Ex Parte Preston

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant 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.

I.

The 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.

II.

The 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.2 Crist 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.3 Ex Parte Scelles, 511 S.W.2d 300, 301 (Tex.Cr.App.1974).

In 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).

III.

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

Id. at 697.4

We 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.

Finally, 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.

IV.

Accordingly, 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.

WHITE, J., concurs in the result. McCORMICK, P.J., dissents.

. We note that this action has been referred to as “dismissal,” "waiver,” or "abandonment.” See, Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Ex Parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.1974); Parish v. State, 165 S.W.2d 748 (Tex.Cr.App.1942); Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973); and Black v. State, 143 Tex.Crim. 318, 158 S.W.2d 795 (1942). For the purposes of this opinion, all have the same meaning.

. "... [n]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...” U.S. Const. Amend. V.

. There are exceptions to this rule. See, Torres v. State, 614 S.W.2d 436, 441 (Tex.Cr.App.1981); Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978); and Ex Parte McAfee, 761 S.W.2d 771, 772 (Tex.Cr.App.1988). However, none of those exceptions are applicable to the instant case.

. Unless otherwise indicated, all emphasis herein is supplied by the author.

. The record reflects that on February 15, 1989, after the voir dire examination, the jury was impaneled and sworn and released for the day. The State then read only the second count of the indictment and appellant pled not guilty. The following morning, on February 16, 1989, the jury returned and the State again read only the second count of the indictment and appellant again pled not guilty.