                            NUMBER 13-07-00226-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                          Appellant,

                                            v.

ERNESTO BERLANGA,                                                            Appellee.


  On appeal from the 107th District Court of Cameron County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

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

prosecution in favor of appellee, Ernesto Berlanga. By one issue on appeal, the State

argues that the trial court did not have the authority to dismiss its case against Berlanga

without the prosecutor’s consent. We reverse and remand for proceedings consistent with

this opinion.
                                 FACTUAL AND PROCEDURAL BACKGROUND

       Berlanga was indicted for murder. The first trial setting for this cause was set for

January 17, 2006. The trial was repeatedly postponed, however, due to multiple requests

for continuances. The last scheduled trial date was on March 19, 2007. On this date, the

State requested a continuance, and Berlanga requested the trial court to dismiss the

indictment against him on speedy trial grounds. The trial court denied Berlanga’s motion

to set aside the indictment on speedy trial grounds. Nevertheless, the trial court elected

to dismiss the State’s case without prejudice because the State was not ready to proceed

with trial. The State now appeals this order of dismissal.

                                                       ANALYSIS

       We first find, without any objection from Berlanga, that the State has the right to

appeal the indictment’s dismissal under article 44.01(a)(1) of the Texas Code of Criminal

Procedure.1 On appeal, the State argues that the trial court lacked the authority to dismiss

its case against Berlanga without the prosecutor’s consent.

       No general authority, written or unwritten, inherent or implied, permits a trial court

to dismiss a criminal case without the prosecutor’s consent.2 Indeed, unless the State

requests a dismissal, the trial court can dismiss only in limited circumstances, including the

denial of a speedy trial, defects in the charging instrument, or when the State detains the

defendant and does not properly present a charging instrument.3 The trial court can also

dismiss when constitutional concerns arise, in which a defendant suffers demonstrable

       1
           T EX . C OD E C R IM . P R O C . A N N . art. 44.01(a)(1) (Vernon Supp. 2008).

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

       3
           Id. at 612 n.2.

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prejudice, or a substantial threat therefor, and where the trial court is unable to identify and

neutralize the taint by other means.4 These rules apply equally to a case dismissed without

prejudice, as they would to a case dismissed with prejudice.5

       In the instant case, there is no exception applicable here that would have authorized

the trial court to dismiss the case without the prosecutor’s consent.6 Accordingly, the trial

court lacked the authority to dismiss the indictment against Berlanga.

                                               CONCLUSION

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

against Berlanga, we sustain the State’s sole issue, reverse the judgment of the trial court,

and remand for proceedings consistent with this opinion.




                                                           LINDA REYNA YAÑEZ,
                                                           Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 13th day of August, 2009.




       4
           State v. Terrazas, 962 S.W .2d 38, 41 (Tex. Crim . App. 1998).

       5
           State v. Plambeck, 182 S.W .3d 365, 369-70 (Tex. Crim . App. 2005).

       6
           Berlanga’s appellate counsel concedes as m uch in his brief.

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