THE STATE OF TEXAS v. JULIO VALDEZ--Appeal from 404th District Court of Cameron County

NUMBER 13-05-018-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,

 
v.

JULIO VALDEZ, Appellee.

On appeal from the 404th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Ya ez, Benavides, and Vela
Memorandum Opinion by Justice Ya ez

The State of Texas appeals from the trial court's order granting appellee's "Special Plea of Double Jeopardy," which requested a dismissal of the case "with prejudice, or, alternatively, [that the court] enter an order authorizing the submission of such issue to the trier of fact herein." The court elected to dismiss the case with prejudice. On appeal, the State contends the court erred because it dismissed the case prior to a trial on the merits. In the alternative, the State argues that the trial court erred in granting appellee's special plea of double jeopardy. We reverse and remand.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it. (1)

Preliminary Matter

Appellee, Julio Valdez, asserts that the State did not timely perfect its appeal. Texas Rule of Appellate Procedure 26.2(b) states that a notice of appeal must be filed by the State "within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed." (2) Appellee asserts that the trial court's order was entered on November 29, 2004 (the day the court entered its dismissal into the docket sheet) and not on December 2, 2004 (the day the court signed the order of dismissal). As a result, appellee contends that the State, which filed its appeal on December 14, 2004, was one day late in filing.

Regardless of the date utilized, the appeal was timely. December 14 was the fifteenth day after November 29; therefore, the State timely filed in accordance with rule 26.2(b).

Discussion

Article 27.07 of the Texas Code of Criminal Procedure states, "All issues of fact presented by a special plea shall be tried by the trier of the facts on the trial on the merits." (3) The statutory language of article 27.07 permits the accused to be twice put to trial before the merits of his former jeopardy claim may be reached. (4)

This Court has stated that a special plea is not to be determined before trial so as to terminate the prosecution. (5) If the trial court determines that the special plea presents a legally sufficient claim, it must be submitted to the trier of fact together with the plea of not guilty. (6) If the special plea does not present a legally sufficient former jeopardy claim, it need not be submitted to the trier of fact. (7)

The trial court was without authority to make a pretrial determination to terminate the prosecution. (8) Furthermore, this Court has no jurisdiction over a special plea before a final judgment in a criminal case has been entered. (9)

Conclusion

The judgment and order of the trial court is reversed and the cause is remanded to the trial court.

LINDA REYNA YA EZ,

Justice

 

Do not publish. Tex.R.App.P. 47.2(b)

 

Memorandum opinion delivered and filed

this the day of , 2007.

1. See Tex. R. App. P. 47.4.

2. See Tex. R. App. P. 26.2(b).

3. Tex. Code Crim. Proc. Ann. art. 27.07 (Vernon Supp. 2006).

4. State v. Lara, 924 S.W.2d 198, 202 (Tex. App.-Corpus Christi 1996, no pet.) (citing Ex parte Apolinar, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)).

5. Id.

6. Id. (citing Ex parte Apolinar, 820 S.W.2d at 794).

7. Id. (citing Ex parte Apolinar, 820 S.W.2d at 793).

8. Id. (citing Ex parte Apolinar, 820 S.W.2d at 794).

9. Id. (citing Ex parte Apolinar, 820 S.W.2d at 794).