State v. James Anthony Messina
09-15-00184-CR
| Tex. App. | Oct 28, 2015Background
- Two-count indictment for online solicitation of a minor; trial setting showed plea and sentencing on Feb 27, 2015.
- On May 1, 2015, the prosecutor failed to appear at a scheduled punishment hearing; defense moved to dismiss.
- The trial court dismissed the indictment with prejudice, stating the prosecutor wholly failed to appear.
- State appeals, contending the trial court lacked authority to dismiss for prosecutor non-appearance.
- Messina argues the dismissal should be upheld due to unconstitutionality of the charged statute, though he forfeits that challenge.
- Court reverses the dismissal and remands for further proceedings, holding the trial court lacked authority to dismiss for prosecutor non-appearance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to dismiss for prosecutor non-appearance | State submits trial court had no authority to dismiss | Messina contends dismissal valid due to statute issue | Trial court lacked authority; reversed and remanded |
Key Cases Cited
- State v. Johnson, 821 S.W.2d 609 (Tex. Crim. App. 1991) (prosecutor non-appearance cannot justify dismissal with prejudice)
- State v. Lewallen, 927 S.W.2d 737 (Tex. App.—Fort Worth 1996) (no dismissal when prosecutor not ready or absent)
- State v. Donihoo, 926 S.W.2d 314 (Tex. App.—Dallas 1994) (prosecutor non-appearance limits dismissal authority)