                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-481-CR


ROBERT JOHN GALLEMORE                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE

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           FROM THE 271ST DISTRICT COURT OF W ISE COUNTY

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                                    OPINION

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                                  I. Introduction

      W e must decide in this appeal whether double jeopardy bars retrial of a

defendant when, following the defendant’s guilty plea, the trial court granted a

mistrial and dismissed the case because of an alleged jurisdictional defect in the

indictment. W e hold that, under the circumstances presented by this case, the

answer is “no.” Accordingly, we affirm the trial court’s judgment.
                                  II. Background

      A grand jury originally indicted Appellant Robert John Gallemore for felony

driving while intoxicated 1 on December 14, 2005, and Appellant entered an open

plea of guilty in the 271st District Court of W ise County, Texas, on March 24, 2006.

The trial court accepted Appellant’s plea, found him guilty, and set a hearing to

consider punishment.

      At the April 27, 2006 sentencing hearing, both sides presented evidence and

closed, but before the trial court sentenced Appellant, his attorney told the judge he

had “some argument” and proceeded to contend that the State had failed to plead

and prove a felony offense. Appellant’s counsel pointed out that one of the offenses

alleged as a prior offense in the indictment was actually a subsequent offense.

Thus, Appellant’s attorney argued that the indictment alleged only a misdemeanor

offense,2 that Appellant pleaded guilty only to a misdemeanor offense, and that the

trial court did not have jurisdiction over the case. However, Appellant did not request

dismissal and instead asked only that he be subject to the lesser punishment range

for misdemeanor DW I with a maximum punishment of one year’s imprisonment. The



      1
       See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003); id. § 49.09(b)
(Vernon Supp. 2009).
      2
        Driving while intoxicated under penal code section 49.04 is a class B
misdemeanor. Tex. Penal Code Ann. § 49.04(a). However, a DW I is a class A
misdemeanor if the State proves at trial that the defendant had one prior DW I
conviction and is a third-degree felony if the State proves at trial that the defendant
had two prior DW I convictions. Id. § 49.09(a), (b)(2).

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trial court ordered the parties to brief the issue, and on May 4, 2006, the trial court

sent a letter to the parties that stated, in relevant part, “the Court is of the opinion

that it is without jurisdiction, declares a mistrial, and finds that dismissal for lack of

jurisdiction would be in order.” The trial court signed an order on May 30, 2007,

formally declaring a mistrial and dismissing the case for lack of jurisdiction.

      In the meantime, on May 26, 2006, the State reindicted Appellant for the

instant DW I and alleged prior DW I convictions dated November 8, 2000, and

February 9, 1998, to enhance the DW I to a third-degree felony. The new indictment

also contained a habitual offender paragraph that alleged prior convictions for a third

DW I and a robbery. Appellant filed a “Special Plea of Former Jeopardy” in the

reindicted case, which the trial court denied on June 27, 2007.

      On April 2, 2008, Appellant filed a “Petition for W rit of Habeas Corpus Double

Jeopardy” in which he alleged that prosecution under the reindicted case was

barred. Specifically, Appellant alleged that (1) jeopardy had attached in the former

proceeding because Appellant had already entered his guilty plea and (2) there was

no manifest necessity for declaring a mistrial. The trial court denied the requested

relief on April 30, 2008. Appellant appealed the denial of his petition for habeas

corpus to this court, and this court affirmed the trial court’s order. See Ex parte

Gallemore, No. 02-08-00154-CR, 2008 WL 2780667, at *2 (Tex. App.—Fort W orth

July 17, 2008, orig. proceeding) (mem. op., not designated for publication) (holding

jeopardy did not bar second proceeding when district court did not have jurisdiction


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over first proceeding).    On November 5, 2008, Appellant again entered an open

plea of guilty to felony DW I.     The trial court found Appellant guilty, found the

enhancement paragraphs to be true, and sentenced Appellant to twenty-five years’

imprisonment. This appeal followed.

                                      III. Analysis

      Appellant argues in two points that the trial court erred by declaring a mistrial

in the first proceeding because there was no manifest necessity to declare a mistrial

and that double jeopardy bars the second proceeding. Each point concerns the

271st District Court’s jurisdiction, or lack of jurisdiction, over the first proceeding.

A. Law of the Case

      As a preliminary matter, we note that Appellant’s arguments in this appeal are

very similar to those from his prior appeal of the denial of his writ of habeas corpus.

“Under the law of the case doctrine, an appellate court’s resolution of a question of

law in a previous appeal of the same case will govern the disposition of the same

issue when raised in a subsequent appeal.” Zavala v. State, 956 S.W .2d 715, 718

(Tex. App.—Corpus Christi 1997, no pet.); see also Ware v. State, 736 S.W .2d 700,

701 (Tex. Crim. App. 1987) (“[W ]hen the facts and legal issues in a case on appeal

are virtually identical with those in a previous appeal in which the legal issues were

resolved[,] then logic and reason dictate that the appeals be viewed as the same

case.”). However, the reconsideration or further consideration of an issue on a

second appeal is a matter of discretion. See Ex parte Granger, 850 S.W .2d 513,


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516 (Tex. Crim. App. 1993); Peden v. State, 917 S.W .2d 941, 956 (Tex. App.—Fort

W orth 1996, pet. ref’d). In this case, although we reach the same conclusion we

reached when we affirmed the denial of Appellant’s petition for writ of habeas

corpus, we exercise our discretion to further consider Appellant’s arguments

because they present important questions of Texas law.

B. Applicable Law

      The Double Jeopardy Clause of the United States Constitution provides that

no person shall be subjected to twice having life or limb in jeopardy for the same

offense. U.S. Const. amend. V. Generally, this clause protects against (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.

Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte Herron,

790 S.W .2d 623, 624 (Tex. Crim. App. 1990) (op. on reh’g).

      Jeopardy attaches in a bench trial when both sides have announced ready

and the defendant has entered his plea. Ortiz v. State, 933 S.W .2d 102, 105–06

(Tex. Crim. App. 1996); State v. Torres, 805 S.W .2d 418, 420–21 (Tex. Crim. App.

1991). But a subsequent prosecution for the same offense is not jeopardy-barred

when the initial conviction was obtained in the absence of jurisdiction because such

a conviction is a nullity, and jeopardy does not attach. Hoang v. State, 872 S.W .2d

694, 697–98 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 863 (1994); Nassar v.

State, 797 S.W .2d 318, 319–20 (Tex. App.—Corpus Christi 1990, pet. ref’d); see


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Houston v. State, 556 S.W .2d 345, 347 (Tex. Crim. App. 1977). Further, double

jeopardy principles do not forbid multiple trials of a single criminal charge if the first

trial resulted in a mistrial that:   (1) was justified under the manifest necessity

doctrine; or (2) was requested or consented to by the defense, absent prosecutorial

misconduct which forced the mistrial. Ex parte W ashington, 168 S.W .3d 227,

235–36 (Tex. App.—Fort W orth 2005, orig. proceeding).              A mistrial declared

because of a jurisdictional defect in the indictment is one example of manifest

necessity. See Illinois v. Somerville, 410 U.S. 458, 467–69, 93 S. Ct. 1066, 1072–73

(1973); McClendon v. State, 583 S.W .2d 777, 779 (Tex. Crim. App. 1979).

C. Discussion

      Appellant argued at the April 27, 2006 sentencing hearing that the district

court did not have jurisdiction over the first proceeding because the indictment did

not allege a felony.     On appeal, Appellant argues the district court did have

jurisdiction because the substantively defective indictment vested the district court

with jurisdiction and the district court retained jurisdiction over the lesser-included

misdemeanor offense the indictment actually alleged.

      1. Jurisdiction of the 271st District Court

      The Texas constitution grants exclusive, appellate, and original jurisdiction to

district courts over all cases except those cases where exclusive, appellate, or

original jurisdiction is granted to another court. Tex. Const. art. V, § 8; Tex. Gov’t

Code Ann. § 24.007 (Vernon 2004). Relevant to this case, the code of criminal


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procedure provides that district courts “have original jurisdiction in criminal cases of

the grade of felony.” Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005); see also

Puente v. State, 71 S.W .3d 340, 343 (Tex. Crim. App. 2002) (“A district court has

jurisdiction over felony offenses. It does not have jurisdiction over misdemeanor

charges, except those involving official misconduct.”).        The code of criminal

procedure also states that county courts have “original jurisdiction of all

misdemeanors of which exclusive original jurisdiction is not given to the justice court,

and when the fine to be imposed shall exceed five hundred dollars.” Tex. Code

Crim. Proc. Ann. art. 4.07. Because there is no statute granting the 271st District

Court concurrent jurisdiction with a county court over misdemeanor cases, the 271st

District Court only has jurisdiction over felonies.       Cf. Tex. Gov’t Code Ann.

§ 24.910(c) (Vernon 2004) (giving Tarrant County Criminal District Courts

“concurrent original jurisdiction with the county criminal courts over misdemeanor

cases”).

      2.     The district court did not have jurisdiction over the first proceeding
             because the indictment did not allege a felony

      Appellant first contends the district court had jurisdiction over the first

proceeding because even a substantively defective indictment vests a trial court with

jurisdiction. See, e.g., Ex parte Morris, 800 S.W .2d 225, 227 (Tex. Crim. App. 1990)

(orig. proceeding); Ex parte Gibson, 800 S.W .2d 548, 551 (Tex. Crim. App. 1990)

(orig. proceeding); Rodriguez v. State, 799 S.W .2d 301, 303 (Tex. Crim. App. 1990);



                                           7
Studer v. State, 799 S.W .2d 263, 273 (Tex. Crim. App. 1990). Although this legal

proposition is facially correct, it does not apply to this case. As the court of criminal

appeals stated in Tamez v. State,

      when prior convictions are used to elevate what would otherwise be a
      misdemeanor offense to the level of a felony, they must be pled in the
      indictment for the trial court to gain jurisdiction. . . . [J]urisdiction vests
      when the pleadings are submitted to the trial court and contain the
      requisite number of previous convictions.

11 S.W .3d 198, 201 (Tex. Crim. App. 2000) (emphasis added) (citing Turner v.

State, 636 S.W .2d 189, 196 (Tex. Crim. App. 1980), and Gant v. State, 606 S.W .2d

867, 871 (Tex. Crim. App. [Panel Op.] 1980)). Here, Appellant’s first indictment

alleged only one prior DW I conviction, but two prior DW I convictions are necessary

to enhance a DW I to a third-degree felony. See Tex. Penal Code Ann. § 49.09(b).

Because the indictment did not allege the “requisite number of previous convictions,”

the indictment alleged only a misdemeanor and jurisdiction over the first proceeding

never vested in the district court. Tamez, 11 S.W .3d at 201.

      Citing Ex parte Sparks, Appellant next contends the district court had

jurisdiction over the first proceeding because a district court retains jurisdiction over

a lesser-included misdemeanor when the State fails to prove the felony alleged in

the indictment. See 206 S.W .3d 680, 682 (Tex. Crim. App. 2006) (orig. proceeding).

In Sparks, the court of criminal appeals held: “The indictment in this case alleged

misdemeanor DW I, enhanced to a felony by two prior DW I convictions.                   This

pleading invoked the jurisdiction of the district court for the felony that was alleged,


                                            8
and that jurisdiction extended to the misdemeanor offenses that were included in the

indictment.” Id. (discussing Tex. Code Crim. Proc. Ann. art. 4.06 (Vernon 2005));

see also Jones v. State, 502 S.W .2d 771, 773–74 (Tex. Crim. App. 1973) (holding

district court did not lose jurisdiction when State proved only lesser-included

misdemeanor of indicted felony).

      Sparks is distinguishable, however, because the face of Sparks’s indictment

actually alleged a felony offense over which the district court had jurisdiction (a

misdemeanor enhanced to a felony by two prior DW I convictions) whereas the face

of Appellant’s indictment alleged only a class B misdemeanor over which the district

court did not have jurisdiction (a misdemeanor enhanced by only one prior DW I

conviction). See Sparks, 206 S.W .3d at 682. 3 Here, the State could have proven

every allegation in Appellant’s indictment but would have proven only a class B

misdemeanor because the indictment alleged only one prior DW I conviction. See

Tex. Penal Code Ann. § 49.09(a), (b)(2). Thus, the face of Appellant’s indictment

did not allege a felony, and the district court never acquired jurisdiction over the first

proceeding. See Tamez, 11 S.W .3d at 201.

      3.     Jeopardy does not bar the second proceeding

      3
         Jones is similarly distinguishable. The face of the indictment alleged a
felony offense. Jones, 502 S.W .2d at 773. Had the State proven that Jones
possessed at least four ounces of marijuana, Jones would have been guilty of a
felony. Id. Because the State proved only that Jones possessed less than four
ounces of marijuana, he was guilty only of a misdemeanor, but the trial court
retained jurisdiction because the failure was one of evidence rather than the
allegations in the indictment. Id. at 773–74.

                                            9
      Jeopardy does not bar a second proceeding when the first proceeding ended

in a mistrial that was justified by a manifest necessity. Ex parte Washington, 168

S.W .3d at 235–36. And a jurisdictional defect in the indictment is one example of

manifest necessity. See Somerville, 410 U.S. at 467–69, 93 S. Ct. at 1072–73;

McClendon, 583 S.W .2d at 779. In this case, the indictment in the first proceeding

did not allege a felony, creating a jurisdictional defect. And this jurisdictional defect

in the indictment created manifest necessity. See Somerville, 410 U.S. at 467–69,

93 S. Ct. at 1072–73; McClendon, 583 S.W .2d at 779 (recognizing jurisdictional

defect in an indictment as constituting manifest necessity). Therefore, the trial court

did not err by sua sponte declaring a mistrial and dismissing the first proceeding for

lack of jurisdiction. W e overrule Appellant’s first point.

      Further, it is immaterial that Appellant had pleaded guilty before the trial court

sua sponte declared a mistrial. Appellant’s guilty plea in the first proceeding was

void because the trial court did not have jurisdiction over the first proceeding. See

Ex parte McCain, 67 S.W .3d 204, 210 (Tex. Crim. App. 2002) (defining void

convictions as “those in which the trial court lacked jurisdiction over the person or

subject matter or in which the trial judge lacked qualification to act in any manner”

(emphasis added)). And “a void judgment of conviction does not bar a successive

prosecution for the same offense under State or federal principles of double

jeopardy.” Hoang, 872 S.W .2d at 698. Because the trial court lacked jurisdiction,

jeopardy did not attach. Id. W e overrule Appellant’s second point.


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                              IV. Conclusion

     Having overruled each of Appellant’s points, we affirm the trial court’s

judgment.



                                         ANNE GARDNER
                                         JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

PUBLISH

DELIVERED: April 15, 2010




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