#### Ex parte Caesar GARCIA, Appellant.

No. 03-96-00008-CR.

Court of Appeals of Texas, Austin.

Aug. 14, 1996.

*788John P. Bennett, San Marcos, for appellant.

Ronald Earle, District Attorney, C. Bryan Case, Jr., Assistant District Attorney, Austin, for State.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

PER CURIAM.

Appellant stands indicted under the above cause number for the offense of sexual assault. *See*Tex. Penal Code Ann. § 22.011(a)(1)(A), (b)(3) (West 1994 & Supp. 1996). By application for writ of habeas corpus, appellant sought to bar prosecution of this indictment on double jeopardy grounds. The writ issued and after a hearing, relief was denied.

Appellant was first indicted for this offense under cause number 0945730. He filed a motion to set aside that indictment because of alleged pleading deficiencies and, on March 2, 1995, the district court granted the motion in a written order. Nevertheless, cause number 0945730 was called for trial on June 6, 1995. After a jury was selected and sworn, appellant brought the March 2 order to the attention of the presiding judge, who was not the judge who signed it, and moved to dismiss on the ground that there was no pending indictment. The court refused to rule on the motion but terminated the trial, saying, “[I]t has already been dismissed and there is no case.” Appellant was subsequently reindicted under the present cause number. Appellant argues that because the trial in cause number 0945730 ended after a jury was selected and sworn, jeopardy attached to this offense and he cannot be prosecuted under the new indictment. *See Crist v. Bretz,*437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978) (jeopardy attaches when jury empaneled and sworn).

No person may be twice put in jeopardy for the same offense. U.S. Const, amend. V; Tex. Const, art. I, § 14; Tex. Code Crim. Proc. Ann. art. 1.10 (West 1977). Obviously, an accused must first suffer jeop*789ardy before he can suffer double jeopardy. *Serfass v. United States,*420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975); *Ex parte McAfee,*761 S.W.2d 771, 772 (Tex.Crim.App.1988). The resolution of appellant’s double jeopardy claim therefore turns on whether jeopardy attached to this offense on June 6, when a jury was sworn to try appellant in cause number 0945730 three months after that indictment was set aside.

It has long been settled that when a trial court empowered with jurisdiction over a criminal case sustains a motion to dismiss the indictment, the person accused is, in law, discharged from the accusation against him. *Garcia v. Dial,*596 S.W.2d 524, 528 (Tex.Crim.App.1980). After the indictment is dismissed, there is no ease pending against the accused and no jurisdiction remaining in the dismissing court. *Id.*The State argues that the order setting aside the indictment in cause number 0945730 discharged appellant and left the district court without jurisdiction. Because the jurisdiction of the district court was not invoked, the aborted trial was a nullity and appellant was never placed in jeopardy. *Palm v. State,*656 S.W.2d 429, 431 (Tex.Crim.App.1981).

Appellant asserts that the rule stated in *Garcia v. Dial*must be reexamined in light of constitutional and statutory changes permitting the State to amend an indictment. Tex. Const, art. V, § 12(b); Tex. Code Grim. Proc. Ann. arts. 28.09, .10 (West 1989). Under article 28.09, an indictment may be amended after an exception to its form or substance is sustained and trial may then proceed on the amended indictment. Appellant reasons that the order setting aside the indictment in cause number 0945730 did not divest the district court of jurisdiction because the State could have amended the indictment and proceeded to trial. Thus, appellant concludes that the court had jurisdiction of cause number 0945730 on June 6 and jeopardy attached.

Article 28.09 does not abrogate the constitutional and statutory requirement that a felony offense be prosecuted by indictment. Tex. Const, art. I, § 10; Tex.Code Crim. Proc. Ann. art. 1.05 (West 1977); *see Cook v. State,*902 S.W.2d 471, 478 (Tex.Crim.App.1995) (article Y, section 12(b) does not dispense with necessity of indictment in order to vest jurisdiction). If article 28.09 changes prior law, it does so only to the extent that it gives trial courts continuing jurisdiction sufficient to permit amendment after a defense attack on the charging instrument is sustained. *See*George E. Dix, *Texas Charging Instrument Law: The 1985 Revisions and the Continuing Need for Reform,*38 Baylor L.Rev. 1, 57 n. 197 (1986). If the State can not or does not amend a charging instrument after an exception to its form or substance is sustained, the prosecution is effectively terminated. *State v. Moreno,*807 S.W.2d 327, 334 (Tex.Crim.App.1991); *State v. Eaves,*800 S.W.2d 220, 224 (Tex.Crim.App.1990); *Prochazka v. State,*878 S.W.2d 230, 232 (Tex.App.—Corpus Christi 1994, no pet.).

In *Prochazka,*the trial court granted the defendant’s motion to quash the information, but later reconsidered and overruled the motion. The defendant was then tried and convicted on the original, unamended information. The State defended the actions of the trial court arguing, as does appellant, that article 28.09 gave the court continuing jurisdiction even after the information was quashed. The court of appeals rejected this argument, holding that the order quashing the information terminated the prosecution, and that the reconsideration of the motion to quash and ensuing conviction were void for lack of jurisdiction.

Under the circumstances presented, the order setting aside the indictment in cause number 0945730 effectively terminated, or dismissed, the prosecution and left the district court without jurisdiction to try or convict appellant. As a consequence, the June 6 proceeding was a nullity and appellant was not placed in jeopardy. Because there has been no former jeopardy, prosecution on the new indictment will not constitute double jeopardy.

The district court’s order denying relief on writ of habeas corpus is affirmed.