TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 500314, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
On March 16, 2007, Edwin Baezotero's trial for indecency with a child by contact ended in a mistrial. On March 27, Baezotero applied for a writ of habeas corpus urging that further prosecution of this cause was barred by double jeopardy. On April 12, the Honorable Brenda Kennedy signed an order denying the writ, and Baezotero filed a notice of appeal.
On the same day the order denying habeas corpus was signed, Baezotero petitioned this Court for a writ of mandamus ordering the district court to stay further proceedings in the criminal prosecution until the Court ruled on his appeal in the habeas corpus proceeding. After determining from the mandamus record that Judge Kennedy denied the writ of habeas corpus without reaching the merits of Baezotero's double jeopardy claim, we concluded that the habeas corpus order was not appealable. See Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex. App.--Austin 2000, pet. ref'd). Without an appealable order, we could not rule on Baezotero's double jeopardy issue. See Ex parte Miller, 931 S.W.2d 724, 725-26 (Tex. App.--Austin 1996, no pet.). Accordingly, the writ of mandamus and the accompanying motion for emergency stay were denied. In re Baezotero, No. 03-07-00200-CV (Tex. App.--Austin Apr. 13, 2007) (orig. proceeding).
On April 16, 2007, Baezotero filed a new petition for writ of habeas corpus asserting his double jeopardy claim. An amended petition was filed on April 26. On the latter date, the Honorable Donald Leonard denied relief in a written order finding Baezotero's double jeopardy claim to be without merit, and Baezotero filed another notice of appeal.
Confronted with two habeas corpus petitions, two orders, and two notices of appeal, the district clerk prepared two records and forwarded them to this Court, where they were filed as cause numbers 03-07-00241-CR and 03-07-00242-CR. A single reporter's record was later filed under both cause numbers. Although the two clerk's records are largely identical, it appears that cause number 03-07-00241-CR is the appeal from Judge Leonard's April 26, 2007 order denying habeas corpus relief on the merits and cause number 03-07-00242-CR is the appeal from Judge Kennedy's April 12, 2007 order denying the writ of habeas corpus. Because the latter order is not appealable, cause number 03-07-00242-CR is dismissed. (1)
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Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: January 17, 2008
Do Not Publish
1. Today, we affirm the April 26, 2007 order denying habeas corpus relief. Ex parte Baezotero,
No. 03-07-00241-CR (Tex. App.--Austin Jan. 17, 2008, no pet. hist.) (mem. op., not designated for
publication).