      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00728-CR



                                   The State of Texas, Appellant

                                                   v.

                                     Daniel Misiaszek, Appellee


                FROM COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY,
           NO. 12-1838CR, HONORABLE LINDA RODRIGUEZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Daniel Misiaszek was charged with assaulting his wife Kathy Misiaszek. See Tex.

Penal Code § 22.01 (setting out elements of assault). Subsequently, Misiaszek and the State entered

into a deferred prosecution agreement. Under the agreement, in exchange for the State agreeing to

“conditionally dismiss the offense,” Misiaszek agreed to “knowingly and voluntarily waive,” among

others, the following rights: to remain silent, to an attorney, to a speedy trial, to a trial by jury, to

confront and cross-examine witnesses, and to secure the appearance of witnesses. In another section,

the agreement specified that Misiaszek was charged with committing assault family violence, that

he was the person named in the allegations, that he understood the allegations against him, and that

he “voluntarily confess[ed] that they are true.” Finally, the agreement set out the consequences that

would occur if Misiaszek failed to comply with the terms of the agreement, including that he agreed

to plead guilty to the charges and stipulated that the confession contained in the agreement would

be admissible against him.
                After the agreement was signed by the parties and after the State dismissed the

case, Misiaszek was allegedly involved in another altercation. Consequently, the State re-filed the

information alleging that Misiaszek had assaulted his wife. In response, Misiaszek filed a motion

to quash asserting that “the information against Misiaszek should be quashed and the case against

him dismissed.” When making that claim, Misiaszek contended that the allegations in the deferred

prosecution agreement formed “the basis of the State’s claims in this case” but that the agreement

was constitutionally deficient, that the agreement was statutorily deficient, and that the State could

not enforce the agreement. Further, Misiaszek argued that those defects could not be remedied.

Consequently, Misiaszek urged the trial court to dismiss the information as well as the case against

him. Although the motion did not mention the word jurisdiction, it essentially asserted that the

information and case should be quashed because the allegations in the agreement did not invoke the

trial court’s jurisdiction.

                After reviewing the motion and convening a hearing on the issue, the trial court

granted the motion to quash and dismissed the case. As with Misiaszek’s motion, the trial court’s

order does not contain the word jurisdiction, but the disposition of the order indicates that the trial

court determined that the allegations in the agreement failed to invoke the jurisdiction of the court

because the agreement was defective. In fact, in the trial court’s separately issued findings of fact

and conclusions of law, the court gave various reasons why the agreement was defective, specified

that the agreement had “jurisdictional defects,” and explained that the information and case were

being dismissed because the agreement “and alleged violation thereof is the mechanism by which

the second information was filed.”



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                Around the time that the trial court issued its order, the State appealed the trial court’s

ruling. See Tex. Code Crim. Proc. art. 44.01(a)(1) (authorizing State to appeal order dismissing “an

indictment, information, or complaint”); see also Tex. R. App. P. 27.1(b) (explaining that prematurely

filed notices of appeal are effective and deemed filed on same day “appealable order is signed by the

trial court”). We will reverse the trial court’s order and remand the case for further proceedings.


                                             DISCUSSION

                In its brief, the State presents six issues. The State’s last two issues attack the decision

by the district court to dismiss the information and case against Misiaszek. Specifically, in its fifth

issue, the State alleges that the “trial court erred by dismissing the instant information without the

State’s consent.” In its final issue, the State urges that the “trial court erred by dismissing the instant

information as a remedy for a finding that the [agreement] was entered into involuntarily.” Instead,

the State contends that the appropriate “remedy for the withdrawal or abandonment of a plea bargain

is to place all parties as they were prior to the plea bargain, not to dismiss the charging instrument.”

In its four other issues on appeal, the State attacks various conclusions regarding the propriety of

the agreement that the trial court made after it dismissed the information and case.1 However, the




        1
         Regarding the challenged conclusions, the State alleges in its first four issues that the
trial court’s ruling effectively prohibited the State from introducing the confession that was
contained within the agreement even though the confession was signed and freely and voluntarily
made, that the trial court erroneously determined that the inadvertent substitution of the phrase
“Travis County” for “Hays County” in various portions of the agreement somehow rendered the
document jurisdictionally infirm, and that the trial court erred when it concluded that the confession
portion of the agreement was improper because Misiaszek “was not duly admonished” by his
attorney or “by any Court before executing the” agreement.

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relief requested by Misiaszek and the disposition of the trial court’s ruling demonstrate that the only

issue before this Court is whether the trial court improperly dismissed the information and case.

                The information at issue was styled “STATE OF TEXAS VS. DANIEL MISIASZEK”

and specified that the offense in question was “ASSAULT BODILY INJURY FAMILY VIOLENCE.”

More particularly, the information alleged that Misiaszek “on or about” October 18, 2010, “did then

and there intentionally, knowingly, or recklessly cause bodily injury to Kathy Misiaszek by pushing

Kathy Misiaszek on or about the torso with [Misiaszek]’s hand.” In addition, the information

clarified that Kathy Misiaszek was a member of Misiaszek’s family or was in a dating relationship

with Misiaszek and that the offense took place in Hays County. The information was filed in May

2012, and the parties do not dispute that this information was filed within the applicable statute-of-

limitations period. See Tex. Penal Code § 22.01(b) (providing that assault is class A misdemeanor

or third-degree felony in certain circumstances); Tex. Code Crim. Proc. arts. 12.02(a) (requiring

information in class A misdemeanor to be filed within two years of offense), .01 (imposing lengthier

limitations periods on felony offenses).

                In light of the above, we cannot conclude that the terms of the information were

fundamentally defective or failed to invoke the jurisdiction of the trial court. See Tex. Const. art. V,

§ 12(b) (providing that “[t]he presentment of an indictment or information to a court invests the court

with jurisdiction of the case”); see also Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007)

(providing that if allegations in instrument “are clear enough that one can identify the offense

alleged,” “the indictment is sufficient to confer subject matter jurisdiction”); Ex parte Gibson,

800 S.W.2d 548, 551 (Tex. Crim. App. 1990) (explaining that if instrument purports to charge



                                                   4
offense and “is facially an indictment,” then its presentation “invests the trial court with jurisdiction

to consider the case”). Under these circumstances, any alleged defects in the agreement would have

been irrelevant to the jurisdictional inquiry undertaken by the trial court.

                When supporting the trial court’s ruling, Misiaszek notes that the court of criminal

appeals has sanctioned decisions by trial courts to dismiss charging instruments and cases without

the State’s consent in certain circumstances. Although the court of criminal appeals has explained

that trial courts have no inherent authority allowing them to dismiss a case without the consent of

the State regardless of whether the dismissal is with prejudice, State v. Plambeck, 182 S.W.3d 365,

369-70 (Tex. Crim. App. 2005), the court has also reasoned that there are certain circumstances in

which a trial court may dismiss without the State’s consent when authorized by constitutional,

statutory, or common law, State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). For

example, the court recognized that dismissals have properly been made when a defendant’s right to

a speedy trial has been violated, when a charging instrument is defective, when a defendant has been

detained but no charges have been presented, and when a defendant has suffered demonstrable

prejudice due to a violation of his right to counsel that cannot be otherwise cured. Id. (citing

State v. Frye, 897 S.W.2d 324, 330-31 (Tex. Crim. App. 1995); State v. Johnson, 821 S.W.2d 609,

612 n.2 (Tex. Crim. App. 1991)); see State v. McNutt, 405 S.W.3d 156, 160 (Tex. App.—Houston

[1st Dist.] 2013, no pet.); see also Mungia, 119 S.W.3d at 817 (explaining that constitutional

violation must have actually occurred and not be speculative). However, the court also warned that

dismissing a charging instrument is “‘a drastic measure only to be used in the most extraordinary

circumstances.’” Mungia, 119 S.W.3d at 817 (quoting Frye, 897 S.W.2d at 330).



                                                   5
                In his brief, Misiaszek acknowledges that the court of criminal appeals “has never

approved of the dismissal of claims against an accused under identical facts,” but he notes that the

court of criminal appeals has hinted that there may be situations other than the ones summarized

above in which a trial court may properly dismiss a charging instrument and a case without

the State’s consent. See id. at 816. However, the facts of this case do not present the type of

“extraordinary circumstances” warranting an extension of a trial court’s limited power in this regard.

See id. at 817. The fact that the trial court perceived some alleged defects in a potential item of

evidence from the State has no bearing on whether the trial court had jurisdiction over this case.2

Accordingly, we conclude that the trial court abused its discretion by dismissing the information

and the case against Misiaszek without the State’s consent. See id. (explaining that trial court abuses

its discretion when it dismisses charging instrument in absence of violation requiring dismissal);

see also State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005) (stating that trial court

abuses its discretion if its ruling is arbitrary or unreasonable); Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002) (providing that trial court abuses its discretion if its ruling lies outside zone

of reasonable disagreement). We therefore sustain the State’s fifth issue on appeal.

                Having determined that the trial court had jurisdiction over this case and that the

trial court did not otherwise have the authority to dismiss in the absence of the State’s consent, we


       2
          See In re Expunction of Jones, 311 S.W.3d 502, 505 (Tex. App.—El Paso 2009, no pet.)
(stating that defendants may enter into agreements waiving their rights and that individual entering
into agreement is charged with knowledge regarding its terms as well as its effect); cf. Ex parte
Insall, 224 S.W.3d 213, 214-15 (Tex. Crim. App. 2007) (explaining that defendants may waive
rights and that waiver “is judicially enforceable” unless not intelligently and knowingly made);
Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (providing that if no unfairness
occurred, State should be able to insist on benefit of bargain entered into with defendant).

                                                   6
have answered the only question properly before us in this appeal. Accordingly, we need not reach

the State’s sixth issue on appeal containing its alternative challenge to the dismissal. Moreover, as

discussed above, the State’s first four issues challenged various conclusions made by the trial court

regarding the deferred prosecution agreement, but the propriety of the agreement and, therefore,

those conclusions are not pertinent to the inquiry before this Court. For those reasons, we do not

reach the State’s first four issues. See Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex. Crim. App. 2012)

(explaining that appellate courts are not authorized to issue advisory opinions).


                                          CONCLUSION

               Having determined that the trial court had jurisdiction over this case and improperly

dismissed the information and the case, we reverse the trial court’s order and remand the case for

further proceedings.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Reversed and Remanded

Filed: December 10, 2014

Do Not Publish




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