                              NUMBER 13-07-00686-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                              Appellant,

                                              v.

AARON VALDEZ,                                                                     Appellee.


                    On appeal from the 214th District Court
                          of Nueces County, Texas.


                           MEMORANDUM OPINION

                  Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Garza

       This case involves a dismissal of an indictment by the trial court for want of

prosecution in favor of appellee, Aaron Valdez. By two issues on appeal, the State argues

that: (1) article 44.01(a)(1) of the code of criminal procedure entitles it to appeal the trial

court’s dismissal of the indictment, see TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(1)

(Vernon Supp. 2007); and (2) the trial court did not have the authority to dismiss its case
against Valdez without the prosecutor’s consent. We reverse and remand for proceedings

consistent with this opinion.

                              I. FACTUAL AND PROCEDURAL BACKGROUND

        On October 11, 2007, Valdez was indicted with unlawful possession of cocaine in

an amount less than one gram, a violation of the Texas Controlled Substances Act.1 See

TEX . HEALTH & SAFETY CODE ANN . § 481.115(a)-(b) (Vernon 2003); see id. § 481.102(3)(D)

(Vernon Supp. 2007) (listing cocaine in the “Penalty Group 1"). At a hearing conducted on

October 15, 2007, Valdez pleaded guilty to the offense pursuant to a plea agreement with

the State in trial court cause number 07-CR-1404-F.2 The trial court deferred any finding

of guilt and placed Valdez on community supervision for three years. The trial court also

imposed a $350 fine and ordered Valdez to pay a $60 per month probationary fee and

$140 for drug analysis. On October 16, 2007, the trial court commenced a hearing in trial

court cause number 07-CR-3067-F.3 Both attorneys announced ready to the court. The

parties then engaged in the following exchange which is central to the issues at hand:

        [The State]:               Your Honor, we’re set for a plea today. I have a judicial
                                   confession and stipulation.

        THE COURT:                 He’s not going on a plea. He’s going to trial. So put on


        1
            The record reflects that this indictm ent was filed in trial court cause num ber 07-CR-3067-F.

        2
          At the October 15, 2007 hearing, the trial court called cause num ber 07-CR-1404-F for trial. Valdez
subsequently pleaded guilty to the offense of unlawful possession of cocaine in an am ount less than one
gram , a state jail felony. This offense m irrors the offense described by the indictm ent in trial court cause
num ber 07-CR-3067-F.

        3
           At the October 15, 2007 hearing, the State noted that trial court cause num ber 07-CR-3067-F was
“another drug case” against Valdez. Also at this hearing, Arm ando Gonzalez, counsel for Valdez, noted that
the parties were “going to set that [trial court cause num ber 07-CR-3067-F] for a plea tom orrow m orning.”
The trial court then noted that if Valdez was found guilty in trial court cause num ber 07-CR-3067-F, the court
would allow his sentence to run concurrent with the sentence im posed in trial court cause num ber 07-CR-
1404-F. The trial court also instructed the parties to “[g]et that other case ready and then we’ll adjust.”

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                                  your first witness. Do you have any evidence to put on?

        [The State]:              I have, Your Honor, a judicial confession and
                                  stipulation.

        MR. GONZALEZ:             Your Honor, we’re not going to—I object to that. I had
                                  forgotten to get that back.

        THE COURT:                He’s objecting. It’s not a plea. He’s going to trial. Put
                                  on your first witness, Mr. Ainsworth.[4]

        [The State]:              Well, Your Honor, since I wasn’t notified about a trial
                                  setting today, I don’t have any witnesses to present.

        THE COURT:                You don’t have any evidence to present?

        [The State]:              Not today, Your Honor.

        THE COURT:                All right. Do you have a motion?

        MR. GONZALEZ:             Yes, Your Honor. I move for a directed verdict.

        THE COURT:                Case dismissed. The State is not ready to go to trial.
                                  I ordered you-all to trial today. I didn’t come in on a
                                  plea. I said we’re going to trial tomorrow. You-all aren’t
                                  ready. Case dismissed.[5]

        The trial court signed the order of dismissal on October 30, 2007. The order

specifically provided the following, in relevant part: “The State appeared by counsel,

William Ainsworth, announced ready for trial but announced that he did not have evidence

to present. Upon motion by defense counsel, the Court dismissed the case for want of

prosecution.” The State timely filed its notice of appeal on November 2, 2007. This appeal

ensued.



        4
            W illiam Ainsworth was the prosecutor handling the State’s cases against Valdez.

        5
          The record does not contain any notice of trial setting provided to either party, and the reporter’s
record does not dem onstrate that the trial court instructed the parties that the October 16, 2007 hearing was
not going to be a plea hearing, but rather a trial.

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                                         II. ANALYSIS

A. The State’s Ability to Appeal a Dismissal for Want of Prosecution

       In its first issue, the State argues that article 44.01(a)(1) of the code of criminal

procedure entitles it to appeal the trial court’s dismissal of its indictment against Valdez for

want of prosecution. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(1). Valdez asserts that

the State may not appeal the trial court’s order of dismissal because jeopardy had

attached.

       The United States Supreme Court has ruled that the sovereign may not appeal an

adverse criminal judgment unless granted statutory authority to do so. State v. Moreno,

807 S.W.2d 327, 330 (Tex. Crim. App. 1991) (citing United States v. Sanges, 144 U.S.

310, 313-18 (1892)). Article 44.01 of Texas Code of Criminal Procedure grants the state

the authority to appeal an order in a criminal case under certain circumstances, including

cases where the order dismisses an indictment in whole or in part. TEX . CODE CRIM . PROC .

ANN . art. 44.01(a)(1). Thus, this Court has jurisdiction to address the merits of an appeal

from any trial court order that “effectively terminates the prosecution in favor of the

defendant.” Moreno, 807 S.W.2d at 332. This Court may not, however, review an

acquittal. Id. at 332 n.6.

       Thus, the State’s first issue turns on whether the trial court’s order amounted to a

procedural dismissal or an acquittal. The record reflects that the trial court dismissed the

entire case against Valdez in trial court cause number 07-CR-3067-F for want of

prosecution. In dismissing the entire case, the trial court, in effect, dismissed the State’s

indictment against Valdez without making any findings of guilt or innocence, amounting to

a procedural dismissal. See Ex parte George, 913 S.W.2d 523, 527 (Tex. Crim. App.

                                               4
1995) (noting that while there is no statutory definition of the term “acquittal,” there is a

strong inference throughout the code of criminal procedure that the term means an official

“finding of fact that the accused is not guilty.”).    Therefore, because the trial court

dismissed the State’s indictment against Valdez, the State is authorized to appeal the trial

court’s ruling pursuant to article 44.01(a)(1). See TEX . CODE CRIM . PROC . ANN . art.

44.01(a)(1); see also State v. Salinas, 976 S.W.2d 870 (Tex. App.—Corpus Christi 1998,

no pet.); State v. Donihoo, 926 S.W.2d 314 (Tex. App.—Dallas 1994, no writ).

       Valdez, however, argues that the State may not appeal the trial court’s order

because jeopardy had attached. We disagree.

       The Double Jeopardy Clause is not a complete bar to appeal. State v. Ross, 953

S.W.2d 748, 754 (Tex. Crim. App. 1997) (Womack, J., dissenting) (citing United States v.

Martin Linen Supply Co., 430 U.S. 564, 569-70 (1977)). Furthermore, as Valdez points

out, jeopardy only attaches after both sides have announced ready and the defendant has

pleaded to the charges. State v. Torres, 805 S.W.2d 418, 420-21 (Tex. Crim. App. 1991).

Here, both sides did announce ready, but at no point during the brief exchange at the

October 16, 2007 hearing did the defendant enter a plea. Because Valdez did not enter

a plea at the October 16, 2007 hearing and because Valdez was never actually acquitted

of the charges contained in the indictment, jeopardy did not attach. See id.; see also Ex

parte George, 913 S.W.2d 523, 527 (Tex. Crim. App. 1995).

       Therefore, because the trial court’s dismissal for want of prosecution was not an

acquittal but rather an order that dismissed the indictment, and because jeopardy did not

attach, we conclude that the State can appeal the trial court’s order. See TEX . CODE CRIM .

PROC . ANN . art. 44.01(a)(1). Accordingly, we sustain the State’s first issue.

                                             5
B. The Trial Court’s Ability to Dismiss a Case Without the State’s Consent

       By its second issue, the State contends that the trial court did not have the authority

to dismiss its case against Valdez without the prosecutor’s consent. Conversely, Valdez

argues that the October 16, 2007 hearing constituted a trial and that the trial court’s order

dismissing the State’s case essentially amounted to a finding of not guilty.

       1. Applicable Law

       It is well established that the trial court has no general authority to dismiss a case

without the prosecutor’s consent. State v. Plambeck, 182 S.W.3d 365, 368 (Tex. Crim.

App. 2005) (citing State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991)). In

order to dismiss an indictment without the State’s consent, the dismissal must be

authorized by constitution, statute, or common law. Salinas, 976 S.W.2d at 871. The

Texas Constitution does not grant the courts the power to dismiss indictments without the

consent of the prosecutor. State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App.1997).

The power to dismiss an indictment is “vested almost exclusively in the district and county

attorneys, not in the trial courts.” Salinas, 976 S.W.2d at 871.

       2. Discussion

       Without addressing whether the October 16, 2007 hearing constituted a trial, we

focus on the substance of the trial court’s order of dismissal. As we have previously

concluded, the trial court’s dismissal amounts to a procedural dismissal of Valdez’s

indictment for want of prosecution, rather than an acquittal. The record does not reflect

that the State consented to the dismissal of Valdez’s indictment. Moreover, Valdez has

not cited to, nor are we aware of, any exceptions to the general rule that the trial court may

not dismiss an indictment without the consent of the prosecutor. See Plambeck, 182

                                              6
S.W.3d at 368; Williams, 938 S.W.2d at 459; Salinas, 976 S.W.2d at 871. We therefore

conclude that the trial court was not authorized to dismiss the indictment against Valdez.

Accordingly, we sustain the State’s second issue.

                                      III. CONCLUSION

       Having concluded that the trial court was without authority to dismiss the indictment

against Valdez, we reverse the judgment of the trial court and remand for proceedings

consistent with this opinion.




                                                 DORI CONTRERAS GARZA,
                                                 Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 31st day of July, 2008.




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