                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-08-154-CR


EX PARTE

ROBERT J. GALLEMORE




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             FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Robert J. Gallemore appeals from the trial court’s order denying

the relief requested in his application for writ of habeas corpus, filed on double

jeopardy grounds. We affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                                    Background

      On March 24, 2006, appellant entered an open plea of guilt to the

offense of felony DWI.2         That same day, he also signed written plea

admonishments.       In the judicial confession section of the plea paperwork,

appellant’s attorney crossed out the sentence, “Any enhancement and habitual

allegations set forth in the Indictment, if any are true, [and] correct, except

those expressly waived by the State,” and initialed next to the deletion. The

trial court accepted appellant’s plea, found him guilty, and set a hearing for a

month later to consider punishment.

      At the April 27, 2006 hearing, the trial court admitted three State’s

exhibits showing the following prior convictions of appellant: a conviction for

DWI with felony repetition dated October 9, 2003; a conviction for DWI

misdemeanor repetition dated November 8, 2000; and a conviction for DWI

open container dated February 9, 1998. The State then called Randy Moon, an

adult probation supervisor, to testify that appellant was not a good candidate

for probation. After the State rested, appellant’s attorney proffered several

letters of reference to the court without objection. Both sides then closed.




      2
          … See T EX. P ENAL C ODE A NN. § 49.09(b) (Vernon 2008).

                                         2
      However, 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 set forth in the indictment as a prior offense to make the

instant offense a felony was actually alleged to have occurred on October 9,

2005, after the date of the instant offense, May 29, 2005.             Accordingly,

appellant argued, the indictment alleged only a misdemeanor offense, appellant

pled guilty only to a misdemeanor offense, and the trial court did not have

jurisdiction over the case. However, appellant did not request a dismissal, only

that he be subject to the lesser punishment range for misdemeanor DWI. The

trial court ordered the parties to brief the issue.

      On May 30, 2007, the trial court signed an order dismissing the case for

lack of jurisdiction. The following recitation is included in the order: “the Court

is of the opinion that it is without jurisdiction, declares a mistrial and finds that

dismissal for lack of jurisdiction is in order.” In the meantime, the State had

reindicted appellant on May 26, 2006, alleging the instant DWI as well as prior

convictions dated November 8, 2000 and February 9, 1998 for enhancement

purposes. The new indictment also contains a habitual offender paragraph,

alleging the October 9, 2003 DWI and a July 17, 1985 conviction for robbery.




                                         3
      Appellant filed a Special Plea of Former Jeopardy in the reindicted case,

which the trial court denied on July 27, 2007. On April 2, 2008, appellant filed

a Petition for Writ of Habeas Corpus Double Jeopardy in which he alleged that

prosecution under the reindicted case was barred.         Specifically, appellant

alleged that jeopardy had attached in the former proceeding because appellant

had already entered his guilty plea and that there was no manifest necessity for

declaring a mistrial. The trial court denied the requested relief on April 30,

2008, and appellant appealed.

                                    Analysis

      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. C ONST. 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

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(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. 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 Houston v. State, 556 S.W.2d 345, 347 (Tex. Crim.

App. 1977).

      Here, although appellant had not yet been sentenced, the trial court had

accepted his plea and found him guilty. But, as appellant argued to the trial

court, appellant had pled guilty only to a misdemeanor, not a felony. The 271st

District Court does not have jurisdiction over this type of misdemeanor. T EX.

C ONST. art. V, § 8; T EX. C ODE C RIM. P ROC. A NN. art. 4.05 (Vernon 2005); T EX.

G OV’T C ODE A NN. § 24.007 (Vernon 2004); Puente v. State, 71 S.W.3d 340,

343 (Tex. Crim. App. 2002). Accordingly, appellant’s guilty plea was void, and

the trial court could not grant him the relief he requested at the April 2006

hearing: to punish him only for a misdemeanor.         See Ex parte McCain, 67

S.W.3d 204, 210 (Tex. Crim. App. 2002) (holding that void convictions are

“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”)




                                        5
(emphasis    added);   Donovan   v.   State,   232   S.W.3d    192,   196   (Tex.

App.—Houston [1st Dist.] 2007, no pet.).

      We conclude and hold that proceedings against appellant in accordance

with the new indictment in this case are not jeopardy-barred because the trial

court did not have jurisdiction over the prior proceeding, in which the State

alleged—and appellant pled guilty to—a misdemeanor rather than a felony.

Hern v. State, 892 S.W.2d 894, 895–96 (Tex. Crim. App. 1994), cert. denied,

515 U.S. 1105 (1995); Hoang, 872 S.W.2d at 698; Nassar, 797 S.W.2d at

319–20.     Accordingly, we affirm the trial court’s order denying the relief

requested in appellant’s petition for writ of habeas corpus.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE

PANEL F:     LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: July 17, 2008




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