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| From the John Wesley Hardin appeal: "the mere pendency of one indictment is no bar to another, even for the same offense; the accused cannot be tried on both, but the [State] may elect on which it will proceed." Hardin v. State, 4 Tex.App. 355 (1878). Furthermore: "It seems to be well settled in this state that the pendency of one indictment does not prevent the grand jury from returning subsequent indictments charging the same offense." Stovall v. State, 97 Tex.Crim. 71, 260 S.W. 177 (1924).
But, because jeopardy has already attached as to the information in your case, I think you would want to ignore the indictment (assuming both pleadings sufficiently allege the same offense) and move to dismiss it (again assuming there is no defect in the information) once sentencing on the plea is completed. There may be an argument, however, that the defendant can waive any double jeopardy claim by pleading guilty to the indictment. Ex parte Birdwell, 7 S.W.3d at 164.
I will note that it appears questionable to me whether the indictment should have been given the same cause number as the information. You state that it was not intended as a substitute or amendment for the information. |
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