Donald Schiwitz v. The State of Texas--Appeal from County Court at Law No. 1 of Hays County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-132-CR
DONALD SCHIWITZ,

APPELLANT


vs.
THE STATE OF TEXAS,

APPELLEE


FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY,
NO. 31,999, HONORABLE HOWARD S. WARNER II, JUDGE

PER CURIAM

A jury found appellant guilty of driving while intoxicated, first offense. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Supp. 1991). The court assessed punishment at incarceration for two years and a $500 fine, probated.

The first of appellant's four points of error is that the constitutional guarantee against double jeopardy was violated in this cause. In lieu of a brief, the State has filed a "motion to reverse and remand" confessing error with respect to appellant's jeopardy claim.

On February 21, 1990, after a jury had been impaneled and sworn at appellant's first trial, the State informed the court that one of its witnesses "was not in the frame of mind" to testify due to a serious illness in his family. The State did not request a continuance, but instead moved for and was granted a mistrial over appellant's objection. On March 5, after overruling appellant's motion to dismiss based on double jeopardy, the cause was again called for trial. (1)

This Court agrees that there was no manifest necessity for the mistrial. Ex parte Moore, 695 S.W.2d 715 (Tex. App. 1985, pet. ref'd). Because jeopardy had attached prior to the mistrial, the second trial was barred.

The judgment of conviction is reversed and Hays County cause number 31,999 is ordered dismissed.


[Before Justices Powers, Aboussie and Kidd]

Reversed and Dismissed

Filed: June 26, 1991

[Do Not Publish]

1. Appellant did not file a pretrial writ of habeas corpus. Ex parte Robinson, 641 S.W.2d 552 (Tex. Cr. App. 1982).