      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00318-CV




                                    In re Manuel Barrientes




                 ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY



                            MEMORANDUM OPINION


               Manuel Barrientes has filed a petition for writs of mandamus and prohibition and a

motion for temporary relief seeking to halt further proceedings in the 368th District Court

of Williamson County in cause number 02-818-K368. In that cause, Barrientes pleaded guilty to

aggravated assault and was placed on deferred adjudication community supervision.             After

the State filed a motion to adjudicate, Barrientes applied for a writ of habeas corpus complaining

that he had been previously convicted for the same assault, and that his prosecution in cause number

02-818-K368 subjected him to double jeopardy. Barrientes asked for relief in the form of a

discharge from supervision and dismissal of the indictment. Following a hearing on the merits of

Barrientes’s application, habeas corpus relief was denied. Barrientes perfected an appeal from the

order denying relief, and that appeal is now pending in this Court as our cause number 03-06-00418-

CR. In the instant petition and motion, Barrientes states that a hearing on the State’s motion to

adjudicate in cause number 02-818-K368 has been set for June 6, 2007.
               Where a double jeopardy claim has been denied in an appealable order, the defendant

has a right to appeal before the trial of the indictment he attacks. Ex parte Robinson, 641 S.W.2d

552, 554 (Tex. Crim. App. 1982). Although Robinson is not squarely on point, we believe that the

broader principle for which it stands applies here. Barrientes’s double jeopardy challenge to his

continued prosecution in cause number 02-818-K368 was denied in an appealable order. Barrientes

has a right to appeal that order before being exposed to further proceedings—and possible

imprisonment—in that cause. Barrientes’s right to appeal following an adjudication of guilt is not

an adequate remedy for the asserted double jeopardy violation. See id. at 555.

               The district court is obligated to hold in abeyance any further proceedings in cause

number 02-818-K368 pending final disposition of Barrientes’s appeal from the denial of habeas

corpus relief. We are confident that the district court will comply with this obligation without the

necessity of this Court issuing a writ of mandamus. The motion for temporary relief is dismissed.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Filed: June 5, 2007




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