State v. Harbor
| Decision Date | 19 April 2012 |
| Docket Number | No. 01–11–00574–CR.,01–11–00574–CR. |
| Citation | 425 S.W.3d 508 |
| Parties | The STATE of Texas, Appellant v. Dedric Lemon HARBOR, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
John J. Harrity III, Assistant District Attorney, Fort Bend County, Gail Kikawa McConnell, Assistant District Attorney, Richmond, TX, for Appellant.
Joyce M. Phoenix Richmond, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BROWN.
Appellant, the State of Texas, appeals the trial court's dismissal of the State's charge against appellee, Dedric Lemon Harbor. In three issues, the State argues the trial court erred by dismissing the charge against appellee.
We reverse and remand.
Appellee was charged by information with assault—family violence.1 The charge stemmed from an incident with appellee's girlfriend, Alice Lampkin, which occurred on May 2, 2010. Lampkin and appellee were at a bar that night, and a verbal fight ensued. The verbal fight continued in Lampkin's car as she drove them home. At one point during the drive home, appellee punched the front windshield, breaking it. The verbal fight escalated and led to a physical altercation while the car was parked in the middle of the street.
The police were notified and arrived on the scene. A police officer spoke with Lampkin that night and the conversation was recorded on a video. Appellant was arrested on that date.
The case was set on the court's docket for May 4, 2011. Ultimately, the trial commenced on May 24, 2011. On May 25, before any witnesses had testified, appellee's attorney raised some objections to the video recording of Lampkin's conversation with the police. While portions of the video had been previously redacted, appellee's attorney sought four additional redactions. The trial court granted two of the requested redactions and denied the other two. The portion that should have been redacted that is pertinent to this appeal is a claim by Lampkin that appellant had previously assaulted the mother of his children. The lead prosecutor indicated she would have to turn the video over to their office to have it edited while the trial commenced.
The State then called Lampkin to the stand. She admitted that she had been subpoenaed to appear and that she did not want to be there to testify. During her examination, she asserted that she had hit appellee first during their argument. When asked whether she had told the police that night that appellee had hit her first, she asserted that she could not remember anything she told the police that night based on how drunk she was at the time.
Next, the State called Branisha Hunter, a witness who had driven by appellee and Lampkin during the incident. The witness testified that she did not see anyone hit anyone else, but did see appellee punch and kick the rear of Lampkin's car. The witness asked Lampkin if she needed her to call the police. Lampkin said yes. Hunter dialed 9–1–1 and subsequently left.
Officer Hernandez, with the Missouri City Police Department, was the next witness to testify. He was one of the officers on the scene following the incident. He dealt primarily with appellee that night.
The State then called Sergeant York, with the Missouri City Police Department. He was also at the scene following the incident. He dealt primarily with Lampkin. The video recorder in his vehicle recorded Sergeant York's conversation with Lampkin that night.
After the trial court admitted the video recording of Lampkin over appellee's objections, the video was published to the jury. The video still contained Lampkin's statement that appellee had previously assaulted the mother of his children. Appellee moved for a mistrial, and the trial court granted it.
Trial was reset for June 7, 2011. On that day, appellee filed a motion to dismiss. Appellee argued in the motion that the charge against him should be dismissed because (1) the State had failed to move forward with trial in a timely manner; (2) it was a waste of the trial court's resources to try the case because he had already been in jail longer than the maximum sentence for the alleged offense; and (3) the State could already revoke his parole based on his prior plea in another matter. Appellee presented the same arguments at the hearing on that day.
The trial court granted appellee's motion to dismiss. In its findings of fact and conclusions of law, the trial court concluded:
1. The trial court has the authority to grant a mistrial.
2. The State's error in failing to redact portions of the video as ordered by the Court was motivated by bad faith or undertaken to harass or prejudice the Defendant.
3. The Court has the authority to dismiss a case with prejudice based on the State's bad faith or intent to harass or prejudice the Defendant.
[4]. The State is barred from retrying the case based on double jeopardy.
[5]. The Court's actions were ... in the interest of justice.
We review a dismissal of a charge under a bifurcated standard. State v. Krizan–Wilson, 354 S.W.3d 808, 815 (Tex.Crim.App.2011). We give almost total deference to a trial court's findings of facts that are supported by the record, as well as mixed questions of law and fact that rely upon the credibility of a witness. Id. In contrast, we apply a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Id.
The State argues in three issues that the trial court erred by (1) concluding it had the authority to dismiss the case with prejudice based on the State's bad faith or intent to harass or prejudice the appellee; (2) concluding that double jeopardy barred retrial; and (3) concluding that its actions were in the interest of justice.
Trial courts do not have an inherent authority to dismiss a charging instrument without the consent of the State. State v. Mungia, 119 S.W.3d 814, 816 (Tex.Crim.App.2003). Instead, any authority to dismiss a charging instrument without the consent of the State must derive from a statute, the common law, or the state or federal constitutions. Id.; see alsoTex.Code Crim. Proc. Ann. art. 27.03 (Vernon 2006) (allowing motion to set aside indictment on three grounds “[i]n addition to any other grounds authorized by law”). Neither the trial court nor appellee, at trial or on appeal, has identified what specific authority allowed the trial court to dismiss the charge against appellee without the consent of the State. We consider, then, whether the grounds presented by appellee and the trial court are authorized by statute, common law, or constitution.2
The first ground for dismissal presented by appellee was that the State had failed to move forward with trial in a timely manner. Dismissal for failure to provide a speedy trial is a statutory ground for dismissal with prejudice. Tex.Code Crim. Proc. Ann. art. 28.061 (Vernon 2006). The legal analysis for whether dismissal is proper, however, is governed by the law concerning the Sixth Amendment of the United States Constitution. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.2003) (). Accordingly, we will analyze this further under constitutional authority, below.
Appellee's next argument was that it was a waste of the trial court's resources to try the case because he had already been in jail longer than the maximum sentence for the alleged offense.3 Appellee does not cite, and we have not found, any common-law or statutory authority for a trial court to dismiss based on appellee's incarceration for a period longer than the maximum sentence for the alleged offense. Accordingly, this could not have been a ground for the trial court to have granted the dismissal.
Finally, appellee argued that the State could revoke his parole based on his prior plea in a felony matter. As argued by the State at the hearing, this is a power vested in the parole board, not the prosecutor's office. There is no common-law or statutory authority for a trial court to dismiss based on the parole board's ability to revoke parole based on a conviction of a separate charged offense. This could not have been a ground for the trial court to have granted the dismissal.
In its findings of fact and conclusions of law, the trial court concluded that it had “the authority to dismiss a case with prejudice based on the State's bad faith or intent to harass or prejudice the Defendant.” The trial court did not identify the authority that allowed it to dismiss based on the State's alleged bad faith or intent to harass or prejudice the appellee. Appellee does not cite, and we have not found, any common-law or statutory authority for a trial court to dismiss based on the State's alleged bad faith or intent to harass or prejudice the appellee. Accordingly, this could not have been a ground for the trial court to have granted the dismissal.
Finally, the court concluded that the State was barred from retrying the case based on double jeopardy. Double jeopardy is a constitutional matter. U.S. Const. amend. V; Tex. Const. art. 1, § 14. Accordingly, we will analyze this further under constitutional authority, below.
We hold that there is no common-law or statutory authority supporting appellee's or the trial court's grounds for dismissal.
The Court of Criminal Appeals has recognized that a charging instrument may be dismissed with prejudice, without the permission of the State, based on constitutional violations of the right to a speedy trial, the right to counsel, due process, and double jeopardy. See Mungia, 119 S.W.3d at 816 (); Krizan–Wilson, 354 S.W.3d at 814 (...
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