No. 05-08-01324-CR
Opinion Filed December 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 366-03037-2008.
Before Justices WRIGHT, O'NEILL, and LANG.
Opinion By Justice WRIGHT.
Harold Douglas Lamb filed a pre-trial application for writ of habeas corpus to challenge his reindictment on charges the State had dismissed in a prior prosecution. The trial court conducted a hearing and then denied the requested relief. In his sole issue, appellant contends the trial court abused its discretion in denying him habeas corpus relief because the dismissal of the first prosecution was with prejudice. Finding no abuse of discretion, we affirm.
Background
The material facts of this case are undisputed. On April 25, 2006, the State indicted appellant in cause no. 366-80887-06 for one count of aggravated sexual assault and two counts of indecency with a child. The indictment alleged appellant committed the offenses against five-year-old J.F. on or about July 15, 2005. On the scheduled trial date, the State filed a motion for continuance alleging that J.F.'s mother was refusing to honor a subpoena for J.F. mailed to the mother at her current residence in Georgia. The motion alleged that J.F. was "a necessary, essential, and material witness for the State." The trial court denied the State's motion for continuance. The State then filed a motion to dismiss the case which the trial court granted. The State's motion to dismiss acknowledges the State is dismissing the case in light of its inability to obtain J.F.'s presence as a witness and the trial court's ruling on the motion for continuance. Neither the State's motion to dismiss nor the trial court's resulting order mentioned whether the dismissal was with or without prejudice to refiling the charges. Subsequently, the State reindicted appellant in cause no. 366-80352-08 for the same three offenses charged in cause no. 366-80887-06 and appellant filed the instant application for a writ of habeas corpus. Standard of Review
We review for abuse of discretion the trial court's decision to deny habeas corpus relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). We review the evidence presented in the light most favorable to the trial court's ruling. Id. We defer to the trial court's determination of the historical facts the record supports, especially when the findings require an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App. 2007). We further defer to the trial court's application of the law to the facts if the resolution of the ultimate questions turns upon evaluating credibility and demeanor. Id. We conduct de novo review when the resolution of the ultimate questions turns upon applying legal standards. Id. Discussion
Appellant contends he is entitled to relief because the State dismissed its case to nullify or avoid the trial court's unfavorable ruling on the State's motion for continuance. Given the State could not prove its case without J.F.'s testimony, a fact expressly acknowledged in a request for an out-of-state subpoena filed by the prosecutor in the subsequent prosecution, appellant contends he would certainly have been acquitted had the State been forced to trial without J.F. Appellant contends the continuance rules should not be applied in such a manner that they bind the defense but not the prosecution. Appellant urges us to view the dismissal order as dismissing the case with prejudice. He asserts it violates fundamental fairness and due process to allow the State to dismiss its case without notice and a hearing. Appellant suggests we treat the first prosecution as dismissed with prejudice and the second prosecution as barred by the double jeopardy and collateral estoppel provisions of the Texas and United States' Constitutions. Appellant offers no authority to support his admittedly novel argument. Jeopardy does not attach in a jury trial until the jury is impaneled and sworn. See Proctor v. State, 841 S.W.2d 1, 4 (Tex.Crim.App. 1992). It is undisputed that a jury was not yet impaneled and sworn at the time the trial court dismissed the underlying case. Until jeopardy attaches, the State may dismiss its case and then refile it without offending double jeopardy prohibitions. Id. Thus, appellant was not subjected to double jeopardy. Id. The continuance and dismissal statutes do not bar the State from dismissing and refiling a case. See, generally, Tex. Code Crim. Proc. Ann. arts. 29.03-05, 32.02 (Vernon 2006). Rather, the prosecutor may dismiss the case "for any reason he or she deems sufficient subject only to the approval of the judge." Smith v. State, 70 S.W.3d 848, 853 (Tex.Crim.App. 2002). The dismissal does not prevent the State from reindicting the defendant on the same charges. Ex parte Williams, 379 S.W.2d 911, 912 (Tex.Crim.App. 1964). In this case, the State filed a motion candidly expressing its reasons for dismissal of the first prosecution. The trial court approved the dismissal. Thus, we cannot conclude the continuance or dismissal statutes offer appellant any support. We must also reject appellant's interpretation of the trial court's order as dismissing the first prosecution with prejudice. The trial court's dismissal order does not state the charges were dismissed with prejudice. A dismissal with prejudice would be a more comprehensive and conclusive dismissal than a dismissal that is merely silent. See Smith, 70 S.W.3d at 853. The State did not request a dismissal with prejudice in its motion. The record supports only the conclusion that the State intended to dismiss its case without prejudice and the trial court approved the State's dismissal without prejudice. See Ex parte Seidel, 39 S.W.3d 221, 224 (Tex.Crim.App. 2001) (concluding trial court cannot dismiss case with prejudice without State's consent); State v. Roberts, 932 S.W.2d 700, 701-02 (Tex.App.-Tyler 1996, no pet.) (concluding, after examining the record, that the State did not consent to dismissal of its case with prejudice). As for appellant's contention that he was denied fundamental fairness and due process by the trial court granting the motion to dismiss without notice and an opportunity to be heard, this complaint is not reviewable on appeal because appellant did not raise it in his writ application in the trial court. See Ex parte Tucker, 977 S.W.2d 713, 715 (Tex.App.-Fort Worth 1999), pet. dism'd, 3 S.W.3d 576 (Tex.Crim.App. 1999) (per curiam). Conclusion
Because we conclude the first prosecution was not dismissed with prejudice and the second prosecution is not barred by double jeopardy, we further conclude the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus. See Kniatt, 206 S.W.3d at 664. Thus, we resolve appellant's sole issue on appeal against him. We affirm the trial court's order.