John David Pratt v. State ( 2011 )

MEMORANDUM OPINION
No. 04-11-00147-CR
John David PRATT,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CR-9783
Honorable Melisa Skinner, Judge Presiding
PER CURIAM
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: May 11, 2011
DISMISSED FOR WANT OF JURISDICTION
On February 16, 2011, appellant filed a notice of appeal from the trial court’s pre-trial
order denying his special plea of double jeopardy. Appellant’s special plea alleges that double
jeopardy bars his criminal prosecution for aggravated assault with a deadly weapon, to wit: a
motor vehicle, because he was previously convicted of DWI arising out of the same criminal
transaction. See TEX. CODE CRIM. PROC. ANN. art. 27.05 (West 2006). We do not have
jurisdiction over an interlocutory appeal from a denial of a special plea of double jeopardy. Ex
04-11-00147-CR
parte Apolinar, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991). The special plea of double
jeopardy is a mechanism for avoiding reconviction, not retrial. Id. (noting the facts concerning
the special plea are determined during trial on the merits). If a trial court construes a special plea
of double jeopardy as a pre-trial petition for writ of habeas corpus, this court has jurisdiction to
review denial of the habeas relief. See TEX. CODE CRIM. PROC. ANN. arts. 11.01-.03 (West
2005); Ex parte Cantu, 913 S.W.2d 701, 703-704 (Tex. App.—San Antonio 1995, pet. ref’d)
(trial court may choose to construe pleading styled as a special plea of double jeopardy as a
habeas petition, but appellate court may not). Here, the appellate record shows the trial court
treated the appellant’s double jeopardy challenge as a special plea of double jeopardy, and did
not construe it as a petition for writ of habeas corpus. C.f., Ex parte Cantu, 913 S.W.2d at 703-
705 (record affirmatively showed trial court proceeded as if special plea were a writ of habeas
corpus). Therefore, on March 24, 2011, we ordered appellant to show cause why this appeal
should not be dismissed for lack of jurisdiction. Appellant did not respond. Accordingly, this
appeal is dismissed for want of jurisdiction.
PER CURIAM
DO NOT PUBLISH
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