      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00242-CR



                                   Ex parte Edwin Baezotero



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
         NO. 500314, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                           MEMORANDUM OPINION


               On March 16, 2007, Edwin Baezotero’s trial for indecency with a child by contact

ended in a mistrial. On March 27, Baezotero applied for a writ of habeas corpus urging that further

prosecution of this cause was barred by double jeopardy. On April 12, the Honorable Brenda

Kennedy signed an order denying the writ, and Baezotero filed a notice of appeal.

               On the same day the order denying habeas corpus was signed, Baezotero petitioned

this Court for a writ of mandamus ordering the district court to stay further proceedings in the

criminal prosecution until the Court ruled on his appeal in the habeas corpus proceeding. After

determining from the mandamus record that Judge Kennedy denied the writ of habeas corpus without

reaching the merits of Baezotero’s double jeopardy claim, we concluded that the habeas corpus order

was not appealable. See Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex. App.—Austin 2000,

pet. ref’d). Without an appealable order, we could not rule on Baezotero’s double jeopardy issue.

See Ex parte Miller, 931 S.W.2d 724, 725-26 (Tex. App.—Austin 1996, no pet.). Accordingly, the

writ of mandamus and the accompanying motion for emergency stay were denied. In re Baezotero,

No. 03-07-00200-CV (Tex. App.—Austin Apr. 13, 2007) (orig. proceeding).
               On April 16, 2007, Baezotero filed a new petition for writ of habeas corpus asserting

his double jeopardy claim. An amended petition was filed on April 26. On the latter date, the

Honorable Donald Leonard denied relief in a written order finding Baezotero’s double jeopardy

claim to be without merit, and Baezotero filed another notice of appeal.

               Confronted with two habeas corpus petitions, two orders, and two notices of appeal,

the district clerk prepared two records and forwarded them to this Court, where they were filed as

cause numbers 03-07-00241-CR and 03-07-00242-CR. A single reporter’s record was later filed

under both cause numbers. Although the two clerk’s records are largely identical, it appears that

cause number 03-07-00241-CR is the appeal from Judge Leonard’s April 26, 2007 order denying

habeas corpus relief on the merits and cause number 03-07-00242-CR is the appeal from Judge

Kennedy’s April 12, 2007 order denying the writ of habeas corpus. Because the latter order is not

appealable, cause number 03-07-00242-CR is dismissed.1


                                             __________________________________________

                                             Diane Henson, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Dismissed for Want of Jurisdiction

Filed: January 17, 2008

Do Not Publish




   1
     Today, we affirm the April 26, 2007 order denying habeas corpus relief. Ex parte Baezotero,
No. 03-07-00241-CR (Tex. App.—Austin Jan. 17, 2008, no pet. hist.) (mem. op., not designated for
publication).

                                                 2
