Ex Parte Kyle Hahn--Appeal from County Court at Law No. 2 of Hays County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00751-CR
NO. 03-97-00752-CR
Ex parte Kyle Hahn, Appellant
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
NOS. 48,432 & 48,433, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING
This is an appeal from an order denying relief on an application for a writ of habeas corpus. In one point of error, appellant Kyle Hahn argues that the State is barred by the double jeopardy clauses of the state and federal constitutions from refiling an information after it had agreed to quash its original information that contained similar charges. We will affirm the court's order denying relief.

BACKGROUND

On June 25, 1996, Kyle Hahn was charged by information with selling "John McGuire an alcoholic beverage without having first obtained an appropriate license or permit from the Texas Alcoholic Beverage Commission or from the Administrator of such Commission." On August 2, 1996, Hahn filed a Motion to Quash the Information for Failure to State an Offense, arguing that the allegations in the information, even if true, did not amount to an offense against the penal laws of the State of Texas. At a hearing on January 31, 1997, the State agreed to the motion to quash, and the motion was granted by the trial court. The record shows that the complaint against Hahn failed to state whether he was charged with selling liquor or beer without a license. The State therefore agreed to the Motion to Quash the Information in order to allege additional facts and to clarify under which statute Hahn was being charged. The State then refiled two separate criminal informations against Hahn, one for "Sale of an Alcoholic Beverage Without a License," and another for "Possession of Alcoholic Beverage with Intent to Sell." These informations, unlike the previous information, specifically alleged the sale of "beer."

In response, Hahn filed an application for habeas corpus relief contending that the State's agreement to the Motion to Quash for Failure to State an Offense collaterally estopped the State from prosecuting further. On September 11, 1997, the trial court granted a hearing on Hahn's application, but ultimately denied relief. Hahn appeals.

 

DISCUSSION

In his sole point of error, Hahn argues that the trial court erred in denying habeas corpus relief because the double jeopardy clauses of the United States and Texas constitutions collaterally estopped the State from refiling an information identical to one previously quashed for failure to state an offense. Specifically, Hahn contends that because the State allegedly conceded that the first information failed to state an offense, the State cannot now assert similar claims in its refiled informations without subjecting Hahn to double jeopardy. We disagree.

Hahn mischaracterizes the State's reason for agreeing to the motion to quash the original information. The record shows that the State agreed to Hahn's motion to quash the original information in order to allege additional facts and to clarify under which statute Hahn was being charged. Furthermore, we note that article 28.04 of the Texas Code of Criminal Procedure expressly provides:

 

If the motion to set aside or the exception to an indictment or information is sustained, the defendant in a misdemeanor case shall be discharged, but may be again prosecuted within the time allowed by law.

 

Tex. Code Crim. Proc. Ann. art. 28.04 (West 1989).

Thus, under this rule, quashing an information does not have the effect of precluding future litigation of claims charged in the previous information. See State v. Fass, 846 S.W.2d 934, 935 (Tex. App.--Austin 1993, no pet.) (when motion to quash or set aside charging instrument is sustained, State may initiate new proceedings against defendant within time allowed by law). Therefore, we hold that collateral estoppel will not bar the State from refiling the information and thus double jeopardy is not implicated under these facts. We therefore overrule appellant's point of error.

 

CONCLUSION

Having overruled appellant's sole point of error, we affirm the trial court's order denying habeas corpus relief.

 

Mack Kidd, Justice

Before Justices Powers, Kidd and B. A. Smith

Affirmed on Both Causes

Filed: July 30, 1998

Do Not Publish

STYLE="font-size: 11pt">NOS. 48,432 & 48,433, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING
This is an appeal from an order denying relief on an application for a writ of habeas corpus. In one point of error, appellant Kyle Hahn argues that the State is barred by the double jeopardy clauses of the state and federal constitutions from refiling an information after it had agreed to quash its original information that contained similar charges. We will affirm the court's order denying relief.

BACKGROUND

On June 25, 1996, Kyle Hahn was charged by information with selling "John McGuire an alcoholic beverage without having first obtained an appropriate license or permit from the Texas Alcoholic Beverage Commission or from the Administrator of such Commission." On August 2, 1996, Hahn filed a Motion to Quash the Information for Failure to State an Offense, arguing that the allegations in the information, even if true, did not amount to an offense against the penal laws of the State of Texas. At a hearing on January 31, 1997, the State agreed to the motion to quash, and the motion was granted by the trial court. The record shows that the complaint against Hahn failed to state whether he was charged with selling liquor or beer without a license. The State therefore agreed to the Motion to Quash the Information in order to allege additional facts and to clarify under which statute Hahn was being charged. The State then refiled two separate criminal informations against Hahn, one for "Sale of an Alcoholic Beverage Without a License," and another for "Possession of Alcoholic Beverage with Intent to Sell." These informations, unlike the previous information, specifically alleged the sale of "beer."

In response, Hahn filed an application for habeas corpus relief contending that the State's agreement to the Motion to Quash for Failure to State an Offense collaterally estopped the State from prosecuting further. On September 11, 1997, the trial court granted a hearing on Hahn's application, but ultimately denied relief. Hahn appeals.

 

DISCUSSION

In his sole point of error, Hahn argues that the trial court erred in denying habeas corpus relief because the double jeopardy clauses of the United States and Texas constitutions collaterally estopped the State from refiling an information identical to one previously quashed for failure to state an offense. Specifically, Hahn contends that because the State allegedly conceded that the first information failed to state an offense, the State cannot now assert similar claims in its refiled informations without subjecting Hahn to double jeopardy. We disagree.

Hahn mischaracterizes the State's reason for agreeing to the motion to quash the original information. The record shows that the State agreed to Hahn's motion to quash the original information in order to allege additional facts and to clarify under which statute Hahn was being charged. Furthermore, we note that article 28.04 of the Texas Code of Criminal Procedure expressly provides:

 

If the motion to set aside or the exception to an indictment or information is sustained, the defendant in a misdemeanor case shall be discharged, but may be again prosecuted within the time allowed by law.

 

Tex. Code Crim. Proc. Ann. art. 28.04 (West 1989).

Thus, under this rule, quashing an information does not have the effect of precluding future litigation of claims charged in the previous information. See State v. Fass, 846 S.W.2d 934, 935 (Tex. App.--Austin 1993, no pet.) (when motion to quash or set aside