AFFIRM as modified; Opinion issued October 30, 2012
In The
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No. 05-I 2-00382-CR
THE STATE OF TEXAS, Appellant
V.
CRAIG MASON, Appellee
On Appeal from the County Criminal Court No. 6
Dallas County, Texas
Trial Court Cause No. M09-261-39
OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Morris
The trial court in this case denied the State’s first motion for continuance on the day Craig
Mason’s trial for driving while intoxicated was set to begin. After the trial court denied its motion
for continuance, the State filed a motion to dismiss the case without prejudice. The trial court, over
the States objection. dismissed the case with prejudice. The State contends on appeal that the trial
court had no authority to dismiss the prosecution with prejudice without the State’s consent. We
modify the trial court’s order to delete the “with prejudice” language and affirm the order as
modified.
I.
At the Iirst trial setting in appellee’s DWI case. the State filed a written motion for
continuance. Ilie prosecutor explained that the State had subpoenaed the otheer who stopped
appellee but the officer had not appeared that morning for trial. The State had also attempted
to
reach the oftcer through his police department, but the department had been unable to locate the
officer. who was on patrol. The trial court denied the State’s motion br continuance, at which time
the State filed a motion to dismiss the case without prejudice.
At the conclusion of the hearing on the motion for continuance and the motion to dismiss,
the trial judge made clear that she intended to dismiss the case with prejudice, noting that almost
three years had passed from the time of the alleged offense to the time of the first trial setting. The
trial judge also mentioned a possible “time bar” in the case. The trial judge asked where the “good
faith” was in the State’s reflhing the case. The prosecutor responded that the State still believed it
could “make our case once we have the presence of our officer.” At that point, the judge again
decried the fact that almost three years had passed from the time of the alleged offense to the trial
date. She stated that both the motion for continuance and the motion for dismissal had not been
timely filed. She then stated that she thought appellee was entitled to a dismissal with prejudice.
The dismissal order does just that. The record contains no evidence of a speedy trial motion being
filed by appellee. in addition, the record reflects that appellee was released on bond, rather than
incarcerated, from the time of his arrest to the time of trial.
11.
The State brings two issues challenging the trial court’s order. In its first issue, the State
asserts that it is permitted to appeal the trial court’s order under Texas Code of Criminal Procedure
article 44.01 (a)(1). See TEx. CODE CRIrI. PRoc. ANN. art. 44.01 (a)(1) (West Supp. 2011). Appellee
does not contest the State’s right to do so, and it is clear the order is appealable. See Id. We will
therefore confine our analysis to the State’s second issue, whether the trial court erred in dismissing
the case with prejudice.
The State contends that the trial court not only committed reversible error by dismissing the
case with prejudice without the State’s consent hut also committed a void act because the trial court
lacked any legal authority to do so under the circumstances of appellee’s case. A court may take a
particular action only ifthat action is authorized by constitutional provision, statute, or common law.
or if the power rises from an inherent or implied power. Exparle Seidel, 39 S.W.3d 221, 223 (Tex.
Crirn. App. 2001). Irialcourts have no general authority to dismiss a case without the prosecutor’s
consent. See State v. Plantheck, 182 S.W.3d 365. 369 (Tex. Crim. App. 2005). And, ordinarily, a
trial court may dismiss a case only if the prosecutor so requests. State v. Mungia, 119 S.W.3d 814,
816 (Tex. Crim. App. 2003). 1 lere, the State actively opposed the trial coUrt’s granting the dismissal
with prejudice, and the trial court never made findings or stated its specific statutory or constitutional
grounds for dismissing the cause with prejudice.
We have found no authority permitting a trial court to dismiss a case with prejudice based
on the State’s alleged had faith or harassment of the defendant. See Stale v. harbor. No. 01-11-
00574-CR, 2012 WL 1355741, at *3 (Tex. App.—Houston [1St Dist.J Apr. 19. 2012, no pet.) (not
yet released for publication). Moreover, neither the trial judge nor appellee ever alleged the State
engaged in acts demonstrating had faith or prosecutorial misconduct. (‘f State v. Fiye, 897 S.W.2d
324, 331 (Tex. Crim. App. 1995) (upholding lower court’s decision to affirm dismissal of indictment
without State’s consent based on egregious prosecutorial misconduct). To the extent the trial court
was acting in the interest of appellee’s right to a speedy trial, the record contains no evidence
showing appellee moved for a speedy trial or complained of a delay in the case. In fact, the record
shows appellee was not incarcerated as he awaited trial. Accordingly, the trial court had no authority
to dismiss the case with prejudice based on a speedy trial ground. See Harbor. 2012 WI. 1355741,
at *4_5: see a/so lFx. CoD[: C’RRl. PROC. ANN. art. 28061 (West 2006) (authorizing dismissal with
prejudice when “a motion to set aside an indictment, information, or complaint for failure to provide
a speedy trial is sustained”).
To the extent the court was acting to protect appellee’s due process rights proscribing
oppressive delay, we again note that appellee never raised such a complaint and the due process
clause applies to oppressive delays from the time of the alleged offense to the time the charging
instrument is filed. Appellee was charged by information less than four months after the offense
date. The record fails to support the trial court’s action on this basis as well. See Harbor, 2012 WL
1355741, at *5 Further, the two-year statute of limitations for misdemeanor-level DWI was tolled
during the pendency of the charging instrument complained of here, so the trial court could not
dismiss the case with prejudice based on its belief that any future charges would be barred by the
statute of limitations. See Ti/a v. Slate. 267 S.W.3d 3337 (Tex. Crim. App. 2008): see also TEx.
CoDE CRIM. PRoc. ANN. art. 12.02 (West Supp. 2011).
Although a trial court may dismiss a charging instrument to remedy a constitutional violation.
such a dismissal is a “drastic measure only to be used in the most extraordinary circumstances.” See
Man/ga, 119 S.W.3d at 817. Where the record fails to demonstrate a constitutional violation or
where the appellee’s rights were violated but dismissal of the charging instrument is not necessary
to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing
the charging instrument without the consent of the State. See id. in this case, the trial court had the
consent of the State to grant the State’s motion to dismiss but had no additional authority to do so
with prejudice. The language in the order classifying the dismissal as “with prejudice” is not
authorized by law and is therefore void. See Seidel, 39 S.W.3d at 225. Accordingly, we resolve the
State’s second issue in its favor.
We modify the trial court’s order to delete the phrase ‘with prejudice.” See State’ v. Pierce.
816 S.W.2d 824, 831 (Tex. App.—Austin 1)91. no pet.); see also State v, [ass, 846 S.W.2d 934,
936 (Tex. App.—Austin 1993. no pet.). We affirm the trial court’s order as modified.
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JUDGMENT
TI IF STATE OF TEXAS. Appellant Appeal from the Count Criminal Court No.
6 of Dallas County, Texas. (Tr.Ct.No. M09-
No. 05-12-003 82-CR 261-39).
Opinion delivered by Justice Morris.
CRAIG MASON. Appellee Justices Francis and Murphy participating.
Based on the Court’s opinion of this date, the trial court’s order dismissing the case
against appellee is MODIFIED to DELETE the phrase “with prejudice.”
As modi0ed, the judgment is AFFIRMEI).
Judgment entered October 30. 2012.
JQsEPTT1ORR1S
_—1JSTICE