Prosecutor's Objection With Intent to Induce a Mistrial
In Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996), the Court of Criminal Appeals held that a successive prosecution is barred if the prosecutor committed an objectionable act with the intent to induce a mistrial or if he did it while being aware of the risk that it would require a mistrial but nonetheless consciously disregarded that risk. Bauder v. State, 921 S.W.2d at 699.
Under either circumstance, the defendant is not seeking a mistrial merely to avoid the exigencies of a trial or the consequences of events outside the prosecutor's control. Id.
Rather, his conduct emanates from conditions produced by his opponent which render the trial incurably unfair. Id.
Consequently, the decision to seek mistrial in those circumstances is not volitional but compelled by the utter and incurably unfair nature of the proceeding. Ex parte Bauder, 974 S.W.2d 729, 732 (Tex. Crim. App. 1998).