Patricia Ann Tope v. State , 429 S.W.3d 75 ( 2014 )

Opinion issued February 20, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00959-CR & 01-12-00960-CR
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PATRICIA ANN TOPE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 3
Harris County, Texas
Trial Court Case Nos. 1801346 & 1801347
OPINION
Appellant, Patricia Ann Tope, was charged with the misdemeanor offenses
of driving while intoxicated (“DWI”) and unlawfully carrying a weapon (“UCW”)
in the course of driving while intoxicated. Appellant filed pretrial motions to
dismiss and to conduct discovery and an evidentiary hearing related to the State’s
refusal to consider her for the Direct Intervention Using Voluntary Education
Restitution & Treatment (“DIVERT”) program, a pretrial diversion program
available to some first-time DWI offenders in Harris County. The trial court
denied her motion to dismiss, and appellant pleaded guilty to both offenses
pursuant to a plea agreement with the State. 1 The trial court assessed her
punishment for the DWI charge at 180 days’ confinement, probated for one year,
and a $300 fine.2 For the UCW charge, the trial court deferred a finding of guilt
and placed appellant on deferred adjudication community supervision for one year.
In five issues on appeal, appellant argues that: (1) the trial court erred in
denying her motion to dismiss; (2) her exclusion from the DIVERT program was
unconstitutional because it violated the separation of powers doctrine; (3) her
exclusion from the DIVERT program violated her right to due process; (4) the trial
court erred in denying her discovery request for a list of defendants who were
charged with the same crimes as she was and were allowed to participate in the
DIVERT program; and (5) the trial court erred in granting the State’s motion to
1
The trial court certified that appellant had the right to appeal the matters she raised
through her written pretrial motions.
2
The DWI charge resulted in trial court cause number 1801346 and appellate court
cause number 01-12-00959-CR. The UCW charge resulted in trial court cause
number 1801347 and appellate cause number 01-12-00960-CR.
2
quash the subpoenas she served on prosecutors involved in administering the
DIVERT program. We affirm.
Background
Appellant was charged by information with a misdemeanor offense of DWI.
See TEX. PENAL CODE ANN. § 49.04(a), (b) (Vernon Supp. 2013). She was also
charged with carrying a weapon while engaged in the DWI offense. See TEX.
PENAL CODE ANN. § 46.02(a-1)(2)(A) (Vernon Supp. 2013). She applied to
participate in the DIVERT program, a pretrial intervention program available
through the Harris County District Attorney’s Office (“HCDAO”) for first-time
offender, Class B misdemeanor DWI defendants. The State, acting through
assistant district attorney Roger Bridgwater, the Bureau Chief for Professional
Development, Community Protection, and Ethics, originally granted appellant an
assessment interview, during which it would determine whether she was a good
candidate for the program.
However, before appellant’s scheduled interview, Melissa Munoz, another
assistant district attorney involved with the DIVERT program, informed appellant
via e-mail that her DIVERT assessment had been cancelled because her “DWI
involve[d] a companion [UCW]. This type of companion offense exclude[d] [her]
from DIVERT consideration.” Appellant appealed that decision as provided by
HCDAO’s policies on the matter and was again informed, on the day after sending
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her appeal letter, that she did not qualify for the DIVERT program because of the
UCW charge.
Appellant then filed her “Motion for Discovery, to Conduct an Evidentiary
Hearing, and to Dismiss.” She requested that the State provide the rules and
guidelines used in determining who qualified for pretrial diversion, the rules and
guidelines used to deny appellant pretrial diversion, and the “names and case
numbers of other defendants that have been charged with the same two offenses as
[appellant] that were granted pretrial diversion.” Appellant asked the trial court to
hold an evidentiary hearing and then dismiss both charges against her, declare that
HCDAO’s DIVERT guidelines were void or in violation of the separation of
powers doctrine and her due process rights, abate her prosecution until the
constitutional violations were cured, and/or order that she be placed in the
program.
The State agreed to produce the rules and guidelines it used in selecting
candidates for DIVERT, but it challenged appellant’s request that it be required to
produce the names and case numbers for other defendants charged with similar
crimes who were granted pretrial diversion. Appellant caused subpoenas to be
served on Munoz and Bridgwater, seeking to have them testify regarding their
consideration of candidates, including appellant, for DIVERT.
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At the hearing on appellant’s motion for discovery, the prosecutors
explained the screening process for the DIVERT program, which used the
guidelines that the State had provided to appellant when it explained that her UCW
charge disqualified her for consideration for the DIVERT program. Munoz
explained that, after original screening, prosecutors determined who would be
eligible to participate in an assessment for the DIVERT program. Following the
DIVERT assessment, prosecutors exercised their discretion in determining whether
to grant a particular defendant the opportunity to participate in the DIVERT
program based on the circumstances of each case. The State argued that
responding to appellant’s request for a list of similarly situated defendants who had
been allowed to participate in DIVERT would be burdensome and that appellant
had not shown a need for the information. Specifically, the prosecutor stated that
to compile the list appellant sought, the State would have to go through more than
four thousand files to determine which DIVERT participants might have had
weapons charges in addition to their DWI charge. Appellant argued that it was
possible that procuring the list could be as simple as “plugg[ing] in DWI/weapons
charge and boom, they all come up.” The prosecutor stated that she was not aware
of whether that was an option. The trial court denied appellant’s request.
The State also filed a motion to quash appellant’s subpoenas served on
Munoz and Bridgwater. It argued, among other things, that Munoz and other
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assistant district attorneys were exercising prosecutorial discretion in the instant
case, that “everything that [appellant] has described [that she would] be developing
in this evidentiary hearing is precisely the thought processes and the work product
processes of a prosecutor in a criminal case,” and that appellant had not made the
necessary showings to obtain that kind of testimony from Munoz or Bridgwater.
Appellant argued that she sought the testimony of Munoz and Bridgwater to
determine what discretion, if any, was exercised regarding HCDAO’s decision to
exclude her from the DIVERT program. Appellant also argued that she was
entitled to information regarding whether other defendants in the same
circumstances were approved for DIVERT and, if so, why appellant was excluded.
The trial court granted the State’s motion to quash the subpoenas for Munoz and
Bridgwater.
Following these rulings, appellant pleaded guilty to both the DWI and the
UCW charges. The trial court entered judgments based on appellant’s plea
agreements with the State. The trial court assessed her punishment for the DWI
charge at 180 days’ confinement, probated for one year, and a $300 fine. For the
UCW charge, the trial court deferred a finding of guilt and placed appellant on
deferred adjudication community supervision for one year. The trial court certified
appellant’s right to appeal the matters she raised through her written pretrial
motions, and this appeal followed.
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Motion to Dismiss
In her first issue, appellant argues that the trial court erred in denying her
motion to dismiss. In her second issue, appellant argues that her exclusion from
the DIVERT program was unconstitutional because it violated the separation of
powers doctrine contained in the Texas Constitution. In her third issue, appellant
argues that the DIVERT program violated her right to due process. We consider
these issues together.
A. Standard of Review
We apply a bifurcated standard of review when considering a trial court’s
ruling on a motion to dismiss a case. State v. Krizan-Wilson, 354 S.W.3d 808, 815
(Tex. Crim. App. 2011); State v. Dinur, 383 S.W.3d 695, 699 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). We give almost total deference to a trial
court’s findings of fact that are supported by the record, as well as any mixed
questions of law and fact that rely upon the credibility of the witnesses. Krizan-
Wilson, 354 S.W.3d at 815; Dinur, 383 S.W.3d at 699. But where, as here,
resolution of the case turns solely upon questions of law or mixed questions that do
not depend on credibility determinations, our review is de novo. Krizan-Wilson,
354 S.W.3d at 815; Dinur, 383 S.W.3d at 699.
“It is well established that there is no general authority that permits a trial
court to dismiss a case without the prosecutor’s consent.” State v. Muniga, 119
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S.W.3d 814, 816 (Tex. Crim. App. 2003). However, a trial court may dismiss a
charging instrument when it is authorized to act by constitution, statute, or
common law. Id. The Texas Court of Criminal Appeals has recognized a trial
court’s authority to dismiss a case without the State’s consent when a defendant
has been denied a right to a speedy trial, when there is a defect in the charging
instrument, when, pursuant to Article 32.01, a defendant is detained and no
charging instrument is properly presented, or when a violation of the Sixth
Amendment causes the defendant demonstrable prejudice and the trial court is
unable to identify and neutralize the taint by other means. Id.
In Muniga, the Court of Criminal Appeals held that
[w]hile a trial court may dismiss a charging instrument to remedy a
constitutional violation, the dismissal of an indictment is “a drastic
measure only to be used in the most extraordinary circumstances.”
Therefore, where there is no constitutional violation, or where the
[defendant’s] rights were violated but dismissal of the indictment was
not necessary to neutralize the taint of the unconstitutional action, the
trial court abuses its discretion in dismissing the charging instrument
without the consent of the State.
Id. at 817 (quoting State v Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995) and
citing State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998)) (internal
citations omitted). This Court recently applied this reasoning from Muniga in the
context of an appellant’s challenge to the constitutionality of her exclusion from a
pretrial diversion program. State v. McNutt, 405 S.W.3d 156, 160–61 (Tex.
App.—Houston [1st Dist.] 2013, pet. ref’d).
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Here, appellant moved for dismissal on the grounds that her exclusion from
the DIVERT program violated the separation of powers doctrine of the Texas
Constitution and violated her constitutional due process rights. We address each
alleged violation in turn.
B. Separation of Powers Doctrine
Article II, section 1 of the Texas Constitution divides the powers of state
government into “three distinct departments” and confines each to “a separate body
of magistracy, to wit: Those which are Legislative to one, those which are
Executive to another, and those which are Judicial to another.” TEX. CONST. art. II,
§ 1. That section further provides that “no person, or collection of persons, being
of one of these departments shall exercise any power properly attached to either of
the others, except in the instances herein expressly permitted.” Id. To establish a
violation under Article II, section 1, an appellant must show that one department
has assumed, or has been delegated, to whatever degree, a power that is more
“properly attached” to another or that one department has so unduly interfered with
the functions of another that the department cannot effectively exercise its
constitutionally assigned powers. Wilkerson v. State, 347 S.W.3d 720, 724 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d) (citing State v. Williams, 938 S.W.2d
456, 458 (Tex. Crim. App. 1997)).
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DIVERT is a pretrial diversion program run by the HCDAO rather than a
statutory scheme. Dinur, 383 S.W.3d at 697 n.1. The HCDAO’s authority to
develop and implement such a scheme flows from the broad discretion of
prosecutors to decide which cases to prosecute and what charges, if any, to file or
bring before a grand jury. See id. at 698 (discussing DIVERT program and other
HCDAO pretrial diversion programs); see also Neal v. State, 150 S.W.3d 169, 173
(Tex. Crim. App. 2004) (“Both Texas and federal courts recognize that prosecutors
have broad discretion in deciding which cases to prosecute. Thus, ‘[i]f the
prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether to prosecute and what charge to file
generally rests entirely within his or her discretion.’”) (quoting State v. Malone
Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992) and Bordenkircher v. Hayes, 434 U.S.
357, 364, 98 S. Ct. 663 (1978)).
Furthermore, the Texas legislature has addressed the issue of pretrial
diversion programs in limited circumstances. Texas Government Code section
76.011 authorizes the Community Supervision and Corrections Department to
“operate programs for . . . the supervision and rehabilitation of persons in pretrial
diversion programs. . . .” TEX. GOV’T CODE ANN. § 76.011(a) (Vernon Supp.
2013). A person’s supervision through such a pretrial intervention program may
not last for more than two years. Id. § 76.011(c). Additionally, a “district attorney,
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criminal district attorney, or county attorney may collect a fee in an amount not to
exceed $500 to be used to reimburse a county for expenses . . . related to a
defendant’s participation in a pretrial intervention program offered in that county.”
TEX. CODE CRIM. PROC. ANN. art. 102.0121(a) (Vernon Supp. 2013).
Here, appellant argues that the “legislative intent of [section 76.011(a) and
article 102.0121] was to authorize the . . . offer [of] pretrial intervention if, in the
exercise of its prosecutorial discretion, the prosecutorial authority believed that, in
a particular case, pretrial intervention is warranted.” Appellant argues that by
creating “a general substantive rule” that “completely eliminated any prosecutorial
discretion,” the HCDAO usurped the role of the legislature. However, this
argument misconstrues both the legislative provisions it cites and the concept of
“prosecutorial discretion.” The DIVERT program created by HCDAO was not
created by the legislature as part of a statutory scheme. See Dinur, 383 S.W.3d at
697 n.1. Instead, it flows from long-established principles of prosecutorial
discretion in determining which cases to prosecute and what charges, if any, to file.
HCDAO’s development and implementation of the DIVERT program, including
establishing guidelines by which it determined who was eligible to participate in
the program, were exercises of the HCDAO’s prosecutorial discretion. See Neal,
150 S.W.3d at 173; Dinur, 383 S.W.3d at 697–700.
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Appellant has failed to show that HCDAO assumed, or was delegated, a
power that is more properly attached to the legislature, or that HCDAO has so
unduly interfered with the functions the legislature that the legislature cannot
effectively exercise its constitutionally assigned powers. See Wilkerson, 347
S.W.3d at 724. Therefore, we conclude that the trial court did not err in denying
appellant’s motion on this basis.
C. Due Process
“Procedural due process prevents the government from depriving an
individual of a protected liberty or property interest in an arbitrary manner.”
McNutt, 405 S.W.3d at 161 (citing Ex parte Montgomery, 894 S.W.2d 324, 327
(Tex. Crim. App. 1995)). A defendant asserting a due process violation “must
show an entitlement,” and the interest at issue must “amount to more than a
‘unilateral hope.’” Id. (quoting Montgomery, 894 S.W.2d at 327). In McNutt, we
cited federal cases that drew an analogy between plea bargain cases, asserting that
a defendant has no absolute right to enter into a plea bargain, and McNutt’s case, in
which she complained of being excluded from a pretrial diversion program, in
concluding that “there is no right or entitlement to enter into pretrial diversion.”
Id. We stated that because an appellant’s due process rights are not implicated by
being excluded from a pretrial diversion program, the trial court did not have
authority to dismiss the case on the basis of a due process violation. Id.; see also
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Muniga, 119 S.W.3d at 817 (stating that trial court errs by dismissing case without
prosecutor’s consent when there is no constitutional violation).
The same reasoning applies here. Appellant 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, appellant’s
due process rights were not implicated, and the trial court did not err in denying
her motion to dismiss on this basis. See McNutt, 405 S.W.3d at 161
We overrule appellant’s first three issues.
Discovery Ruling
In her fourth issue, appellant argues that the trial court erred in refusing her
discovery request for “the names and case numbers of other defendants . . . charged
with the same two offenses as defendant [and] that were granted pretrial
diversion.”
We review the trial court’s rulings on motions for pretrial discovery for an
abuse of discretion. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006); Shpikula v. State, 68 S.W.3d 212, 222 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d). Criminal defendants do not have a general right to discover
evidence before trial, but they have been granted limited discovery. See TEX.
CODE CRIM. PROC. ANN. art. 39.14 (Vernon Supp. 2013); Washington v. State, 856
S.W.2d 184, 187 (Tex. Crim. App. 1993); Scaggs v. State, 18 S.W.3d 277, 294–95
13
(Tex. App.—Austin 2000, pet. ref’d) (holding that defendant in criminal case does
not have general right to discovery of evidence in State’s possession).
Article 39.14 provides:
Upon motion of the defendant showing good cause therefor and upon
notice to the other parties . . . , the court in which an action is pending
shall order the State before or during trial of a criminal action therein
pending or on trial to produce and permit the inspection and copying
or photographing by or on behalf of the defendant of any designated
documents, papers, written statement of the defendant, (except written
statements of witnesses and except the work product of counsel in the
case and their investigators and their notes or report), books, accounts,
letters, photographs, objects or tangible things not privileged, which
constitute and contain evidence material to any matter involved in the
action and which are in the possession, custody or control of the State
or any of its agencies.
TEX. CODE CRIM. PROC. ANN. art. 39.14(a). To obtain discovery under article
39.14, a defendant must show good cause for discovery of the item, the item is
material to the defense, and the item is possessed by the State. See id.; In re
Watkins, 369 S.W.3d 702, 707 (Tex. App.—Dallas 2012, orig. proceeding). The
defendant has the burden of showing good cause for inspection, and the decision
on what is discoverable is left to the discretion of the trial court. McBride v. State,
838 S.W.2d 248, 250 (Tex. Crim. App. 1992); Bell v. State, 866 S.W.2d 284, 288
(Tex. App.—Houston [1st Dist.] 1993, no pet.).
Here, appellant has failed to demonstrate that the information she
requested—“the names and case numbers of other defendants . . . charged with the
same two offenses as defendant [and] that were granted pretrial diversion”—
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existed and was in the State’s possession. At the hearing on appellant’s motion for
discovery, the prosecutor stated that to provide the information sought by
appellant, the State would have to examine between four and five thousand files of
defendants who participated in the DIVERT program to determine which of those
cases involved defendants who had been charged with UCW or any other similar
weapons charge in conjunction with their DWI charge. The information sought by
appellant did not already exist in the State’s possession in the format requested by
appellant. See TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (providing that
defendant may discover, upon notice and showing of good cause, material
evidence that is in possession, custody, or control of State or its agencies).
Furthermore, even if the requested information already existed in the State’s
possession, appellant has failed to show that this information was material to her
defense in the DWI charge pending against her. See id.; McBride, 838 S.W.2d at
250. She asked that the State undertake the burdensome task of reviewing
thousands of cases in an attempt to raise a constitutional objection to the State’s
exercise of prosecutorial discretion regarding a pretrial diversion program.
Appellant does not argue that any of the information contained in the requested
discovery was potentially exculpatory or necessary to defending the DWI charge
pending against her. Thus, appellant has not shown that the trial court abused its
discretion in denying her discovery request.
15
We overrule appellant’s fourth issue.
Motion to Quash Subpoenas
In her fifth issue, appellant argues that the trial court erred in granting the
State’s motion to quash the subpoenas she served on prosecutors Munoz and
Bridgwater regarding her involvement with the DIVERT program.
While the Texas Constitution provides that criminal defendants have a right
to compulsory process for obtaining witnesses, that right is not absolute; rather, it
is subject to the trial court’s discretion. Ortegon v. State, 267 S.W.3d 537, 542
(Tex. App.—Amarillo 2008, pet. ref’d) (citing Drew v. State, 743 S.W.2d 207, 225
n.11 (Tex. Crim. App. 1987)); see TEX. CONST. art. I, § 10. A criminal defendant
is not entitled to subpoena district attorneys and county judges and question them
regarding the exercise of prosecutorial discretion. See Russeau v. State, 171
S.W.3d 871, 887 (Tex. Crim. App. 2005). Appellant argues that Bridgwater and
Munoz could “state exactly how those rules [regarding the effect of weapons
charges on eligibility for the DIVERT program] were used in this case and in the
case of others similarly situated. . . .” We have already held that HCDAO’s
decisions regarding when to allow defendants to participate in a pretrial diversion
program involve the exercise of prosecutorial discretion. Accordingly, the trial
court did not err in quashing appellant’s subpoenas served on Bridgwater and
Munoz. See id.
16
We overrule appellant’s fifth issue.
Conclusion
We affirm the judgments of the trial court in both causes.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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