Whether Texas courts have replaced the manageable and effective 'objective facts and circumstances' test recognized in Oregon v. Kennedy with the so-called Wheeler factors, which prevent the accurate determination of the prosecutor's intent to goad the defense into moving for a mistrial

QUESTION PRESENTED This Court held in Oregon v. Kennedy that the only time a defendant who successfully moves for a mistrial may later bar retrial is when he can prove that the prosecution intended to goad him into moving for the mistrial. Kennedy’s test for determining prosecutorial intent is manageable. “It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.” 456 U.S. 667, 674-75 (1982). Subsequently, the Texas Court of Criminal Appeals created its own test to “assist” the determination of prosecutorial intent. This test, which relies upon what have come to be known as the “Wheeler factors,” is now regularly used in Texas whenever the courts are called upon to decide if the prosecution intended to provoke a mistrial in violation of the Double Jeopardy Clause and the principles set out in Kennedy. In this case, the prosecution waited until after the jury was selected to disclose to the defense information about its star witness. When the defense complained to the trial court about this untimely disclosure, the prosecutor was the first to suggest a mistrial, told the court he would pick a better jury and be more prepared for trial, and then agreed with the defense when it moved for the mistrial. Using the Wheeler factors, the Texas Court of Appeals i held that the Double Jeopardy Clause did not prevent the retrial of Miguel Martinez. The question presented is: Whether, contrary to Oregon v. Kennedy, Texas courts have replaced the manageable and effective “objective facts and circumstances” test recognized in that case, with the so-called Wheeler factors, which prevent the accurate determination of the prosecutor’s intent to goad the defense into moving for a mistrial. ii