graves, and
        then, just before he testified against Graves, he gave the statements at
        issue in this appeal accepting full responsibility as the sole murderer and
        another statement placing his wife Cookie as an active participant in the
        murders. If the defense had known about the statement placing Cookie at
        the scene and given Carter’s continuing condition that he would only
        testify if he were not asked about Cookie's involvement, the defense could
        have explained every statement implicating Graves as a means of
        protecting Cookie. As indicated above, these statements are particularly
        important in this case because Graves’ conviction rests almost entirely on
        Carter’s testimony and there is no direct evidence linking him with Carter
        or with the murder scene other than Carter’s testimony. In addition,
        Carter’s statement that he committed the crimes alone is important as the
        only statement he made exculpating Graves while implicating himself.
        The combination of these facts leads us to conclude “that the favorable
        evidence could reasonably be taken to put the whole case in such a
        different light as to undermine confidence in the verdict.” Kyles, 514 U.S.
        at 435, 115 S.Ct. 1555. Stated differently, disclosure of the statements
        “would have resulted in a markedly weaker case for the prosecution and a
        markedly stronger one for the defense.” Id. at 441, 115 S.Ct. 1555.



Ex parte Graves                                                                       Page 12
               For the foregoing reasons, the judgment of the District Court is
        reversed and the case is remanded with instructions to grant the writ of
        habeas corpus unless the state proceeds to retry petitioner within a
        reasonable time.

Graves, 442 F.3d at 336-45 (footnote 8 omitted).

                       Extension of Kennedy an Open Question

        Masonheimer held that the Oregon v. Kennedy standard barred retrial “under the

unique circumstances of that case” because the State had intentionally failed to disclose

exculpatory evidence with the specific intent to avoid the possibility of an acquittal.

Masonheimer, 220 S.W.3d at 507. The Masonheimer court reasoned that “in a case like

this, a defendant suffers the same harm as when the State intentionally ‘goads’ or

provokes the defendant into moving for a mistrial.” Id. Masonheimer did not involve a

reversal on appeal, and its ruling was limited “to retrial after a defense-requested

mistrial.” Masonheimer, 220 S.W.3d at 508 n.19. “This rule arguably would not apply to a

retrial after a reversal of a defendant’s conviction on appeal because, in such a situation,

the defendant’s valued right to have guilt-innocence determined by the first trier of fact

has not been compromised.” Id. (emphasis added).

        In Bauder, the Court of Criminal Appeals interpreted the Double Jeopardy

provision of the Texas Constitution more expansively to cover “reckless” conduct,

holding that retrial would also be barred “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.” Bauder v. State, 921




Ex parte Graves                                                                      Page 13
S.W.2d 696, 699 (Tex. Crim. App. 1996).2 In Ex parte Peterson, the Court of Criminal

Appeals reaffirmed and clarified the standard enunciated in Bauder. Ex parte Peterson,

117 S.W.3d 804 (Tex. Crim. App. 2003).

        However, the Court of Criminal Appeals recently overruled Bauder and Peterson

in Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). The court held that ‘the proper

rule under the Texas Constitution is the rule articulated by the United States Supreme

Court in Oregon v. Kennedy,” i.e., whether the prosecutor intended to provoke the

defendant into moving for a mistrial. Id. at 337; see id. at 371. Lewis also reaffirmed the

holdings in Ex parte Davis and Ex parte Mitchell. Id. at 371. In Davis the court held that

retrial was not jeopardy-barred under the U.S. Constitution when the conviction had

been vacated because of, in part, prosecutorial misconduct. Ex parte Davis, 957 S.W.2d

9, 11-12 (Tex. Crim. App. 1997). In Mitchell the court held that retrial was not jeopardy-

barred under the U.S. Constitution when the conviction was reversed because of a Brady

violation.3 Ex parte Mitchell, 977 S.W.2d 575, 578-80 (Tex. Crim. App. 1998).

        I believe that Masonheimer and other authorities strongly suggest that the Double

Jeopardy Clause bars retrial when the State commits a Brady violation with the intent to

avoid the possibility of an acquittal and the conviction has been reversed on appeal or

collateral habeas corpus relief has been granted. See Masonheimer, 220 S.W.3d at 506-08.

Also, the federal double jeopardy analyses in Davis and Mitchell have been criticized:

2The majority opinion acknowledges, (ante at 7, n.4), that approximately ten states, interpreting their own
state constitutions, bar retrials after a conviction has been reversed because of intentional prosecutorial
misconduct.

3 Davis and Mitchell also both held that, under the now-overruled Bauder standard, retrial was not
jeopardy-barred under the Texas Constitution. Davis, 957 S.W.2d at 12-15; Mitchell, 977 S.W.2d at 580-81.


Ex parte Graves                                                                                    Page 14
        The analytical double jeopardy standard adopted by the Supreme Court in
        Oregon v. Kennedy does not appear to include any consideration of
        whether the criminal defendant’s ultimately successful motion for mistrial
        was granted during trial or on appeal. Therefore, this Court respectfully
        rejects that portion of the Texas Court of Criminal Appeals’ analysis
        suggesting a constitutional distinction between cases in which a mistrial
        has been granted during trial and those in which a new trial is granted on
        appeal based on the same allegations of prosecutorial misconduct. See Ex
        parte Jack Warren Davis, 957 S.W.2d at 13 (“Applicant has not directed us to
        any cases, however, where the Supreme Court has explicitly extended
        Oregon v. Kennedy to apply to instances where verdicts of guilty have been
        reversed on appeal due to prosecutorial misconduct, and therefore
        holding retrials as jeopardy barred.”). Given the plain language of the
        Supreme Court’s opinion in Oregon v. Kennedy, this Court concludes the
        distinction offered by the Texas Court of Criminal Appeals is inconsistent
        with clearly established federal law.

Davis v. Quarterman, 2007 U.S. Dist. LEXIS 64793, at 53 n.31 (W.D. Tex. Jan. 22, 2007); see

Lewis, 219 S.W.3d at 382-83 & nn.37-38 (Price, J., dissenting) (“Thus, to the extent these

cases [Davis and Mitchell] are logically unfaithful to Bauder, they are equally unfaithful

to the Oregon v. Kennedy standard. It seems to me that if any of our precedent deserves

closer scrutiny, it would be Davis and Mitchell, not Bauder.”); see also Albernaz v. United

States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981) (“the decisional law

in the area [of Double Jeopardy] is a veritable Sargasso Sea which could not fail to

challenge the most intrepid judicial navigator”).

        Near the same vein, Judge Meyers noted in Davis that Kennedy did not decide

that double jeopardy would not bar retrial if an appellate court determined that the trial

court erroneously denied a defense motion for mistrial based on prosecutorial

misconduct because the Kennedy court’s assumption that the appellate determination

would present no bar is dicta. Davis, 957 S.W.2d at 17 (Meyers, J., concurring) (citing



Ex parte Graves                                                                        Page 15
Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089-90). And the Supreme Court’s statement in

Lockhart v. Nelson, 488 U.S. 33, 34 n.2, 109 S.Ct. 285, 288 n.2, 102 L.Ed.2d 265 (1988), and

its curious citation to Kennedy—“There is no indication that the prosecutor knew of the

pardon and was attempting to deceive the court. We therefore have no occasion to

consider what the result would be if the case were otherwise. Cf. Oregon v. Kennedy, 456

U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).”—has led at least one court to note that

the Supreme Court has left open the question whether appellate reversal for

prosecutorial misconduct involving intentional deception may be sufficiently similar to

Kennedy for retrial to be jeopardy-barred. Jacob v. Clarke, 52 F.3d 178, 181 (8th Cir. 1995)

(“But the Court's latest signal is decidedly more ambiguous. In Lockhart, an appellate

reversal case decided in the prosecution’s favor, the Court introduced its double

jeopardy analysis by stating that the record revealed no prosecutorial misconduct. Such

a pointed caveat suggests that this remains an open issue.”).

        In conclusion, Kennedy neither decided the issue before us nor foreclosed it.

                               Double Jeopardy Revisited

        A defendant has a “valued right to have his trial completed by a particular

tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). “[H]is

valued right to have the trial concluded by a particular tribunal is sometimes

subordinate to the public interest in affording the prosecutor one full and fair

opportunity to present his evidence to an impartial jury.” Arizona v. Washington, 434

U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978).

         Masonheimer recognizes that under the circumstance of the State’s belief that


Ex parte Graves                                                                         Page 16
undisclosed evidence may make “the difference between a conviction and an acquittal[,

the defendant’s] valued right to have his guilt-innocence determined by the jury in the

first trial and, ‘perhaps, end the dispute then and there with an acquittal’ was

something of a ‘hollow shell’ even though this may not have become apparent until the

middle of the second trial.” Masonheimer, 220 S.W.3d at 508 n.18 (citing Oregon v.

Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088).       The State had its “one full and fair

opportunity,” but Graves’s “valued right” to have his guilt-innocence determined by

the first jury likewise was a “hollow shell” because, as the Fifth Circuit repeatedly

emphasized (see n.4, infra), his trial was so tainted by the Brady violation and

prosecutorial misconduct. Cf. Robinson v. Wade, 686 F.2d 298, 308 n.20 (5th Cir. 1982)

(“Moreover, the defendant’s valued right to go to a particular tribunal, involved in

cases where the proceedings are not completed, is equally implicated where a motion

for mistrial is denied, but the subsequent jury verdict is set aside for prosecutorial

overreaching.”) (citation omitted).

        In such “a trial tainted by prejudicial . . . prosecutorial error,” “[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.” United States

v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976); see Lewis, 219

S.W.3d at 379 (Price, J., dissenting) (“And, at some point, prosecutorial misconduct may

become so egregious that it cannot fairly be said that the defendant has retained

primary control over the decision whether to proceed to verdict or abort the

proceedings.”).    Unlike a defendant who becomes aware of a Brady violation or


Ex parte Graves                                                                      Page 17
prosecutorial misconduct during trial and can therefore either move for a mistrial or

proceed to verdict, Graves did not learn of the exculpatory statements and prosecutorial

misconduct for several years. Graves, therefore, not only had his valued right turned

into a hollow shell, but the concealment of the Brady evidence and the corresponding

prosecutorial misconduct deprived him of “primary control over the course to be

followed in the event of such” misconduct.4 Had Graves learned of the Brady evidence

during trial and chosen to move for and received a mistrial, under Masonheimer, plainly

retrial would be jeopardy-barred. And the notion that Graves can be retried because

the prosecutor succeeded in hiding his actions during trial precariously jumbles double

jeopardy principles. Cf. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57

L.Ed.2d 1 (1978) (“it should make no difference that the reviewing court, rather than the

trial court, determined the evidence to be insufficient. . . . To hold otherwise would

create a purely arbitrary distinction between those in petitioner’s position and others

who would enjoy the benefit of a correct decision by the District Court.”).

4This was recognized by the Fifth Circuit:
         At trial the state recognized that its case depended on the credibility of Carter and the
         prosecutor emphasized Carter’s consistency in his various statements in naming Graves
         as an accomplice. . . . Had the defense been able to cross-examine Carter on the
         suppressed statement, this may well have swayed one or more jurors to reject Carter’s
         trial version of the events.
Graves, 442 F.3d at 341.
         If both statements had been timely furnished to Graves, he could have persuasively
         argued that (1) the murders were committed by Carter alone or by Carter and Cookie;
         and (2) Carter’s plan from the beginning was to exonerate Cookie, but a story that he
         acted alone was not believable, so he implicated Graves so the prosecution would accept
         his story and decline to prosecute Cookie. . . . If the two statements had been revealed,
         the defense’s approach could have been much different (as set forth above) and probably
         highly effective. . . . If the defense had known about the statement placing Cookie at the
         scene and given Carter’s continuing condition that he would only testify if he were not
         asked about Cookie's involvement, the defense could have explained every statement
         implicating Graves as a means of protecting Cookie.
Id. at 343-44.


Ex parte Graves                                                                                       Page 18
        I believe, therefore, that an extension of Kennedy to the circumstances of this case

is consistent with and reinforces the Supreme Court’s double jeopardy jurisprudence.

The Fifth Circuit has voiced this view:

               Nor is the rationale of Burks inconsistent with application of the
        “prosecutorial overreaching” exception to bar retrial where the
        overreaching caused a tainted verdict to be set aside, rather than a tainted
        proceeding to be aborted. Burks’ holding, resting on a perceived
        dichotomy between reversals for trial error and reversals for evidentiary
        insufficiency, indicated that, as the former hold no implication for the
        guilt or innocence of the defendant, they would raise no bar to further
        prosecution. That distinction does not necessarily hold true where trial
        error is attributable to intentional prosecutorial overreaching. The
        extreme tactics which constitute prosecutorial overreaching offend the
        double jeopardy clause at least in part because they unfairly deprive the
        defendant of possible acquittal, by heightening, in a manner condemned
        by law, the jury’s perception of the defendant’s guilt. Whether the tactic
        condemned is successful in its objective of securing a mistrial, or
        unsuccessful, but causes the return of a verdict of conviction, would seem
        to be of little significance in development of a law of preclusion designed
        to protect this interest.

Robinson, 686 F.2d at 307-08 (citations and footnote omitted). And Judge Price, joined by

Judges Meyers and Holcomb, noted in Lewis:

        The State is entitled to one full and fair opportunity to present its evidence
        to an impartial jury. . . . When the prosecutor intentionally commits
        misconduct he knows will seriously compromise the fairness of the trial,
        he has arguably squandered his one full and fair opportunity to present
        his case, so that the State’s interest can no longer be said to outweigh the
        defendant’s—even if he did not harbor a specific intent to provoke a
        mistrial. If his intention was to inject manifest unfairness into the
        proceeding, and he was consciously indifferent with respect to whether
        this intentional misconduct illegitimately increased his chances of gaining
        a conviction or provoked the defendant into asking for a mistrial, the
        argument is practically as compelling that he has forfeited his one full and
        fair opportunity to present his case as when it was his specific intent to
        provoke a mistrial. Either way, a reasonable argument can be made that



Ex parte Graves                                                                          Page 19
        the prosecutor has manipulated the defendant’s choice to such an extent
        that it is no longer primarily the defendant’s, and the State can no longer
        show that its interest outweighs the defendant’s in the constitutional
        balance.
                                             ...
        Ordinarily, double jeopardy entitles the defendant to proceed to verdict
        with the first tribunal selected. Manifest necessity or the defendant’s own
        consent may suffice to defeat his constitutional interest, but not otherwise.
        This means that sometimes the defendant must experience the anxiety,
        expense, and delay of a second trial even when his first trial was rendered
        unfair for reasons unattributable to him. But he should not necessarily
        have to suffer that consequence when the retrial was attributable to
        deliberate misconduct on the part of the prosecutor. When that
        misconduct so compromised the fairness of trial as to render mistrial
        inevitable, and the prosecutor was at least consciously indifferent to that
        result, the State may reasonably be said to have abused its one full and fair
        opportunity to present its evidence to an impartial tribunal, and it can no
        longer carry its burden to demonstrate that its interest in the jeopardy
        balance outweighs the defendant’s, even when it was the defendant who
        requested a mistrial. Thus, jeopardy principles are vindicated. It is true
        that the fairness that due process and due course of law guarantee may
        also be vindicated and that the prosecutor may feel he is being made to
        pay a heavy price for his misconduct. But these consequences are
        incidental to, and do not by any means displace, the jeopardy analysis.

Lewis, 219 S.W.3d at 380-82 (Price, J., dissenting).

        Dicta from the Second Circuit’s decision in United States v. Wallach, 979 F.2d 912

(2d Cir. 1992), suggests that the Double Jeopardy Clause might protect a defendant

against retrial if the prosecutorial misconduct was undertaken with the intent of

preventing an acquittal the prosecutor reasonably believed, at that time, was likely

absent such misconduct. Id. at 916. Wallach’s proposed extension of Kennedy should be

applied to this case because the Brady violation and prosecutorial misconduct were of

such a nature that they could not have been discovered by the defense until after trial,

and the actions were undertaken to avoid a likely acquittal.



Ex parte Graves                                                                         Page 20
        In Wallach, the Second Circuit analyzed possible extensions of Kennedy’s holding.

The government argued that Kennedy should be limited to the context of a criminal trial

that ends with a defendant’s successful motion for a mistrial. Like Wallach, Graves did

not move for a mistrial, much less obtain one, because he did not know about the

alleged misconduct until after trial. Wallach argued for an extension of Kennedy that

would eliminate the requirement of a mistrial because he believed that the Supreme

Court also intended Kennedy to bar a second prosecution when the prosecutor engages

in serious misconduct with the intention of preventing an acquittal. Id. at 915. The

Second Circuit suggested that some extension of Kennedy might be warranted,

explaining:

        Since Kennedy bars a retrial on jeopardy grounds where the prosecutor
        engages in misconduct for the purpose of goading the defendant into
        making a successful mistrial motion that denies the defendant the
        opportunity to win an acquittal, the Supreme Court might think that the
        Double Jeopardy Clause protects a defendant from retrial in some other
        circumstances where prosecutorial misconduct is undertaken with the
        intention of denying the defendant an opportunity to win an acquittal.

Id. at 916.

        The Wallach court went on to suggest that a narrower extension than the one

sought by Wallach might be appropriate. The Wallach court believed that in Kennedy,

the Supreme Court was attempting to delineate the distinction between prosecutorial

misconduct that merely results in a mistrial (which does not bar retrial), and

misconduct that is undertaken for the specific purpose of provoking a mistrial.

According to the Wallach court, Kennedy bars retrial only in the latter case. Id. But, the

Wallach court stated:


Ex parte Graves                                                                    Page 21
                If any extension of Kennedy beyond the mistrial context is
        warranted, it would be a bar to retrial only where the misconduct of the
        prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an
        acquittal that the prosecutor believed at the time was likely to occur in the absence
        of his misconduct.[5] If jeopardy bars a retrial where a prosecutor commits
        an act of misconduct with the intention of provoking a mistrial motion by
        the defendant, there is a plausible argument that the same result should
        obtain where he does so with the intent to avoid an acquittal he then
        believes is likely. The prosecutor who acts with the intention of goading
        the defendant into making a mistrial motion presumably does so because
        he believes that completion of the trial will likely result in an acquittal.
        That aspect of the Kennedy rationale suggests precluding retrial where a
        prosecutor apprehends an acquittal and, instead of provoking a mistrial,
        avoids the acquittal by an act of deliberate misconduct. Indeed, if Kennedy
        is not extended to this limited degree, a prosecutor apprehending an
        acquittal encounters the jeopardy bar to retrial when he engages in
        misconduct of sufficient visibility to precipitate a mistrial motion, but not
        when he fends off the anticipated acquittal by misconduct of which the
        defendant is unaware until after the verdict. There is no justification for that
        distinction.

Id. (emphases added).

        Wallach’s dicta has received support from Judge Posner:

        There is an argument for a further extension of Kennedy that would bring
        [defendant’s] case within the range of the double jeopardy clause.
        Confined to cases in which the defendant is goaded into moving for a
        mistrial, whether the motion is granted or denied, Kennedy would leave a
        prosecutor with an unimpaired incentive to commit an error that would


5 Based on the Fifth Circuit’s opinion, there can be no question that the only reasonable inference on the
prosecutor’s intent in concealing Carter’s exculpatory statements and then in also knowingly eliciting
testimony that he knew was false and misleading because of the concealed exculpatory statements made
to him the night before is that the prosecutor was acting with the intent to avoid the possibility of a likely
acquittal. See Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089 (“Inferring the existence or nonexistence of intent
from objective facts and circumstances is a familiar process in our criminal justice system.”); Masonheimer,
220 S.W.3d at 507 & n.18 (“we are constrained to decide that the extensive portions of the record set out
in this opinion support a finding that appellee’s mistrial motions were necessitated primarily by the
State’s ‘intentional’ failure to disclose exculpatory evidence that was available prior to appellee’s first trial
with the specific intent to avoid the possibility of an acquittal. . . . The trial court could have also
reasonably found that the State believed that the undisclosed evidence may have made the difference
between a conviction and an acquittal.”); id. at 510 (Meyers, J., concurring) (“Rather than trying to
determine the subjective intent of the prosecutor, we can objectively look at the actions of the State to
determine if the actions were intentional.”).


Ex parte Graves                                                                                          Page 22
        not be discovered until after the trial and hence could not provide the
        basis for a motion for a mistrial, yet would as effectively stave off an
        acquittal and thus preserve the possibility of a retrial. Suborning perjury
        would be a good example.[6] It can be argued that if the prosecutor
        commits a covert error for the same purpose that he might have
        committed an open error calculated to evoke a motion for a mistrial
        (before Kennedy made this tactic unprofitable)—namely, to prevent an
        acquittal and so preserve the possibility of retrying the defendant even if
        the error is sure to be discovered and result in a reversal of the conviction
        either on direct appeal or on collateral attack—the double jeopardy clause
        should protect the defendant against being retried.

United States v. Catton, 130 F.3d 805, 807 (7th Cir. 1997).

        I would hold that the Fifth Amendment’s Double Jeopardy Clause bars the State

from retrying Graves. Because the majority does not, I respectfully dissent.



                                                       BILL VANCE
                                                       Justice

Dissenting Opinion delivered and filed November 5, 2008
Publish




6In Carter’s testimony during Graves’s trial, Sebesta questioned Carter as follows:
         Q. With the exception of where you have totally denied everything, have you always
         implicated Graves as being with you?
         A. Yes.
         ...
         Q. With the exception of the time you went to the grand jury and denied any
         involvement, all the different stories that you told have all involved Anthony Graves,
         have they not?
         A. They have.
Vol. 35, p. 3443.


Ex parte Graves                                                                                   Page 23
