State v. James Anthony Messina ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00183-CR
NO. 09-15-00184-CR
____________________
THE STATE OF TEXAS, Appellant
V.
JAMES ANTHONY MESSINA, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 13-10-11417 CR (Counts 1 and 2)
__________________________________________________________________
MEMORANDUM OPINION
The State appeals the trial court’s order that dismissed the two-count
indictment against Messina after the prosecutor failed to appear for a scheduled
punishment hearing. We reverse the trial court’s order dismissing the indictment
and remand the cause for further proceedings consistent with this opinion.
James Anthony Messina was indicted for two counts of online solicitation of
a minor. See Tex. Penal Code Ann. § 33.021 (West 2011). The record reflects that
1
Messina signed an “Agreed Setting” form, which indicated that a plea hearing and
sentencing hearing were scheduled for February 27, 2015. On May 1, 2015, the
trial court called the case for a hearing and noted that Messina and his counsel
were present, but the prosecutor failed to appear. Messina’s counsel objected “to
any further lengthening of the prosecutor’s time to show up and try and prosecute
this case” and moved for the charges against Messina to be dismissed. The trial
court granted Messina’s motion to dismiss. 1 In its order, the trial court stated that
Messina’s case was set for May 1, 2015, Messina was present with his counsel and
announced ready, and the Montgomery County prosecutor “wholly failed to appear
and failed to prosecute this case.” The trial court stated that the case was therefore
dismissed with prejudice.
In its sole issue, the State argues that the trial court lacked authority to
dismiss the case due to the prosecutor’s failure to appear. In response, Messina
contends the dismissal should be upheld because the statute under which he was
charged is unconstitutional. Messina does not address the State’s argument that the
trial court lacked authority to dismiss the charges due to the prosecutor’s failure to
appear.
The Court of Criminal Appeals has held that a trial court lacks the authority
1
The clerk’s record does not contain a written motion to dismiss.
2
to dismiss a case when the prosecutor fails to appear when the case is called for
trial. State v. Johnson, 821 S.W.2d 609, 613-14 (Tex. Crim. App. 1991). Courts of
appeals have likewise held that a trial court lacks the authority to dismiss a
criminal proceeding when the prosecutor announces “not ready” for trial and when
the prosecutor fails to timely appear for trial. State v. Lewallen, 927 S.W.2d 737,
739-40 (Tex. App.—Fort Worth 1996, no pet.); State v. Donihoo, 926 S.W.2d 314,
315 (Tex. App.—Dallas 1994, no pet.). We conclude that the trial court lacked
authority to dismiss the prosecution of Messina. See Johnson, 821 S.W.2d at 613-
14; Lewallen, 927 S.W.2d at 739-40; Donihoo, 926 S.W.2d at 315.
As discussed above, Messina contends the trial court’s dismissal should be
upheld because the statute under which he was charged is unconstitutional.
Generally, constitutional challenges to a statute are forfeited by the failure to object
at trial. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Curry v.
State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995). A challenge that a statute
is facially unconstitutional, as well as a challenge that a statute is unconstitutional
as applied to the defendant, must be raised in the trial court to preserve error.
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Curry, 910
S.W.2d 490, at 496 n.2 (Tex. Crim. App. 1995). The record does not reflect that
Messina raised this argument in the trial court. We sustain the State’s issue.
3
Accordingly, we reverse the trial court’s order dismissing the indictment against
Messina and remand the cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on September 1, 2015
Opinion Delivered October 28, 2015
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
4