dissenting.
Because the district attorney’s office mishandled this prosecution, and because the justice court proceedings were not more precise, the majority nicely concludes that Thomas — while obviously having previously been placed in jeopardy — failed to meet his burden of proof. I dissent.
Ordinarily when disagreeing with the majority of the Court, I prefer to simply state that disagreement. However, because I disagree with the majority’s characterization of the 1) State’s position; 2) facts; and 3) law, I find it necessary to address each of those matters.
State’s Position
The majority far better articulates the State’s position than does the State itself. At trial the State never once questioned the jurisdiction of the justice court over the offense of assault. On appeal the State did not appear for oral argument. This Court, in its opinion, precisely verbalizes the State’s previously unstated contention.1
*605Facts
The majority opinion points to such immaterial facts as the subsequent complaint and grand jury indictment of Thomas for the charges now pending against him. It further cites testimony of Leon Pesek, Jr. that he did not intend that the aggravated assault involving Mayberry be reduced for justice court prosecution. Of course that flies in the face of his action on behalf of the district attorney in reducing these charges. After Thomas was arrested for and charged with aggravated assault and assault with bodily injury, Pesek sent a letter to the justice of the peace, reducing the charges. Pesek’s letter referring the cases to the justice of the peace court read simply, “The above entitled causes have been reduced to JP court. Each of these defendants is in jail.”2
The majority also pays only passing attention to the documentary evidence bearing on what transpired in the justice court. Judge Hawkins’ letter read:
Enclosed please find a copy of the correspondence on the above entitled cause. Mr. Thomas was charged with Aggravated Assault and Assault with Bodily Injury. These charges were reduced to Assault by Contact, May 12, 1987.
Mr. Thomas plead (sic) guility (sic) to the above charge. The defendant was released by Judge John C Hawkins, Jr., Justice of the Peace, Pet. 1, Place 1, Bowie County with time served.
*606Further documentary evidence concerning what the trial court may have found in regard to what offense the justice court convicted Thomas is discussed later.
Law
My primary disagreement in this case is on the law. The majority fails to follow, or even discuss, the first two cases it cites, Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), and Benard v. State, 481 S.W.2d 427 (Tex.Crim.App.1972).
Thomas was arrested for and charged with the offenses of aggravated assault and assault with bodily injury. These charges were reduced — mistakenly or not — to the justice court. Thomas pled guilty, was convicted and sentenced. Jeopardy attached.
In Benard, the Court of Criminal Appeals reviewed the operation of Tex. Code Crim.Proc.Ann. art. 28.13 (Vernon 1966) in light of the decision of the United States Supreme Court in Waller v. Florida, supra. In Waller, the Supreme Court overruled a Florida rule which held that a conviction in a municipal court could not bar a subsequent prosecution in a state court for the same offense, pointing out that the judicial powers of both the municipal and the state courts sprang from the same organic law. Applying Waller, the court in Benard held that a judgment of acquittal or conviction in a court of competent jurisdiction is a bar to a further prosecution for the same offense, regardless of whether the first prosecution was had upon a complaint, information or indictment, and regardless of whether the court in which the first prosecution was had was without jurisdiction to try the higher grade of the offense.
The court in Benard also addressed the manner in which the state initiated the first proceedings. It said that the mode of procedure used in commencing a criminal prosecution does not affect the fact that it is state action.
In Benard the court held that:
[T]he State, having authorized prosecutions in a particular manner, may not thereafter seek to avoid the effect of such prosecutions. We see no reason why the State could not limit prosecutions to those commenced with the knowledge and approval of a proper authority, but since the State has not done so, it is bound by the methods currently authorized.
The concluding paragraph continued:
We hold only that, in light of Waller v. Florida, supra, a judgment of acquittal or conviction in a court of competent jurisdiction is a bar to a further prosecution for the same offense, regardless of whether the first prosecution was had upon complaint, information or indictment, and regardless of whether the court in which the first prosecution was had was without jurisdiction to try the higher grade of the offense.
If there could be doubt as to what the court meant in Benard about what type of proceeding would be void so as not to support a plea of former jeopardy, we have further instruction. In Ramirez v. State, 587 S.W.2d 144 (Tex.Crim.App.1979), the court, referring to its holding in Benard, wrote that:
[“A] void proceeding has no effect in support of a plea of former conviction.” What the opinion meant by “void proceeding” can be gleaned from an examination of the authorities cited to support that statement, all of which stood for the principle that a conviction or acquittal in a court without jurisdiction is a nullity and will not support a plea of former conviction or acquittal. The opinion went on to say that a conviction obtained by fraud or collusion or obtained at the instigation of the defendant will not support a plea of former conviction. It cannot be said that the first trial here is a void proceeding under Benard as it was before a court of proper jurisdiction and there is no evidence of fraud or collusion.
Here, Thomas was prosecuted by State action and convicted before a court of competent jurisdiction. There was no evidence Of fraud or collusion. Thus, further prosecution of these charges is barred. Waller v. Florida, supra; Ramirez v. State, supra; Benard v. State, supra.
*607As to the notion that the trial court may have failed to find that “both offenses” were reduced to justice court, neither the evidence nor the State’s argument supports that hypothesis. Thomas assaulted Hill and Mayberry and was charged with aggravated assault and assault with bodily injury. He was arrested for those charges. He was jailed for those charges. The district attorney reduced the charges. The district attorney furnished the justice court with both offense reports. Thomas then was sentenced to the time served in jail. On Exhibit 3, the docket entry concerning No. 12046, Charge: Aggravated Assault, the notation was written in the “How released” box, “Reduced Charges.” On Exhibit 4, the Docket Book, Charge: Assault with bodily injury, the notation was written “Reduced Charges.” Exhibit 5, a letter from Thomas Hodge, Sheriff of Bowie County, to the Detention Center asked,
CCN: T87-20214
DOCKET: 12045-46
I request that you release Robert Thomas for (reason) chg reduced to Simple Assault — Time Served. Charges Agg. assault — assault w/Bodily injury.
[Signed] Thomas Hodge Sheriff
Of significance is that T87-20214, the number referred to at the top of the sheriff’s letter, appears as the “Complaint No.” on Exhibit 7, reflecting that Robert Thomas was, on May 2, 1987, at 3:45 a.m. charged by complaint for aggravated assault against Eddie M. Mayberry.
By the majority’s action today, Thomas is being twice placed in jeopardy in violation of the United States Constitution and Article I, § 14 of the Texas Constitution. Not by the justice court, not by the district attorney’s office, but by this Court. Being sworn to uphold the Constitutions of the United States and of this State, I cannot agree with the decision of this Court.
. So that I not misstate or mischaracterize that position, the State's entire argument, as set out in its brief, is as follows:
Applicant moves for dismissal under former jeopardy due to the fact that he plead (sic) *605guilty to assault by contact charges arising out of the same set of facts. The case laws and statues (sic) dealing with double jeopardy do not support the Applicant's position.
In looking at Art. 28.13, V.A.C.C.P., the following is set out:
A former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such judgment was had upon indictment or information, in which case the prosecution shall be barred for all grades of the offense.
Art. 1.11, V.A.C.C.P. states that:
An acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction.
Since the charges in which this Court is now reviewing were handled in the Justice Court, a determination must be made as to that Court’s jurisdiction. Art. 4.11, V.A.C.C.P., sets for the jurisdiction of justice courts as follows:
Justices of the peace shall have jurisdiction in criminal cases where the fíne to be imposed by law may not exceed two hundred dollars.
In this case it is clear that the justice of the peace does not have jurisdiction over an aggravated assault case. Thus, for the justice of the peace to have had jurisdiction over the charges made subject of the appeal a complaint, information or indictment must have been filed with that court. Judge Hawkins testified that he did not receive an information or indictment giving him jurisdiction over the aggravated assault charge. (S.F. 34).
The Applicant makes reference to a complaint filed by Eddie Mayberry on May 18, 1987, for aggravated assault. It should be noted that the complaint was filed six days after the other cases were referred to the Justice Court. Also, the complaint was for aggravated assault, a felony, which subsequently leads to the issuance of a grand jury indictment.
In the Applicant's brief, Bernard (sic) v. State, 481 S.W.2d 427 (Tex.Cr.App.1972), is relied on as authority for his position. In that case charges were filed in municipal court and district court involving the same facts. The court subsequently found that double jeopardy did attach preventing prosecution of the subsequent charge in a court of superior jurisdiction. That situation does not exist here due to the fact there was no charging instrument filed in the Justice Court nor has there ever been an information or indictment filed with the Justice Court. Further, the complaint for aggravated assault signed by Eddie Mayberry against the Applicant was filed subsequent to the other charges being reduced to the Justice Court. So the complaint was not filed in Justice Court enabling that cotut to obtain jurisdiction over that case.
. The majority raises the district attorney’s subjective intent to new heights, saying that he testified that he “did not intend to ... reduce down the aggravated assault charge involving Mayberry_" (footnote 6, majority opinion). That is curious when the obvious purpose of Pesek’s communicated actions and the justice court actions seems to have been to reduce the jail population by three. Had there been no intent to reduce both charges then Thomas would have remained confined, and there would have been no useful purpose in the action.