dissenting.
Believing that the majority errs in failing to grant relief to this applicant, I am compelled to file this dissent.
The record reflects that applicant was initially indicted in the cause with a two count indictment. The first count alleged theft of an automobile. The second count alleged unauthorized use of an automobile. Two enhancement paragraphs followed the allegations of the primary offenses.
On September 6, 1978, applicant’s first trial commenced. Evidence was presented and arguments were made. An affidavit from the prosecutor who prosecuted the case states that it was her recollection that both counts were submitted to the jury. She admitted that while she did not have any independent recollection of abandoning the felony theft paragraph, it was her practice to present evidence on all the counts, evaluate the case after the evidence had been presented and then prior to the drafting of the jury charge, make an election as to which count to abandon if any. The record reflects that this is what happened. In its charge to the jury, the court only charged the jury on the offense of unauthorized use of an automobile. The court further instructed the jury that the State had abandoned the theft count of the indictment and thus it should not be considered. Some two hours after beginning their deliberations, a motion for mistrial was granted over the State’s objection.
On September 11, 1978, applicant’s second trial began. Once again, the trial progressed up to the point of jury deliberations. As in the first trial, the jury was charged only as to the offense of unauthorized use of a motor vehicle. Once again the jury was unable to reach a verdict and, over the objection of the State, a motion for mistrial was granted.
On February 27, 1979, the case was again called for trial. The docket sheet reflects that on this date upon motion of the State, the trial court dismissed the second count of the indictment which alleged unauthorized use of a motor vehicle and the enhancement paragraphs of the indictment. Applicant then entered a plea of guilty to the offense of theft as alleged in the first count of the indictment. Punishment was assessed by the court at three years confinement.
Applicant alleges that he was placed in double jeopardy.. He argues that the abandonment of the theft count during the first trial operated as an acquittal of that charge since it occurred after the jury had been empaneled and sworn and he had entered his plea. Thus reprosecution of him for the theft count in the third trial, placed him in double jeopardy. Garza v. State, 658 S.W. 2d 152 (Tex.Cr.App.1982); Ex parte Pleasant, 577 S.W.2d 256 (Tex.Cr.App.1979); Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.1974).
In its reply to the application, the State, relying on Toilet v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), argues that applicant’s plea of guilty to the theft charge in the third trial waived any error. The State also urges that applicant has failed to show that he objected to the plea proceedings at the time they were held. Because there was no contemporaneous objection, the State asserts that error, if any, has been waived.
Both federal and state law clearly speak to the State’s contention. The failure to object at trial does not constitute a waiver of the right to raise the issue of double jeopardy in a post conviction collateral ha-beas corpus attack. Ex parte Pleasant, supra; Ex parte Hilliard, 538 S.W.2d 135 *775(Tex.Cr.App.1976); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976). Furthermore, the fact that the applicant entered a plea of guilty to the latter charge does not preclude him from raising the double jeopardy contention in an application for writ of habeas corpus. Ex parte Morehead, 596 S.W.2d 895 (Tex.Cr.App.1980); Ex parte Hilliard, supra; Ex parte Jewel, supra; Ex parte Seelies, 511 S.W.2d 300 (Tex.Cr.App.1974). See also Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Broussard, 645 F.2d 504 (5th Cir.1981); Green v. Estelle, 524 F.2d 1243 (5th Cir.1975).
Turning to the merits of applicant’s claim, this Court considered a similar situation in Garza v. State, 658 S.W.2d 152 (Tex.Cr.App.1982), cert. denied, 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 171 (1983). Garza, like our applicant was tried on a two count indictment. At the conclusion of the case, the State elected to proceed to the jury on the first count of the indictment and abandon the second count of the indictment. After the jury was unable to reach a verdict, the judge declared a mistrial. Thereafter a second trial on the indictment occurred. This time the State abandoned the first count of the indictment and elected to proceed to the jury only on the second count of the indictment (which had been abandoned during the first trial). The jury convicted Garza of the second count. This Court found that during the first trial, jeopardy had attached to both counts of the indictment because the jury had been empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); McElwee v. State, 589 S.W.2d 455 (Tex.Cr.App.1979). Thus when the indictment’s second count was dismissed after jeopardy had attached, the dismissal was equivalent to an acquittal of the charge contained in the second count. Ex parte Seelies, supra. This Court then went on to determine if there was any showing by the State of any manifest or imperative necessity that would have warranted the trial court not submitting the second count of the indictment to the jury at the first trial. Because the State failed to advance any such reason and because the record reflected no manifest necessity, this Court concluded that no such necessity ever existed. Therefore, this Court held that the State’s abandonment of the second count of the indictment at the first trial barred any retrial for that offense.
The reasoning in Garza should be adopted in the instant case. Clearly jeopardy had attached when the theft count was abandoned. The State has not demonstrated any manifest necessity for abandoning the theft count and my review of the record finds that no manifest necessity is reflected. Given all of the above, applicant was placed in double jeopardy when he was tried in the third trial for the theft count.
Applicant is entitled to the relief prayed for. Because the majority errs in failing to grant such relief, I respectfully dissent.
ONION, P.J., and TEAGUE and MILLER, JJ., join this dissent.