Ex Parte: Audreas Demong Lane

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-283-CR



EX PARTE: AUDREAS DEMONG LANE,

APPELLANT

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT

NO. 18,213-A, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING

PER CURIAM

This is an appeal from an order of the district court, made following a hearing on appellant's writ of habeas corpus, overruling appellant's double jeopardy claim. This Court will affirm the district court's order.

In May 1992, appellant was tried for aggravated assault in Milam County cause number 18,212. This proceeding ended in a mistrial. Appellant filed his habeas corpus application on June 9, 1992, the day before trial was scheduled to begin in Milam County cause number 18,213. This cause was also a prosecution for aggravated assault, apparently arising out of the same incident but involving a different complaining witness. In his writ application, appellant raised a claim of collateral estoppel. The last two paragraphs of the application read as follows:

An issue necessarily determined by the trier of fact at the former proceeding against the Applicant in Cause No. 18,212, was the issue of whether the aggravated assault was with a deadly weapon. Its relitigation in Cause No. 18,213 violates Applicant's statutory and state and federal constitutional rights to be protected against being put in jeopardy more than once for the same offense.

WHEREFORE, PREMISES CONSIDERED, Applicant respectfully requests that the Court conduct an evidentiary hearing on this application for writ of habeas corpus and upon conclusion thereof issue such writ discharging Applicant from the threat of further prosecution in Cause No. 18,212.

We assume from the procedural context of the writ application and from appellant's arguments before the district court that the writ application was filed for the purpose of stopping the trial of cause number 18,213, and that the reference to cause number 18,212 in the prayer was a mistake.

This appeal is moot. Appellant has been tried and convicted in cause number 18,213, and his appeal from that conviction is pending in this Court. Appellant's collateral estoppel claim is without merit in any event, since there must be a final and valid judgment to support such a claim. Garcia v. State, 768 S.W.2d 726, 729 (Tex. Crim. App. 1987). There was, of course, no judgment in cause number 18,212 because of the mistrial.

In his brief to this Court, appellant also argues that there was no manifest necessity for the mistrial in cause number 18,212. Appellant does not explain why this would bar prosecution of another cause. We need not decide the question, as it was not presented to the district court.

The two points of error are overruled. The order of the district court is affirmed.

[Before Justices Powers, Kidd and B. A. Smith]

Affirmed

Filed: February 17, 1993

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