Ex parte Queen

[208] OPINION DUGGAN, Justice. This is an appeal from the trial court’s denial of a pretrial writ of habeas corpus. Appellant asserts a jeopardy bar on account of legally insufficient evidence to support an earlier verdict of guilty. Appellant was charged by indictment with burglary of a habitation. After his plea of not guilty, a jury found appellant guilty, found two enhancement allegations in the indictment to be true, and assessed his punishment at 40 years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant filed a motion for new trial, asserting that his conviction should be set aside due to ineffective assistance of counsel, an erroneous jury charge, newly discovered evidence, and a verdict contrary to the law and evidence. The motion for new trial was heard, recessed, and finally overruled by operation of law. In 1990, appellant appealed to this Court, which abated the appeal1 and ordered the trial court to consider a second motion for new trial. After a hearing, the trial court apparently granted a new trial; however, the record contains neither a statement of facts from the hearing on the motion for new trial nor an order granting a new trial. Prior to retrial, appellant filed an application for a writ of habeas corpus, claiming that double jeopardy considerations barred any retrial since his original conviction was not supported by sufficient evidence. This appeal follows the trial court’s denial of writ. Appellant presents one point of error for review, claiming: The double jeopardy clause bars retrial because the evidence at appellant’s first trial was insufficient to establish that he entered the complainant’s habitation. Appellant admits in his application for writ of habeas corpus that the trial court granted his motion for new trial based on a finding that he was afforded ineffective assistance of counsel during his first trial. When a motion for new trial was granted at the defendant’s request, and the basis was other than insufficient evidence, double jeopardy considerations do not bar a new trial. Lofton v. State, 777 S.W.2d 96, 97 (Tex.Crim.App.1989). Double jeopardy precludes a second prosecution for the same offense after either acquittal or conviction, and forbids multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Lofton, 777 S.W.2d at 97; U.S. Const, amend. V; Tex. Const, art. I, § 14. Appellant has not gained an acquittal or suffered a final conviction. Neither has he been faced with multiple punishments for the offense with which he is charged. Tex.R.App.P. 32 states: Granting a new trial restores the case to its position before the former trial including, at the option of either party, arraignment or pretrial proceedings initiated by that party.... Thus, appellant is not exposed to double jeopardy in the present case. Rather, he is in the same position as if the first trial had not occurred. In Lofton, the Texas Court of Criminal Appeals reasoned that a motion for new trial must be granted on grounds of insufficient evidence before questions of jeopardy and sufficiency may be reviewed on appeal by a pretrial writ of habeas corpus. Lofton, 777 S.W.2d at 97. This Court, therefore, declines to review appellant’s assertions about sufficiency of the evidence. We overrule his point of error and affirm the decision of the trial court. OLIYER-PARROTT, C.J., concurs. Footnotes [1] Ex parte Timothy Hugh Queen, No. 01-91-00194-CR (Tex.App.—Houston [1st Dist.], March 15, 1991) (order) (unpublished).