Reversed and Remanded and Opinion filed September 20, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-12-00406-CR

                          THE STATE OF TEXAS, Appellant

                                            V.

                      ALEXANDER ELLIOT DINUR, Appellee


              On Appeal from the County Criminal Court at Law No. 2
                               Harris County, Texas
                          Trial Court Cause No. 1634290


                                    OPINION
       The State of Texas appeals from the trial court‘s dismissal of driving-while-
intoxicated charges against appellee Alexander Elliot Dinur. Because we conclude that
there is neither a violation of appellee‘s constitutional rights nor any statutory or common
law basis for dismissal asserted, we reverse the trial court‘s order of dismissal and
remand for further proceedings.
                                         BACKGROUND

        On October 11, 2009, appellee Alexander Elliot Dinur was charged by information
with the misdemeanor offense of driving while intoxicated (―DWI‖). As a first-time
offender, appellee was eligible to participate in the Harris County District Attorney‘s
Office (the ―HCDAO‖) pretrial diversion program, DIVERT.1 The DIVERT program
postpones prosecution for first offender class B misdemeanor DWI cases, such as
appellee‘s. To participate in the program, the defendant must, among other things,
execute a waiver of trial by jury, enter a plea of guilty, and agree to punishment.
Importantly, a defendant‘s entry into this program requires judicial approval. A finding
of guilt is deferred pending the successful completion of the conditions of the program,
and the defendant‘s case is reset.           Should the defendant successfully complete the
program, the charges against him or her are dismissed at the reset hearing. In the event of
a violation of the program, the defendant is found guilty and the agreed-upon sentence is
imposed.

        The HCDAO has offered other pretrial diversion programs to eligible defendants
for different types of minor offenses. These pretrial diversion programs typically operate
as follows: The HCDAO offers to dismiss charges against a defendant in return for the
defendant‘s agreeing to participate in various rehabilitative programs and to refrain from
certain behavior for a certain period of time. Should the defendant fail to participate in
the programs or otherwise violate the agreement with the HCDAO, the HCDAO proceeds
on the original charges against the defendant.2 For ease of reference in this opinion, we
will refer to these types of pretrial diversion programs as ―traditional pretrial diversion
programs.‖
        1
           DIVERT is an acronym for ―Direct Intervention using Voluntary Education, Restitution, and
Treatment.‖ It is a pretrial diversion program run by the Harris County District Attorney‘s Office rather
than a statutory scheme.
        2
         The record reflects that in at least one of these cases, involving a misdemeanor assault, the
HCDAO dismissed the charges and retained the option of re-filing the charges if the defendant violated
the agreement. However, the record reflects that the HCDAO does not offer dismissal of the case to
anyone charged with the offense of DWI until the terms and conditions of the pretrial diversion program
have been completed.

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       The main distinctions between these traditional pretrial diversion programs and the
DIVERT program appear to include (1) the defendant waives various constitutional rights
and confesses to the offense to participate in the DIVERT program, whereas in a
traditional pretrial diversion, no waiver and confession is necessary; (2) judicial approval
is required for participation in the DIVERT program, yet is not necessary for traditional
pretrial diversion; (3) the HCDAO and the defendant agree to a pre-established
punishment before entry into the DIVERT program, whereas in a traditional pretrial
diversion, the entire range of punishment is available should the defendant violate the
terms of the agreement; and (4) the charges are never dismissed before entry into the
DIVERT program, while in some HCDAO pretrial diversion programs, charges may be
dismissed before the diversion occurs.

       Appellee‘s case was randomly assigned to Harris County Criminal Court at Law
No. 2, Judge William Harmon presiding.                     The record reflects that HCDAO offered
appellee entry into the DIVERT program. Our record further establishes that Judge
Harmon has stated in open court that, in his opinion, the DIVERT program violates the
statutory prohibition on permitting DWI offenders to participate in deferred
adjudication.3       At numerous hearings involving defendants seeking entry into the
DIVERT program, Judge Harmon repeatedly stated his opinion that this program runs
afoul of legislative authority.          Judge Harmon has refused to approve entry into the
DIVERT program to any eligible first-time DWI offenders. During these hearings, he
has communicated clearly to the HCDAO that he will continue to refuse entry into this
program.

       Appellee filed a motion to dismiss the charges against him based on an alleged
equal protection violation.           Judge Harmon heard appellee‘s motion to dismiss on
December 13, 2011.4 During this hearing, Judge Harmon admitted the reporter‘s records


       3
          See Tex. Code Crim. Proc. art. 42.12, § 5(d)(1)(A) (prohibiting deferred adjudication for the
offense of DWI).
       4
           Motions to dismiss filed by eight other defendants were also at issue at this hearing.

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from hearings on September 22, 2010, October 15, 2010, and October 28, 2011 involving
various defendants eligible for the DIVERT program. At the hearing held on October 28,
2011, Assistant District Attorney Roger Bridgwater, the Bureau Chief in charge of the
DIVERT program, testified that a pretrial diversion ―pilot program‖ for DWI offenders
existed for a brief period of time.       Bridgwater stated that the pilot program was
established for defendants with mental health issues and had only four to five
participants. Bridgwater testified that this program had been discontinued because the
HCDAO did not have the resources necessary to support such a program.

       The record reflects that a defendant charged with DWI and possession of
marijuana was placed into this pilot program during the time that appellee‘s case was
pending.   In that case, the defendant was placed on deferred adjudication for the
marijuana offense.    She additionally was placed into a traditional pretrial diversion
program for the DWI offense. The clerk‘s record contains a copy of the pretrial diversion
agreement regarding this defendant, whose case was assigned to County Criminal Court
at Law No. 7. The DWI charges against this defendant were not dismissed initially.
Instead, the agreement states, ―The parties agree that if the defendant successfully
completes the terms and conditions of this agreement to the satisfaction of the district
attorney, the district attorney will move to dismiss the above styled and numbered cause.‖

       After the hearing on appellee‘s motion to dismiss, Judge Harmon dismissed the
charges against appellee, articulating his rationale as follows:

       So, the DIVERT Program is illegal. [The pilot program is the HCDAO‘s
       attempt] to convey some sort of special opportunities to some selected
       defendants [and is] complete evidence of invidious discrimination exercised
       by the District Attorney‘s Office in showing favoritism to some defendants,
       and I‘m going to grant the motion to dismiss for violation of the equal
       protections under the 14th Amendment of the United States Constitution as
       well as the Texas Constitution.




                                              4
The State of Texas timely noticed its appeal from the dismissal of charges against
appellee.5

                                           ANALYSIS
A.     Standard of Review and Governing Law

       We apply a bifurcated standard of review when considering a trial court‘s decision
to dismiss a case. 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 fact that are supported by the
record, as well as any mixed questions of law and fact that rely upon the credibility of
witnesses. Id. But where, as here, resolution of the case turns solely on questions of law
or mixed questions that do not depend on credibility determinations, our review is de
novo. Id.

       A trial court has no inherent authority to dismiss a case without the consent of the
prosecutor. State v. Plambeck, 182 S.W.3d 365, 366 (Tex. Crim. App. 2005); Ex parte
Seidel, 39 S.W.3d 221, 223 (Tex. Crim. App. 2001); State v. Terrazas, 962 S.W.2d 38, 40
(Tex. Crim. App. 1998). In limited circumstances, however, a court may dismiss a case
without the prosecutor‘s consent, but only if so authorized by statute, common law, or
constitution. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). Our courts
have recognized that a trial court has the power to dismiss a case without the State‘s
consent when ―‗a defendant has been denied a right to 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.‘‖                      Id. (quoting State v.
Johnson, 821 S.W.2d 609, 612, n.2 (Tex. Crim. App. 1991)). Additionally, a trial court
may dismiss a charging instrument to remedy a violation of the Sixth Amendment right to
counsel ―‗if a defendant suffers demonstrable prejudice, or a substantial threat thereof,
and where the trial court is unable to identify and neutralize the taint by any other
means.‘‖ Id. (quoting State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995)).
Finally, other constitutional violations not yet identified may also support a trial court‘s
       5
           The State also has appealed the dismissal of charges against the eight other defendants.

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dismissal of a case. See id. at 817. But, ―where there is no constitutional violation, or
where the appellee‘s rights were violated but dismissal of the indictment was 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.‖ Id.;
see also State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998).

B.      Application

        Here, the only basis for dismissal is an alleged constitutional violation involving a
denial of appellee‘s right to equal protection—no common law or statutory basis for
dismissal is asserted. Our review of the record indicates three equal protection arguments
considered by the trial court in dismissing the charges against appellee: (1) a claim of
selective prosecution;6 (2) an alleged equal protection violation based on appellee‘s
assignment to County Court No. 2 because Judge Harmon refuses to approve any
DIVERT agreements; and (3) an alleged equal protection violation because appellee was
not placed into a traditional pretrial diversion program, and other first-time DWI
offenders had been, during the time period that charges against appellee were pending.7

        The principle of equal protection guarantees that ―all persons similarly situated
should be treated alike.‖ City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)); see Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998); In re M.A.C., 999 S.W.2d 442, 445 (Tex.


        6
          The records from the hearings conducted on September 22, 2010 and October 15, 2010 are
entitled ―Selective Prosecution Hearing.‖ As noted above, these records are included as exhibits to the
hearing resulting in dismissal of the charges against appellee.
        7
          The order dismissing the charges against appellee states: ―[T]he Court finds that the defendant
suffers demonstrable prejudice or a substantial threat thereof as a result of constitutional violations and
that the Court is unable to identify and neutralize the taint by any other means than by ordering the
information dismissed.‖ As discussed above, this particular language modifies the description of a
category limited to violations of Sixth Amendment rights. See Mungia, 119 S.W.3d at 816 (―In the
context of a Sixth Amendment violation, a trial court may properly dismiss a charging instrument if ‗a
defendant suffers demonstrable prejudice, or a substantial threat thereof, and where the trial court is
unable to identify and neutralize the taint by any other means.‘‖ (emphasis added.)). The trial court‘s
application of Mungia erroneously expands its coverage by describing a broad, amorphous category of
dismissal power encompassing violations not contemplated in the Court of Criminal Appeals decision.

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App.—El Paso 1999, no pet.).              Generally, to assert an equal protection claim, the
deprived party must establish two elements: (1) that he or she was treated differently than
other similarly situated parties; and (2) that he or she was treated differently without a
reasonable basis.8 Sanders v. Palunsky, 36 S.W.3d 222, 225 (Tex. App.—Houston [14th
Dist.] 2001, no pet.).

        1. No showing of selective prosecution

        Turning to the first alleged equal protection violation, the United States Supreme
Court has stated that ―the decision to prosecute may not be ‗deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary classification . . . .‘‖ Wayte
v. United States, 470 U.S. 598, 608 (1985) (quoting Oyler v. Boles, 368 U.S. 448, 456
(1962)). ―A defendant may demonstrate that the administration of a criminal law is
‗directed so exclusively against a particular class of persons . . . . with a mind so unequal
and oppressive‘ that the system of prosecution amounts to ‗a practical denial‘ of equal
protection of the law.‖         United States v. Armstrong, 517 U.S. 456, 464–65 (1996)
(quoting Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886)).

        Importantly, in all the cases cited by appellee regarding selective prosecution,
there was a distinguishing factor absent in this proceeding: the defendants in those cases
were all prosecuted. See Armstrong, 517 U.S. at 463–64 (black defendants claimed they
were singled out for prosecution); Ex parte Quintana, 346 S.W.3d 681, 685–86 (Tex.
App.—El Paso 2009, pet. ref‘d) (district attorney‘s office prosecuted defendant when
others similarly situated were offered pretrial diversion); Gunnels v. City of Brownfield,
153 S.W.3d 452, 464 (Tex. App.—Amarillo 2003, pet. denied) (defendant prosecuted for
violation of city ordinance); People v. Abram, 680 N.Y.S.2d 414, 417–19 (N.Y. Crim. Ct.
1998) (district attorney‘s policy for prosecuting DWI offenders unless they were of

        8
          Appellee asserts that a heightened standard of review should be employed here because the
DIVERT program violates the statutory prohibition against offering deferred adjudication to DWI
offenders. However, we need not consider this argument because, as explained below, appellee did not
establish he was arbitrarily treated differently than other similarly situated individuals. Thus, we do not
reach the second step of an equal protection analysis, in which the level of scrutiny is at issue.

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certain military rank violated equal protection). Here, however, the record establishes
that the HCDAO offered appellee the opportunity to participate in pretrial diversion.
Thus, nothing in our record reflects that the HCDAO was engaged in selective
prosecution.

        Moreover, there is nothing in our record to indicate that the HCDAO would have
moved forward with prosecuting appellee for this offense had the trial court not
dismissed the charges against him.                Any claim of ―selective prosecution‖ is thus
premature. Cf. Mungia, 119 S.W.3d at 817 (concluding that appellate court, in upholding
trial court‘s dismissal of charges based on potential constitutional violation, erred ―by
applying a drastic remedy without first finding a constitutional violation‖ (emphasis
added)). Accordingly, there is no evidence that the State was selectively prosecuting
appellee.9 The trial court abused its discretion if this alleged violation was the basis for
dismissal of the charges against appellee.

        2. No equal protection violation by random assignment to Harris County
           Courts at Law
        Appellee asserted that his random assignment to County Court at Law No. 2 is an
―arbitrary‖ action such that his equal protection rights were violated. As discussed
above, to establish an equal protection violation, appellee must show that he was treated
differently from other similarly situated individuals.                   The record reflects that all

        9
          Further, in a comparable situation, the District of Columbia Court of Appeals determined that an
assertion that another similarly situated person received pretrial diversion when the defendant did not
does not support an equal protection claim. Irby v. United States, 464 A.2d 136, 141 (D.C. 1983). The
court reached this conclusion because (1) there is no right to diversion; (2) the selection of participants for
the program is left to the discretion of the prosecutor; (3) to support a claim for equal protection, the
defendant must show that the government‘s selection for prosecution has been based upon invidious or
otherwise impermissible discrimination; and (4) a defendant does not carry this heavy burden merely by
asserting that another similarly situated person received diversion. Id. Although this case is not binding
on us, we agree with its analysis. Accordingly, even if appellant had been prosecuted, our record would
not support finding an equal protection violation because there is no showing of impermissible
discrimination. See id.; cf. Corbitt v. New Jersey, 439 U.S. 212, 225 (1978) (stating that sentencing
schemes involving the option of differing treatment for those who plead guilty and those who plead not
guilty do not lend themselves to an equal protection analysis because such schemes involve many
variables and possibilities and apply to all defendants faced with the same choices); North Carolina v.
Pearce, 395 U.S. 711, 723 (1969) (same).

                                                      8
individuals charged with misdemeanor offenses are randomly assigned to the various
misdemeanor courts. We see nothing in the random assignment of cases to various
county courts as impacting appellee‘s—or any other defendant‘s—equal protection
rights. Appellee directs us to nothing indicating that the assignment of defendants to the
fifteen county courts is based on any constitutionally protected class. Cf. Armstrong, 517
U.S. at 464–65 (iterating the long-standing proposition that a defendant may demonstrate
that administration of a criminal law is directed so exclusively against a particular class
of persons that the system of prosecution amounts to a denial of equal protection of the
law). Accordingly, we discern no constitutional violation by appellee‘s assignment to
County Court No. 2. If the trial court dismissed the charges against appellee on this
basis, it abused its discretion because the record does not establish any equal protection
violation.

       3. No equal protection violation based on pilot program

       As described supra, the trial court believed that the HCDAO was using the above-
described pretrial diversion pilot program as a means to provide ―special opportunities‖
to selected defendants. But nothing in our record reflects that any defendant placed into
this pilot program was similarly situated to appellee, i.e., that any of these defendants was
eligible to participate in the DIVERT program. See Sanders, 36 S.W.3d at 225 (first step
in establishing equal protection violation is to show that defendant was treated differently
than other similarly situated parties). Indeed, appellee admits in his motion to dismiss
that he was ―offered and accepted into the DIVERT program,‖ while the pilot program
―existed for defendants [who] were not eligible for DIVERT.‖ Thus, any defendant‘s
placement in a pretrial diversion program is not evidence that appellee‘s right to equal
protection was violated absent a showing that these individuals were similarly situated to
appellee. See id. Because appellee did not establish an equal protection violation on this
basis, the trial court abused its discretion in dismissing the charges against appellee.

       For the foregoing reasons, we sustain the State‘s sole issue on appeal.



                                              9
                                     CONCLUSION

      In sum, after thoroughly reviewing the record, we do not discern any violation of
appellee‘s right to equal protection under the law. Because there was no constitutional
violation, and no statutory or common law basis for dismissal has been offered, the trial
court abused its discretion in dismissing the charging instrument without the consent of
the State. See Mungia, 119 S.W.3d at 817. Having sustained the State‘s issue, we
reverse and remand this case for proceedings consistent with this opinion.




                                         /s/    Adele Hedges
                                                Chief Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Publish — Tex. R. App. P. 47.2(b).




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