State v. Rebekah Faith Stanley ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00101-CR

The State of Texas,

                                                                      Appellant

 v.

Rebekah Faith Stanley,

                                                                      Appellee

From the County Court at Law

McLennan County, Texas

Trial Court No. 2004-3921-CR1

Opinion

          Following a bench trial, the trial court granted Rebekah Faith Stanley’s motion to dismiss the charge against her on the grounds that the municipal ordinance on which the charge was based is unconstitutional.  The State appealed under article 44.01 of the Code of Criminal Procedure.  Stanley has filed a motion to dismiss the appeal contending that the State has the right to appeal only the pretrial dismissal of an indictment, information, or complaint.  We will grant the motion and dismiss the appeal.

          Article 44.01(a)(1) provides for an appeal by the State from an order which “dismisses an indictment, information, or complaint.”  Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2004–2005).  An order “dismisses” a charging instrument “whenever the order effectively terminates the prosecution in favor of the defendant.”  State v. Moreno, 807 S.W.2d 327, 332 (Tex. Crim. App. 1991).  “[T]he trial court ‘effectively terminates’ the prosecution against the accused whenever the effect of its order forces any alteration of the indictment or information before the trial on the merits.”  Id. at 334 (emphasis added).  Thus, article 44.01 permits an appeal by the State from the pretrial dismissal of a charging instrument, but not from the dismissal of a charging instrument after a trial on the merits has commenced (and jeopardy has attached).  See State v. Juvrud, 96 S.W.3d 550, 553 (Tex. App.—El Paso 2002, pet. granted).

          Here, the trial court granted Stanley’s dismissal motion at the conclusion of the trial on the merits.  Thus, the State cannot appeal the dismissal order.  See Moreno, 807 S.W.2d at 334; Juvrud, 96 S.W.3d at 553.

          Accordingly, we dismiss the State’s appeal.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Appeal dismissed

Opinion delivered and filed July 27, 2005

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