Davis v. State

ON MOTION FOR REHEARING.

DAVIDSON, Judge.

The State challenges the correctness of our conclusion that the trial court erred in refusing to sustain appellant’s plea of former jeopardy. It is insisted not only that the record affirmatively reflects that the appellant consented to the jury’s discharge, but also that it fails to reflect that the appellant did not consent to the discharge of the jury.

The State is correct in its contention that the burden of proof is upon the accused to establish a plea of former jeopardy. 12 Tex. Jur. 651; O’Connor v. State, 28 Tex. App. 288, 13 S. W. 14; Spannell…