                                      In The

                                 Court of Appeals

                        Ninth District of Texas at Beaumont

                               _________________

                                NO. 09-17-00278-CR
                               _________________


                            EX PARTE TIANA WILLIS

________________________________________________________________________

                  On Appeal from the County Court at Law No. 3
                             Jefferson County, Texas
                             Trial Cause No. 313719
________________________________________________________________________

                            MEMORANDUM OPINION

       Appellant, Tiana Willis, was charged with Misdemeanor Family Assault in

three different complaints, Cause Nos. 298842, 310247, and 313719, which all

stemmed from one incident. This appeal arises from the denial of Willis’s petition

for writ of habeas corpus asserting further prosecution was barred by double

jeopardy and collateral estoppel. We overrule Willis’s issue on appeal and affirm the

trial court’s ruling.




                                         1
                                    Background

      On May 20, 2013, Willis took her minor child to a local park to see the child’s

father. Once the child was in her father’s possession, the father had a process server

deliver court papers to Willis. An altercation ensued in which the arm of the child’s

father was injured. The Beaumont Police Department was called to the scene. Willis

admitted hitting her child’s father but claimed she did so because she was afraid he

was going to take her child.

      Willis was initially charged with Misdemeanor Assault – Family Violence in

Cause No. 298842 on July 17, 2013. The complaint in Cause No. 298842 alleged

that on or about May 20, 2013, Willis “unlawfully intentionally, knowingly, and

recklessly cause[d] bodily injury to another . . . by scratching Complainant’s arm,

and at the time of said assault[,] Complainant was a member of Defendant’s

family[.]” The record reveals Cause No. 298842 was reset multiple times at the

request of Willis. On November 12, 2015, the State filed a motion for dismissal “[t]o

satisfy the interests of substantive [j]ustice.” The motion for dismissal for Cause No.

298842 contained the following language, “[T]he State cannot meet their burden of

proof at trial, due to its inability to overcome the defense of a minor child, by the

Defendant, which is supported by evidence.” The trial judge then signed the order

of dismissal for Cause No. 298842.

                                          2
      On January 27, 2016, the State refiled the charges against Willis in Cause No.

310247.1 In June of 2016, the case was tried in front of a jury. The jury verdict form

for Cause No. 310247 signed by the foreperson had “not guilty” circled. However,

the jury foreperson indicated it should have been “guilty,” and he circled “the wrong

one.” The trial court polled five members of the jury to determine what their verdict

was. The remaining juror could not return to court due to an illness, but she later

signed an affidavit indicating she and the other jurors came to a verdict of guilty.

The trial judge declared a mistrial, and Willis did not object. The State moved to

dismiss the charge contained in Cause No. 310247 following the mistrial, and the

trial judge signed the order dismissing the cause.

      On December 14, 2016, the State refiled the charges in Cause No. 313719

which contained the same allegations about the assault, but it also included

information regarding the previous cause numbers. On June 6, 2017, Willis filed her

petition for Writ of Habeas Corpus Seeking Relief from Double Jeopardy/Collateral

Estoppel and asserted jeopardy attached with the State’s dismissal of the charges in

Cause No. 298842. The trial court held a hearing on the petition for writ of habeas




      1
       Cause No. 310247 omitted the word “unlawfully” from the charge, but the
remaining language was identical to Cause No. 298842.
                                       3
corpus in Cause No. 313719 on July 13, 2017, and thereafter denied Willis’s petition

for writ of habeas corpus.

      In one issue on appeal, Willis argues the trial court erred in denying her

petition for writ of habeas corpus because the prosecution was barred by the

constitutional and statutory prohibitions against double jeopardy and collateral

estoppel.

                                 Standard of Review

      Generally, a ruling on a pretrial writ of habeas corpus is reviewed for abuse

of discretion, viewing the facts in the light most favorable to the ruling. Ex parte

Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). But when there are no

disputed facts and the resolution of the ultimate issue turns on an application of

purely legal standards, as here, our review is de novo. See Ex parte Martin, 6 S.W.3d

524, 526 (Tex. Crim. App. 1999).

                                       Analysis

      Criminal defendants are provided protections under the double jeopardy

clauses of the United States Constitution and the Texas Constitution prohibiting

them from being tried for the same offense twice. U.S. CONST. amend. V; Tex.

Const. art. I, § 14. Article I, section 14 of the Texas Constitution states “[n]o person,

for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a

                                           4
person be again put upon trial for the same offense after a verdict of not guilty in a

court of competent jurisdiction.” Tex. Const. art. I, § 14. The Fifth Amendment of

the U.S. Constitution provides “[n]o person shall . . . be subject for the same offence

to be twice put in jeopardy of life or limb[.]” U.S. CONST. amend. V.

      It is well settled that “any criminal charge that is abandoned or dismissed on

the prosecution’s motion after jeopardy ‘attaches,’ i.e., after an individual is placed

in jeopardy of life or liberty may not be retried.” Proctor v. State, 841 S.W.2d 1, 3

(Tex. Crim. App. 1992). If a charge is pending when jeopardy attaches, a defendant

is entitled to expect the State to proceed to trial on that charge or lose the opportunity

forever. Id. at 3–4. Conversely, if a charge is affirmatively abandoned or dismissed

with the trial court’s permission before jeopardy attaches, the State is free to press

that charge at a later time. See id. at 4. When jeopardy attaches is also well settled.

In a jury trial, for purposes of both state and federal double jeopardy clauses,

jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28,

38 (1978); Proctor, 841 S.W.2d at 4; State v. Torres, 805 S.W.2d 418, 420 (Tex.

Crim. App. 1991). For bench trials, jeopardy attaches when both sides announce

ready and the defendant pleads to the charging instrument. Torres, 805 S.W.2d at

421; see also Sanchez v. State, 845 S.W.2d 273, 275 (Tex. Crim. App 1992).




                                            5
      Willis cites no authority to support the argument that this court should

disregard well established law, which allows the State to dismiss charges and refile

them. The Texas Court of Criminal Appeals has stated

      to preserve a portion of a charging instrument for a subsequent trial, the
      State must, before jeopardy attaches (i.e., prior to the jury being
      impaneled and sworn or for bench trials, when both sides have
      announced ready and the defendant has pled to the charging
      instrument[]), take some affirmative action, on the record, to dismiss,
      waive or abandon that portion of the charging instrument and the State
      must obtain permission from the trial judge to dismiss, waive or
      abandon that portion of the charging instrument.

Ex parte Preston, 833 S.W.2d 515, 518 (Tex. Crim. App. 1992) (emphasis added)

(internal citations omitted).

      Willis contends that jeopardy attached when Cause No. 298842 was

dismissed.2 Willis argues that the present case is distinguishable from other pretrial

dismissals, because the dismissal and order of the trial court was based on an


      2
         Willis does not make any arguments regarding jeopardy attaching in Cause
No. 310247, which was tried in front of a jury. The trial judge in that case ultimately
declared a mistrial due to the jury’s claims of circling an incorrect verdict and the
inability to poll one of the jurors at the time of the error due to an illness. Indeed,
such an argument would be without merit. See Ex parte Mitchell, 977 S.W.2d 575,
578 (Tex. Crim. App. 1997) (noting when a trial proceeds to verdict and the
conviction is set aside, a subsequent trial is not automatically jeopardy-barred).
Double jeopardy bars a new trial if the conviction was reversed for insufficiency of
the evidence but does not bar retrial of a defendant whose conviction was set aside
because of an error in the proceedings leading to a conviction. Ex parte Legrand,
291 S.W.3d 31, 36–37 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
Accordingly, our analysis is limited to Cause No. 298842.
                                            6
affirmative finding for the defense of justification for the alleged criminal conduct.

The State’s motion for dismissal in this case provides that “the State cannot meet

their burden of proof at trial, due to its inability to overcome the defense of a minor

child, by the Defendant, which is supported by evidence.” During the habeas

hearing, the State indicated the testimony of a witness was more fully developed,

which negated the reason for the dismissal of Cause No. 298842 based on defense

of a child.

       The record is clear in this case that at the time Cause No. 298842 was

dismissed, no jury was impaneled or sworn, no evidence was offered or received,

and no plea was entered by Willis after the announcement of ready by both sides.

See Ex parte George, 913 S.W.2d 523, 525 (Tex. Crim. App. 1995). The State’s

statement in its motion to dismiss is not an affirmative finding of insufficient

evidence to support a jury verdict after a trial. Cf. Ex parte Legrand, 291 S.W.3d 31,

36–37 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Here, the State took

affirmative action to dismiss the charges, and the trial court granted permission by

signing the order. See Preston, 833 S.W.2d at 518. Accordingly, jeopardy had not

attached at the time Cause No. 298842 was dismissed. See George, 913 S.W.2d at

525. Moreover, while the constitutional protections afforded against double jeopardy

encompass the doctrine of collateral estoppel barring the relitigation of an issue of

                                          7
ultimate fact against the same parties, Willis’s argument that the doctrine of

collateral estoppel estopped the State from refiling the criminal charge against her

after Cause No. 298842 was dismissed, fails for the same reasons already

mentioned—as jeopardy had not attached, the issue of ultimate fact has not been

litigated. See Ashe v. Swenson, 397 U.S. 436, 443–45 (1970).

       Willis further argues that “dismissal of a criminal information is a valid and

final judgment because it can be appealed by the State and discharges the defendant

from a restraint of liberty.” However, the provision cited by Willis in support of this

proposition applies only to the State. See Tex. Code Crim. Proc. Ann. art. 44.01

(West Supp. 2017) (our emphasis added).

                                     Conclusion

       In light of the foregoing, we conclude jeopardy did not attach upon the

dismissal of Cause No. 298842. We overrule Willis’s issue and affirm the ruling of

the trial court.

       AFFIRMED.
                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice
Submitted on November 21, 2017
Opinion Delivered March 14, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

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