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State v. Atkinson

Court of Appeals of Texas, Fourteenth District

December 7, 2017

THE STATE OF TEXAS, Appellant
v.
TAYLOR BARRETT ATKINSON, Appellee

         On Appeal from the County Court at Law No. 4 Fort Bend County, Texas, Trial Court Cause No. 14-CCR-176008

          Panel consists of Chief Justice Frost and Justices Boyce and Jewell.

          OPINION

          Kevin Jewell Justice.

         This State's appeal involves the dismissal and refiling of charges against appellee Taylor Barrett Atkinson. After the State refiled the charges, the trial court dismissed the case on double jeopardy grounds, concluding that the State consented to a dismissal of the original case with prejudice. The State challenges the trial court's dismissal of the refiled charges, urging that: (1) the trial court lacked authority to dismiss the original charges with prejudice because the prosecutor did not seek such a dismissal; (2) jeopardy did not attach in the original case and, thus, dismissal of the refiled charges based on a claim of double jeopardy was error; and (3) a special plea such as appellee's must be taken with the case and decided by the trier of fact, instead of being determined during a pretrial hearing.

         Because we conclude that jeopardy did not attach in the first instance, we reverse and remand.

         Background

         The State charged appellee by information with Class A misdemeanor driving while intoxicated ("DWI")[1] in cause number 13-CCR-166390 (the "First Case"). When the First Case was called for trial, the State moved for a continuance.[2]Appellee objected and announced ready for trial. The trial court denied the State's motion for continuance, and the State's prosecuting attorney moved to dismiss. The State filed a motion captioned "Motion to Dismiss, " in which the State requested the court to dismiss the First Case "with leave to refile." On the same page as the motion's text appeared a proposed order stating that the cause was dismissed with leave to refile. Appellee objected to the motion to dismiss and again announced ready for trial.

         An exchange then transpired that was not recorded and is not contained in our record but was later described under oath by appellee's counsel during the hearing on appellee's special plea, which is at issue in the present appeal. According to appellee's counsel, the trial judge in the First Case told the prosecutor that "the only way he would grant the motion for [dismissal] was with prejudice, " but the prosecutor told the judge that she would not "accept that." The judge also told the State that the case was "number 1 for trial."

         The State re-urged its motion for continuance or dismissal. Again, according to appellee's counsel, the trial judge offered the prosecutor two options: (1) come back after lunch for trial, or (2) dismiss with prejudice. Faced with these alternatives, the prosecutor told the court to "dismiss the case." As appellee's counsel described events, the trial judge, holding the State's motion to dismiss, wrote "/w prejudice" directly following the words "Motion to Dismiss" in the caption of the State's motion. The judge made no other alterations to the motion. The judge then signed the State's proposed order dismissing the case, which said in its entirety:

The foregoing motion having been presented to me on this the 19 day of Aug. A.D. 2014, and the same having been considered, it is therefore, ORDERED, ADJUDGED and DECREED that said above entitled and numbered cause be and the same is hereby dismissed with leave to refile.

(Emphasis added).

         Three days later, the State refiled charges against appellee, in cause number 14-CCR-176008, assigned to Fort Bend County Court at Law No. 4 (the "Second Case"). After numerous resets, appellee filed a "Special Plea of Double Jeopardy." In his special plea, appellee asserted that the charges in the Second Case were barred by constitutional and statutory prohibitions against double jeopardy[3] because the trial court dismissed the same charges against him with prejudice in the First Case.

         During the hearing on appellee's special plea, appellee's trial counsel acknowledged that (1) the State never sought a dismissal with prejudice in the First Case, (2) the State "initially objected" to the dismissal with prejudice, and (3) the trial court did not "dismiss[] with prejudice because the State cannot prove their [sic] case." Counsel further agreed that the prayer contained in the motion to dismiss specifically asked the court to dismiss the case "with leave to refile."

         Appellee's trial counsel was the only witness to testify at the hearing on the special plea.[4] The trial court admitted into evidence the First Case's dismissal motion and the signed order specifying that the case was "dismissed with leave to refile, " as well as the trial court's docket sheet. The docket sheet contains a stamped notation stating, "MOTION TO DISMISS GRANTED AS PER ORDER ON FILE." Additionally, the following handwritten notes appear on the docket sheet: "Case set for trial, 1st case on docket, oldest ...


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