NO. 07-04-0418-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D SEPTEMBER 20, 2004

______________________________ IN RE FR

ANK DWIGH T CARTE R, RELAT OR

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ. MEMORAND UM OPINION Bythis origi nal proce eding, relator Frank Dwight Carter, proceeding pro se and in forma pauperis , seeks a writ of mandamus to compel the Honorable Mackey K

. Hancock, Judge of th e 99th Di strict Co urt of Lub bock Cou nty, to di smiss his aggravated robbe ry charge and find that

his conviction is void. Under applica ble principles of law, mandamus relief is denied. According to the documents filed by relator, he was indicted for aggra vated rob bery in 1989. That same year, the State filed a motion to di smiss the indictment in cause number 89-409,601, indicating that on July 7, 1989, relator had been re-indicted in cause number 89-409,752. Pursuant to the State’s req uest, on Jul y 12, 198 9, the tri al court2

signed an order dismissing cause number 89,409,6 01. See Tex. Code Crim. Proc. Ann. art. 32.02 (Vernon 19 89) (provi ding th at the St ate may dismiss a criminal prosecution at anytime with permission of the trial court). A certified copy of the motion to dismiss and the trial court’s dismissal order are included with relator’s docu ments. See Tex. R. App. P. 52.3(j)(1)(A). Appellant was convicte d of aggr avated ro bbery pur

suant toa subsequent indic t ment, and on June 12, 1990, was sentenced to confinement for life. Per relator’s statements , this Co urt affirme d the con viction on May 1, 1992. Mandamus is an extraordinary remedy ava ilable only in limited circumstances involving manifest and urgent necessity and not for grievances that may beaddressed by other remedies. Walker v . Packer, 827 S.W.2 d 833, 84 0 (Tex. 1 992). Relator is entitled to mandamus relief if he establishes (1)the act sought to be compelled is purely ministerial and (2) he ha s no othe r adequa te legal remedy. S tate ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (T ex.Cr.App . 2003). The ministerial act requirement is satisfied if rela tor establishes a “clear

right to the relief

sought” with nothing left to the exercise of di scretion or judgmen t. Id

. Relator argues th at the tri al court was with out jurisdiction ove r the re-indicted offense and that his conviction is void as a matter of law. By his prayer for relief he requests that Judge Hancock be directed to comply with the dismissal order entered in the first indicted offense i n cause n umber 89-409,601.3

Itis well settled that dismissal of an indictment does not prevent the grand jury from returning a subseq uent ind ictment cha rging the same offense. Ex parte Williams, 379 S.W.2d 911, 912 (Tex.Cr.Ap p . 1964); see alsoHughes v. State, 16 S.W.3d 429, 431 (Tex.App.–Waco 2000, no pet.). Furthermore, when the dism issal or der does not indi cate thatthe case was dis missed “w ith preju dice,” it does not

operate as a bar to a subsequent indictmentand pros ecution. Hughes , 16 S.W.3 d at 431. The certified copy of the dismissal order pro vided by

relator d oes not re cite that it was d ismissed “with pre judice.” The copy of the order

include d with relator’ s petitio n establ ishes tha t the tria l court dismissed the first indictment. Also, by his own words, relator acknowl edges thathe filed a direct appeal of

his conviction based on the subsequent i ndictment, which was affirmed. Thus, rel ator has n ot demons trated an y entitle ment to ma ndamus re lief. Accordingly, the petition for writ of mandamus is denied. Don H. Reavis Justice