AFFIRM as modified; Opinion issued October 30, 2012




                                                In The
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                                        No. 05-I 2-00382-CR


                               THE STATE OF TEXAS, Appellant

                                                  V.

                                    CRAIG MASON, Appellee


                       On Appeal from the County Criminal Court No. 6
                                    Dallas County, Texas
                             Trial Court Cause No. M09-261-39


                                           OPINION
                           Before Justices Morris, Francis, and Murphy
                                    Opinion By Justice Morris

       The trial court in this case denied the State’s first motion for continuance on the day Craig

Mason’s trial for driving while intoxicated was set to begin. After the trial court denied its motion

for continuance, the State filed a motion to dismiss the case without prejudice. The trial court, over

the States objection. dismissed the case with prejudice. The State contends on appeal that the trial

court had no authority to dismiss the prosecution with prejudice without the State’s consent. We

modify the trial court’s order to delete the “with prejudice” language and affirm the order as

modified.

                                                  I.

       At the Iirst trial setting in appellee’s DWI case. the State filed a written motion for
 continuance.    Ilie prosecutor explained that the State had subpoenaed the otheer who stopped

 appellee but the officer had not appeared that morning for trial. The State had also attempted
                                                                                                to
 reach the oftcer through his police department, but the department had been unable to locate the

 officer. who was on patrol. The trial court denied the State’s motion br continuance,    at   which time

 the State filed a motion to dismiss the case without    prejudice.

         At the conclusion of the hearing on the motion for continuance and the motion to dismiss,

 the trial judge made clear that she intended to dismiss the case with prejudice, noting that almost

three years had passed from the time of the alleged offense to the time of the first trial setting. The

trial judge also mentioned a possible “time bar” in the case. The trial judge asked where the “good

faith” was in the State’s reflhing the case. The prosecutor responded that the State still believed it

could “make our case once we have the presence of our officer.” At that point, the judge again

decried the fact that almost three years had passed from the time of the alleged offense to the trial

date. She stated that both the motion for continuance and the motion for dismissal had not been

timely filed. She then stated that she thought appellee was entitled to a dismissal with prejudice.

The dismissal order does just that. The record contains no evidence of a speedy trial motion being

filed by appellee. in addition, the record reflects that appellee was released on bond, rather than

incarcerated, from the time of his arrest to the time of trial.

                                                   11.

        The State brings two issues challenging the trial court’s order. In its first issue, the State

asserts that it is permitted to appeal the trial court’s order under Texas Code of Criminal Procedure

article 44.01 (a)(1). See TEx. CODE CRIrI. PRoc. ANN. art. 44.01 (a)(1) (West Supp. 2011). Appellee

does not contest the State’s right to do so, and it is clear the order is appealable. See Id. We will

therefore confine our analysis to the State’s second issue, whether the trial court erred in dismissing
 the case with prejudice.

         The State contends that the trial court not only committed reversible error by dismissing the

 case with prejudice without the State’s consent hut also committed a void act because the trial court

 lacked any legal authority to do so under the circumstances of appellee’s case. A court may take a

 particular action only ifthat action is authorized by constitutional provision, statute, or common law.

 or if the power rises from an inherent or implied power. Exparle Seidel, 39 S.W.3d 221, 223 (Tex.

 Crirn. App. 2001). Irialcourts have no general authority to dismiss a case without the prosecutor’s

 consent. See State v. Plantheck, 182 S.W.3d 365. 369 (Tex. Crim. App. 2005). And, ordinarily, a

trial court may dismiss a case only if the prosecutor so requests. State v. Mungia, 119 S.W.3d 814,

816 (Tex. Crim. App. 2003). 1 lere, the State actively opposed the trial coUrt’s granting the dismissal

with prejudice, and the trial court never made findings or stated its specific statutory or constitutional

grounds for dismissing the cause with prejudice.

        We have found no authority permitting a trial court to dismiss a case with prejudice based

on the State’s alleged had faith or harassment of the defendant. See Stale v. harbor. No. 01-11-

00574-CR, 2012 WL 1355741, at *3 (Tex. App.—Houston              [1St   Dist.J Apr. 19. 2012, no pet.) (not

yet released for publication). Moreover, neither the trial judge nor appellee ever alleged the State

engaged in acts demonstrating had faith or prosecutorial misconduct.         (‘f State v. Fiye, 897 S.W.2d
324, 331 (Tex. Crim. App. 1995) (upholding lower court’s decision to affirm dismissal of indictment

without State’s consent based on egregious prosecutorial misconduct). To the extent the trial court

was acting in the interest of appellee’s right to a speedy trial, the record contains no evidence

showing appellee moved for a speedy trial or complained of a delay in the case. In fact, the record

shows appellee was not incarcerated as he awaited trial. Accordingly, the trial court had no authority

to dismiss the case with prejudice based on a speedy trial ground. See Harbor. 2012 WI. 1355741,
 at *4_5: see a/so lFx. CoD[: C’RRl. PROC. ANN. art. 28061 (West 2006) (authorizing dismissal with

 prejudice when “a motion to set aside an indictment, information, or complaint for failure to provide

 a speedy trial is sustained”).

         To the extent the court was acting to protect appellee’s due process rights proscribing

 oppressive delay, we again note that appellee never raised such a complaint and the due process

clause applies to oppressive delays from the time of the alleged offense to the time the charging

instrument is filed. Appellee was charged by information less than four months after the offense

date. The record fails to support the trial court’s action on this basis as well. See Harbor, 2012 WL

 1355741, at *5 Further, the two-year statute of limitations for misdemeanor-level DWI was tolled

during the pendency of the charging instrument complained of here, so the trial court could not

dismiss the case with prejudice based on its belief that any future charges would be barred by the

statute of limitations. See Ti/a v.   Slate.   267 S.W.3d 3337 (Tex. Crim. App. 2008): see also TEx.

CoDE CRIM. PRoc. ANN. art. 12.02 (West Supp. 2011).

        Although a trial court may dismiss a charging instrument to remedy a constitutional violation.

such a dismissal is a “drastic measure only to be used in the most extraordinary circumstances.” See

Man/ga, 119 S.W.3d at 817. Where the record fails to demonstrate a constitutional violation or

where the appellee’s rights were violated but dismissal of the charging instrument is 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. See id. in this case, the trial court had the

consent of the State to grant the State’s motion to dismiss but had no additional authority to do so

with prejudice. The language in the order classifying the dismissal as “with prejudice” is not

authorized by law and is therefore void. See Seidel, 39 S.W.3d at 225. Accordingly, we resolve the

State’s second issue in its favor.
       We modify the trial court’s order to delete the phrase ‘with prejudice.” See State’ v. Pierce.

816 S.W.2d 824, 831 (Tex. App.—Austin 1)91. no pet.);      see   also State v, [ass, 846 S.W.2d 934,

936 (Tex. App.—Austin 1993. no pet.). We affirm the trial court’s order as modified.




                                                     JOSEYfI B MRRIS
                                               (    JLSi1CE

Publish
TEX. R. App. P. 47
1203 82F.P05
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                                         JUDGMENT
TI IF STATE OF TEXAS. Appellant                       Appeal from the Count Criminal Court No.
                                                      6 of Dallas County, Texas. (Tr.Ct.No. M09-
No. 05-12-003 82-CR                                   261-39).
                                                      Opinion delivered by Justice Morris.
CRAIG MASON. Appellee                                 Justices Francis and Murphy participating.


        Based on the Court’s opinion of this date, the trial court’s order dismissing the case
against appellee is MODIFIED to DELETE the phrase “with prejudice.”

       As modi0ed, the judgment is AFFIRMEI).



Judgment entered October 30. 2012.




                                                  JQsEPTT1ORR1S
                                              _—1JSTICE
