Ex Parte Preston

¶1OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

¶2Appellant was originally charged in a single indictment with three counts of aggravated robbery. After the jury was impaneled and sworn, the State proceeded to trial on the second count only and appellant was convicted of that alleged offense. A grand jury re-indicted appellant for the offenses alleged in the first and third counts of the original indictment. Appellant filed a pretrial application for writ of habeas corpus contending the subsequent prosecution violated his constitutional guarantee against double jeopardy. The trial court denied relief and the Court of Appeals affirmed. Ex Parte Preston, 801 S.W.2d 604 (Tex.App.—Houston [1st Dist.] 1990). We will reverse the judgment of the Court of Appeals.

¶3I.

¶4The facts are not in dispute. As previously noted, the State proceeded to trial *517solely on the second count of the original indictment. However, there is no evidence in the record that the State took any affirmative action to dismiss, waive or abandon or that the State obtained permission from the trial judge to dismiss, waive or abandon the first and third counts in that indictment.1 Therefore, the issue is whether jeopardy attached to the offenses alleged in the first and third counts in the original indictment barring the instant prosecution.

¶5II.

¶6The doctrine of double jeopardy is derived from the Fifth Amendment to the Constitution of the United States and is applied to the states through the Fourteenth Amendment.2Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); and Downum v. U.S., 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). In a jury trial, jeopardy attaches when the jury is impaneled and sworn. Crist, 437 U.S. at 38, 98 S.Ct. at 2162. After jeopardy attaches, any charge which is dismissed, waived, abandoned or on which the jury returns an acquittal, may not be retried.3Ex Parte Scelles, 511 S.W.2d 300, 301 (Tex.Cr.App.1974).

¶7In Johnson v. State, 436 S.W.2d 906, 908 (Tex.Cr.App.1968), we recognized the general rule that the state may, with the consent of the court dismiss, waive or abandon a portion of the indictment. Woods v. State, 152 Tex.Crim. 131, 211 S.W.2d 210, 211 (1948). See also, Wallace v. State, 145 Tex.Crim. 625, 170 S.W.2d 762, 764 (1943). However, if the dismissal, waiver or abandonment occurs after jeopardy attaches, the State is barred from later litigating those allegations. McElwee v. State, 589 S.W.2d 455, 460 (Tex.Cr.App.1979); and Black v. State, 143 Tex.Crim. 318, 158 S.W.2d 795 (1942).

¶8III.

¶9The State contends the instant case is controlled by Patterson v. State, 581 S.W.2d 696 (Tex.Cr.App.1979). In Pattersonthe defendant

was charged, in a two-count indictment, with the offenses of possession of marihuana and possession of a firearm by a felon, [footnote omitted]. Before the jury was impaneled and sworn, the State elected to proceed on the count for possession of marihuana; the [defendant] was convicted of that offense. The [defendant] was reindicted for the offense of possession of a firearm by a felon and brought to trial.

¶10Id. at 697.4

¶11We held that jeopardy did not bar the prosecution for possession of a firearm by a felon because “the State elected to proceed only on the count charging possession of marihuana prior to the time that the jury was sworn.” Patterson, 581 S.W.2d at 697. See also, Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973). The instant case is readily distinguishable because, as previously noted, the State did not elect to proceed only on the second count before the jury was impaneled and sworn.

¶12Finally, the State contends that, since appellant entered a plea to the second count only, jeopardy did not attach to the offenses alleged in the first and third counts. The argument ignores the fact that a defendant enters his plea only after *518the jury has been impaneled and sworn. Tex.Code Crim.Proc.Ann. art. 36.01(a)(1) & (2).5 Further, the argument ignores our previous decisions requiring the State to seek the consent of the Court to dismiss, waive or abandon the remaining portions of the charging instrument. Woods v. State, 211 S.W.2d at 211.

¶13IV.

¶14Accordingly, we hold that in order to preserve a portion of a charging instrument for a subsequent trial, the State must, before jeopardy attaches (i.e., prior to the jury being impaneled and sworn or for bench trials, when both sides have announced ready and the defendant has pled to the charging instrument. Ex parte Torres, 805 S.W.2d 418, 421), take some affirmative action, on the record, to dismiss, waive or abandon that portion of the charging instrument and the State must obtain permission from the trial judge to dismiss, waive or abandon that portion of the charging instrument. Because this was not done, jeopardy attached to the offenses alleged in the first and third counts in the original indictment when the jury was impaneled and sworn at appellant’s trial. In short, we hold that the Constitutional guarantee against Double Jeopardy does not permit a constructive abandonment of a portion of the charging instrument. Accordingly, the judgment of the Court of Appeals is reversed and this cause is remanded to the trial court with orders to dismiss the prosecution.

¶20OPINION DENYING STATE’S MOTION FOR REHEARING

¶21On original submission we granted appellant relief and ordered the prosecution dismissed. The State contends that result is erroneous for several reasons. We now address those contentions.

¶22I.

¶23On original submission we began by stating, “[t]he facts are not in dispute ... there is no evidence in the record that the State took any affirmative action to dismiss, waive or abandon or that the State obtained permission for the trial judge to dismiss, waive or abandon the first and third counts in that indictment.” Maj. op. pg. 517. The State contends we mischarac-terized the facts. The State “submits that the record in the present case demonstrates that there was no guessing in the present case! Defense counsel and the trial court were obviously on notice!” The State’s argument is simply not supported by the record.

¶24Our review of the record reveals that appellant’s trial counsel moved for an acquittal on the first and third counts at the close of the State’s case.1 Specifically, appellant’s trial counsel made the following motion:

The defendant further moves for acquittal on the other two counts of the indictment that have never been severed from this case, and there has never been any motion to sever, there has never been any motion granted to sever them. The State has not put on any evidence at all and [appellant] moves for a verdict of acquittal on both of those cases, both of the other counts, Count 1 and Count 3.2

¶25*519At the hearing on appellant’s motion, the State did not refer to or otherwise mention an agreement with appellant’s trial counsel regarding the first and third counts. Appellant’s motion was overruled by the trial judge. The motion made by appellant’s trial counsel, at least by implication, shows there was no agreement to try the first and third counts at a later date.

¶26The State directs us to a portion of the hearing on appellant’s application for writ of habeas corpus where the prosecutor testified to an “off-the-record” agreement with defense counsel to proceed only on the second count. However, the record reveals a dispute as to the existence of an agreement. The prosecutor testified:

Q. During the jury selection, was there ever any voir dire process as to Count One and Count Three?

A. No. Not at all.

Q. Why was that?

A. Because prior to trial there was a discussion had between myself, [appellant’s] lawyer, [appellant’s trial counsel], and I told [appellant’s trial counsel] at the time, that would have been Monday morning, because we picked the jury Monday afternoon, that I could not get the witnesses for either Count One and Count Three, and that I would be proceeding only on Count Two, and that’s all we ever talked about during voir dire.3

Q. Did at the time — and we are talking prior to trial, and that would be off the record. Is that right?

A. That’s correct.

Q. Did [appellant’s trial counsel] object to that in any way?

A. No. He did not.

Q. Did he agree with you to only proceed on Count Two?

A. He did.

¶27However, appellant’s trial counsel testified:

Q. Let me ask you this, [appellant’s trial counsel]. Do you remember or do you have an independent recollection of whether one or more counts went to the jury?

A. It’s my contention that all the counts went to the jury.

Q. Let me ask it another way. Do you remember whether Mr. Preston was arraigned and evidence was presented and a jury instruction given on one count only?

A. That’s correct.

Q. All right. And do you remember having a conversation with [prosecutor] before trial off the record regarding the disposition of Counts 1 and 3?

A. I do.

Q. All right. What was the substance of that conversation?

A. It’s that we were trying all the cases at once.

Q. Did you know at the time she didn’t have witnesses here or some witnesses were unavailable on Counts 1 and 3?

A. No, they had witnesses here.

Q. Okay. Did you agree with her to try those two cases at a later date?

A. Absolutely not.4

¶28We find no support in the record for the State’s contention that we mischaracterized the facts on original submission. “Assertions in an appellate brief that are unsupported by the record will not be accepted as fact.” Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex.Cr.App.1981). To the contrary, our research reveals nothing on the record at appellant’s trial to indicate the State’s intention regarding the first and third counts in the indictment. Stated *520another way, the State failed to take any affirmative action, on the record, to preserve the first and third counts.

¶29II.

¶30Regarding our application of the relevant decisional authority, the State next contends we misconstrued our holding in Patterson v. State, 581 S.W.2d 696 (Tex.Cr.App.1979). In Pattersonwe held that jeopardy did not bar a subsequent prosecution because “the State elected to proceed only on the count [utilized at Patterson’s first trial] prior to the time that the jury was sworn.” Patterson, 581 S.W.2d at 697. To fully address the State’s argument, we have carefully reviewed the record from Patterson’s first trial, where the State, with the trial judge’s consent, elected to proceed on only one count of the two count indictment.

Defense counsel: There is one problem. Could we have stated in the record which count of this two count indictment they are going on and what count they are abandoning?

The State: Your Honor, we’re going on count two. We’re not abandoning anything.

The Court: Let me have the file. Now, as I understand it the count on which the defendant is to be tried is count 2, which presents:

[Whereupon count 2 of the indictment charging Patterson with unlawful possession of marijuana was read by the Court]

The Court: Now, that is the count on which the defendant is being tried.

The State: Your Honor, we will proceed on the enhancement paragraphs.

The Court: You are going on count No. 2 and the enhancement paragraph?

The State: Yes, Sir.

The Court: Do you understand that? In other words, he’s being tried on the count which charges the unlawful possession of marijuana in a usable quantity of more than 4 ounces. And you are seeking to employ the previous convictions for the purpose of enhancing punishment in case he’s found guilty on this count.

The Defendant: Yes.

The State: And for the record, we are going to sever count 1 from count 2. We’re not going to dismiss count 1.

The Court: All right. Count 1 is being severed but is not being dismissed.

The State: Yes, Sir.

The Court: All right. Now, I want the defendant to be sure, because I’ve done a lot of talking. And I want the defendant to be sure he understands that what he is now being tried for is that count that I read of your possession, having unlawfully possessed marijuana in a usable quantity of more than 4 ounces.... Do you understand that?

The Defendant: Yes, Sir.

¶31When viewed in this light, our holding in Pattersondoes not conflict with our holding on original submission. Moreover, the instant case is distinguishable because the State failed to preserve for future prosecution, on the record, the first and third counts in the indictment. Additionally, there is nothing on the record, in the instant case, to indicate the trial judge consented to the preservation of the first and third counts for a subsequent prosecution.5

¶32The State next contends that jeopardy should not attach to the counts which were not a part of the State’s voir dire examination and that jeopardy did not attach to the offenses alleged in the first and third counts since appellant entered his plea only to the second count. The State fails to provide any authority in support of its position, other than Pattersonwhich, as discussed above, is contrary to the State’s position. Nor has our independent research found any support for the State’s position. To the contrary, our research *521reveals that the State’s argument is without merit for the following reasons.

¶33First, a similar argument was raised and rejected in Guzman v. State, 732 S.W.2d 683 (Tex.App.—Corpus Christi 1987, no pet.), where the Court of Appeals held:

If it is the State’s contention that appellant was not placed in jeopardy on all the counts because not all counts were read to the jury, the State is wrong. Although this was the rule in Texas before Crist v. Bretz, it is not the rule now. McElwee v. State, 589 S.W.2d at 455.

¶34Guzman v. State, 732 S.W.2d 683 at 686, n. 1.

¶35The GuzmanCourt’s reasoning is well-founded and we adopt that reasoning today. In McElwee, the State dismissed the indictment after the jury had been impaneled and sworn. The grand jury reindicted the defendant for the same offense and the State sought to try the defendant on the subsequent indictment. This Court, relying on Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), held that jeopardy barred the subsequent prosecution even though the original indictment was never read to the jury and the defendant never pled to the original indictment. McElwee v. State, 589 S.W.2d 455 (Tex.Cr.App.1979).

¶36Second, the State ignores the fact that a defendant enters his plea only after jeopardy has attached, namely after the jury has been impaneled and sworn. Tex. Code Crim.Proc.Ann. art. 36.01(a)(1) & (2). Therefore, what occurs during voir dire examination is not determinative of jeopardy. When a case is called for trial, we presume all counts in the charging instrument are being tried unless the record clearly indicates otherwise. In the instant case, the docket sheet from appellant’s trial indicates the State announced “ready” for trial on February 13, 1989, however, the trial did not begin until February 15, 1989.6 The docket sheet does not indicate that the State announced ready on count two only or that the State took any action to preserve counts one and three for trial at a later date.

¶37III.

¶38Our holding on original submission required the State to take some affirmative action, on the record, before jeopardy attached, to preserve a portion of the charging instrument for a subsequent trial. We held such action was necessary because “the Constitutional guarantee against Double Jeopardy does not permit a constructive abandonment of a portion of a portion of the charging instrument.” Slip op. pg. 518. The State characterizes our holding as establishing a doctrine of “constructive attachment of jeopardy.” Contrary to the State’s assertions, our holding did not announce a new doctrine of when jeopardy attaches. That issue has been settled. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), and Ex parte Torres, 805 S.W.2d 418 (Tex.Cr.App.1991).

¶39The Constitutional prohibition against double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). As this is a right personal to the criminal defendant some affirmative action, on the record, is necessary to provide the defendant with notice if the State elects to proceed on less than all of the offenses alleged in the charging instrument. As previously noted, when a case is called for trial, we presume all counts in the charging instrument are being tried unless the record clearly indicates otherwise. In the instant case, the State announced “ready” for trial on February 13, 1989. Because the State did not take any affirmative action, on the record, to preserve counts one and three for trial at a later date, appellant was entitled to believe the State was proceeding to trial on all the counts in the indictment. For these reasons, we adhere to our holding on original submission, absent some *522affirmative action on the record to preserve the first and third counts for a subsequent trial, jeopardy attached to the offenses alleged in those counts.7

¶40IV.

¶41Finally, the State contends the first and third counts of the indictment were never abandoned. In its motion for rehearing, the State argues: “it is clear from the record of this case that the State was not abandoning, either constructively or actually, the other two counts.” The State’s argument is without merit.

¶42If the counts were not preserved for future prosecution, prior to the time the jury was impaneled and sworn, appellant was necessarily placed in jeopardy for the offenses alleged in the first and third counts and may not be subsequently prosecuted for those offenses. Ex Parte Scelles, 511 S.W.2d 300, 301 (Tex.Cr.App.1974).

¶43v.

¶44For the foregoing reasons, we deny the State’s motion for rehearing and reaffirm our holding on original submission. In order to preserve a portion of a charging instrument for future prosecution, the State must, before jeopardy attaches, take some affirmative action on the record, to preserve that portion of the charging instrument and the State must obtain consent from the trial judge to preserve that portion of the charging instrument. In other words, jeopardy attaches to the offenses alleged in each count in the indictment called for trial unless the count is preserved for future prosecution by the State, with the consent of the trial judge, before jeopardy attaches.

¶45The State’s motion for rehearing is denied.8