
No. 04-98-00756-CR

The STATE of Texas,
Appellant

v.

Charles E. SEIDEL, Jr.,
Appellee

From the County Court at Law, Guadalupe County, Texas
Trial Court No. CCL-98-549
Honorable Linda Z. Jones, Judge Presiding

Opinion by:	Karen Angelini, Justice


Sitting:	Tom Rickhoff, Justice

		Sarah B. Duncan, Justice

		Karen Angelini, Justice


Delivered and Filed:	August 18, 1999


AFFIRMED


 The State of Texas appeals the trial court's order granting habeas corpus relief to Charles E.
Seidel, Jr. on grounds of double jeopardy and collateral estoppel.  Raising a single issue on appeal,
the State contends that the trial court abused its discretion in granting habeas relief  because Seidel
did not carry his burden of proving either previous jeopardy or previously litigated facts.  Because
we find that the State waived this error, we affirm the judgment of the trial court.

Factual and Procedural Background
	On August 17, 1997, appellant, Charles Seidel, was arrested for driving while intoxicated.
 Seidel was released on bond.  In December of 1997, the district attorney's office rejected the case
after determining that it could not be prosecuted as a felony offense.  No indictment was filed.  On
April 16, 1998, a district judge heard Seidel's request for habeas corpus relief.  Seidel sought
discharge of his bond and dismissal of the prosecution based on the State's delay in presenting an
indictment or information charging him with a crime.

	During the hearing, the State's attorney notified the court that the district attorney's office
had rejected the case and that it had no intention of pursuing the matter further.  He noted that  the
case had been forwarded to the county attorney's office for prosecution as a misdemeanor offense.
An assistant county attorney was present at the hearing and he assured the court that the county
attorney's office intended to prosecute Seidel for misdemeanor driving while intoxicated.  The
district judge had his clerk contact the county clerk's office to determined whether an information
had been filed, but no information was on file at that time.  Relying on article 32.01 of the Texas
Code of Criminal Procedure, the district judge discharged Seidel from bail and dismissed the
prosecution "on the merits with prejudice."(1)
	The county attorney subsequently  filed a complaint and information in county court,
charging Seidel with misdemeanor driving while intoxicated.  Seidel filed a special plea of collateral
estoppel and a pre-trial application for writ of habeas corpus seeking relief on double jeopardy
grounds.   Following a hearing, the county court issued a written opinion stating that the district
court's order dismissing the prosecution with prejudice barred the refiling of a lesser charge arising
out of the same transaction. Accordingly, the county court granted habeas relief and ordered the
information dismissed.  It is from this order that the State appeals.

Argument and Authority
 The State bases its assertion that the county court abused  its discretion in granting Seidel
habeas relief on several grounds, one of which is the State's contention that the county court
misapplied the applicable  law.  We agree, but find that the State waived this error by failing to
appeal the district court's erroneous order.

	According to its written opinion, the county court granted Seidel habeas relief based upon
its belief that the district court's order dismissing the prosecution with prejudice was a correct
application of articles 28.061 and 32.01 of the Texas Code of Criminal Procedure.  Because the
county court deemed the district court's original dismissal appropriate, it saw "no option" but to
grant the requested double jeopardy/collateral estoppel relief.  However, after reviewing the
applicable statutes and case law, we conclude that the district court's application of articles 28.061
and 32.01, as reflected in its order, was erroneous.

	The source of the courts' errors lies in their analysis of article 28.061 as it read prior to its
amendment in 1997.  Prior to 1997, when a prosecution was dismissed for delay in filing an
indictment under article 32.01, article 28.061 was triggered, which resulted in a bar to further
prosecution.  Specifically, article 28.061 provided that:

	If a motion to set aside an indictment, information, or complaint for failure to provide
a speedy trial is sustained, the court shall discharge the defendant.  A discharge under
this article or Article 32.01 of this code is a bar to any further prosecution for the
offense discharged and for any other offense arising out of the same transaction....


Act of September 1, 1987, 70th Leg., R.S., ch. 383, § 1, 1987 Tex. Gen. Laws 1885 (current version
at  Tex. Code Crim. Proc. Ann. art. 28.061 (Vernon1989), amended by  Act of May 26, 1997, 75th
Leg., R.S., ch. 289, § 1, 1997 Tex. Gen. Laws 1304.  When article 28.061 was amended in 1997,
reference to article 32.01 was deleted.  See Tex. Code Crim. Proc. Ann. art. 28.061 (Vernon Supp.
1999).   Therefore, article 28.061 no longer applies to a discharge under article 32.01, and a
defendant's remedy is controlled only by the terms of article 32.01, which is a means of avoiding
prolonged pre-charge confinement or bail.  See 41 George E. Dix & Robert O. Dawson, Criminal
Practice and Procedure § 23.81 (Texas Practice Supp. 1999).  In other words, while the
defendant may be discharged from custody under article 32.01, he is not free from subsequent
prosecution.  Id.  
	The 1997 amendment of article 28.061 went into effect on May 26, 1997, and applied only
to the prosecution of a defendant arrested for an offense on or after that date. See Tex. Code Crim.
Proc. Ann. art. 28.061 historical note (Vernon Supp. 1999) [Act of May 26, 1997, 75th Leg., R.S.,
ch. 289, § 4, 1997 Tex. Gen. Laws 1304].    Seidel was arrested on August 16, 1997, so the amended
statute applies in this case.  Accordingly, although, under article 32.01, Seidel was entitled to a
discharge from bail because of the State's failure to timely file an indictment, article 28.061 could
not be properly used to bar the State from filing subsequent charges anytime within the limitation
period.  	While the application of the pre-amendment statute to these facts was error on part
of both the district and county courts, we find that the State waived this error when it failed to appeal
the district court's order dismissing the prosecution with prejudice.  Any claim by the State that the
trial court wrongfully dismissed an indictment should by raised by appeal within fifteen days.  See
Tex. Code Crim. Proc. Ann. art. 44.01 (a)(1) & (d) (Vernon Supp. 1999).  Because the State did
not appeal the district court's order of dismissal, the order is final.  See Irving v. State, 879 S.W.2d
220, 222 (Tex. App.­Houston [14th Dist.] 1994),  aff'd, 922 S.W.2d 959 (Tex. Crim. App. 1996)(2).
And because it was faced with a final order dismissing a prosecution with prejudice, the county court
was, to some degree, correct in its assertion that it had "no option" but to dismiss the information
on double jeopardy/collateral estoppel grounds.

	It seems, then, that the State's complaint lies with the district court's action, not the county
court's.  However, the State apparently believes that neither article 32.01 nor article 28.061 apply
in county court and that, therefore, the district court's order, which relied on article 32.01, did not
apply to a subsequent prosecution in county court.  Based on this belief, the State elected to file an
information in county court.  This was done in spite of the fact that there was an order purporting
to dismiss Seidel's  prosecution with prejudice  in effect at the time the information was filed.  Even
if the State was certain that the district court's order did not prevent it from filing a subsequent
information, the order purported to do so.  In such a circumstance, the State was bound, not to simply
disregard the order, but to appeal it.  Unfortunately, because the State chose to circumvent

the procedure established for contesting a trial court's action, it has waived its right to complain of
a clearly erroneous ruling. See id; Tex. R. App. P. 33.1(a).  The judgment of the trial court is
affirmed.



							KAREN ANGELINI

							JUSTICE


PUBLISH
1.  The reporter's record of the hearing is inconsistent with the order contained in the clerk's record.  At the
hearing, the district court indicated that it was only discharging Seidel from bail and that it was denying Seidel's motion
for dismissal of the prosecution with prejudice.  The signed order, however, provides that Seidel's motion for dismissal
of the prosecution with prejudice is granted.
2.  We note that the court of criminal appeals did not conclusively address the issue of "whether the State's failure
to appeal a void dismissal order caused that order to become valid" when it affirmed the appellate court's decision in
Irving v. State.  See Irving v. State, 922 S.W.2d 959, 960 (Tex. Crim. App. 1996).  In such case, we choose to follow
the appellate court's decision.

