Dale Allen Hamer v. The State of Texas--Appeal from 18th District Court of Johnson County

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IN THE

TENTH COURT OF APPEALS

 

No. 10-95-327-CR

 

DALE ALLEN HAMER,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 18th District Court

Johnson County, Texas

Trial Court # 30909

 

O P I N I O N

 

Appellant Hamer appeals from an order of the trial court denying his petition for a writ of habeas corpus.

Appellant was indicted May 5, 1995, in Cause 30712 by the Grand Jury for "Intoxication Manslaughter" (causing the death of Joe Donald, Jr. by driving a vehicle while intoxicated). The indictment alleged Appellant had an alcohol content of at least 0.10. Appellant filed a motion to suppress the evidence of his blood alcohol level asserting it was impermissibly obtained. A suppression hearing was held September 25, 1995, and the trial court denied Appellant's motion to suppress.

On October 27, 1995, all parties appeared for a hearing on Appellant's application for a writ of habeas corpus filed in Cause 30712. Before the hearing began the State moved to dismiss Cause 30712 without prejudice for the reason that the Grand Jury had reindicted Appellant earlier that day in Cause 30909 (this case). //

The trial court granted the State's motion to dismiss Cause 30712 thus rendering Appellant's application for a writ of habeas corpus moot in that case.

On November 22, 1995, Appellant filed petition for a writ of habeas corpus in this case (Cause 30909) alleging that he had been placed in double jeopardy as a result of the new indictment in Cause 30909.

A hearing was held on Appellant's application for habeas corpus and it was denied by the trial court. //

Appellant appeals on one point of error: "The trial court committed error in denying Appellant's writ of habeas corpus alleging double jeopardy."

Appellant claims he has been subjected to double jeopardy in violation of the Fifth Amendment of the U.S. Constitution as a result of the State reindicting him in Cause 30909, and that the trial court thus erred in denying his writ of habeas corpus.

The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." It protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 441, 109 S. Ct. 1892, 1897 (1989); Hernandez v. State, 904 S.W.2d 808, 809 (Tex. App. San Antonio 1995, pet. filed).

Any criminal charge that is dismissed on the State's motion after jeopardy attaches cannot be retried, but if the charge is dismissed with the trial court's permission before jeopardy attaches, the State may press the charge at a later time. Proctor v. State, 841 S.W.2d 1, 3 (Tex. Crim. App. 1992).

Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Proctor, supra; Torres v. State, 614 S.W.2d 436, 441 (Tex. Crim. App. 1981). In bench trials, jeopardy attaches when both sides announce ready and the defendant has pled to the charging instrument. State v. Torres, 850 S.W.2d 418, 421 (Tex. Crim. App. 1991).

A pending indictment does not prevent a Grand Jury from returning a subsequent indictment charging the same offense. Rodriguez v. State, 857 S.W.2d 102, 105 (Tex. App. Corpus Christi 1993, no pet.).

Appellant contends the State did not request dismissal of Cause 30712 "without prejudice." The record reflects the State did request dismissal of Cause 30712 "without prejudice," and did advise the court that Appellant had been reindicted earlier that day under Cause 30909.

Appellant also contends the dismissal of Cause 30712 operated as a "constructive mistrial" to which jeopardy attached. He contends the dismissal of Cause 30712 and the reindictment in Cause 30909 was to conceal the fact that medical records were illegally acquired and presented to the first Grand Jury.

The foregoing claims were made during a pretrial hearing, i.e., Appellant's motion to suppress and which motion was denied. Appellant has not been tried and acquitted, he has not been tried and convicted, and he has been assessed no punishment. Hernandez, supra. There was no "constructive mistrial."

Here Appellant has brought an interlocutory appeal from the trial court's order denying his application for a writ of habeas corpus. Under the authorities cited, jeopardy has not yet attached. Thus Appellant has not been subjected to double jeopardy and the State may proceed with the prosecution under Case 30909.

Point one and the contentions made thereunder are overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

 

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 31, 1996

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