Opinion issued February 26, 2013.




                                    In The

                             Court of Appeals
                                    For The

                        First District of Texas
                         ————————————
                            NO. 01-11-01023-CR
                          ———————————
                     THE STATE OF TEXAS, Appellant
                                      V.
                      ROCHELLE MCNUTT, Appellee




          On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Case No. 1679265



                                OPINION

      The State of Texas appeals the trial court’s dismissal of the information

charging Rochelle McNutt with the Class B misdemeanor offense of driving while

intoxicated. See TEX. PENAL CODE ANN. § 49.04(a), (b) (West Supp. 2012).
McNutt was offered and accepted a chance to participate in the Harris County

District attorney’s pretrial diversion program known as DIVERT. 1 The trial court

to which McNutt’s case was assigned refused to approve the DIVERT agreement

between the State and McNutt. McNutt filed a motion to dismiss the information

asserting she had been denied due process and equal protection under the Fifth and

Fourteenth Amendments of the United States Constitution. The trial court granted

the motion and dismissed the information, and the State appealed. We reverse and

remand.

                                   Background

      McNutt was charged by information with a misdemeanor offense for DWI.

See TEX. PENAL CODE ANN. § 49.04(a), (b). As a first-time offender, McNutt was

eligible to participate in the Harris County District Attorney’s DIVERT program.

Under the DIVERT program, the defendant is required to enter a plea of guilty,

waive a jury trial and other constitutional rights, and agree to a punishment. A

defendant’s participation in this program requires the trial court’s approval. If

approved, the defendant’s case is reset and a finding of guilt is deferred pending

the successful completion of the program. If the defendant completes the program,

the charges are dismissed at the reset hearing. If, however, the defendant does not



1
      DIVERT stands for Direct Intervention using Voluntary Education Restitution and
      Treatment.
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successfully complete the program, the defendant is found guilty and sentence is

imposed according to the agreement.

      Harris County has other pretrial diversion programs, but they differ in many

respects from the DIVERT program.              Those “traditional pretrial diversion

programs” do not require (1) the defendant to confess or waive constitutional

rights; (2) the trial court to approve participation; or (3) the defendant to agree with

the State on a punishment in advance.           Additionally, in traditional pretrial

diversion programs, the charges are often dismissed before the diversion occurs

(although the State may re-file in some cases). In the DIVERT program, in

contrast, the charges remain pending. State v. Dinur, No. 14-12-00406-CR, 2012

WL 4127281, at *1 (Tex. App.—Houston [14th Dist.] Sept. 20, 2012, no. pet.).

      The district clerk’s office randomly assigned McNutt’s case to a trial court—

in this case, the County Criminal Court at Law Number 2. The presiding judge of

that court has determined that the DIVERT program constitutes deferred

adjudication, a punishment that is specifically prohibited in DWI cases. See TEX.

CODE CRIM. PROC. ANN. art. 42.12, § 5(d)(1)(A) (West Supp. 2012). He therefore

has refused to approve any DIVERT agreement, including McNutt’s. The fourteen

other county criminal courts at law, by contrast, each approved between 137 and

176 such agreements as of October 15, 2010.




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      After the trial court refused to approve McNutt’s DIVERT agreement,

McNutt moved to dismiss the information, asserting that she had been denied due

process and equal protection. Essentially, she claims that being assigned to County

Criminal Court at Law Number 2, which never approves DIVERT agreements,

deprived her of these rights.

      On October 28, 2012, the trial court held a hearing on McNutt’s amended

motion to dismiss the information. Roger Bridgwater, the District Attorney’s

Office bureau chief in charge of the DIVERT program, appeared as the primary

witness. The trial court questioned Bridgwater extensively about pretrial diversion

and the DIVERT program in particular. The trial court questioned Bridgwater

about a specific defendant who was charged with DWI and possession of

marijuana and participated in a pretrial diversion program other than the DIVERT

program.    Bridgwater explained that the other diversion program was a pilot

program for defendants who were ineligible for DIVERT due to mental health or

drug issues. He stated that only about five defendants participated in the pilot

program in three months before the District Attorney’s Office decided to

discontinue it.

      The trial court dismissed the information, explaining the basis for its

decision was the discrepancy between the District Attorney’s treatment of




                                        4
defendants involved in the pilot program, on the one hand, and its treatment of

McNutt, on the other:

      . . . [W]hen I looked at this pretrial diversion, this DWI case for a
      person who also had a marijuana case, pled guilty to marijuana, got
      put on deferred adjudication for marijuana, wasn’t required to plead
      guilty to DWI and got pretrial diversion, and now I get this response
      that it was some kind of pilot program, I tell you, that’s invidious
      discrimination in my opinion. There’s no question about it. I think
      it’s shameful, absolutely shameful what [the District Attorney’s]
      office is doing. I’m not able to identify—neutralize the taint of this,
      of what you all have been doing. I’m going to grant the Motion to
      Dismiss the Information.

The State appealed.

                             Dismissal of Information

      In her amended motion to dismiss the information, McNutt asserted (1) that

the Harris County District Attorney’s Office had “arbitrarily excluded defendants

charged with the offense of driving while intoxicated from consideration for

pretrial diversion” and (2) that, because the trial court would not approve DIVERT

agreements, she (like all other DWI defendants assigned to the County Criminal

Court at Law Number 2) was being treated differently from all “similarly situated”

persons—namely persons charged with DWI in all the county criminal courts at

law other than Court Number 2. McNutt contends that these actions amount to

violations of her rights to due process and equal protection.




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A.    Motion to Dismiss

      A trial court has no inherent authority to dismiss a case without the consent

of the prosecutor. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003);

Dinur, 2012 WL 4127281, at *3 (citing State v. Plambeck, 182 S.W.3d 365, 366

(Tex. Crim. App. 2005)). In certain circumstances, a trial court may dismiss a case

without the prosecutor’s consent, if dismissal is authorized by constitution, statute,

or common law. Dinur, 2012 WL 4127281, at *3 (citing Mungia, 119 S.W.3d at

816). For example, a court may dismiss a case without the prosecutor’s consent

when a defendant is denied a right to a speedy trial, there is a defect in the charging

instrument, to remedy certain Sixth Amendment violations, or when a defendant is

detained and no charging instrument is presented in violation of article 32.01 of the

Texas Code of Criminal Procedure.             Mungia, 119 S.W.3d at 816.         Other

constitutional violations may support a trial court’s dismissal of a case without the

prosecutor’s consent, but this is “a drastic measure only to be used in the most

extraordinary circumstances.” Id. at 817 (quoting State v. Frye, 897 S.W.2d 324,

330 (Tex. Crim. App. 1995)). A trial court errs by dismissing a case without the

prosecutor’s consent “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.” Id. In this case, McNutt moved




                                          6
for a dismissal on the grounds that her constitutional rights to due process and

equal protection were violated. We address each alleged violation in turn.

B.    Due Process

      McNutt sought dismissal on the basis that her due process rights were

violated when she was excluded from participating in a pretrial diversion program.

Procedural due process prevents the government from depriving an individual of a

protected liberty or property interest in an arbitrary manner.           Ex parte

Montgomery, 894 S.W.2d 324, 327 (Tex. Crim. App. 1995) (citing Morrissey v.

Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972); see Hewitt v. Helms, 459 U.S. 460,

103 S. Ct. 864 (1983)).     “The interest at issue must amount to more than a

‘unilateral hope.’” Id. (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458,

101 S. Ct. 2460 (1981)). “[R]ather the claimant must show an entitlement.” Id.

(citing Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 109 S. Ct. 1904 (1989)).

      If a defendant pleads guilty or nolo contendere pursuant to a plea bargain

agreement, due process may require the State to fulfill its end of the agreement.

DeRusse v. State, 579 S.W.2d 224, 236 (Tex. Crim. App. 1979) (citing Santobello

v. New York, 404 U.S. 257, 92 S. Ct. 495 (1971)). However, a defendant has no

absolute right to enter into a plea bargain. Gaal v. State, 332 S.W.3d 448, 457

(Tex. Crim. App. 2011) (citing Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim.

App. 1978)); DeRusse, 579 S.W.2d at 236 (citing Morano); see also Weatherford

                                         7
v. Bursey, 429 U.S. 545, 561, 97 S. Ct. 837, 846 (1977) (“But there is no

constitutional right to plea bargain; the prosecutor need not do so if he prefers to go

to trial.”). Drawing an analogy to plea bargain cases, federal courts of appeals

have concluded a defendant does not have a constitutional right to be placed in

pretrial diversion. United States v. Richardson, 856 F.2d 644, 647 (4th Cir. 1988);

United States v. Hicks, 693 F.2d 32, 34 (5th Cir. 1982), cert. denied, 459 U.S.

1220, 103 S. Ct. 1226 (1983).

      McNutt has not identified any statutory or case law that creates a right or

entitlement to be placed into pretrial diversion. Because there is no right or

entitlement to enter into pretrial diversion, McNutt’s due process rights were not

implicated. See Ex parte Montgomery, 894 S.W.2d at 327. And because McNutt’s

due process rights are not implicated, the trial court erred if it dismissed the case

on the basis of a due process violation. See Mungia, 119 S.W.3d at 817 (stating

trial court errs by dismissing case without prosecutor’s consent when there is no

constitutional violation).

C.    Equal Protection

      McNutt also urged the trial court to dismiss the information on equal

protection grounds. McNutt argues that her equal protection rights have been

violated because she and other DIVERT-eligible defendants are similarly situated,

but DIVERT-eligible defendants that are not assigned to County Criminal Court at

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Law Number 2 may be placed into the program but those, like her, who are

assigned to Court Number 2, will not be.

      “[A]ll persons similarly situated are guaranteed equal protection under the

laws of this State and of the United States.” Nonn v. State, 117 S.W.3d 874, 881–

82 (Tex. Crim. App. 2003) (citing Vasquez v. State, 739 S.W.2d 37, 43 (Tex. Crim.

App. 1987)). Equal protection is implicated if a classification interferes with a

fundamental right or burdens a suspect class.2 Clark v. State, 665 S.W.2d 476,

480–81 (Tex. Crim. App. 1984). If no fundamental rights or suspect classifications

are involved, the challenged government action does not violate equal protection

“so long as unequal treatment of persons is based upon a reasonable and substantial

classification of persons.”    Vasquez, 739 S.W.2d at 43.           In other words, the

classification will not be set aside if it is rationally related to a legitimate state

interest. Clark, 665 S.W.2d at 481. Additionally, equal protection does not require

things that are “different in fact [to] be treated in law as though they were the

same.” Downs v. State, 244 S.W.3d 511, 518 (Tex. App.—Fort Worth 2007, pet.

ref’d) (citing Smith v. State, 898 S.W.2d 838, 847 (Tex. Crim. App. 1995) (holding



2
      “Fundamental rights” include rights such as: the right to privacy, the right to vote,
      rights guaranteed by the First Amendment, the right to procreate, and the right to
      interstate travel. Clark v. State, 665 S.W.2d 476, 480 n.3 (Tex. Crim. App. 1984)
      (citing Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 n.3, 96 S. Ct. 2562
      (1976)). “Suspect classifications” are those based on alienage, race, and ancestry.
      Id. at 480 n.4 (citing Murgia, 427 U.S. at 312 n.3, 96 S. Ct. 2562).
                                            9
that different sentencing scheme for capital and non-capital defendants did not

violate equal protection; all capital defendants were treated similarly)).

      Here, McNutt contends that the State, acting through the Harris County

District Attorney’s Office, treats DWI defendants assigned to County Criminal

Court at Law Number 2 differently from DWI defendants whose cases are assigned

to other courts. The record does not support McNutt’s claim.

      To the extent McNutt contends her equal protection rights were violated by

being assigned to County Criminal Court at Law Number 2 rather than another

court, we reject that contention.     The record shows that all DWI defendants,

including McNutt, are assigned to the county criminal courts at law randomly, not

based on any suspect classification. Because McNutt is being treated the same as

all other DWI defendants and no suspect classification is involved, there is no

equal protection violation.    See Smith, 898 S.W.2d at 847 (holding no equal

protection violation where appellant was treated similarly to all those similarly

situated, i.e., capital defendants; different treatment of non-capital defendants

irrelevant); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439,

105 S. Ct. 3249, 3254 (1985) (equal protection requires “all persons similarly

situated should be treated alike”).

      To the extent McNutt complains she was treated differently because other

DWI defendants eligible for the DIVERT program were offered more favorable

                                          10
terms, we also reject this complaint. The record reflects that all DWI defendants

offered the DIVERT program are treated similarly by the Harris County District

Attorney’s Office; they are offered and must sign the same agreement, which is

subject to judicial approval. In this case, the trial court judge did not approve the

agreement. In other words, the Harris County District Attorney’s Office did not

treat McNutt any differently than it treated all other DIVERT-eligible DWI

defendants offered the DIVERT program.            Accordingly, there is no equal

protection violation. See Nonn, 117 S.W.3d at 881–82.

      Finally, to the extent McNutt argues that the District Attorney’s failure to

allow her to participate in the “pilot program” resulted in an equal protection

violation, we disagree. The evidence showed the pilot program was designed for

persons with drug-use or mental health issues who would not qualify for the

DIVERT program. That is, the pilot program was different, but it was designed for

a group that differed from run-of-the-mill first-time DWI offenders like McNutt.

Because the pilot program was based on the needs of defendants who were

“different in fact” from McNutt, there is no equal protection violation. See Dinur,

2012 WL 4127281, at *5 (holding pilot program did not violate equal protection

because no evidence showed any defendant placed in pilot program was “similarly

situated” to appellee); see also Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim.




                                         11
App. 2000) (holding no equal protection violation from Legislature’s decision to

treat capital murder defendants differently from other murder defendants).

                                    Conclusion

      Because there was no constitutional violation, we hold that the trial court

erred by dismissing this case without the prosecutor’s consent. We reverse the trial

court’s judgment dismissing the information and remand this cause for further

proceedings.




                                             Rebeca Huddle
                                             Justice

Panel consists of Justices Bland, Massengale, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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