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State v. Mercier5/19/2005
Before Justices Hinojosa, Yanez and Castillo
The State appeals from an order of the district court granting a motion for new trial, entering an acquittal, and entering conditional orders pendent on future appeals. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(2), (3) (Vernon Supp. 2004-05). The underlying offense is conspiracy to commit barratry. We reverse the trial court's order and remand.
I. BACKGROUND
The trial court granted appellee Eugene X. Mercier's motion for new trial after a jury returned a guilty verdict for criminal conspiracy and acquitted him on all other counts. By four issues, appellant, the State of Texas, asserts that the trial court erred in: (1) entering an order containing conditional post-appeal dispositions; (2) finding the evidence legally insufficient to sustain the conviction; (3) conditionally dismissing the indictment; and (4) conditionally granting a new trial. By sixteen cross-points, Mercier asserts, in general, lack of jurisdiction, failure to preserve error, insufficiency of the evidence to sustain the conviction, Brady violations, Kyles violations, limitations, and federal constitutional violations and deprivation of rights.
A. Procedural History
The indictment charged Mercier with four counts of barratry and two counts of criminal conspiracy. The State obtained the initial conspiracy indictment in this case on March 21, 2000. Mercier was reindicted on December 19, 2001. Then, on December 21, 2001, after obtaining the second indictment, the State dismissed the first indictment against Mercier. The first indictment alleged two counts of conspiracy to commit barratry under Texas Penal Code section 38.12(a) and (b). See Tex. Pen. Code Ann. ยง 38.12(a), (b) (Vernon 2003). The second indictment alleged the same two counts. Mercier pleaded not guilty on all counts. The case proceeded to trial in the 332nd district court of Hidalgo County. On April 11, 2002, the trial court denied Mercier's motion to dismiss which was submitted as an application for writ of habeas corpus based on the statute of limitations. On April 18, 2002, the jury found Mercier guilty of one count of criminal conspiracy. The jury acquitted Mercier on the remaining counts. On May 6, 2002, Mercier moved to continue sentencing to allow more time to discover Brady evidence. The trial court heard Mercier's motion on May 7, 2002. On May 22, 2002, Mercier moved the court to clarify the prior ruling, and the trial court complied on May 29, 2002. The trial court entered an order on Mercier's motion to clarify. Mercier filed a second motion to continue sentencing, asserting he required additional time to acquire, listen to, and transcribe, if necessary, audiotapes. The trial court denied the motion on the date of sentencing. On June 14, 2002, the trial court sentenced Mercier to two years in a state jail facility and immediately suspended that sentence for a term of five years' community supervision. The trial court assessed a $7,500.00 fine. On June 14, 2002, Mercier filed a notice of appeal. On the same day, he filed three post-sentencing motions.
B. Mercier's Post-Verdict Motions Filed on June 14, 2002
1. Motion for New Trial--Sufficiency of the Evidence
As grounds for his motion for new trial, Mercier asserted that the evidence was legally and factually insufficient to support his conviction. The trial court set the hearing for July 16, 2002.
2. Motion in Arrest of Judgment--Statute of Limitations
As grounds for his motion, Mercier asserted the following: (1) under appellate rule 22.2(a), the indictment is subject to an exception on substantive grounds because prosecution was barr
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