State v. Terrazas

• Decision Date: 04 February 1998
• Docket Number: No. 1628-96,1628-96
• Citation: 962 S.W.2d 38
• Parties: STATE of Texas, v. Gabriela TERRAZAS, Appellee.
• Court: Texas Court of Criminal Appeals

Page 38

962 S.W.2d 38

STATE of Texas, v. Gabriela TERRAZAS, Appellee.

No. 1628-96.

Court of Criminal Appeals of Texas En Banc.

Feb. 4, 1998.

Matthew Dekoatz, El Paso, for appellant.

John L. Davis, Asst. Dist. Atty., El Paso, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

PRICE, Judge, delivered the opinion of the Court in which McCORMICK, Presiding Judge, and BAIRD, OVERSTREET and MEYERS, Judges, joined, and in which WOMACK, Judge, joined except as to footnote 2.

Appellee was indicted for tampering with a governmental record. TEX. PEN.CODE ANN. § 37.10 (Vernon 1994). Specifically, the indictment alleged that she made a false entry in an application for assistance from the Texas Department of Human Services ("DHS") when she listed three of her children as living with her during certain time periods when they were living with their father. Appellee filed a pretrial motion to dismiss the indictment and a motion to suppress a statement that she made to a welfare fraud investigator. Appellee contended that her rights to due process and due course of law under the United States Constitution and the Texas Constitution were violated because the El Paso County District Attorney's office was compensated by the DHS for accepting cases submitted by DHS for prosecution. ¹ She also contended that her statement was involuntarily made.

After a hearing, the trial court dismissed the indictment with prejudice and suppressed Appellee's statement. The State appealed. The Court of Appeals reversed both orders, holding that the trial court lacked authority to dismiss the indictment with prejudice and that the trial court abused its discretion in granting the motion to suppress the statement. State v. Terrazas, 933 S.W.2d 263 (Tex.App.--El Paso 1996). We granted grounds one and two of Appellee's petition for discretionary review, which alleged, respectively, that the Court of Appeals erred in holding that the trial court could not dismiss an indictment with prejudice and that the Court of Appeals erred in conducting a de novo review of the trial court's decision to grant Appellee's motion to suppress her statement.

DISMISSAL OF INDICTMENT

Evidence at Hearing

At the hearing, there was evidence that beginning in 1985 the El Paso County District Attorney's office and DHS entered into a contract under which the District Attorney would receive funds through DHS for the prosecution of welfare fraud cases referred to the District Attorney from the Office of the Inspector General of DHS. The District Attorney's office would receive $433 for each referred case that resulted in deferred adjudication, a conviction, or an acquittal. No money was paid for a dismissal. The United States Department of Agriculture provided the funds.

There was a marked increase in the number of welfare cases accepted by the District Attorney between 1991 and 1994. The chief of the screening section of the District Attorney's office testified that she did not consider the compensation in making intake decisions. She explained that the previous administration refused the cases as felony cases and that the cases were then referred to the County Attorney for prosecution as misdemeanor cases. The State points out in its brief that in October 1993 the District Attorney took over prosecution of the vast majority of misdemeanors, including welfare fraud cases, from the County Attorney. Tex. Gov't Code §§ 43.120(c), 45.171(b). The compensation for welfare fraud cases was the same whether prosecuted as a misdemeanor or a felony.

Court of Appeals' Holding

The Court of Appeals stated that a trial court may not dismiss an indictment with prejudice without the prosecutor's consent, except as authorized by the constitution, a statute, or common law. Terrazas, 933 S.W.2d at 267, citing State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991), and Gaitan v. State, 905 S.W.2d 703, 704 n. 4 (Tex.App.--Houston [14th] 1995, pet. ref'd). The Court of Appeals further observed that a trial court is authorized to dismiss an indictment with prejudice (1) for a defect of form or substance; (2) for the denial of the constitutional right to a speedy trial; (3) under Article 32.01 of the Code of Criminal Procedure when a person is detained and no charging instrument is properly presented; and (4) if prosecutorial misconduct prejudicially violates a defendant's right to counsel, and the exclusion of the evidence will not cure the prejudice. Id., citing Johnson, 821 S.W.2d at 612 n. 2; State v. Frye, 897 S.W.2d 324, 330 (Tex.Crim.App.1995); and Gaitan, 905 S.W.2d at 706. The Court of Appeals concluded that the trial court's dismissal of the indictment with prejudice in the present case did not fall within one of the circumstances set out in Johnson or Frye. Consequently, the Court of Appeals held that the trial court lacked authority to dismiss the indictment.

Parties' Arguments

Appellee relies on Cook v. State, 940 S.W.2d 623 (Tex.Cr.App.1996), Frye, and Johnson to argue that a trial court may dismiss a charging instrument when a defendant is denied due process, due course of law, and statutory protections.

The State's response follows the rationale used by the Court of Appeals. According to the State, there are only four circumstances under which a trial court is authorized to dismiss a charging instrument--those listed by the Court of Appeals. The State also asserts that this Court's holding in Frye concerned a dismissal when necessary to protect a defendant's Sixth Amendment right to counsel, which is not present in Appellee's case.

The State observes that this Court's granting of Appellee's petition for discretionary review raises issues about Frye 's continued viability, the limitation of Frye to its facts, or the possible expansion of Frye. The State recognizes that Frye and Cook can be read to mean: when the State has engaged in egregious prosecutorial misconduct resulting in demonstrable prejudice to the defendant, or a substantial threat of prejudice, and when the trial court is unable to identify and neutralize the effects of the misconduct by other means, such as by suppression of evidence, the trial court then has authority and discretion to dismiss the prosecution against the defendant. The State concludes that before a trial court reaches the discretionary threshold for possible dismissal of an indictment, the record must show: (1) there was egregious prosecutorial misconduct; (2) the egregious prosecutorial misconduct deprived the defendant of his defense by a violation of the defendant's constitutional rights; and (3) the only way that the taint of the State's prosecutorial misconduct can be neutralized is by dismissing the indictment. See Cook, 940 S.W.2d at 625-28, and n. 7, and State v. Frye, 897 S.W.2d at 330-31. The State then argues that none of the Frye /Cook factors are present in Appellee's case.

Analysis

Article 27.03 of the Texas Code of Criminal Procedure provides that a motion to set aside an indictment or information may be based on any of three grounds, "[i]n addition to any other grounds authorized by law." The question is whether a due process or due course of law violation can be a "ground authorized by law" for dismissing a charging instrument.

In Johnson the trial court dismissed the information because the prosecutor failed to appear when the case was called. In holding that the trial court lacked authority to dismiss the charging instrument, this Court stated, "Generally speaking, a court's authority to act is limited to those actions authorized by constitution, statute, or common law". Johnson, 821 S.W.2d at 612. We held:

[State v.] Anderson[, 119 Tex. 110, 26 S.W.2d 174 (Tex.Com.App.1930),] and its progeny settle the issue with regard to the common law: except in certain circumstances, a court does not have the authority to dismiss a case unless the prosecutor requests a dismissal. We also hold that there is no inherent power to dismiss a prosecution, since dismissal of a case does not serve to "enable our courts to effectively perform their judicial functions and to protect their dignity, independence and integrity." Last, we find no statutory or constitutional provision which would imply a court's authority to dismiss a case without the state's consent, in contravention of the settled common law. In sum, there is no general authority, written or unwritten, inherent or implied, which would permit a trial court to dismiss a case without the prosecutor's consent.

Id. at 613. This language from Johnson, that we found no statutory or constitutional provision which would imply a court's authority to dismiss a case without the State's consent, in contravention of the settled law, and that there is no general authority that would permit a trial court to dismiss a case without the prosecutor's consent, can be read to mean that a court has no authority to dismiss a charging instrument with prejudice as a remedy for a constitutional violation. See Frye, 897 S.W.2d at 333 (Keller, J., dissenting). However, when read in context of the entire opinion in Johnson, this language expressed the lack of a specific statutory or constitutional provision granting trial courts general authority to dismiss a charging instrument with prejudice. In Johnson, we were not faced with dismissal of a case as a remedy for an alleged constitutional violation. Moreover, we recognized in Johnson that there are circumstances under which a trial court may dismiss a charging instrument without the prosecutor's consent. ² Johnson, 821 S.W.2d at 612 n. 2.

We also observed [A] court has the power to dismiss a case without the State's consent in certain circumstances, such as when a defendant has been denied a speedy trial, when there is a defect in the charging instrument, or, pursuant to Article 32.01, when a defendant is detained and no charging instrument is properly presented. The...