Reversed and Remanded and Memorandum Opinion filed March 1, 2012.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-11-00565-CR
                                 ___________________

                         THE STATE OF TEXAS, Appellant

                                           V.

                  OLIVER COURTNEY VAN HOESEN, Appellee


                   On Appeal from the County Court at Law No. 1
                             Fort Bend County, Texas
                      Trial Court Cause No. 10-CCR-149217


                        MEMORANDUM OPINION

      The trial court dismissed a case without the consent of the prosecutor. The issue we
must decide is whether that dismissal was in error. We conclude it was.

      Oliver Courtney Van Hoesen was charged by information with violating a
protective order. Paragraph A of the information alleges that he communicated directly
with the complainant in a threatening or harassing manner. Paragraph B alleges that he
engaged in conduct directed toward the complainant that is likely to harass, annoy, alarm,
abuse, torment, or embarrass her. The complaint includes the affidavit of an investigating
officer, who attested to the alleged conduct in greater detail. Neither the information nor
the complaint included a copy of the protective order alleged to have been violated.

       On the morning of trial, Van Hoesen announced ready and presented seven motions
to the trial court: (1) Motion to Dismiss; (2) Motion to Set Aside the Information for
Failure to Afford the Constitutional Right to a Speedy Trial; (3) Defendant’s Request for
Notice of State’s Intention to Use Evidence of Extraneous Offenses at Trial; (4) Motion in
Limine; (5) Defendant’s Election as to Punishment; (6) Defendant’s Second Motion in
Limine; and (7) Motion to Quash and Exception to Substance of Information. Argument
was heard only as to the motion to dismiss and the motion to quash. Van Hoesen argued
that the case should be dismissed for two reasons: first, because the evidence was
insufficient to continue prosecution of the offense; and second, because the complainant no
longer wished to pursue charges. Van Hoesen also argued that the trial court should grant
his motion to quash because the State did not identify which protective order he was
charged with violating.

       The trial court dismissed the case, citing the two reasons set forth in the motion to
dismiss. No ruling was made as to any of the other motions presented. The State now
appeals.

       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. If 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
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(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). Such
dismissals are permissible when a defendant has been denied the right to a speedy trial,
when there is a defect in the charging instrument, or when a defendant is detained and no
charging instrument is properly presented. State v. Johnson, 821 S.W.2d 609, 612 n.2 (Tex.
Crim. App. 1991). A case may also be dismissed when a defendant’s Sixth Amendment
right to counsel has been violated. State v. Frye, 897 S.W.2d 324, 331 (Tex. Crim. App.
1995). Finally, the Court of Criminal Appeals has held that there may be other
constitutional reasons not yet recognized that may also support a trial court’s dismissal of a
case. See Mungia, 119 S.W.3d at 817.

       None of the reasons just stated can justify the dismissal in the case before us now.
Van Hoesen was not detained without a charging instrument, and he presented no claim to
the trial court regarding his right to counsel. Van Hoesen filed a motion concerning his
right to a speedy trial, but the trial court did not rule on that motion; argument was not
heard as to that motion; and the motion itself was not included in our record on appeal. Van
Hoesen also argued that the charging instrument was defective, but because he did not
present his motion to quash until the day of trial, he waived any relief to which he may have
been entitled. See Tex. Code Crim. Proc. Ann. art. 1.14 (West 2012) (stating that a
defendant waives and forfeits the right to object to a defect in the information if the
objection is not made before the date on which the trial on the merits commences); Teal v.
State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007).

       Finally, Van Hoesen’s motion to dismiss did not present the trial court with any
constitutional, but previously unrecognized, reasons that would otherwise warrant a
dismissal. The law is well-established that the trial court may not dismiss on a claim that
the evidence is insufficient to continue prosecution of the case. See State v. Rosenbaum,
910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (adopting dissenting opinion on rehearing);

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State v. Reyes, 310 S.W.3d 62, 64 (Tex. App.—El Paso 2010, pet. ref’d); State v. Meadows,
170 S.W.3d 617, 620 (Tex. App.—El Paso 2005, no pet.); Jackson v. State, 110 S.W.3d
626, 630–31 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); State v. Habern, 945
S.W.2d 225, 226 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Similarly, the decision to
prosecute is made on behalf of the State by the district attorney, not the complainant. See
Rougeau v. State, 738 S.W.2d 651, 657 n.2 (Tex. Crim. App. 1987), overruled on other
grounds by Harris v. State, 784 S.W.2d 5 (Tex. Crim. App. 1989). Accordingly, the trial
court may not dismiss simply because the complaining witness requested dismissal.
Jackson, 110 S.W.3d at 630–31; see also Williams v. State, 652 S.W.2d 408, 409 (Tex.
Crim. App. 1983) (involving case that proceeded to trial even where complaining witness
had filed an affidavit of non-prosecution).

       The reasons advanced by Van Hoesen in support of his motion to dismiss are not
reasons recognized by statute, common law, or constitution. We therefore hold that the trial
court lacked the authority to dismiss this case without the consent of the prosecutor.

       The order of the trial court is reversed and the cause remanded for further
proceedings.


                                          /s/       Adele Hedges
                                                    Chief Justice



Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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