The State of Texas v. George Newton

• Court: Court of Appeals of Texas
• Decided: December 21, 2023
• Docket: 05-22-01167-CR
• Status: Published

Opinion

Affirmed as Modified, and Opinion Filed December 21, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01167-CR Nos. 05-22-01168-CR

THE STATE OF TEXAS, Appellant V. GEORGE NEWTON, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F21-75827 & F21-75828

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Garcia Opinion by Justice Partida-Kipness The State of Texas appeals the trial court’s orders dismissing the underlying

causes with prejudice. In a single issue, the State contends the trial court lacked legal

authority to dismiss the cases with prejudice absent the consent of the State. We

agree, modify the dismissal order to note the causes are dismissed without prejudice,

and affirm as modified.

BACKGROUND

On July 22, 2021, the State filed an indictment in Cause Number F21-75827

charging appellee George Newton with one count of fleeing the scene of a vehicular accident involving death. The State also filed an indictment in Cause Number F21-

75828 charging Newton with one count of murder. On March 1, 2022, Newton filed

pro se motions to dismiss in both cases alleging speedy trial violations. Newton was

represented by counsel at the time he filed the motions, and neither he nor his counsel

brought the motions to the trial court for ruling.

The original trial setting was passed twice by agreement of the parties. Before

the October 18, 2022 trial setting, the State and Newton separately sought

continuances. The presiding judge heard the State’s motion for continuance during

an October 18, 2022 pretrial hearing. The State asked the trial court to continue both

matters so it could complete an investigation into potential exculpatory evidence.

Specifically, the State asked for additional time to enhance an audio portion of a

video and determine if the voice on that portion belonged to Newton. The State

explained if the voice was Newton’s, then the recording would show Newton “at a

location that is inconsistent with him committing the offense.” The presiding judge

denied the State’s request and ordered the parties to return for trial the following

day. In response to the ruling, the State asked if the trial court would entertain

motions to dismiss both matters. The presiding judge stated she would be willing to

grant such motions but only to dismiss the matters with prejudice.

The following morning, a visiting judge was assigned to preside over jury

selection. The State presented motions to dismiss both matters to the visiting judge.

The motions were short and requested the case “be dismissed”:

–2– Newton had no objections to the motions. The visiting judge informed counsel the

presiding judge thought the cases should be dismissed with prejudice and asked if

the motion was “a motion to dismiss with prejudice.” The State responded: “Your

Honor, we’re submitting the motions to dismiss as written, indicating the State is

unable to make a prima facie case at this point in time, Your Honor.” When asked

why the visiting judge should not dismiss the cases with prejudice, the State

explained dismissals with prejudice are limited to “very unique circumstances” and

“are somewhat of a legal fiction.” In support, the State cited State v. Mason, 383

S.W.3d 314 (Tex. App.—Dallas 2012, no pet.). The visiting judge then asked

Newton’s counsel if a speedy trial motion had been filed. Newton’s counsel

confirmed he did not file a speedy trial motion, but “based on our discussion and

[the presiding judge’s] understanding of the facts and circumstances leading to this

dismissal, she made it clear that . . . she would be willing to sign the order of

dismissal . . . however it will be a dismissal with prejudice.” Then the following

exchange occurred between the visiting judge and the State’s counsel:

THE COURT: What did Judge Huff say exactly?

–3– MR. TEISSIER: She said she would sign the dismissal, but it would be with prejudice.

THE COURT: Okay. Well, that’s what I’m doing then.

MR. TEISSIER: Okay. Understood.

THE COURT: Why were y’all not ready, just so I will know?

MR. TEISSIER: Your Honor, this was what was discussed yesterday. In the State reviewing the full discovery in the case and continuing to review it, found a portion of one of the videos, which is about a couple of minutes in length of the hours of video, and on it the State hears a voice consistent with the defendant’s voice. Assuming that is the defendant’s voice on there, which we do believe, based on review, he would not have been able to commit the offense as the case presented itself. Yes, sir, that would be the brunt of it.

THE COURT: Well, it’s the right thing to do, dismiss it with prejudice, so that’s what I’m doing.

The orders signed by the visiting judge were incorporated into the motions and did

not indicate if the dismissals were with or without prejudice:

On the trial court’s docket sheets, the visiting judge wrote the “State’s motion to

dismiss is granted with prejudice.” This appeal followed.

STANDARD OF REVIEW

“In reviewing the dismissal of an indictment, the appellate court must review

the trial court’s ruling under a bifurcated standard.” State v. Krizan-Wilson, 354 –4– S.W.3d 808, 815 (Tex. Crim. App. 2011). We must give almost total deference to a

trial court’s findings of fact that are supported by the record, as well as mixed

questions of law and fact that rely upon the credibility of a witness. Id. However, we

apply a de novo standard of review to pure questions of law and mixed questions

that do not depend on credibility determinations. Id.; Ex parte Martin, 6 S.W.3d 524,

526 (Tex. Crim. App. 1999). Here, the facts are uncontested, no testimony or

evidence was presented at the dismissal hearing, and the trial court issued no findings

of fact or conclusions of law. Under these circumstances, we review the dismissal

de novo. See Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) (a de novo

review by the appellate court is appropriate when “the trial judge is not in an

appreciably better position than the reviewing court to make that determination.”).

ANALYSIS

In a single issue, the State argues the trial court was not authorized to dismiss

the cases with prejudice. We agree.

“[A] court may take a particular action only if that action is authorized by

constitutional provision, statute or common law, or the power rises from an inherent

or implied power.” Ex parte Seidel, 39 S.W.3d 221, 223 (Tex. Crim. App. 2001)

(quoting State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991)). Trial

courts have no general authority to dismiss a case without the prosecutor’s consent.

State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). However, a trial

court may dismiss a charging instrument without the State’s consent when dismissal

–5– is the only means of adequately protecting an individual’s rights against

infringement by the State. Id. The Texas Court of Criminal Appeals has recognized

a trial court has the power to dismiss a case without the State’s consent “when a

defendant has been denied a right to a speedy trial, when there is a defect in the

charging instrument, or pursuant to Article 32.01, when a defendant is detained and

no charging instrument is properly presented.” Id. (citing Johnson, 821 S.W.2d at

612 n. 2). A charging instrument may also be dismissed to remedy a violation of the

Sixth Amendment right to counsel. Id. (citing State v. Frye, 897 S.W.2d 324, 331

(Tex. Crim. App. 1995)).

While a trial court may dismiss a charging instrument to remedy a

constitutional violation, the dismissal of an indictment is “a drastic measure only to

be used in the most extraordinary of circumstances, . . .” Frye, 897 S.W.2d at 330.

“Therefore, where there is no constitutional violation, or where the appellee’s rights

were violated but dismissal of the indictment was 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.” Mungia, 119 S.W.3d at

817 (citing State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998)).

Here, the State opposed the trial court’s granting the dismissal with prejudice

and, thus, did not consent to dismissal with prejudice. Therefore, absent a

constitutional violation, the trial court lacked authority to dismiss the cases with

prejudice and the dismissal order is void. See Ex parte Seidel, 39 S.W.3d at 225 (trial

–6– court’s dismissal “with prejudice” was void because “that action was outside the

parameters of any rule or procedure in place at that time” and was, therefore, “more

than a variance from the normal conduct” and “more than a mere violation of

statutory procedure.”). We conclude the record does not support a finding of any

constitutional violation permitting dismissal with prejudice.

Here, the presiding judge voiced her concern at the pretrial hearing that a

speedy trial violation may have occurred. At the hearing on the State’s motion to

dismiss, the visiting judge asked Newton’s counsel if he filed a speedy trial motion.

If a speedy trial violation occurred and Newton had moved to dismiss on speedy trial

grounds, then a proper remedy would have been dismissal with prejudice. See Cantu

v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008) (dismissal of a charging

instrument with prejudice is a proper remedy for a speedy trial violation); TEX. CODE

CRIM. PROC. art. 28.061 (authorizing dismissal with prejudice when “a motion to set

aside an indictment, information, or complaint for failure to provide a speedy trial is

sustained”); State v. Moreno, 651 S.W.3d 399, 412 (Tex. App.—Houston [1st Dist.]

2022, no pet.) (“Although the defendant has no duty to bring himself to trial because

that is the State’s duty, the defendant does bear the responsibility to assert his right

to a speedy trial.”) (citing Cantu, 253 S.W.3d at 281–82). The record, however, does

not support dismissal on speedy trial grounds.

The right to a speedy trial is guaranteed by the United States and Texas

constitutions. U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10. In determining

–7– whether a defendant was denied his right to a speedy trial, we use a balancing test in

which the conduct of both the State and the defendant are weighed. Barker v. Wingo,

407 U.S. 514, 530 (1972); Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App.

2003). We consider (i) the length of the delay; (ii) the State’s reasons for the delay;

(iii) the defendant’s effort to obtain a speedy trial; and (iv) the prejudice to the

defendant resulting from the delay. See Barker, 407 U.S. at 530; see also Shaw, 117

S.W.3d at 889.

The Court of Criminal Appeals recently addressed what information must be

on the record to support a speedy trial dismissal. Taylor v. State, 667 S.W.3d 809,

810 (Tex. Crim. App. 2023). The Taylor court concluded information on all the

Barker factors must be in the record, and length of delay alone is insufficient to

support dismissal:

Instead, the only requirement is that the relevant information be in the record – the length of the delay, reason for the delay, assertion of the right, and prejudice. In all the cases cited by the appellate court, the only information in the record was the length of the delay. That alone is insufficient to grant a motion to dismiss for lack of a speedy trial or to reverse the denial of one on appeal.

Id.

Here, Newton did not present a speedy trial motion to the trial court for ruling,

and no argument or evidence was presented to the visiting judge at the dismissal

hearing to show a speedy trial violation. Not even the length of delay was discussed

at the hearing before the visiting judge. The trial court did not state the basis for the

dismissal and made no findings of fact or conclusions of law. Under this record, we –8– conclude no evidence supports a finding that a speedy trial violation occurred.

Dismissal with prejudice was, therefore, improper because no constitutional

violation was proven, and the State did not consent to dismissal with prejudice. See

Mason, 383 S.W.3d at 316. Accordingly, the trial court had no authority to dismiss

the case with prejudice based on a speedy trial ground. See id. (trial court had no

authority to dismiss case with prejudice on speedy trial ground where the record

contains no evidence showing appellee moved for a speedy trial or complained of a

delay in the case). We sustain the State’s sole appellate issue.

However, we conclude reversal is inappropriate here. 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. Because the visiting judge purported to dismiss the

prosecution “with prejudice” beyond the scope of his proper authority, that part of

the judgment was void and modification of the order is the appropriate remedy. See

Mason, 383 S.W.3d at 315–16 (concluding language classifying the dismissal as

“with prejudice” was void because it was not authorized by law and modifying order

to delete “with prejudice”) (citing Ex parte Seidel, 39 S.W.3d at 225).

CONCLUSION

We conclude the trial court was without authority to dismiss the cases with

prejudice and sustain the State’s sole appellant issue. We modify the trial court’s

orders to include a statement the dismissal in each cause is “without prejudice.” See

Mason, 383 S.W.3d at 316 (modifying void order to delete the phrase “with

–9– prejudice.”). We affirm the trial court’s dismissal order in each cause number as

modified.

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b)

221167F.U05

–10– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE STATE OF TEXAS, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-22-01167-CR V. Trial Court Cause No. F21-75827. Opinion delivered by Justice Partida- GEORGE NEWTON, Appellee Kipness. Justices Pedersen, III and Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

We modify the trial court’s order dismissing cause number F21-75827 to include a statement the dismissal in the cause is “without prejudice.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 21st day of December 2023.

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE STATE OF TEXAS, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-22-01168-CR V. Trial Court Cause No. F21-75828. Opinion delivered by Justice Partida- GEORGE NEWTON, Appellee Kipness. Justices Pedersen, III and Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

We modify the trial court’s order dismissing cause number F21-75828 to include a statement the dismissal in the cause is “without prejudice.”

–12–