429 S.W.3d 75
Tex. App.2014Background
- Tope was charged with DWI and unlawfully carrying a weapon (UCW) in Harris County, Texas.
- She sought pretrial diversion under the DIVERT program and applied for eligibility.
- DIVERT assessment was canceled due to the UCW companion offense, excluding her from DIVERT.
- Tope moved for discovery, evidentiary hearing, and dismissal, and served subpoenas on DIVERT administrators.
- The trial court denied discovery and quashed subpoenas; Tope then pled guilty to both offenses and the court imposed probation and deferred adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dismissal after DIVERT denial | Tope asserts dismissal warranted for DIVERT exclusion. | State argues no right to DIVERT and no basis to dismiss. | Issues 1–3 overruled; no dismissal required. |
| Separation of powers in DIVERT | Tope contends DIVERT violated Texas Constitution Article II, §1. | State argues DIVERT is prosecutorial discretion, not a legislative power. | No separation-of-powers violation; program within prosecutorial discretion. |
| Due process and DIVERT | Tope claims due process rights violated by exclusion from DIVERT. | State asserts no right to enter pretrial diversion. | Due process not implicated; no basis to dismiss. |
| Discovery of other DIVERT participants | Tope seeks names/case numbers of similarly situated defendants granted DIVERT. | Burden of compiling list; information not in State's possession or not material. | Discovery denied; information not shown to be in possession or material. |
| Quashing subpoenas to prosecutors | Tope sought testimony on prosecutorial discretion in DIVERT decisions. | Prosecutorial discretion and work product protections limit testimony. | Subpoenas properly quashed; discretion vested in prosecutors. |
Key Cases Cited
- State v. Muniga, 119 S.W.3d 814 (Tex. Crim. App. 2003) (dismissal drastic, only for extraordinary constitutional taint.)
- State v. Dinur, 383 S.W.3d 695 (Tex. App.—Houston [14th Dist.] 2012) (DIVERT and prosecutorial discretion framework.)
- McNutt, 405 S.W.3d 156 (Tex. App.—Houston [1st Dist.] 2013) (no right or entitlement to pretrial diversion.)
- Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004) (prosecutors have broad discretion in charging and prosecution.)
- Wilkerson v. State, 347 S.W.3d 720 (Tex. App.—Houston [14th Dist.] 2011) (separation of powers standard and conduct.)