ON THE STATE’S MOTION FOR REHEARING
The State cites the recent case of Ex parte Carl Thomas Preston, 801 S.W.2d 604 (1990) (pet. granted), which involves facts similar to the instant case. In Preston, the defendant was charged in a three-count indictment with aggravated robbery of three different people. Prior to the jury being impaneled and sworn, the trial court read only Count II of the indictment. After the jury was impaneled and sworn and out of the presence of the jury, the State presented only Count II of the indictment to which the defendant pled not guilty. The jury was charged on only Count II of the indictment, and the jury found the defendant guilty of aggravated robbery as charged in Count II. The State presented no evidence on Counts I and III at trial. The defendant was subsequently indicted for the same offenses as charged in Counts I and III of the indictment in the first prosecution. The defendant filed an application for writ of habeas corpus claiming that double jeopardy barred the second prosecution. The court rejected the defendant’s double jeopardy claim.
The court in Preston held that the State never proceeded on Counts I and III during the proceedings in the first prosecution. Count II was the only count that was presented to the jury during the voir dire examination, and the only count the State proceeded on in any way. The court said:
It is as if the State abandoned or dismissed counts I and III early in the proceedings in the first prosecution, before the jury was voir dired, impaneled, and sworn, and proceeded only on count II. (Emphasis added)
*255The Preston court appears to hold that the facts established that Counts I and III were impliedly dismissed before jeopardy attached.
We cannot hold in the instant case that the charge of aggravated robbery of Wing K. Lew was impliedly dismissed before jeopardy attached in the 1982 trial. The prosecutor testified in the post-trial hearing that he never intended to dismiss any of the counts or paragraphs in the 1982 indictment. He testified that, under his concept of “abandonment,” all of the counts or paragraphs remained “active” throughout the 1982 trial and any post-trial proceedings. These facts were not present in Preston.
The State’s motion for rehearing is overruled.