The State of Texas appeals from an order dismissing the indictment of Jonathon Meshell, the appellee, with prejudice. The dismissal arose from the appellee's petition for writ of habeas corpus based on a violation of Article 32.01 of the Texas Code of Criminal Procedure. We reverse.
On February 26, 1998, the appellee filed a writ of habeas corpus on the reindictment, alleging the reindictment violated Article 32.01 of the Texas Code of Criminal Procedure. The writ alleged the appellee had not been indicted within two grand jury sessions of the day he was arrested. The trial judge granted relief on the writ and dismissed the reindictment for felony criminal mischief.
The State then moved to amend the original charging instrument to delete the element of "engaging in organized criminal activity." The trial court denied the State's motion to amend. The State requested and received a dismissal under the original indictment. The State appeals the grant of relief on the writ.
At the time of the appellee's arrest, the following version of Article 32.01 of the Texas Code of Criminal Procedure was in effect:1
When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his confinement or admission to bail.
Act of May 27, 1965, 59th Leg., R.S., ch. 722 § 1, 1965 Tex. Gen. Laws 317, 441, (amended 1997) (current version at Tex. Code Crim. Proc. art. 32.01).
The purpose of Article 32.01 is to encourage the State to seek and obtain an indictment or release the defendant without undue delay. Cameron v. State, 988 S.W.2d 835, 843 (Tex. App.-San Antonio 1999, no pet. h.); see also State v. Condran,951 S.W.2d 178, 189-90 (Tex. App.-Dallas 1997, pet. dism'd) (with Article 32.01, Legislature created right in accused to be free from incidental punitive effect of incarceration or being held to bail if State is unable to obtain indictment within specified period of time).
In Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App. 1999), the Court of Criminal Appeals reaffirmed its holding in Tatum v.State, 505 S.W.2d 548, 550 (Tex.Crim.App. 1974), that Article32.01 has no application once an indictment is returned. The appellee did not file his writ of habeas corpus until after the reindictment was returned; therefore, he waived his right to challenge the reindictment under Article 32.01.
We sustain point of error two. Because of our disposition of point of error two, we need not address points of error one and three.
We reverse the trial court's order and remand for further proceedings.