Ochoa v. State
| Decision Date | 11 April 1973 |
| Docket Number | No. 45959,45959 |
| Citation | 492 S.W.2d 576 |
| Parties | Robert S. OCHOA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Billy J. Wilkinson, San Antonio, for appellant.
Ted Butler, Dist. Atty., Charles Conaway, F. G. Rodriguez and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The offense is the sale of heroin; the punishment, forty (40) years.
Appellant's first ground of error relates to former jeopardy. This is appellant's second trial. Appellant was first tried under an indictment charging him with possession of heroin in one count and sale in another. The State abandoned the sale count before appellant's plea to the indictment at the trial and proceeded on the possession charge. Appellant was found guilty by the jury. Subsequently he was granted a new trial. Thereafter, appellant was again brought to trial on a new indictment charging the same acts of possession and sale of heroin. The case was submitted to the jury on the sale count and the jury found the appellant guilty of that charge which is the basis of this appeal. Appellant contends that the abandonment of the sale count at his first trial barred further prosecution under that count.
We disagree.
Jeopardy does not attach until a defendant pleads to the indictment. See Rameriz v. State, 171 Tex.Cr.R. 507, 352 S.W.2d 131. At appellant's first trial the State abandoned the sale count before appellant's plea to the indictment at the trial. Thus, jeopardy did not attach to the sale count and it was available as a basis for prosecution at appellant's second trial. Cf. Deisher v. State, 89 Tex.Cr.R. 467, 233 S.W. 978; Black v. State, 143 Tex.Cr.R. 318, 158 S.W.2d 795.
Appellant's second ground of error is his claim that his two court appointed counsel were ineffective. On the day before trial, a motion was filed requesting that two named persons be permitted to assist appellant's two court appointed counsel in the trial. At the hearing on this motion it was established that appellant and his two court appointed counsel had conferred prior to the hearing concerning the trial but not concerning the additional counsel. Counsel Wilkinson testified that he had been practicing law since 1963 and that he had experience in the defense of capital cases and that he felt competent but needed technical assistance and that in his opinion his co-cou...
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...See and compare Patterson v. State, 581 S.W.2d 696 (Tex.Cr.App.1979); Vardas v. State, 518 S.W.2d 826 (Tex.Cr.App.1975); Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973). The State should not have been permitted a second opportunity to persuade another jury to return a verdict of guilty aga......
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Ochoa v. Estelle, SA-73-CA-132.
...a defendant pleads to the indictment before the jury, jeopardy had never attached to the sale count at the first trial. Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App. 1973). Petitioner failed to timely file for a rehearing before the Court of Criminal Petitioner has not been reticent in seekin......
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Sanne v. State
...to this matter, Skillern sought the appointment of Douglas Tinker, who represented him in the first trial of this case. In Ochoa v. State, Tex.Cr.App., 492 S.W.2d 576, the defendant had filed a motion requesting that two named persons be permitted to assist his two court-appointed counsel. ......
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