*2 mistrial, appellant’s and denied DUNN and upon dismiss based WARREN, JJ. selected, jury proceed- the case trial, ed to and was convicted. OPINION Appellant in point contends his first WARREN, Justice. overruling error that the court erred in his After the appellant guilty found of plea attempting prosecution to bar under aggravated robbery, the court found the 424,242. the indictment in cause number allegations enhancement to be true and as- Specifically, he contends that the offense punishment sessed years at 50 confine- alleged in this indictment arises out of the ment. alleged same transaction in offenses the indictments that were dismissed for Appellant and a co-defendant were each Act, violation of the and is participation in the barred Tex.Code Crim.P.Ann. art. 28.061 robbery of a fast food restaurant. The (Vernon Supp.1987). first two indictments under cause numbers 424,241 424,242, and were returned on appellee orally We note that never 21, 1985. Each alleged aggra- indictment motion, byor written asserted the bar con vated stated that the court, tained in art. 28.061 in the trial nor ant was Stella Richardson. The second did he contend entitled to relief that was 433,- two indictments under cause numbers Appel under the Texas Trial Act. 433,719 718 and Septem- were returned on therefore, has, lant his waived ber aggravated and also rob- assert that his indictment and conviction bery but stated that 424,242 under cause number were barred Phyllis Green. by art. art. 28.061. Tex.Code Crim.P.Ann. 1.14(a) (Vernon Supp.1987); Turner began, When trial judge read the 433,718 indictments under cause numbers 433,719 jury panel to the voir of error is over- before agreed dire. The State had contends, in his
Appellant second and error.” There no evidence of intent on third court erred in
overruling
plea
protections
the double
clause,
placed
because he was
nor is there
evidence that
the fifth
violation of
amendment
conduct was
intended to
United States Constitution and Tex.Const.
the defendant
prosecu-
14. He asserts that
mistrial.
*3
tion,
pair
dismissal of the second
of
after
interpreting
Texas cases
Tex.Const. art.
indictments,
jeopardy,
constituted double
Oregon
14
v.
are consistent with
State,
through gross negli-
the
that
Kennedy, 456
667,
at
102 S.Ct.
U.S.
intent,
gence
faith
him into
and bad
forced
State,
DeYoung
2083. See
v.
thereby
obtaining
placing
a mistrial
him in
628,
(1954)
406,
Cr.R.
274
408
(op.
S.W.2d
double
State,
reh’g);
Moore v.
245,
on
631 S.W.2d
1982,
(Tex.App.
pet.).
no
Supreme
250
The United States
Court has
—Amarillo
overruling appel-
did not err
may
a defendant
addressed whether
plea in
prosecution, asserting
lant’s
bar of
jeopardy
the
of double
after he has
state
the violation of the federal and
double
moved for and obtained a mistrial. The
jeopardy clauses.
exception
gen-
court stated a limited
eral rule that a defendant
not claim
Appellant’s
and third
of
as a bar
are
error
overruled.
prosecution for the same offense:
Appellant contends,
in his fourth
might
conduct
that
Prosecutorial
point of
trial court erred by
overreaching,
as harassment
viewed
failing
appellant prior
sentencing
to ask
to
justify
if
to
even
sufficient
mistrial
anything
say
required
to
as
whether
had
motion, therefore,
defendant’s
does not
(Ver
by Tex.Code
art. 42.07
Crim.P.Ann.
part
intent on
the
retrial
absent
objected
Supp.1987). Appellant
non
protec-
the
the
opportunity for
to the omission of his
allo-
Jeopar-
the
tions as
Double
cution nor
in the court
contended
below
dy
Clause.
defendant’s motion
listed in
the
reasons
“a
mistrial constitutes
deliberate election
pronouncement
prevent
art. 42.07 that
forgo
to
on his
valued
Therefore, no error
sentence existed.
guilt
or innocence determined
State,
v.
for review. Tenon
preserved
563
Only
trier of
before the first
fact....”
(Tex.Crim.App.1978); Miles
S.W.2d 622
ques-
where the
conduct
(Tex.App.
688
219
Paso
—El
tion is
the
intended
defend-
1985, pet. ref’d);
Hernandez
for a mistrial
into
1982,
—Beaumont
raise the bar
defendant
pet.).
having
to a second trial after
succeed-
is
point of error
fourth
aborting
first on
mo-
ed in
the
his own
tion.
affirmed.
The
667, 676, 102
Kennedy, 456 U.S.
Oregon v.
(em-
(1982)
ants. Tony ROCHA d/b/a Plumber, Appellant, Appeals previ- The Court of Criminal has ously sin- addressed the situation where a gle separate indict- resulted MERRITT, Appellee. William complainants. parte ments and Ex Cros- by, No. 01-87-00200-CV. parte In Ex Crosby, defendant broke Court of Mary home of W.A. and causing bodily and after injury serious both, stole Mr. Thurston’s wallet. State for aggrava- indicted defendant
ted of Mr. Thurston and named case,
him the in one while
simultaneously naming Mrs. robbery a second case. charged
Because both indictments provision, same be- integral part theft was an offense,
charged i.e., robbery of Thur- Mr.
ston, only one conviction could stand. bar,
In the case single of a
business establishment. While either as a act other,
prosecution on the could be
subject to the Speedy Trial Act. Once indicted, successfully indictment for the of same subject
fense quash, be not Trial Act. The second genesis, speedy
indictment’s trial
purposes, would be the same as that of the
first indictment. See Robinson v. (Tex.Crim.App.1986); (Tex.
Ward
Crim.App.1983). Because the indictment,
Act did apply not inapplicable
would to the second.
I simply would hold that art. 28.061 inapplicable
the act is to the facts of this
case, and whether the made objection 28.061 below is immaterial. exception,
With this in the ma- concur
jority opinion. Houston, appel-
Jeffrey Gillespie W. lant.