THE STATE OF TEXAS, Appellant v. JOHN P. SPRAY, Appellee

REVERSE and REMAND and Opinion Filed July 14, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00412-CR
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THE STATE OF TEXAS, Appellant
V.
JOHN P. SPRAY, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F97-76162-PW
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OPINION
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice FitzGerald
        The State of Texas appeals the trial court's March 23, 2007 Order granting Defendant's Special Plea in Bar of Prosecution-Double Jeopardy. In a single issue, the State argues the trial court erred in granting the special plea because double jeopardy does not bar retrial of this case. We agree. Accordingly, we reverse the trial court's order and remand this case for a new trial.
        Appellee John P. Spray was convicted of aggravated sexual assault of a child under fourteen years of age. He was sentenced to seventeen years' confinement and a fine of $800.00. Spray appealed. We reversed the trial court's judgment after concluding the State failed to tender exculpatory evidence to Spray despite the trial court's order to do so.   See Footnote 1  See Spray v. State, No. 05- 00-00245-CR, 2001 WL 522004 (Tex. App.-Dallas, May 17, 2001, pet. ref'd) (not designated for publication).
        On remand, Spray filed his special plea, relying on Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996) and the dissent in Ex parte Davis, 957 S.W.2d 9 (Tex. Crim. App. 1997). Spray contended his retrial was barred by double jeopardy. He argued against what he saw as inconsistent treatment by the courts for (a) the defendant whose trial ends in mistrial because of prosecutorial misconduct, and (b) the defendant whose conviction is overturned on appeal because of prosecutorial misconduct. In the case of mistrial, Spray argued, double jeopardy may bar retrial of the defendant. But in the case of the defendant whose conviction is overtured on appeal, double jeopardy will not bar retrial. See Davis, 957 S.W.2d at 14-15. The State relied on consistent authority from the Court of Criminal Appeals holding that the remedy for a reversal based on prosecutorial misconduct was a new trial. See Ex parte Lewis, 219 S.W.3d 335, 358 (Tex. Crim. App. 2007); Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997); Davis, 957 S.W.2d at 15.
        The trial court made Findings of Fact and Conclusions of Law that addressed the legal question raised by the special plea:
 
The Texas Court of Criminal Appeals has held that the double jeopardy clause of the Texas Constitution does not bar retrial of an accused whose conviction for the same offense has been reversed on appeal due to prosecutorial misconduct. Ex parte Mitchell, 977 S.W.2d 575, 581 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 873 (1998); Ex parte Davis, 957 S.W.2d 9, 14-15 (Tex. Crim. App. 1997), cert. denied, 523 U.S. 1023 (1998), cited with approval, Ex parte Lewis, No. PD-0577-05, 2007 Tex. Crim. App. LEXIS 33, at * 113 (Tex. Crim. App. Jan. 10, 2007) (not yet reported). Despite this careful citation to governing law, the trial court concluded, “Notwithstanding, this Court concludes double jeopardy bars retrial in this cause.” The court granted Spray's special plea.
 
        The State's appeal presents a question of law, which we review de novo. Hampton v. State, 86 S.W.3d 603, 611 (Tex. Crim. App. 2002). We conclude the Court of Criminal Appeals has clearly decided the issue before us: double jeopardy does not bar retrial where a defendant has had his conviction reversed on appeal due to prosecutorial misconduct. Davis, 957 S.W.2d at 15. Spray asks us to re-examine this precedent, but we are not free to disregard the pronouncements of the Court of Criminal Appeals.
        We decide the State's single issue in its favor. We reverse the trial court's Order granting Defendant's Special Plea in Bar of Prosecution-Double Jeopardy, and we remand this case for a new trial.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070412F.U05
 
Footnote 1 The exculpatory evidence was a report by Child Protective Services that included the complaining witness's denial of any sexual abuse. The CPS report was made part of the record after Spray was convicted and sentenced.