The State of Texas v. KenderJoel Chaj Gallardo

Opinion

Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00869-CR

The STATE of Texas,

Appellant

v.

Kender Joel CHAJ GALLARDO, Appellee

From the County Court, Kinney County, Texas Trial Court No. 11006CR

Honorable Dennis Powell, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: July 19, 2023 DISMISSED FOR WANT OF JURISDICTION In the underlying proceeding, Kender Joel Chaj Gallardo was charged with criminal trespass during a disaster, a class A misdemeanor. See TEX. PENAL CODE ANN. 12.50. Chaj Gallardo sought and received habeas relief, and the trial court dismissed the charge with prejudice. The State appealed, and after it filed its notice of appeal, the State filed, in the trial court, a motion to dismiss the charge without prejudice, giving as its reason: “In the Interest of Justice; prosecutorial discretion.” The trial court then dismissed the cause without prejudice, and Chaj Gallardo filed with us a “Statement on Mootness.”

04-22-00869-CR

On June 20, 2023, we ordered the State to file a response showing cause why this appeal should not be dismissed because, “[b]y moving to dismiss the indictment, and succeeding, the State vitiated the injury of which [the habeas applicant] complained.” State v. Poe, 900 S.W.2d 442, 445 (Tex. App.—Amarillo 1995, no pet.) (dismissing appeal for want of jurisdiction where trial court granted habeas relief and dismissed indictment with prejudice, and thereafter State filed motion to dismiss, which trial court granted); see also Ex parte Sutherland, 451 S.W.2d 913–14 (Tex. Crim. App. 1970) (dismissing appeal from denial of habeas relief after State dismissed charges). We cautioned that if the State failed to satisfactorily respond within ten days, the appeal would be dismissed. No response has been filed.

We conclude the State’s appeal is moot. “By moving to dismiss the indictment, and succeeding, the State vitiated the injury of which [Chaj Gallardo] complained.” Poe, 900 S.W.2d at 445 (citing Sutherland, 451 S.W.2d at 913). Therefore, this appeal is dismissed for want of jurisdiction.

PER CURIAM

DO NOT PUBLISH