State v. Morales

• Decision Date: 23 December 1992
• Docket Number: No. 3-91-570-CR,3-91-570-CR
• Court: Texas Court of Appeals
• Parties: The STATE of Texas, Appellant, v. Jeffrey MORALES, Appellee.

Page 885

844 S.W.2d 885

The STATE of Texas, Appellant, v. Jeffrey MORALES, Appellee.

No. 3-91-570-CR.

Court of Appeals of Texas Austin.

Dec. 23, 1992.

Rehearing Overruled Feb. 3, 1993.

Ken Oden, County Atty., Giselle Horton, Asst. County Atty., Austin, for appellant.

Christopher M. Gunter, Austin, for appellee.

Before POWERS, B.A. SMITH and ONION, ^* JJ.

ONION, Justice (Retired).

This is an appeal by the State from the trial court's mid-trial order granting appellee's pretrial motion to dismiss the information and the cause with prejudice. See Tex.Code Crim.Proc.Ann. art. 44.01(a)(1) (West Supp.1992). Appellee was charged by information with the offense of a Class A misdemeanor assault. Tex.Penal Code Ann. § 22.01 (West 1989). The issue presented is whether the trial court had the authority to dismiss the cause based on appellee's dismissal motion in which he claimed his due process and due course of law rights under the federal and state constitutions were violated because the State did not preserve a non-custodial tape-recorded interview of appellee by a police officer. We will reverse.

Appellee filed a pretrial motion to dismiss the cause with prejudice. He alleged that the unpreserved tape recording was exculpatory in nature, that it raised the issue of self-defense, and claimed that he would suffer immeasurable harm as a result of not being able to rely upon the recording in presenting his defense. Prior to trial, the trial court conducted a hearing on appellee's motion and took the matter under advisement. The State then presented its case-in-chief, that consisted of the testimony of the complainant, Dylan Preas, and Jason Eckstrom, who was seated near Preas at the time of the assault, but who was not otherwise involved. The tape recording was not mentioned in the presentation of the State's evidence. Appellee then renewed his motion to dismiss based on the allegations in his motion. ¹ The trial court overruled the dismissal motion. Sergeant Rodriguo Herrera of the Austin Police Department was the first defense witness. He had taped the interview with appellee. When he was asked on direct examination about the interview, the trial court removed the jury and reminded counsel that a motion in limine had been granted prohibiting the parties from inquiring about the fact that appellee had a brother who was a member of the Austin Police Department. The colloquy that followed led to a reconsideration of the dismissal motion. The trial court then granted the motion and terminated the prosecution.

With this background, we shall examine the facts underlying the trial court's action in dismissing the information. At the pretrial hearing on appellee's motion to dismiss, Sergeant Herrera testified that in his investigation of the assault on Preas that occurred on August 11, 1990, he interviewed Preas on August 14, 1990, and that he then filed aggravated assault charges against appellee. Later, at Herrera's request, appellee came to the police station. After being warned by Herrera of his rights, appellee indicated his willingness to have the interview taped. Herrera explained that some but not all interviews by the Austin Police Department are tape-recorded, and that in the instant case he decided to use a tape. This was in accordance with normal practice of the Austin Police Department. After the interview, the tape was placed in the case file. Herrera revealed that during his investigation he learned that the six or eight men, who had later joined in the assault upon the complainant, were gang members who had had previous difficulty with the law. Herrera stated that when this fact, among others, was relayed to the mother of the complainant, the mother indicated that "they" wanted to drop the charge against appellee. Herrera told the complainant's mother that she would have to contact the district attorney's office for that purpose. Assuming that the case was being dismissed, Herrera stated that at a later date he reused the tape in another interview and taped over the interview with appellee. Herrera explained that tapes not being held as evidence were reused in this manner.

Herrera acknowledged that he could not recall everything that was said during the interview but believed that he could recall most of the conversation. Herrera stated that appellee admitted hitting the complainant "because he (complainant) was messing with my girl." Appellee explained that his girlfriend had been receiving calls from the complainant; that he (appellee) was tired of the complainant; that he saw the complainant at a party and walked up to the complainant; that complainant jumped off a wall and threw a cigarette down; and that he (appellee) hit the complainant. Appellee explained to Herrera, "[T]hen a bunch of guys came in and starting beating up the victim."

Herrera testified that during the interview he told appellee that he did not believe appellee's story that he had not talked to the other assailants before the assault, or appellee's statement that he had not consulted with his brother, an Austin police officer, prior to the interview. ²

Herrera did not consider the evidence obtained to be exculpatory. He did not recall any statement by appellee that he acted in self-defense. He did recall that appellee took it to be "a move of aggression" when the complainant jumped off a rock wall and threw down a cigarette. Herrera could not recall that appellee stated that the complainant had "flicked a cigarette" at appellee and "bowed up," but admitted it could have been said.

Appellee testified for the limited purpose of the pretrial hearing. He admitted that Sergeant Herrera had given him warnings about his rights and that he had agreed to have the interview taped. Appellee revealed that he told Herrera that he had hit the complainant and why. Appellee testified that he told Herrera that he had approached the complainant who was sitting on a rock wall with a friend, told him that they needed to talk, and informed the complainant to quit calling appellee's girlfriend, harassing her, and driving by her house. Appellee stated that he revealed to Herrera that at this point the complainant stood up, flicked a cigarette on him, and said that "he was not scared of me"; that the complainant "stood up straight" and his chest was out; and that he (appellee) felt that the complainant was getting ready to hit him, so he hit the complainant.

Appellee said that he told Herrera the "black guys," who later joined the attack on the complainant, were individuals with whom he had attended high school, but that he had not talked to them prior to the confrontation with the complainant. Appellee stated he had given Herrera the names of several witnesses and told him where they were standing at the time of the incident. Appellee stated that he "pretty much so" remembered the conversation with Herrera, but when asked if there was anything that had been said in the interview that had not been related by Herrera or by him, appellee replied he would have to hear the tape, which had not been preserved.

Appellee testified that he was permitted to leave and that Herrera promised to contact him if a warrant was issued to give him an opportunity to turn himself in to the proper authorities. Appellee stated he was never called nor arrested for the charged offense. Neither party contends that there was custodial interrogation. ³ See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

At the conclusion of the pretrial hearing, the trial court took the matter under advisement. When the State rested its case-in-chief, appellee reargued his dismissal motion and argued that he was going to have to waive his Fifth Amendment privilege "against testifying" to get his defense before the jury because the State had not preserved the tape-recorded interview. The State argued that appellee had failed to show bad faith on the part of the police and that the statements made were non-exculpatory and inadmissible hearsay. Nevertheless, the prosecutor observed that Sergeant Herrera was present to testify as to his recollections of the interview, and further "agreed to stipulate to anything defense counsel believes was said by the defendant to Sergeant Herrera, whether it was said or not." The offer was declined because "the jury is entitled to hear what demeanor they can pick up from the recorded statement ... the tone of his (appellee's) voice...." Appellee was aware at this time that the tape was no longer in existence. The trial court denied the motion to dismiss the cause. Later, during the presentation of the case for the defense, the trial court reconsidered and granted the pretrial motion to dismiss and terminated the prosecution.

Generally speaking, a court's authority to act is limited to those actions authorized by constitution, statute, or common law. State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991). In addition to specific power to act conferred by constitutional or statutory provision or common law, all courts have inherent authority to take certain actions. Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 n. 1 (Tex.1979) (a court has inherent judicial power that it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, or in the preservation of its independence and integrity). Courts also have implied authority to act arising from specific grants of power. Johnson, 821 S.W.2d at 612. Thus, a court may take a particular action only if that action is authorized by constitutional provision, statute, or common law, or the power to take the action arises from an inherent or implied power. Id.

We turn now to the question of whether a trial court has the authority to dismiss a criminal case. It has been consistently held that, in the absence of constitutional or statutory authority, a trial court cannot dismiss a prosecution except on the motion of the prosecuting attorney. Wallace v....