                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-15-00183-CR
                              NO. 09-15-00184-CR
                             ____________________

                      THE STATE OF TEXAS, Appellant

                                        V.

                JAMES ANTHONY MESSINA, Appellee
__________________________________________________________________

                  On Appeal from the 9th District Court
                      Montgomery County, Texas
            Trial Cause No. 13-10-11417 CR (Counts 1 and 2)
__________________________________________________________________

                          MEMORANDUM OPINION

      The State appeals the trial court’s order that dismissed the two-count

indictment against Messina after the prosecutor failed to appear for a scheduled

punishment hearing. We reverse the trial court’s order dismissing the indictment

and remand the cause for further proceedings consistent with this opinion.

      James Anthony Messina was indicted for two counts of online solicitation of

a minor. See Tex. Penal Code Ann. § 33.021 (West 2011). The record reflects that


                                         1
Messina signed an “Agreed Setting” form, which indicated that a plea hearing and

sentencing hearing were scheduled for February 27, 2015. On May 1, 2015, the

trial court called the case for a hearing and noted that Messina and his counsel

were present, but the prosecutor failed to appear. Messina’s counsel objected “to

any further lengthening of the prosecutor’s time to show up and try and prosecute

this case” and moved for the charges against Messina to be dismissed. The trial

court granted Messina’s motion to dismiss. 1 In its order, the trial court stated that

Messina’s case was set for May 1, 2015, Messina was present with his counsel and

announced ready, and the Montgomery County prosecutor “wholly failed to appear

and failed to prosecute this case.” The trial court stated that the case was therefore

dismissed with prejudice.

      In its sole issue, the State argues that the trial court lacked authority to

dismiss the case due to the prosecutor’s failure to appear. In response, Messina

contends the dismissal should be upheld because the statute under which he was

charged is unconstitutional. Messina does not address the State’s argument that the

trial court lacked authority to dismiss the charges due to the prosecutor’s failure to

appear.

      The Court of Criminal Appeals has held that a trial court lacks the authority

      1
          The clerk’s record does not contain a written motion to dismiss.
                                            2
to dismiss a case when the prosecutor fails to appear when the case is called for

trial. State v. Johnson, 821 S.W.2d 609, 613-14 (Tex. Crim. App. 1991). Courts of

appeals have likewise held that a trial court lacks the authority to dismiss a

criminal proceeding when the prosecutor announces “not ready” for trial and when

the prosecutor fails to timely appear for trial. State v. Lewallen, 927 S.W.2d 737,

739-40 (Tex. App.—Fort Worth 1996, no pet.); State v. Donihoo, 926 S.W.2d 314,

315 (Tex. App.—Dallas 1994, no pet.). We conclude that the trial court lacked

authority to dismiss the prosecution of Messina. See Johnson, 821 S.W.2d at 613-

14; Lewallen, 927 S.W.2d at 739-40; Donihoo, 926 S.W.2d at 315.

      As discussed above, Messina contends the trial court’s dismissal should be

upheld because the statute under which he was charged is unconstitutional.

Generally, constitutional challenges to a statute are forfeited by the failure to object

at trial. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Curry v.

State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995). A challenge that a statute

is facially unconstitutional, as well as a challenge that a statute is unconstitutional

as applied to the defendant, must be raised in the trial court to preserve error.

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Curry, 910

S.W.2d 490, at 496 n.2 (Tex. Crim. App. 1995). The record does not reflect that

Messina raised this argument in the trial court. We sustain the State’s issue.

                                           3
Accordingly, we reverse the trial court’s order dismissing the indictment against

Messina and remand the cause for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.



                                      ________________________________
                                             STEVE McKEITHEN
                                                 Chief Justice

Submitted on September 1, 2015
Opinion Delivered October 28, 2015
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




                                        4
