*1 (1) appellant’s found conduct caused (2) Turner; appellant
the death of Dale
ought have aware of a substantial been unjustifiable by risk of death created main- speed
his excessive his failure to
tain proper highway lookout on a (3) poor conditions;
narrow lanes and road
appellant, normally though safety-con-
scious, was not aware of the substantial unjustifiable risk of death created conduct,
his due either to lack of sleep per-
drowsiness caused medication or (4) inattentiveness;
haps just simple
appellant’s perceive the risk failure cre- by his gross
ated conduct constituted a from
deviation the standard of care
ordinary person all would exercise under as circumstances viewed from appel- short, viewpoint. given
lant’s the evi- trial, appellant’s
dence adduced at the sec-
ond met, prong the Rousseau test was the court of held. judgment
We affirm the
appeals. HERVEY, JJ.,
KEASLER and
concurred the result.
COCHRAN, J., did not participate.
The STATE of Texas PLAMBECK,
Michael Appellee. Kent PD-0376-05,
Nos. PD-0377-05.
Court of Appeals Texas, Criminal
En Banc.
Nov. state, higher homicide, culpable sup- gent culpable mental with its lower mental porting guilt a finding criminally negli- state. *2 voluntarily dis-
These indictments were after it obtained a missed the State set of indictments for crimes. second leading to During indictments, however, the set of second from tran- testimony read scripts to the Texas of statements made Ranger by several witnesses. The State voluntarily of in- second set obtaining after a third set of dictments The third indictments offenses. of set indictments described earlier purposes tolling indictments for of statute of limitations. a motion to dismiss the
Appellee filed a pretrial for application indictments and III, McAllen, Banker, Charles A. In corpus. writ of habeas motion Appellant. dismiss, appellee contended the third D.A., Hoffman, Asst. Crim. Sommer L. of indictments came “after the set State Paul, Attorney, Edinburg, Matthew previous indict- voluntarily dismissed Austin, for the State. Jury proce- Grand improper ment grand involving questioning dures” jurors by person. Al- unauthorized allege though the motion did that the KELLER, P.J., opinion of delivered the questioning during pro- occurred improper HERVEY, KEASLER, Court which indict- ceedings leading to the third set of COCHRAN, JJ., joined. HOLCOMB and impacted pro- any way or in those ments today confront question The we ceedings, requested it dismissal general the trial court has author- whether on the basis third set ity preju- to dismiss an indictment ha- The “defects of form outlined above.” of the State’s consent. dice in the absence prosecution alleged that application beas is “no.” Con- question The answer to set of outlined the third for the offenses judgment we reverse sequently, by limitations. barred indictments was appeals. relief on granted trial court I. BACKGROUND the motion granted application habeas dismiss, appealed both the State three of indict- This case involved sets appli- barratry regard to the habeas decisions. With appellee ments cation, the first and barratry. argued conspiracy commit the stat- indictments tolled from second sets of first of indictments was obtained set regard to the With Texas ute of limitations. jury proceedings which a grand dismiss, conceded that the State motion to question witnesses Ranger was allowed to Ranger to allowing the Texas it erred of Texas Code extensively, in violation witnesses, dis- argued that but question Procedure, 20.04.1 Article Criminal may question a grand juror or a part, "No provides in relevant 1. Article 20.04 grand jury.” before the attorney representing witness person than the any missal was unwarranted no consti- that the had faded direct it require tutional was violated and dismissal legal authority necessary error. reverse dismissal made without *3 regarding its connection with contentions appeals court of contend- prejudice.6 The dismiss, the motion to the State first ob- “[E]very by ed that case cited prejudice that served dismissal with argument of in which support this one that extraordinary remedy drastic erroneously the trial court the rarely imposed, and the State contended prejudice re- indictment with and was that the trial court’s action to a amounted versed ... or the trial court not dis- had prejudice dismissal with the because stat- all, missed the indictment at a despite ute of limitations had run. The then State motion to do the defendant.”7 But so argued general that “a trial court has no court appeals’s opinion of did not cite unwritten, authority, or written inherent discuss Johnson. Further, relying or implied, permitting it to case dismiss a cases, upon estoppel court appellate without the In State’s consent.” support allowing faulted the for the statute of State v. the State cited State argument of this expire by not attempting limitations to other cases.3 Johnson2 several by seeking 20.04 Article violation (fourth) another set of indictments.8 As a appeals
The court of that decided holding, prejudice” result of its “without preliminary “[a] issue” to addressed appeals specif- the court of did not address trial was “whether the court dismissed the ically the Article 20.04 whether violation indictment prejudice.”4 [or] without to the leading that occurred The court of that dis appeals found first set of was a basis valid prejudice missal was without dismissing first and of for the third set of indictments.9 second sets indictments tolled addition, Citing ap appeals statute of limitations.5 declined pellate requirements rules’ for ar briefing ap- address the merits of the habeas guments, the of appeals peal.10 then found (Tex.Crim.App.1991).
2. party 821 S.W.2d [a] 609 "should not be allowed to create level, problem [and] at then com [the] error”). plain of self-induced arguments 3. State then made other brief that are opinion. not relevant this 9. Id. Plambeck, 13-02-492-CR, 4. v. Nos. argues petition 10. The dissent that this should 13-02-493-CR, 3, slip op. at WL 2004 the State did com- be dismissed because not Christi, (Tex.App.-Corpus 3591148 December plain appeals to this Court that the court of 2, 2004)(not designated publication). failed to Issue address One claims on But the court of 5. at Id. 4. did fail to address the claim—the court unnecessary held that it was address 38.1(h)). (citing 6. at Id. 5 P. Tex.R.App. claim. This is not like the cases in which the skips issue a intermediate court raised 7. at Id. 4-5. require party, party event we which complain negligence. court’s A court is State, Prystash (citing at 5 required Id. v. 3 S.W.3d to address issues that become 522, 1999) (Tex.Crim.App. issues, regarding 531 "the moot because resolution State, law legitimate of invited error” and complaint and the State had no Gonzalez (Tex.App.-Corpus regarding 115 S.W.3d Christi raise manner which See, ref'd) pet. proposition appeals disposed Issue One. rehearing. II. a motion for State filed ANALYSIS ground rehearing In its second The State characterizes the court of appeals’s took with the court “essentially” appeals’s holding being authority to trial court’s holding not have the that the State does indictment the State’s dismiss an prejudice under appeal a dismissal without whether dismiss- upon consent turned that, under argument is Article 44.01. It’s prejudice: al was with court’s deci reasoning, the court’s argued, provided has The State instrument dismiss sion law, case supporting abundant *4 reversed can never be prejudice without authority to trial court has no dismiss Its to that deci right appeal indictment without State’s consent being empty sion under Article 44.01 in few that except well-defined instances State, to right, says right there is no See, applicable not in this were case. appeal. This overstates the effect of the [sic], e.g., Johnson v. State 821 S.W.2d holding, court’s but much. (Tex.Crim.App.1991); 612-613 right appeal still has to under Brief, 17-32. The pp. definitive State’s circumstances, right nec but that those au- the trial court had is whether essarily ineffective. over the indictment thority dismiss objection, not whether the State’s to this underlying complaint The State’s prejudice. or without was with dismissal in erred appeals the court of is that Court mo- State’s original). in (Emphasis agree with claim. failing address its We rehearing was denied. tion for that the court complaint the State’s basic subsequently petition filed The State the nature finding erred in review, discretionary presenting (with prejudice) or without dismissal 44.01(a)(1) following ground: “Is article dispositive, failing therefore Procedure, the Code of Criminal which address the claim on merits to appeal authorizes the State an order appeal.13 indictment,’ limited that ‘dismisses an desig- are specifically orders that dismissal general no held that “there is Johnson ” sup- In being prejudice?’ nated as ‘with unwritten, inherent or authority, written our position, the State discussed port of its implied, permit which would or Moreno,11including v. decision State the prose- a case without dismiss concerning pros- when a following passage Nothing Johnson cutor’s consent.”14 purpose terminated ecution is to dismissals pronouncement that restricts appeal: determining the State’s contrary, the facts prejudice. To the with court’s] of the [trial effect “whenever is no such suggest that there of Johnson indict- any alteration of the order forces restriction. the trial on the ment or information before charged was the defendant willing to com- merits and the State intoxi- driving information while granted re- ply with that order.”12 We (DWI) County at Law Court cated view. State, express opinion, We no on whether e.g., 217 n. 3 67 S.W.3d Hull "without this case in fact dismissal in (Tex.Crim.App.2002). simply it for the sake prejudice.” We assume (Tex.Crim.App.1991). of this discussion. S.W.2d 11. 807 at 613. 14. 821 S.W.2d 12. Id. at 334.
Number One.15 The failed to Law Number One for further trial, and, appear in court on the date our opinion.23 consistent with motion, pursuant to the defendant’s judge Later charge.16 opinion say Our did not whether information, day, the State filed a new County at Court Law Number One’s alleging charge, County the same DWI dismissal of the information was with Two, Court at Law Number prejudice, prosecutor’s but a fail jurisdiction.17 had concurrent The defen- up type ure to show for court is not dant then filed a motion dismiss this circumstance that would warrant a “with judge second information.18 The trial prejudice” And ap dismissal. granted the motion the ground perceive parently did not the first dismiss “the State’s decision not to the first prejudice al as being with since a second implied dismissal acquiescence to that Also, information was filed. the court of dismissal, first so the State could not con- appeals may have operating been under tinue its prosecution against [the defen- assumption, consistent with the court *5 by simply filing charge dant] in the same appeals’s holding present in the another court.”19 The preceding state- prohibition the against dismissals ment —that State the could not continue its only without the State’s consent extended prosecution necessarily means that this — prejudice. dismissals Such an as dismissal with prejudice. was sumption explain reversing the dis appealed then the second dismissal.20 The prejudice missal with County the Court court of appeals held that the second dis- Two, Number at Law while at the same missal was improper trial because the County time holding that the Court at Law court had no authority to dismiss the case relinquished jurisdiction Number One —its consent,
without the State’s juris- and that being prejudice. dismissal without But proper diction was in County the Court at repudiated type this Court of reason Law Number Two the dismissal of ing by directing prosecution pro that the case in County the the Court at Num- Law County ceed the Court at Law Number One ber amounted to juris- a surrender of event, any One. In Johnson’s silence on diction over the case.21 We held that the the “with or prejudice” without nature of County Court at Law Number One lacked suggests the dismissal that it irrele was authority to dismiss the information vant to our holding regarding the trial when the State’s attorney failed to appear authority court’s on the matter. The trial and, result, as a did not effectively waive simply general authority had no jurisdiction over the va- case.22 We then prosecutor’s dismiss the case without the cated the court of appeals’s judgment and consent, presented remanded and the circumstances with instructions to direct the (the County prosecutor’s at appear) Court Number Law Two failure to did transfer the County authority case at any specific Court confer to do so. 15. Matólo. Id. at 611. 20. Id.
16. Id. 21. Id. 17. Id. at 613-614. 22. Id.
18. Id. at 614.
19.Id. at 610-611. charging seek a new instrument whenever disagree with We therefore preju- conclusion that a appeals’s implicit prosecution is dismissed without to dismiss court has unfettered discretion essentially subject charging dice would prejudice. And to prosecution without judge. to the control of the trial process" appeals suggested the extent the the dismissal based on Where was with brief- comply that the State failed occurring grand jury proceed- in the event faffing ing requirements by to direct grand jury proceedings ings, further —in- authority now court to before cluding, impaneling of new possibly, us, was disagree, promi- since Johnson we If jury required. grand —would nently support posi- of the State’s cited any judge way dissatisfied were original brief on submis- tion in (or, jury proceedings grand with the sion. matter, any pretrial proceed- other of a dismissal ings) then the use or threat
Moreover, appellate court erred effectively em- could be prejudice obligated to holding that the to force the to- conform ployed error, indictment, by seeking another (or process proceed- charging challenge specifics order to will, if ings) to the trial court’s even As we ruling trial court’s without merit. trial court’s concerns were Moreno, pointed out in entitled of the trial court’s rea- Appellate review to stand on its instrument to maintain- for dismissal is essential sons dis ruling a trial adverse court’s prosecuting same, ing independence if missing amendment even *6 Moreno, authority. Relying we later possible.24 upon Young appeal that
held con áppeals’s estoppel The court of challenge to the permitted where foundation because those on a cerns are without was based defect charging instrument erroneously It that jury would assume grand proceedings.25 concerns problem by to a pointless seem have somehow created State has preju dismissals without In a appeal new indictment. procuring a jury proceedings a in grand dice for defect the trial court’s basis dis given (as if could recognized Young) problem due to a creat may missal well be always obtain relief because it would ap never that by prosecutor. But is ed by obligated attempt to cure error whether the pellate upon issue that turns obtaining another indictment. problem fact did in create prosecutor proper re dismissal was and whether requiring the State importantly,
More
pro
Failing
that
sponse
problem.
contrary
cure runs
effect such a
to cure
charging
instrument
second
au-
restricting
the trial court’s
reason
problem
is a
the trial court believes
what
thority
prosecutions:
prose-
to dismiss
problem that
a State-created
itself
entity
re-
primarily
office is the
cutor’s
doctrine of es-
justify invoking the
controlling
prosecution’s
sponsible for
Rather,
right to
it is the State’s
toppel.
Requiring
progress.26
246,
State,
252-258
S.W.2d
Meshell v.
739
26.See
24.
371 on charging appli- stand and a pretrial instrument have indictments and also filed an appellate pass on whether corpus cation for writ of habeas trial court’s reasons for dismissal were that the third set of asserted indictments sufficient. was barred limitations. The trial court third set indictments over judgment
The of the court of objection granted the state’s both the reversed and the case is remanded for requested, writ and the relief appellee had further consistent with this is, opinion. dismissal of the indictments for present failure to them within the three- JOHNSON, J., dissenting delivered a year ap- statute limitations.3 The state MEYERS, PRICE, opinion which pealed and raised two issues. WOMACK, JJ., joined. One: Issue The court erred in The state alleged appellee commit- appellee’s granting pretrial writ habe- barratry ted conspiracy to commit corpus grounds limitations barratry. alleged acts occurred on the limitations period was tolled 30, September 1997 (conspiracy), and in pendency of continuous March and December of (barratry). 1998 penal offenses under the same first sets of indictments were returned statute. 21, counts), March 2000 7 (barratry; and April counts), (conspiracy; Issue Two: The trial court erred approximately five and a half months be- dismissing grounds the indictments on fore the statute of limitations on earli- of “improper grand jury proceeding” be- alleged est expired, years offense three (1) appellee cause failed to meet his alleged after that offense.1 Two subse- of proving burden error the state’s quent sets indictments were returned on in allowing investigator question 19, 2001, December and April grand jury con- witnesses violated some The statute of limitations during was tolled (2) right, appellee stitutional failed *7 pendency of those indictments.2 to of proving meet his burden that dis- After the necessary third set of indictments missal of the indictments was returned, appellee moved to dismiss those error. cure the 1. Texas beginning day Art. of time with the the indict- Code of Crim. Proc. ment, 12.01(5)(1997)("felony information, may complaint in a or is filed limits, presented competent jurisdiction, ending within these and not after- court of and (5) is, years ... day ward: three date from the of the such accusation an order thereof, commission of the having jurisdiction offense: all other felo- of a court nies”); reason.”). any Art. to be for determined invalid Texas Code of Proc. Crim. 12.03(b)(1997)("The period limitations for Although parties 3. and in this courts conspiracy criminal ... is the as that same of writ,” appear "granting cause to confuse object the most serious offense that is the of i.e., relief,” holding hearing, "granting conspiracy....”). granted it is clear the trial court both the Art. writ relief. The trial court held full 2. Texas Code of Crim. Proc. 12.05(b),(c)(1997)("(b) during hearing arguments by The time and heard extensive indictment, information, pendency of an signing granting both sides before order complaint computed period shall not be Application in the "Defendant’s Writ of Habeas limitation.”) speak Corpus Seeking Expira- of statute does not Release Because of directly ordering as to whether the statute is tolled tion of Limitation Period” (”(c) during ‘during appellee The term be released from further restraint herein, pendency,' period as used means and the indictment dismissed. judg-
The court of affirmed the appeals INVESTMENTS, MKC ENERGY of on Issue Two but ment court INC., Appellant One, thereby leaving did not address Issue errone- (perhaps in force the trial court’s ous) of finding prosecution that further Sheldon, Scot SHELDON Jordan charged offenses was appellee Dunham, L.L.P., Appellees. & period had because the limitation barred this Court expired. petitioned The state No. 09-04-235 CV. single ground review that chal- Texas, of Appeals Court of appeals’s decision on lenged the court of Beaumont. dismiss; it not appeal motion to did to “ad- appeals the failure of Feb. 2005. Submitted necessary raised and every issue dress[] Sept. Decided disposition appeal.” final Tex. App. Proo. 47.1. Rule that, appeals The court of stated be- regarding “our motion
cause decision is sufficient dismiss the indictments we
determine the outcome remaining
decline address the of habe- regarding the writ unnecessary as and redundant.” corpus upon
It the state was then incumbent petition in its
complain of that failure because, if we held
this Court even erred and reversed appeals challenge
judgment, absent a successful relief, corpus grant habeas change; position
state’s not undo the relief did way his
granted appellee by writ prosecution further corpus, and
habeas
still barred. *8 cause be dis-
I that this should believe granted. Because improvidently
missed so, respectfully do I majority does not
dissent.