Appeal from the County Court at Law No. 4 Fort Bend County,
Texas, Trial Court Cause No. 14-CCR-176008
consists of Chief Justice Frost and Justices Boyce and
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
we conclude that jeopardy did not attach in the first
instance, we reverse and remand.
State charged appellee by information with Class A
misdemeanor driving while intoxicated
("DWI") in cause number 13-CCR-166390 (the
"First Case"). When the First Case was called for
trial, the State moved for a continuance.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.
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."
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.
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 because the trial court dismissed the same
charges against him with prejudice in the First Case.
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."
trial counsel was the only witness to testify at the hearing
on the special plea. 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,