dissenting.
I respectfully dissent. I would reverse the judgment below with instructions to dismiss the present indictment because of failure to comply with the Speedy Trial Act, Article 32A.02(1)(1), Tex.Code Crim.Pro.Ann.
The issue in this case is not whether the State was invested with the right to retry the Appellant for the crime that he had been previously convicted or for any other lesser included offense that could be sustained by the original indictment in this case. Clearly the State had that right. Article 37.14, Tex.Code Crim.Pro.Ann.; Morris v. Mathews, 475 U.S.-, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986); Moss v. State, 574 S.W.2d 542 (Tex.Crim.App.1978). While no jeopardy attached regarding such lesser included offenses, as pointed out by the majority opinion herein, the single count for murder was spent, as was the announcement of ready for same, when the trial ended in a mistrial on November 9, 1982. Article 37.14, Tex.Code Crim.Pro.Ann., militates against the suggestion of the majority that Appellant could have been retried on the murder charge at any time. In finding the Appellant guilty of involuntary manslaughter, the jury acquitted him of murder and jeopardy attached on the singularly charged offense of murder. At that point, the State was empowered to end the proceedings by no further prosecution of the Appellant or to opt to continue the prosecution of the Appellant. Further prosecution, however, could continue only under pleadings properly charging the Appellant with such lesser crime or *134crimes. The point at issue is whether the prosecutor was ready for trial subsequent to the relevant point in time when its efforts to convict on the original charge ended in failure on its original indictment. I think not.
Clearly, the original indictment would sustain a conviction for the lesser included offense. But it was useless as a prosecuto-rial instrument in its original form. The original charging document could not be used to proceed to trial without violating double jeopardy standards and without violating Appellant’s right to know that the State had in fact exercised its option to proceed against him. It served also to keep the commenced prosecution viable during the time given to the State to announce ready anew on any offense or offenses that they wished to bring arising out of the same transaction. But it was necessary and indispensable that a new charging document listing the correct offense be filed under the circumstances resulting from the actions of the first jury. Additionally, the new charging document would serve to apprise both the court and the Appellant of the nature of the cause to which he was now forced to respond. Tex.Const. art. I, sec. 10. United States v. Pierro, 478 F.2d 386, at 389 (2d Cir.1973). A new usable primary pleading at that point was necessary and indispensable to the issue of readiness on the part of the State to proceed in the further prosecution of the case. Article 27.01, Tex.Code Crim.Pro.Ann. Without it, the State was not ready to proceed as a matter of fact and law.
Appellant herein moved for a discharge under the provisions of Article 32A.02, supra, on at least two occasions after the six-month period elapsed from the date of the mistrial. No waiver of the rights accorded to him by this article is present in the instant case.
It was not until January 26, 1984, and after an abortive attempt to retry the Appellant on the original indictment, that the State, finally heeding the urgings of counsel for the Appellant, secured a new indictment charging the offense of involuntary manslaughter while at the same time obtaining a dismissal of the prior indictment. Their announcement of ready on the next day was well beyond the 120-day period contemplated by the Speedy Trial Act.
The State argues, in effect, and the majority agree, that the instant case is a “reindictment” of Cause No. 36102-120 where the Appellant was indicted on June 3, 1981, for the offense of murder arising out of the same transaction as the instant case of involuntary manslaughter. The State suggests that its announcement of ready filed in writing in that cause should be carried forward in the instant case because it is a “reindictment.” Although the former and the instant case have the same complaining witnesses, they are different offenses under different sections of the Texas Penal Code. The original charge was made under Section 19.02 of same, and the instant comes under Section 19.05 of the act. These are different offenses subject to different pleading and to different proof. They are not the “same case” even though they arose out of the same transaction. Article 32A.02(2)(a); Richardson v. State, 629 S.W.2d 164 at 165 (Tex.App.—Dallas 1982, PDRR). Consequently, the announcement of ready in the first case will not apply to the instant case.
I conclude, under the circumstances of this case, that Appellant is entitled to relief under the provisions of the Speedy Trial Act and would reverse this cause and order its dismissal below.