Ex parte Preston

• Decision Date: 01 April 1992
• Docket Number: No. 300-91,300-91
• Citation: 833 S.W.2d 515
• Parties: Ex parte Carl Thomas PRESTON.
• Court: Texas Court of Criminal Appeals

Page 515

833 S.W.2d 515

Ex parte Carl Thomas PRESTON.

No. 300-91.

Court of Criminal Appeals of Texas En Banc.

April 1, 1992.

On Denial of Rehearing June 24, 1992.

Ken J. McLean, Roy G. Romo, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Timothy G. Taft, Dave Pendleton, Kelley Siegler, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was originally charged in a single indictment with three counts of aggravated robbery. After the jury was impaneled and sworn, the State proceeded to trial on the second count only and appellant was convicted of that alleged offense. A grand jury re-indicted appellant for the offenses alleged in the first and third counts of the original indictment. Appellant filed a pretrial application for writ of habeas corpus contending the subsequent prosecution violated his constitutional guarantee against double jeopardy. The trial court denied relief and the Court of Appeals affirmed. Ex Parte Preston, 801 S.W.2d 604 (Tex.App.--Houston [1st Dist.] 1990). We will reverse the judgment of the Court of Appeals.

I.

The facts are not in dispute. As previously noted, the State proceeded to trial solely on the second count of the original indictment. However, there is no evidence in the record that the State took any affirmative action to dismiss, waive or abandon or that the State obtained permission from the trial judge to dismiss, waive or abandon the first and third counts in that indictment. ¹ Therefore, the issue is whether jeopardy attached to the offenses alleged in the first and third counts in the original indictment barring the instant prosecution.

II.

The doctrine of double jeopardy is derived from the Fifth Amendment to the Constitution of the United States and is applied to the states through the Fourteenth Amendment. ² Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); and Downum v. U.S., 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). In a jury trial, jeopardy attaches when the jury is impaneled and sworn. Crist, 437 U.S. at 38, 98 S.Ct. at 2162. After jeopardy attaches, any charge which is dismissed, waived, abandoned or on which the jury returns an acquittal, may not be retried. ³ Ex Parte Scelles, 511 S.W.2d 300, 301 (Tex.Cr.App.1974).

In Johnson v. State, 436 S.W.2d 906, 908 (Tex.Cr.App.1968), we recognized the general rule that the state may, with the consent of the court dismiss, waive or abandon a portion of the indictment. Woods v. State, 152 Tex.Crim. 131, 211 S.W.2d 210, 211 (1948). See also, Wallace v. State, 145 Tex.Crim. 625, 170 S.W.2d 762, 764 (1943). However, if the dismissal, waiver or abandonment occurs after jeopardy attaches, the State is barred from later litigating those allegations. McElwee v. State, 589 S.W.2d 455, 460 (Tex.Cr.App.1979); and Black v. State, 143 Tex.Crim. 318, 158 S.W.2d 795 (1942).

III.

The State contends the instant case is controlled by Patterson v. State, 581 S.W.2d 696 (Tex.Cr.App.1979). In Patterson the defendant

was charged, in a two-count indictment, with the offenses of possession of marihuana and possession of a firearm by a felon. [footnote omitted]. Before the jury was impaneled and sworn, the State elected to proceed on the count for possession of marihuana; the [defendant] was convicted of that offense. The [defendant] was reindicted for the offense of possession of a firearm by a felon and brought to trial.

Id. at 697. ⁴

We held that jeopardy did not bar the prosecution for possession of a firearm by a felon because "the State elected to proceed only on the count charging possession of marihuana prior to the time that the jury was sworn." Patterson, 581 S.W.2d at 697. See also, Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973). The instant case is readily distinguishable because, as previously noted, the State did not elect to proceed only on the second count before the jury was impaneled and sworn.

Finally, the State contends that, since appellant entered a plea to the second count only, jeopardy did not attach to the offenses alleged in the first and third counts. The argument ignores the fact that a defendant enters his plea only after the jury has been impaneled and sworn. Tex.Code Crim.Proc.Ann. art. 36.01(a)(1) & (2). ⁵ Further, the argument ignores our previous decisions requiring the State to seek the consent of the Court to dismiss, waive or abandon the remaining portions of the charging instrument. Woods v. State, 211 S.W.2d at 211.

IV.

Accordingly, we hold that in order to preserve a portion of a charging instrument for a subsequent trial, the State must, before jeopardy attaches (i.e., prior to the jury being impaneled and sworn or for bench trials, when both sides have announced ready and the defendant has pled to the charging instrument. Ex parte Torres, 805 S.W.2d 418, 421), take some affirmative action, on the record, to dismiss, waive or abandon that portion of the charging instrument and the State must obtain permission from the trial judge to dismiss, waive or abandon that portion of the charging instrument. Because this was not done, jeopardy attached to the offenses alleged in the first and third counts in the original indictment when the jury was impaneled and sworn at appellant's trial. In short, we hold that the Constitutional guarantee against Double Jeopardy does not permit a constructive abandonment of a portion of the charging instrument. Accordingly, the judgment of the Court of Appeals is reversed and this cause is remanded to the trial court with orders to dismiss the prosecution.

WHITE, J., concurs in the result.

McCORMICK, P.J., dissents.

OPINION DENYING STATE'S MOTION FOR REHEARING

PER CURIAM.

On original submission we granted appellant relief and ordered the prosecution dismissed. The State contends that result is erroneous for several reasons. We now address those contentions.

I.

On original submission we began by stating, "[t]he facts are not in dispute ... there is no evidence in the record that the State took any affirmative action to dismiss, waive or abandon or that the State obtained permission for the trial judge to dismiss, waive or abandon the first and third counts in that indictment." Maj. op. pg. 517. The State contends we mischaracterized the facts. The State "submits that the record in the present case demonstrates that there was no guessing in the present case! Defense counsel and the trial court were obviously on notice!" The State's argument is simply not supported by the record.

Our review of the record reveals that appellant's trial counsel moved for an acquittal on the first and third counts at the close of the State's case. ¹ Specifically, appellant's trial counsel made the following motion:

The defendant further moves for acquittal on the other two counts of the indictment that have never been severed from this case, and there has never been any motion to sever, there has never been any motion granted to sever them. The State has not put on any evidence at all and [appellant] moves for a verdict of acquittal on both of those cases, both of the other counts, Count 1 and Count 3. ² At the hearing on appellant's motion, the State did not refer to or otherwise mention an agreement with appellant's trial counsel regarding the first and third counts. Appellant's motion was overruled by the trial judge. The motion made by appellant's trial counsel, at least by implication, shows there was no agreement to try the first and third counts at a later date.

The State directs us to a portion of the hearing on appellant's application for writ of habeas corpus where the prosecutor testified to an "off-the-record" agreement with defense counsel to proceed only on the second count. However, the record reveals a dispute as to the existence of an agreement. The prosecutor testified:

Q. During the jury selection, was there ever any voir dire process as to Count One and Count Three?

A. No. Not at all.

Q. Why was that?

A. Because prior to trial there was a discussion had between myself, [appellant's] lawyer, [appellant's trial counsel], and I told [appellant's trial counsel] at the time, that would have been Monday morning, because we picked the jury Monday afternoon, that I could not get the witnesses for either Count One and Count Three, and that I would be proceeding only on Count Two, and that's all we ever talked about during voir dire. ³

Q. Did at the time--and we are talking prior to trial, and that would be off the record. Is that right?

A. That's correct.

Q. Did [appellant's trial counsel] object to that in any way?

A. No. He did not.

Q. Did he agree with you to only proceed on Count Two?

A. He did.

However, appellant's trial counsel testified:

Q. Let me ask you this, [appellant's trial counsel]. Do you remember or do you have an independent recollection of whether one or more counts went to the jury?

A. It's my contention that all the counts went to the jury.

Q. Let me ask it another way. Do you remember whether Mr. Preston was arraigned and evidence was presented and a jury instruction given on one count only?

A. That's correct.

Q. All right. And do you remember having a conversation with [prosecutor] before trial off the record regarding the disposition of Counts 1 and 3?

A. I do.

Q. All right. What was the substance of that conversation?

A. It's that we were trying all the cases at once.

Q. Did you know at the time she didn't have witnesses here or some witnesses were unavailable on Counts 1 and 3?

A. No, they had witnesses here.

Q. Okay. Did you agree with her to try those two cases at a later date?

A. Absolutely not. ⁴

We find no support in the record for the State's contention that we mischaracterized the facts on original submission. "Assertions in an appellate brief that are unsupported by the record will not be accepted as fact." Vanderbilt v....