EX PARTE VINCENTE LIRA, Appellant

AFFIRMED and Opinion Filed May 1, 1997
 
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-97-00243-CR
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EX PARTE VINCENTE LIRA, Appellant
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On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. WX-96-00685-H
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O P I N I O N
Before Chief Justice Thomas and Justices Wright and Moseley
Opinion By Justice Wright
        Vincente Lira appeals from the trial court's denial of the relief sought by his pretrial application for writ of habeas corpus. In two points of error, appellant complains the trial court erred in refusing to dismiss the indictment because (1) the dismissal of previous indictments for possession of marijuana based upon the State's inability to prove its case operated as a bar to further prosecution for attempted possession of marijuana; and (2) at the time the instant indictment was returned, criminal attempt was not applicable to the offense of simple possession of marijuana. We overrule appellant's two points of error and affirm the trial court's order.
FACTUAL BACKGROUND
        On two prior occasions appellant was indicted for the offense of possession of marijuana in an amount of 2000 pounds or less but more than 200 pounds. Each of these indictments was dismissed upon the State's motion. Appellant was subsequently indicted (F95-02469-H) for attempted possession of marijuana in an amount of 2000 pounds or less but more than 200 pounds. Appellant filed the application for writ of habeas corpus, alleging that the earlier dismissal of the possession of marijuana charge constituted an acquittal. He asserted that the charge of attempted possession of marijuana was a lesser included offense of possession of marijuana, and, thus, prosecution was barred by double jeopardy.
        At the hearing on appellant's application for writ of habeas corpus, Dallas County assistant district attorney Dan Wyde testified that the first indictment (93-42743) alleged only the offense of possession of marijuana in an amount of 2000 pounds or less but more than 200 pounds. A copy of this indictment is not contained in our record. Mr. Wyde stated that the indictment was dismissed by the trial court upon the State's motion. The transcript contains a copy of the motion, in which the State asserted that the prosecutor was "unable to present a prima facie case." Also included in the transcript is the docket sheet in cause number 93-42743 containing an entry, dated August 23, 1995, which states "Dismissed on Motion Dist. Atty. Dan Wyde Asst. Dist. Atty. /s/ Faith Johnson." Mr. Wyde testified that appellant was reindicted (95-00341) for the same offense, but the second indictment also contained an enhancement paragraph. The second indictment, which is not contained in the record, was also dismissed. The State stipulated that the dismissal of the second indictment was on the same basis as the first. Mr. Wyde testified that appellant was subsequently indicted for attempted possession of marijuana rather than possession because, from his point of view, appellant had not obtained care, custody, control, or management of the marijuana. Mr. Wyde testified that the State moved for dismissal on the earlier indictments before appellant was arraigned, the cases were never called for trial, and no jury was selected. At the conclusion of the hearing, the trial court found that the two prior dismissals did not constitute any type of adjudication and that jeopardy never attached. The trial court denied the relief appellant sought by his application for writ of habeas corpus.
DOUBLE JEOPARDY
        In his first point of error, appellant contends the trial court erred in denying the relief he sought by his application for writ of habeas corpus because the double jeopardy prohibitions of both the United States and Texas Constitutions bar prosecution of the attempted possession of marijuana charge. Appellant asserts that the attempted possession charge is a lesser included offense of the possession of marijuana charge for which he was previously acquitted.
        We review an order denying habeas corpus relief to determine if the trial court's decision is clearly erroneous. Ex parte May, 852 S.W.2d 3, 5 (Tex. App.--Dallas 1993, pet. ref'd). We examine the record to see if it leaves us with the definite and firm conviction that the trial court made a mistake. Id. In applying this standard, we give great deference to the trial court's findings and conclusions. Id. We review the evidence in the light most favorable to the trial court's ruling. Id.
        The Fifth Amendment to the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U. S. Const. amend. V. Similarly, the Texas Constitution provides that "[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." Tex. Const. art. I, § 14. One of the principles underlying the double jeopardy prohibitions is that the government should not be permitted to make repeated attempts to convict an individual of an offense. See Proctor v. State, 841 S.W.2d 1, 3 (Tex. Crim. App. 1992); Ex parte Preston, 833 S.W.2d 515, 521 (Tex. Crim. App. 1992) (op. on reh'g) (per curiam).
        However, before an accused can be put in jeopardy a second time, he must actually be placed in jeopardy a first time. See Ex parte George, 913 S.W.2d at 523, 525 (Tex. Crim. App. 1995). Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Proctor, 841 S.W.2d at 4. Jeopardy attaches in a trial before the court when both sides have announced ready and the defendant pleads to the charging instrument. State v. Torres, 805 S.W.2d 418, 421 (Tex. Crim. App. 1991); see also Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996); Sanchez v. State, 845 S.W.2d 273, 275 (Tex. Crim. App. 1992).
        The State may, with permission of the court, dismiss, waive, or abandon the indictment or a portion of the indictment. See Tex. Code Crim. Proc. Ann. art. 32.02 (Vernon 1989); Preston, 833 S.W.2d at 517 (op. on original submission). If the State takes some affirmative action, before jeopardy attaches, to dismiss, waive, or abandon all or a portion of the indictment, double jeopardy will not bar a subsequent prosecution. See Proctor, 841 S.W.2d at 4; Preston, 833 S.W.2d at 522. However, if the State, with the trial court's permission, dismisses an indictment or abandons a portion of the indictment after jeopardy attaches, such is tantamount to an acquittal, and double jeopardy will bar a subsequent prosecution. Proctor, 841 S.W.2d at 3; Brown v. State, 900 S.W.2d 805, 807 (Tex. App.--San Antonio 1995, pet. ref'd). Thus, the timing of the State's motion for dismissal is a crucial factor in determining whether the subsequent prosecution is barred. See Brown, 900 S.W.2d at 807.
        Appellant concedes that under a traditional analysis, double jeopardy would not bar the prosecution involved in this case. He contends however, that because the State had the options of (1) proceeding to trial on the indictment as charged and requesting submission of a jury charge on attempted possession, or (2) seeking to amend the indictment to charge attempted possession of marijuana, the trial court's acceptance of the State's reason for seeking the dismissal and approval of the motion constituted a judicial determination of acquittal. He asserts that the trial judge could have implicitly found that the State was unable to prove an element of its possession of marijuana case, and, thus, this prosecution for the "lesser included offense" of attempted possession of marijuana should be barred. We decline to apply appellant's interpretation.
        An acquittal is "an official factfinding . . . made in the context of an adversary proceeding, by an individual or group of individuals with the legal authority to decide the question of guilt or innocence." George, 913 S.W.2d at 527. The only evidence before this Court is that the State moved to dismiss two prior indictments for possession of marijuana for the reason that it could not prove its prima facie case. FN:1 The dismissal occurred before the parties announced ready and before appellant entered any pleas. Nothing in the record before this Court reflects that the trial judge made any findings of fact, and we decline to speculate as to any implicit findings the trial judge may have made. Moreover, we do not consider the fact that the State might have pursued alternatives other than dismissal to be evidence that the trial court made a judicial determination of acquittal in the earlier cases.
        Appellant had the burden to present evidence supporting his allegation of former jeopardy, see May, 852 S.W.2d at 5, and we conclude appellant did not meet his burden. Accordingly, we conclude that at the time the earlier indictments were dismissed, jeopardy had not attached. Thus, double jeopardy does not bar the prosecution of the attempted possession of marijuana charge involved in this case. See Proctor, 841 S.W.2d at 4. We conclude, therefore, that the trial court's decision to deny the relief appellant sought by his application for writ of habeas corpus was not clearly erroneous. We overrule appellant's first point of error.
FAILURE TO CHARGE OFFENSE
        In his second point of error, appellant claims there is an independent basis for dismissing the indictment in this cause. Appellant contends that at the time he was indicted on the attempted possession of marijuana charge, there was no such crime.
        Appellant did not raise this argument in the trial court. Therefore, he has not preserved his complaint for appellate review. See Tex. R. App. P. 52(a). However, even if we were to consider appellant's complaint, we conclude it is without merit. Appellant relies on the statute in effect at the time of the indictment. However, we apply the statute in effect at the time of the alleged offense. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 13.02, 1993 Tex. Gen. Laws 3766, 3766 (amendments apply to offenses committed after September 1, 1994).
        The indictment alleged that on or about May 29, 1993, appellant committed the offense of attempted possession of marijuana in an amount of 2000 pounds or less but more than 200 pounds. The statute in effect on that date provided that possession of marijuana in an amount over fifty pounds was an aggravated offense. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2939, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 2.02, 1993 Tex. Gen. Laws 3705, 3709 (current version at Tex. Health & Safety Code Ann. § 481.121 (Vernon Supp. 1997)). On May 29, 1993, the provisions of Title Four of the Texas Penal Code, which includes criminal attempt, FN:2 were applicable to aggravated offenses, including those in section 481.121 of the Health and Safety Code. FN:3 See Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2934, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 2.02, 1993 Tex. Gen. Laws 3705, 3705, amended by Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 36, 1995 Tex. Gen. Laws 2746, 2746 (current version at Tex. Health & Safety Code Ann. § 481.108 (Vernon Supp. 1997)). Thus, at the time the alleged offense occurred, attempted possession of marijuana in an amount of 2000 pounds or less but more than 200 pounds was a crime. Accordingly, we overrule appellant's second point of error.
        We affirm the trial court's order denying appellant the relief he sought by his pretrial application for writ of habeas corpus.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
 
FN:1 Although appellant states in his brief that the prosecutor testified he dismissed the prior indictments on the grounds that he could not prove appellant exercised care, custody, control, or management over the marijuana, we disagree with this characterization of the testimony. The prosecutor testified that he chose to seek reindictment on the attempted possession of marijuana charge because, from his point of view, appellant never obtained care, custody, control, or management of the alleged marijuana. The prosecutor specifically stated that other prosecutors involved in the case may have had the assumption that appellant did obtain care, custody, control, and management of the alleged marijuana.
FN:2 See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 910, amended by Act of May 8, 1975, 64th Leg., R.S., ch. 203, § 4, 1975 Tex. Gen. Laws 478, 478, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3606 (current version at Tex. Penal Code Ann. § 15.01 (Vernon 1994)) (criminal attempt).
FN:3 On May 29, 1993, section 481.108 provided
 
Sec. 481.108. PREPARATORY OFFENSES. Title 4, Penal Code, applies to Section 481.126 and offenses designated as aggravated offenses under this subchapter, except that the punishment for a preparatory offense is the same as the punishment prescribed for the offense that was the object of the preparatory offense.
 
Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2934.
File Date[05-01-97]
File Name[970243F]