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Click here for the full text of this decision FACTS:The named appellee and 16 co-defendants were gathered at the street entrance of a Planned Parenthood clinic in Waco where abortions were performed, carrying signs and issuing leaflets to women seeking the services of the clinic. The clinic was across the street from a school. A few months previously, the city had promulgated an ordinance prohibiting “street activity” in school zones, such “activity” including but not limited to a “demonstration.” Warned by the police that their efforts in front of the clinic violated this ordinance, the appellees persisted and were issued citations. The cases were consolidated and tried to a municipal court, which convicted the appellees. In a consolidated trial de novo in the county court at law (the trial court), the appellees filed a motion to dismiss the prosecution on the grounds that the ordinance was unconstitutionally vague and overbroad, in violation of the First Amendment to the U.S. Constitution. The trial court judge declined to make a ruling on the motion during a pretrial hearing, announcing at that time that “I will carry the motion along until we hear the trial on the merits.” The appellees objected, but the state expressed its willingness to proceed without a ruling “until during or after the trial, itself, whatever you would like to do.” Trial on the merits, before the court, began a month later, and lasted only a day. On the morning of trial, the appellees filed a trial brief, reiterating their claim that the ordinance was unconstitutional. At the conclusion of the state’s case in chief, the appellees re-urged their motion to dismiss, but the trial court overruled the motion “at this time.” During its final argument to the court, counsel for the appellees argued exclusively that the ordinance was unconstitutional. Pointing out that even the officers issuing the citations had been unable to agree on the meaning of the ordinance, appellees’ counsel urged the trial court to find it unconstitutionally vague. Counsel never argued, however, that the appellees were not guilty of conduct that fell under the ambit of the ordinance. The trial court judge announced that it would “stand in recess while I consider this.” After a brief recess, the trial court announced that it would grant the appellees’ motion to dismiss the complaints. The 10th Court of Appeals dismissed the state’s attempted appeal from this order in a published opinion. The court of appeals acknowledged that the state is authorized to appeal an order dismissing a charging instrument under Article 44.01(a)(1) of the Code of Criminal Procedure but noted that this must occur before the trial on the merits even commences, and thus jeopardy attaches, in order to be appealable by the state. Chief Justice Tom Gray of the 10th Court of Appeals dissented. He argued that the plain language of Article 44.01(a)(1) allows the state to appeal the dismissal of a charging instrument without reference to the particular stage of the proceedings at which the dismissal occurs. In addition, Gray pointed out that the (Court of Criminal Appeals has held that the legislative intent behind Article 44.01 was to permit the state to appeal under any circumstances in which the double jeopardy clause of the Fifth Amendment would not prohibit a retrial should the state’s appeal prevail. Finally, Gray complained that the holding of the majority would allow trial courts to insulate their rulings dismissing charging instruments from appellate review by simply delaying those rulings until after jeopardy has attached, “a result most likely not intended by the legislature.” The Court of Criminal Appeals (CCA) granted discretionary review to resolve the issue of whether the state can appeal an order dismissing a charging instrument when that order is granted, not pretrial, but only after the evidence is closed and the case has been submitted to the fact-finder for deliberations on the issue of guilt or innocence. HOLDING:Reversed and remanded. The CCA stated: “We think it clear enough that the trial judge’s consideration of the guilt or innocence of the appellees was contingent upon his first ruling upon the constitutional validity of the ordinance. In essence, having ruled in the appellees’ favor on that issue, he never reached the contingent issue of their guilt or innocence.” “It should make no difference to the jeopardy analysis that the trial judge had taken the issue of the guilt or innocence of the appellees”under submission,’ in the sense that, had he denied their motion to dismiss, he would have continued deliberating to decide whether the State had convinced him of their guilt beyond a reasonable doubt. As long as he resolved the motion to dismiss adversely to the state without ultimately addressing the issue of guilt or innocence, there is no double jeopardy impediment to the State’s appeal.” The court did not construe the trial court’s order to be a judgment of acquittal. “[T]he trial court did not erroneously make a finding that the appellees were not guilty of violating the ordinance. He made no finding with respect to that issue, and therefore his order cannot stand as a jeopardy bar to the state’s ability to appeal. . . .” OPINION:Price, J., delivered the opinion of the court in which Keller, Meyers, Keasler, Hervey and Holcomb, J.J., join. CONCURRENCE:Womack and Johnson, J.J. DISSENT:Cochran, J.

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