No. 05-05-01564-CR
Opinion Filed January 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. WX05-60015-T. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
Opinion By Justice O'NEILL.
David Lynn Bratcher is charged by indictment with two aggravated sexual assault of a child offenses. Appellant filed a pretrial application for writ of habeas corpus asserting the prosecutions are barred by Double Jeopardy. The trial court denied appellant habeas corpus relief. In two issues, appellant contends the trial court abused its discretion in denying habeas corpus relief because he was acquitted in a previous trial and the allegations in the pending indictments were covered by the evidence presented in the former trial. We affirm the trial court's order.
Appellant filed one application for writ of habeas corpus challenging the prosecutions under both indictments in cause nos. F05-00209-KVT and F05-00211-KVT.
Background
Appellant is charged with two aggravated sexual assault offenses involving the same complainant, C.W. The offenses are alleged to have occurred in 1991 when C.W. was younger than fourteen. C.W. reported the alleged offenses when he was in his twenties. In trial court no. F02-71860, appellant was previously tried for and convicted of sexual assault of C.W. The trial court granted appellant's motion for new trial, and the State ultimately dismissed the charge. Applicable Law
In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam). We will uphold the trial court's ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial judge's application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Id. Where the resolution of the ultimate questions turns on an application of legal standards, we review the ruling de novo. Id. The Double Jeopardy Clauses of the United States and Texas Constitutions prohibit subsequent prosecution for the same offense after acquittal. See State v. Lee, 15 S.W.3d 921, 928 (Tex.Crim.App. 2000); see also U.S. Const. amend. V; Tex. Const. art. 1, § 14. The protections against double jeopardy apply only if there has been some event, such as an acquittal, that terminates the original jeopardy. See Richardson v. United States, 468 U.S. 317, 325 (1984); Ex parte Queen, 877 S.W.2d 752, 754 (Tex.Crim.App. 1994). Before a defendant can be twice put in jeopardy for the same offense, the original jeopardy must have terminated. See Ex parte Queen, 877 S.W.2d at 754. The granting of a motion for new trial on unspecified grounds does not constitute an acquittal, even if one of the grounds raised in the motion is insufficiency of the evidence. See id. at 754-55; Ex parte Lofton, 777 S.W.2d 96, 97 (Tex.Crim.App. 1989). Rather, the granting of a motion for new trial restores the case to its position before the former trial and, therefore, the original jeopardy continues. See Ex parte Lofton, 777 S.W.2d at 97. Analysis
Appellant's motion for new trial in trial court no. F02-71860 raised several issues. The focus of the motion for new trial hearing was the sufficiency of the evidence to support the conviction. However, at the end of the hearing, the judge did not order an acquittal for insufficient evidence. See id. Rather, the trial judge signed an order granting the motion for new trial on unspecified grounds. The new trial order returned the case to its former position, with the initial jeopardy continuing. See id. We conclude the trial court's order granting the new trial did not result in appellant's acquittal. Therefore, double jeopardy does not bar the prosecutions under the new indictments and the trial court did not abuse its discretion in denying appellant habeas corpus relief. We resolve appellant's two issues against him. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.