NUMBER 13-08-00508-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant, v. CHARLES MONTMINY, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

MEMORANDUM OPINION 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.1 Upon Montminy's motion, the trial court dismissed the indictment. By one issue, the State contends that the trial court had no

See T EX . H E A LTH & S AFETY C OD E A N N . § 481.102(6) (Vernon Supp. 2008), § 481.115(c) (Vernon 2003). authority to dismiss the indictment.2 We reverse and remand.

I. BACKGROUND In trial court cause number 08-CR-1048-B, Montminy was indicted, presumably, for the offense of unlawful possession of methamphetamine.3 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.4 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.5

Montm iny did not file a brief in this appeal.

W e note that the indictm ent in trial court cause num ber 08-CR-1048-B is not included in the record.

See T EX . C OD E C R IM . P R O C . A N N . art. 32.02 (Vernon 2006) (providing that the State m ay dism iss a crim inal prosecution at any tim e with perm ission of the trial court).

See id. art. 44.01(a)(1) (Vernon Supp. 2008) (providing that the State is entitled to appeal a trial court's order dism issing an indictm ent).

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.6 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."7 Here, the trial court granted Montminy's motion to dismiss the indictment without the State's consent based on the doctrine of res judicata.8 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.9 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.

State v. Salinas, 976 S.W .2d 870, 871 (Tex. App.–Corpus Christi 1998, no pet.) (en banc) ("[A] Texas trial court has no authority to dism iss a case, either on the defendant's m otion or on the court's own m otion, unless the prosecutor consents or the dism issal is otherwise authorized by constitution, statute, or com m on law.") (citing State v. Johnson, 821 S.W .2d 609, 612-13 (Tex. Crim . App. 1991) (en banc); State v. Meyer, 953 S.W .2d 822, 825 (Tex. App.–Corpus Christi 1997, no pet.); State v. Donihoo, 926 S.W .2d 314, 315-16 (Tex. App.–Dallas 1994, no pet.); State v. Marmolejo, 855 S.W .2d 275, 276 (Tex. App.–Austin 1993, no pet.) (per curiam ); W ilson v. State, 854 S.W .2d 270, 275 (Tex. App.–Am arillo 1993, pet. ref'd)); see State v. Plam ebeck, 182 S.W .3d 365, 368 (Tex. Crim . App. 2005) (providing that the trial court does not have authority to dism iss an indictm ent "with or without prejudice" unless the State consents).

Donihoo, 926 S.W .2d at 315 (citing Johnson, 821 S.W .2d at 612 n.2); see State v. Mungia, 119 S.W .3d 814, 817 (Tex. Crim . App. 2003) ("[W ]here there is no constitutional violation, or where the appellee's rights were violated but dism issal of the indictm ent was not necessary to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dism issing the charging instrum ent without the consent of the State.") (citing State v. Terrazas, 962 S.W .2d 38, 42 (Tex. Crim . App. 1998) (en banc)).

W e find no authority supporting a conclusion that a trial court m ay dism iss an indictm ent on the basis of res judicata without the State's consent. Furtherm ore, the dism issal of an indictm ent does not prevent a grand jury from returning a subsequent indictm ent charging the sam e transaction. Ex parte W illiams, 379 S.W .2d 911, 912 (Tex. Crim . App. 1964).

See Donihoo, 926 S.W .2d at 315 (citing Johnson, 821 S.W .2d at 612 n.2).

III. CONCLUSION We reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

LINDA REYNA YAÑEZ, Justice

Do not publish.

TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed this the 20th day of August, 2009.