

Opinion issued April 19, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00574-CR
———————————
The State of Texas, Appellant
V.
Dedric Lemon
Harbor, Appellee

 

 
On Appeal from the County Court at Law No. 1
Fort Bend County, Texas

Trial Court Case No. 10-CCR-149489
 

 
O P I N I O N
Appellant, the State of Texas, appeals
the trial court’s dismissal of the State’s charge against appellee, Dedric Lemon Harbor. 
In three issues, the State argues the trial court erred by dismissing
the charge against appellee.
We reverse and remand.
                                                                                                       
Background
Appellee was charged by
information with assault—family violence.[1]  The charge stemmed from an incident with
appellee’s girlfriend, Alice Lampkin, which occurred
on May 2, 2010.  Lampkin
and appellee were at a bar that night, and a verbal
fight ensued.  The verbal fight continued
in Lampkin’s car as she drove them home.  At one point during the drive home, appellee
punched the front windshield, breaking it. 
The verbal fight escalated and led to a physical altercation while the
car was parked in the middle of the street.
The police were notified and
arrived on the scene.  A police officer
spoke with Lampkin that night and the conversation
was recorded on a video.  Appellant was
arrested on that date.  
The case was set on the
court’s docket for May 4, 2011. 
Ultimately, the trial commenced on May 24, 2011.  On May 25, before any witnesses had
testified, appellee’s attorney raised some objections to the video recording of
Lampkin’s conversation with the police.  While portions of the video had been
previously redacted, appellee’s attorney sought four additional
redactions.  The trial court granted two
of the requested redactions and denied the other two.  The portion that should have been redacted
that is pertinent to this appeal is a claim by Lampkin
that appellant had previously assaulted the mother of his children.  The lead prosecutor indicated she would have
to turn the video over to their office to have it edited while the trial
commenced.
The State then called Lampkin to the stand. 
She admitted that she had been subpoenaed to appear and that she did not
want to be there to testify.  During her
examination, she asserted that she had hit appellee first during their
argument.  When asked whether she had
told the police that night that appellee had hit her first, she asserted that
she could not remember anything she told the police that night based on how
drunk she was at the time.
Next, the State called Branisha Hunter, a witness who had driven by appellee and Lampkin during the incident.  The witness testified that she did not see anyone
hit anyone else, but did see appellee punch and kick the rear of Lampkin’s car.  The
witness asked Lampkin if she needed her to call the
police.  Lampkin
said yes.  Hunter dialed 9-1-1 and
subsequently left.
Officer Hernandez, with the
Missouri City Police Department, was the next witness to testify.  He was one of the officers on the scene
following the incident.  He dealt
primarily with appellee that night.
The State then called
Sergeant York, with the Missouri City Police Department.  He was also at the scene following the
incident.  He dealt primarily with Lampkin.  The video
recorder in his vehicle recorded Sergeant York’s conversation with Lampkin that night.
After the trial court
admitted the video recording of Lampkin over
appellee’s objections, the video was published to the jury.  The video still contained Lampkin’s
statement that appellee had previously assaulted the mother of his
children.  Appellee moved for a mistrial,
and the trial court granted it.
Trial was reset for June 7,
2011.  On that day, appellee filed a
motion to dismiss.  Appellee argued in
the motion that the charge against him should be dismissed because (1) the
State had failed to move forward with trial in a timely manner; (2) it was a
waste of the trial court’s resources to try the case because he had already
been in jail longer than the maximum sentence for the alleged offense; and (3)
the State could already revoke his parole based on his prior plea in another
matter. Appellee presented the same arguments at the hearing on that day.
The trial court granted
appellee’s motion to dismiss.  In its
findings of fact and conclusions of law, the trial court concluded:
1.       The
trial court has the authority to grant a mistrial.
2.       The
State’s error in failing to redact portions of the video as ordered by the
Court was motivated by bad faith or undertaken to harass or prejudice the
Defendant.
3.       The
Court has the authority to dismiss a case with prejudice based on the State’s
bad faith or intent to harass or prejudice the Defendant.
[4].     The
State is barred from retrying the case based on double jeopardy.
[5].     The
Court’s actions were . . . in the interest
of justice.
                                                                                           
Standard of Review
We review a dismissal of a charge under a bifurcated
standard.  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 facts that are supported by the record, as well as mixed
questions of law and fact that rely upon the credibility of a witness.  Id.  In contrast, we apply a de novo standard of
review to pure questions of law and mixed questions that do not depend on
credibility determinations.  Id. 

                                                                                                               
Analysis
The State argues in three issues that the trial court
erred by (1) concluding it had the authority to dismiss the case with prejudice
based on the State’s bad faith or intent to harass or prejudice the appellee;
(2) concluding that double jeopardy barred retrial; and (3) concluding that its
actions were in the interest of justice.
Trial courts do not have an inherent authority to dismiss
a charging instrument without the consent of the State.  State v. Mungia, 119 S.W.3d 814, 816
(Tex. Crim. App. 2003).  Instead,
any authority to dismiss a charging instrument without the consent of the State
must derive from a statute, the common law, or the state or federal
constitutions.  Id.; see also Tex. Code Crim. Proc. Ann. art. 27.03 (Vernon 2006)
(allowing motion to set aside indictment on three grounds “[i]n
addition to any other grounds authorized by law”).  Neither the trial court nor appellee, at
trial or on appeal, has identified what specific authority allowed the trial
court to dismiss the charge against appellee without the consent of the State.  We consider, then, whether the grounds
presented by appellee and the trial court are authorized by statute, common
law, or constitution.[2]
A.            
Statutory or common law authority
The first ground for dismissal presented by appellee was
that the State had failed to move forward with trial in a timely manner.  Dismissal for failure to provide a speedy
trial is a statutory ground for dismissal with prejudice.  Tex. Code Crim. Proc. Ann. art. 28.061 (Vernon 2006). 
The legal analysis for whether dismissal is proper, however, is governed
by the law concerning the Sixth Amendment of the United States
Constitution.  See Dragoo v. State, 96 S.W.3d 308, 313
(Tex. Crim. App. 2003) (analyzing denial of motion to dismiss based on lack of
speedy trial under Sixth Amendment law). 
Accordingly, we will analyze this further under constitutional
authority, below.
Appellee’s next argument was that it was a waste of the
trial court’s resources to try the case because he had already been in jail
longer than the maximum sentence for the alleged offense.[3]  Appellee does not cite, and we have not
found, any common-law or statutory authority for a trial court to dismiss based
on appellee’s incarceration for a period longer than the maximum sentence for
the alleged offense.  Accordingly, this
could not have been a ground for the trial court to have granted the dismissal.
Finally, appellee argued that the State could revoke his
parole based on his prior plea in a felony matter.  As argued by the State at the hearing, this
is a power vested in the parole board, not the prosecutor’s office.  There is no common-law or statutory authority
for a trial court to dismiss based on the parole board’s ability to revoke
parole based on a conviction of a separate charged offense.  This could not have been a ground for the
trial court to have granted the dismissal.
In its findings of fact and conclusions of law, the trial
court concluded that it had “the authority to dismiss a case with prejudice
based on the State’s bad faith or intent to harass or prejudice the
Defendant.”  The trial court did not
identify the authority that allowed it to dismiss based on the State’s alleged
bad faith or intent to harass or prejudice the appellee.  Appellee does not cite, and we have not
found, any common-law or statutory authority for a trial court to dismiss based
on the State’s alleged bad faith or intent to harass or prejudice the
appellee.  Accordingly, this could not
have been a ground for the trial court to have granted the dismissal.
Finally, the court concluded that the State was barred
from retrying the case based on double jeopardy.  Double jeopardy is a constitutional matter.  U.S.
Const. amend. V; Tex. Const. art.
1, § 14. 
Accordingly, we will analyze this further under constitutional
authority, below.
We hold that there is no common-law or statutory authority
supporting appellee’s or the trial court’s grounds for dismissal.
B.            
Constitutional Authority
The Court of Criminal Appeals has recognized that a
charging instrument may be dismissed with prejudice, without the permission of
the State, based on constitutional violations of the right to a speedy trial,
the right to counsel, due process, and double jeopardy.  See Mungia, 119 S.W.3d at 816 (recognizing right to
dismissal based on violations of right to speedy trial and right to counsel); Krizan-Wilson,
354 S.W.3d at 814 (stating standard of review and applicable law for considering
whether trial court erred by dismissing charging instrument based on due
process violation); Ex parte Lewis,
219 S.W.3d 335, 371 (Tex. Crim. App. 2007) (adopting United States Supreme
Court rule in determining “when to grant double jeopardy relief after a
defense-requested mistrial”).  It has
also recognized that other constitutional violations may warrant dismissal with
prejudice without the permission of the State. 
Mungia,
119 S.W.3d at 817. 
We consider, then, whether the grounds presented by appellee or the
trial court satisfy any of these grounds.
1.             
Right to Speedy Trial
A defendant in a criminal prosecution “shall have a speedy
public trial by an impartial jury.”  Tex. Code Crim. Proc. Ann. art. 1.05
(Vernon 2005).  This requirement
also derives from the Sixth Amendment to the United States Constitution.  U.S.
Const. amend. VI.; Dragoo, 96 S.W.3d
at 313.  “If a motion to set aside an . . . information . . . for failure
to provide a speedy trial is sustained, the court shall discharge the defendant.  A discharge under this article is a bar to
any further prosecution for the offense charged. . . .”  Tex. Code Crim. Proc. Ann. art.
28.061.
Courts utilize a balancing test to determine whether an
accused has been denied his right to a speedy trial.  Dragoo, 96 S.W.3d at 313 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.
Ct. 2812, 2191–92 (1972)).  Under this “Barker” test, “[t]he factors to be
weighed in the balance include, but are not necessarily limited to, the length
of the delay, the reason for the delay, the defendant’s assertion of his speedy
trial right, and the prejudice to the defendant resulting from the delay.”  Id.  The defendant carries the burden of proving
the assertion of the right and showing prejudice.  Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).  The State, in contrast, bears the burden of
justifying the length of the delay.  Id. 
“[T]he greater the State’s bad faith or official negligence and the
longer its actions delay a trial, the less a defendant must show actual
prejudice or prove diligence in asserting his right to a speedy trial.”  Id. at 280–81.
“In general, courts deem delay approaching one year to be
‘unreasonable enough to trigger the Barker
enquiry.’”  Dragoo, 96
S.W.3d at 314.  The original trial
was set for approximately one year after appellee was arrested.  The new trial was set for two weeks
later.  This weighs in favor of finding a
violation of the speedy trial right.  See id. 

In explaining the delay, the State pointed out that the
case was originally set on the court’s docket for May 4, 2011.  The State argued that the district court had
control over the docket as to the settings of criminal cases.  See
Tex. Code Crim. Proc.
Ann. art. 33.08 (Vernon 2006). 
The State further argued that one of appellee’s prior attorneys agreed
to set the trial on May 24th.  Finally,
after the mistrial was declared, the new trial was set for two weeks
later.  No evidence or argument was
presented to contradict these arguments. 
This does not weigh in favor of finding a violation of the speedy trial
right.
While failure to assert a right to a speedy trial does not
constitute waiver, it does “indicate strongly that he did not really want a
speedy trial.”  96
S.W.3d at 314.  The longer the
defendant waits to assert his right to a speedy trial, the more heavily the
inaction weighs against him.  Id. 

Here, appellee never asserted his right to a speedy trial
until after a mistrial had been declared on the first trial and until the day
the second trial was set to commence. 
Given that appellee participated in the first trial without complaint
and the second trial was only two weeks later, this weighs heavily against
finding a violation of the speedy trial right.
In assessing the prejudice to the defendant, the court
must consider the defendant’s interests that the speedy trial right was
designed to protect: “(1) to prevent oppressive pretrial incarceration; (2) to
minimize the accused’s anxiety and concern; and (3) to limit the possibility
that the accused’s defense will be impaired.” 
Id. at 315.  While excessive delay creates a presumption
that the defense will be impaired, this presumption is extenuated by the
defendant’s acquiescence in the delay.  Id. 

Here, the evidence established that the parole board was
considering revoking appellee’s probation, appellee had pleaded guilty to
another offense, and appellee had not complained about the length of his
incarceration until the day of the second trial.  This weighs against finding a violation of
the speedy trial right.
Weighing all of the factors together, we hold that
appellee failed to establish a violation of the right to a speedy trial that
was grave enough to warrant a dismissal of his case.
2.             
Right to Counsel
Dismissal may be warranted due to a violation of the right
to counsel guaranteed under the Sixth Amendment of the United States.  State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995).  There is no suggestion, however, that this
right has been violated in this case.  Cf. id. (holding
Sixth Amendment violation where defendant who was represented by counsel was
contacted twice by district attorney’s office). 
Accordingly, there is no evidence of a Sixth Amendment violation that
could support the trial court’s grant of appellee’s motion to dismiss. 
3.             
Due Process
“‘[T]he Due Process Clause [of the Fifth Amendment] has a
limited role to play in protecting against oppressive delay.’”  Krizan-Wilson, 354
S.W.3d at 814 (quoting United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048
(1977)).  The test includes a potential
element of bath faith on the part of the State, similar to the conclusion of
bad faith reached by the trial court.  Id. at 815.  This cannot be the basis of the trial court’s
ruling, however, because due process violations for oppressive delay concern pre-indictment delays.  Id. at 814.  It is
undisputed that appellee was arrested on the same day that the alleged offense
occurred.  The information was filed in
court 15 days later.  We hold that a 15-day
delay between the occurrence of the alleged offense and the filing of the
information does not violate due process by oppressive delay.
4.             
Double Jeopardy
Double jeopardy attaches after a mistrial is declared on a
defendant’s motion when the evidence establishes that the State engages in acts
intended to cause a mistrial.  Ex parte Lewis, 219 S.W.3d 335, 360, 371
(Tex. Crim. App. 2007) (citing Oregon v.
Kennedy, 456 U.S. 667, 675, 102 S. Ct. 2083, 2089 (1982)).  Bad faith, harassment, and overreaching are
not a part of the analysis.  Id. at 360.  Instead, double jeopardy attaches “when the
prosecutorial ‘conduct giving rise to the successful motion for a mistrial was
intended to provoke [or goad] the defendant into moving for a mistrial.’”  Ex
parte Massonheimer, 220 S.W.3d 494, 506 (Tex.
Crim. App. 2007) (quoting Kennedy,
456 U.S. at 676, 679, 102 S. Ct. at 2089, 2091).
As the State argues, the trial court did not make any
findings consistent with a determination that the prosecutor in this case
intended to provoke a mistrial by failing to redact the video.  Nor do we determine that a review of the
record supports any such findings.  The
lead prosecutor indicated she would have to turn the video over to her office
to have it edited while the trial commenced. 
Additionally, the case was not going poorly to support an inference that
the State was trying to obtain a mistrial. 
While Lampkin denied on the stand that
appellee had struck her first and insisted that she could not recall what she
told the police that night, the video in question established what she told
police that night, which was an unequivocal claim that appellee had struck her
first.  Additionally, photographs
admitted into evidence showed that Lampkin had
swelling under one of her eyes consistent with being hit and that her hair
piece had been pulled out with strands of hair still falling from her
head.  Furthermore, the State had the
testimony of Hunter, who heard Lampkin ask her to
call the police, and two police officers that were on the scene that night, who
testified what they saw as well what Lampkin told
them.  
There is no indication that the State was having much
difficulty establishing its case to support an inference that the State had a
motivation to intentionally provoke a mistrial. 
We hold that double jeopardy did not bar the State from retrying the
case.
5.             
Other Constitutional Violations
The Court of Criminal Appeals has recognized that there
may be other constitutional violations that require dismissal with prejudice of
the charging instrument without the consent of the State.  See Mungia, 119 S.W.3d at 816–17.  In that circumstance, dismissal will be
appropriate when “necessary to neutralize the taint of the unconstitutional
action.”  Id. at 817.
We do not need to determine whether any other
constitutional violation has occurred because, even if it has, we hold that it
is not necessary to dismiss the charge against appellee in order to neutralize
the taint.  The unredacted
video contained a hearsay statement of an alleged prior extraneous offense.  See
Tex. R. Evid.
404(b), 802. 
When a prior extraneous offense is improperly admitted into evidence and
the admission is harmful, the cure for that is a new trial, not dismissal.  See
Webb v. State, 36 S.W.3d 164, 183–84 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d) (granting new trial after finding error
and harm in admission of prior extraneous offense); Pollard v. State, 255 S.W.3d 184, 191 (Tex. App.—San Antonio 2008) aff’d on other grounds, 277 S.W.3d 25 (Tex.
Crim. App. 2009).  The same is true for
improperly and harmfully admitted hearsay. 
See Fuller v. State, 501
S.W.2d 112, 114 (Tex. Crim. App. 1973) (holding hearsay statement was not so
prejudicial as to require new trial).
We sustain the State’s three issues.


 
                                                                                                          
Conclusion
We reverse the trial court’s judgment, granting of the
information against appellee, and remand for a new trial.
 
 
                                                                      Laura
Carter Higley
                                                                      Justice

 
Panel
consists of Chief Justice Radack and Justices Higley and Brown.
Publish.   Tex. R. App. P. 47.2(b).




[1]         See
Tex. Penal Code Ann. § 22.01(a) (Vernon 2011); Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006).


[2]         We note that at least some of the
grounds the trial court relied upon for dismissal of the information are
different than the grounds argued by appellee in his motion to dismiss.  The State has not raised the issue on appeal
of whether a trial court can raise and grant grounds for dismissal sua sponte.  Accordingly, we do not reach—and nothing in
this opinion should be construed as a ruling on—whether the trial court can
dismiss a charging instrument on grounds not raised in a motion filed by either
party.


[3]         It is important to note that appellee
did not move for his release.  Instead,
he moved for dismissal of the information.


