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 
2

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. 
3

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 
4

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.
5

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 
6

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.
7

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.
8

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).