No. 13-08-00508-CR
Opinion delivered and filed August 20, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 117th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES.
Memorandum Opinion by Justice YAÑEZ.
On July 10, 2008, appellant, the State, indicted appellee, Charles Montminy, for unlawful possession of methamphetamine. Upon Montminy's motion, the trial court dismissed the indictment. By one issue, the State contends that the trial court had no authority to dismiss the indictment. We reverse and remand.
Montminy did not file a brief in this appeal.
I. Background
In trial court cause number 08-CR-1048-B, Montminy was indicted, presumably, for the offense of unlawful possession of methamphetamine. In that case, after Montminy's motion to suppress evidence was granted, the State voluntarily filed a motion to dismiss the indictment, which was signed by the trial court. Subsequently, in trial court cause number 08-CR-2296-B, Montminy was again indicted for the offense of unlawful possession of methamphetamine. Montminy filed a motion to quash or dismiss the subsequent indictment on the basis that it was barred by the doctrine of res judicata. At a hearing on Montminy's motion, he argued that "the State presented the same facts to a grand jury and the grand jury returned an indictment identical to the previous indictment that had been suppressed." The State conceded that the first indictment had been dismissed and that the second indictment was based on the same facts. However, the State asserted that it has "the right before jeopardy attaches, to dismiss for any reason . . . and to refile at a later time." The trial court granted Montminy's motion to quash and dismissed the second indictment on the basis that it was barred by the doctrine of res judicata. The State appeals the trial court's dismissal of the second indictment. II. The Trial Court's Authority to Dismiss a Case Without The State's Consent
A trial court does not have the authority to dismiss an indictment without the State's consent unless the dismissal is authorized by the constitution, a statute, or the common law. Specifically, if the State does not consent, "the trial court can dismiss only for the denial of speedy trial, defects in the charging instrument, or when the State detains the defendant and does not properly present a charging instrument." Here, the trial court granted Montminy's motion to dismiss the indictment without the State's consent based on the doctrine of res judicata. The trial court did not dismiss for denial of a speedy trial, a defective charging instrument, or because the State detained Montminy without properly presenting a charging instrument. Therefore, we conclude that the trial court lacked authority to dismiss the indictment without the State's consent. We sustain the State's sole issue. III. Conclusion
We reverse the trial court's judgment and remand for proceedings consistent with this opinion.