The STATE of Texas, Appellant v. Rochelle McNUTT, Appellee.
No. 01-11-01023-CR.
Court of Appeals of Texas, Houston (1st Dist.).
Feb. 26, 2013.
Discretionary Review Refused May 15, 2013.
405 S.W.3d 156
tration agreement. Consequently, the issue belongs to the arbitrators, not to the courts. See Howsam, 537 U.S. at 83, 123 S.Ct. 588; In re D. Wilson Constr. Co., 196 S.W.3d 774, 780-81 (Tex.2006) (orig. proceeding); see also Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347 S.W.3d 897, 902 (Tex.App.-Dallas 2011, pet. denied) (holding that challenge to Civilian Board of Contract Appeals’ [CBCA] jurisdiction as arbitrator of dispute, as well as waiver and election-of-remedies complaints, “are matters of procedure that are for the arbitrator and not for the court,” and conditionally granting writ of mandamus directing trial court to vacate portion of order requiring arbitration to proceed under AAA instead of CBCA); Am. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74 S.W.3d 527, 531 (Tex.App.-Dallas 2002, pet. denied) (citing John Wiley & Sons v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964) (“[I]f a court determines the parties have an obligation to submit the subject matter of a dispute to arbitration, ‘procedural’ questions concerning the dispute ... are left to the arbitrator.“)). We hold that the trial court erred in straying past the gateway and into the arbitrators’ presumptive arena by addressing whether the parties agreed to formal AAA administration and ordering that they did not.
Conclusion
We dismiss Academy‘s appeal for lack of jurisdiction. We conditionally grant mandamus relief to Academy and direct the trial court to vacate its March 5, 2012 order supplementing its earlier order compelling arbitration. We are confident the trial court will comply, and the writ will issue only if it fails to do so.
David Joseph Mitcham Houston, TX, for Appellee.
Panel consists of Justices BLAND, MASSENGALE, and HUDDLE.
OPINION
REBECA HUDDLE, Justice.
The State of Texas appeals the trial court‘s dismissal of the information charging Rochelle McNutt with the Class B misdemeanor offense of driving while intoxicated. See
Background
McNutt was charged by information with a misdemeanor offense for DWI. See
Harris County has other pretrial diversion programs, but they differ in many respects from the DIVERT program. Those “traditional pretrial diversion programs” do not require (1) the defendant to confess or waive constitutional rights; (2) the trial court to approve participation; or (3) the defendant to agree with the State on a punishment in advance. Additionally, in traditional pretrial diversion programs, the charges are often dismissed before the diversion occurs (although the State may re-file in some cases). In the DIVERT program, in contrast, the charges remain pending. State v. Dinur, 383 S.W.3d 695, 698 (Tex.App.-Houston [14th Dist.] 2012, no. pet.).
The district clerk‘s office randomly assigned McNutt‘s case to a trial court—in this case, the County Criminal Court at Law Number 2. The presiding judge of that court has determined that the DIVERT program constitutes deferred adjudication, a punishment that is specifically prohibited in DWI cases. See
After the trial court refused to approve McNutt‘s DIVERT agreement, McNutt moved to dismiss the information, asserting that she had been denied due process and equal protection. Essentially, she claims that being assigned to County Criminal Court at Law Number 2, which never approves DIVERT agreements, deprived her of these rights.
On October 28, 2012, the trial court held a hearing on McNutt‘s amended motion to dismiss the information. Roger Bridgwater, the District Attorney‘s Office bureau chief in charge of the DIVERT program, appeared as the primary witness. The trial court questioned Bridgwater extensively about pretrial diversion and the DIVERT program in particular. The trial
The trial court dismissed the information, explaining the basis for its decision was the discrepancy between the District Attorney‘s treatment of defendants involved in the pilot program, on the one hand, and its treatment of McNutt, on the other:
[W]hen I looked at this pretrial diversion, this DWI case for a person who also had a marijuana case, pled guilty to marijuana, got put on deferred adjudication for marijuana, wasn‘t required to plead guilty to DWI and got pretrial diversion, and now I get this response that it was some kind of pilot program, I tell you, that‘s invidious discrimination in my opinion. There‘s no question about it. I think it‘s shameful, absolutely shameful what [the District Attorney‘s] office is doing. I‘m not able to identify—neutralize the taint of this, of what you all have been doing. I‘m going to grant the Motion to Dismiss the Information.
The State appealed.
Dismissal of Information
In her amended motion to dismiss the information, McNutt asserted (1) that the Harris County District Attorney‘s Office had “arbitrarily excluded defendants charged with the offense of driving while intoxicated from consideration for pretrial diversion” and (2) that, because the trial court would not approve DIVERT agreements, she (like all other DWI defendants assigned to the County Criminal Court at Law Number 2) was being treated differently from all “similarly situated” persons—namely persons charged with DWI in all the county criminal courts at law other than Court Number 2. McNutt contends that these actions amount to violations of her rights to due process and equal protection.
A. Motion to Dismiss
A trial court has no inherent authority to dismiss a case without the consent of the prosecutor. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim.App.2003); Dinur, 383 S.W.3d at 700 (citing State v. Plambeck, 182 S.W.3d 365, 366 (Tex.Crim.App.2005)). In certain circumstances, a trial court may dismiss a case without the prosecutor‘s consent, if dismissal is authorized by constitution, statute, or common law. Dinur, 383 S.W.3d at 700 (citing Mungia, 119 S.W.3d at 816). For example, a court may dismiss a case without the prosecutor‘s consent when a defendant is denied a right to a speedy trial, there is a defect in the charging instrument, to remedy certain Sixth Amendment violations, or when a defendant is detained and no charging instrument is presented in violation of
B. Due Process
McNutt sought dismissal on the basis that her due process rights were violated when she was excluded from participating in a pretrial diversion program. Procedural due process prevents the government from depriving an individual of a protected liberty or property interest in an arbitrary manner. Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex. Crim.App.1995) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). “The interest at issue must amount to more than a ‘unilateral hope.‘” Id. (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981)). “[R]ather the claimant must show an entitlement.” Id. (citing Ky. Dep‘t of Corr. v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)).
If a defendant pleads guilty or nolo contendere pursuant to a plea bargain agreement, due process may require the State to fulfill its end of the agreement. DeRusse v. State, 579 S.W.2d 224, 236 (Tex.Crim.App.1979) (citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). However, a defendant has no absolute right to enter into a plea bargain. Gaal v. State, 332 S.W.3d 448, 457 (Tex.Crim.App.2011) (citing Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim.App.1978)); DeRusse, 579 S.W.2d at 236 (citing Morano); see also Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) (“But there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.“). Drawing an analogy to plea bargain cases, federal courts of appeals have concluded a defendant does not have a constitutional right to be placed in pretrial diversion. United States v. Richardson, 856 F.2d 644, 647 (4th Cir.1988); United States v. Hicks, 693 F.2d 32, 34 (5th Cir.1982), cert. denied, 459 U.S. 1220, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983).
McNutt has not identified any statutory or case law that creates a right or entitlement to be placed into pretrial diversion. Because there is no right or entitlement to enter into pretrial diversion, McNutt‘s due process rights were not implicated. See Ex parte Montgomery, 894 S.W.2d at 327. And because McNutt‘s due process rights were not implicated, the trial court erred if it dismissed the case on the basis of a due process violation. See Mungia, 119 S.W.3d at 817 (stating trial court errs by dismissing case without prosecutor‘s consent when there is no constitutional violation).
C. Equal Protection
McNutt also urged the trial court to dismiss the information on equal protection grounds. McNutt argues that her equal protection rights have been violated because she and other DIVERT-eligible defendants are similarly situated, but DIVERT-eligible defendants that are not assigned to County Criminal Court at Law Number 2 may be placed into the program but those, like her, who are assigned to Court Number 2, will not be.
“[A]ll persons similarly situated are guaranteed equal protection under the laws of this State and of the United States.” Nonn v. State, 117 S.W.3d 874, 881-82 (Tex. Crim.App.2003) (citing Vasquez v. State, 739 S.W.2d 37, 43 (Tex.Crim.App.1987)). Equal protection is implicated
Here, McNutt contends that the State, acting through the Harris County District Attorney‘s Office, treats DWI defendants assigned to County Criminal Court at Law Number 2 differently from DWI defendants whose cases are assigned to other courts. The record does not support McNutt‘s claim.
To the extent McNutt contends her equal protection rights were violated by being assigned to County Criminal Court at Law Number 2 rather than another court, we reject that contention. The record shows that all DWI defendants, including McNutt, are assigned to the county criminal courts at law randomly, not based on any suspect classification. Because McNutt is being treated the same as all other DWI defendants and no suspect classification is involved, there is no equal protection violation. See Smith, 898 S.W.2d at 847 (holding no equal protection violation where appellant was treated similarly to all those similarly situated, i.e., capital defendants; different treatment of non-capital defendants irrelevant); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (equal protection requires “all persons similarly situated should be treated alike“).
To the extent McNutt complains she was treated differently because other DWI defendants eligible for the DIVERT program were offered more favorable terms, we also reject this complaint. The record reflects that all DWI defendants offered the DIVERT program are treated similarly by the Harris County District Attorney‘s Office; they are offered and must sign the same agreement, which is subject to judicial approval. In this case, the trial court judge did not approve the agreement. In other words, the Harris County District Attorney‘s Office did not treat McNutt any differently than it treated all other DIVERT-eligible DWI defendants offered the DIVERT program. Accordingly, there is no equal protection violation. See Nonn, 117 S.W.3d at 881-82.
Finally, to the extent McNutt argues that the District Attorney‘s failure to allow her to participate in the “pilot program” resulted in an equal protection vio-lation,
Conclusion
Because there was no constitutional violation, we hold that the trial court erred by dismissing this case without the prosecutor‘s consent. We reverse the trial court‘s judgment dismissing the information and remand this cause for further proceedings.