the State of Texas v. Juan Manuel Perez ( 2022 )

NUMBERS 13-21-00314-CR, 13-21-00315-CR,
13-21-00316-CR, 13-21-00317-CR & 13-21-00318-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
JUAN MANUEL PEREZ, Appellee.
On appeal from the County Court at Law No. 7
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Chief Justice Contreras
In five appellate cause numbers, appellant the State of Texas challenges the trial
court’s sua sponte order dismissing with prejudice five misdemeanor complaints charging
appellee Juan Manuel Perez with public intoxication and various drug possession
offenses. 1 See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (providing the State with the
right to appeal an order dismissing a charging instrument). We reverse and remand.
I. BACKGROUND
The State charged Perez with the five misdemeanor offenses which were allegedly
committed between December 2018 and January 2021. At a September 9, 2021 status
hearing concerning all five cases, Perez’s trial counsel presented the trial court with
Perez’s “motion for plea in absentia” seeking to proceed with the cases in Perez’s
absence, as Perez was then in federal custody awaiting trial in the federal system. The
trial court immediately denied Perez’s motion and set the cases for a bench trial on
September 27, 2021, to “give [the State] time to bring [Perez] down from federal custody.”
On September 27, the trial court called the cases for a bench trial. Perez’s trial
counsel announced ready for trial. The State announced it was not ready but informed
the trial court that it called to request a continuance a few days prior, had located Perez
in the federal system, had received permission from the District Attorney “to writ [Perez]
down from his custody,” and was in contact with the United States Marshals to “secure
[Perez]’s transfer.”
The trial court denied the State’s request for continuance, noting that “it ha[d] been
1 The five complaints were associated with five separate trial court cause numbers, each of which
is associated with a separate appellate cause number:
(1) appellate cause number 13-21-00314-CR, trial court cause number CR-20-02705-G;
(2) appellate cause number 13-21-00315-CR, trial court cause number CR-21-03442-G;
(3) appellate cause number 13-21-00316-CR, trial court cause number CR-21-01959-G;
(4) appellate cause number 13-21-00317-CR, trial court cause number CR-19-01840-G; and
(5) appellate cause number 13-21-00318-CR, trial court cause number CR-20-01008-G.
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[eighteen] days” since it ordered the State on September 9 to “bench warrant [Perez]
down.” The court then added that: (1) “the feds” were unlikely to transfer a prisoner for a
misdemeanor in general, let alone during the COVID pandemic; (2) it costs a lot of money
to transfer defendants from federal to state custody; (3) the local jails are overcrowded;
(4) judges are told to move their dockets, but it is difficult to do so when parties do not
use “common sense”; and (5) convicting and sentencing appellant on some state
misdemeanor charges will not “impact his life any more than the federal conviction [sic]
he already has.”
The court concluded:
I am going to deny the request for continuance. I am going to find that it has
been [eighteen] days that you had to file a writ. That in [eighteen] days the
State of Texas has failed to file even a writ of attachment for me to sign.
That the failure to request a writ be signed—after I ordered it [eighteen] days
ago—violates many constitutional principles as they relate to the
attachment of a defendant in a criminal case. They violate his right to the
effective assistance of counsel. They violate his right to due process and
due course of law. And they violate his right to confront and cross-examine.
So if you are not going to dismiss the cases—I understand that you don’t
have to—I am going to dismiss them because they violate all those
constitutional principles as they relate to the defendant’s rights and the
rights that he or any other criminal defendant has on those principles.
The trial court then asked the State: “Do you want to put anything on the record
before I go ahead and sign an order? I am not going to have another hearing. Do you
want to [m]oot [sic] to [d]ismiss? Do you want to object to the dismissal? Do you want to
put anything on the record?” The State replied, “Yes, judge,” and noted that: (1) it had a
preliminary plea agreement with Perez for “time served on two cases and [to] dismiss
three [cases] without [Perez] being present here,” but the trial court denied Perez’s motion
to proceed in his absence; (2) there was some confusion with the trial schedule; and (3) it
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was in the process of transferring Perez to State custody. The State concluded: “At this
time, the [c]ourt is objecting [to] the State’s continuance and going forward with the bench
trial. Judge, we didn’t accrue a witness in any of these cases. And so, the State rests.”
In response, the trial court noted that “there is nothing that says [the trial court] has
to accept [a motion to proceed in absentia].” The court then stated that even if there was
scheduling confusion, the State had one week to file “at least an order or a motion or
something for [the court] to sign to bring [Perez] down.” Finally, the following exchange
between the trial court and the State concluded the hearing:
Trial Court: Are you dismissing or am I dismissing? It doesn’t make
a difference to me. If you don’t move to dismiss, there
being no witnesses—and the State still didn’t
subpoena any of the local witnesses—I am dismissing
all five cases for all of those reasons.
Any objection to me dismissing those cases for the
reasons stated previously—included but not limited to
those reasons?
(No response)
Anything else from the State? Any reason I don’t have
the authority to dismiss [the five cases] for all reasons
that I stated?
The State: No objections[] from the State.
Trial Court: All right. Cases are dismissed.
The trial court’s written order dismissed the five cases against Perez with prejudice
“for all the reasons, including but not limited to those put on the record and as stated
herein.” The trial court found that: (1) the State failed to “demonstrate an effort or
desire . . . that [it] wanted to bring [Perez] to Hidalgo County, Texas for a bench trial”;
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(2) the State “did not issue any witness subpoenas for this bench trial”; and (3) although
the State “desired to prosecute [Perez], the State . . . failed to make the defendant
available for his in person bench trial.”
On September 30, 2021, the State filed its notice of appeal. Four days later, the
trial court amended its September 27 dismissal order to specifically note that “[t]he State
of Texas further stated that they did not have any objection to the dismissal of [Perez’s
five] cases.”
II. ERROR PRESERVATION
As a preliminary matter, Perez notes that the State did not object to the trial court’s
dismissal and stated it had no objections thereto. And the trial court amended its dismissal
order to explicitly highlight that the State informed the court it had “no objections” to the
court’s ruling. Perez argues that this Court should, therefore, hold that the State failed to
preserve error for review. See TEX. R. APP. P. 33.1.
Generally, to preserve error for appellate review, a party must present a timely
objection to the trial court, state the specific grounds for the objection, and obtain a ruling.
See id. But the State is not required to object to a dismissal of a complaint to appeal the
same. See State v. Garcia, 638 S.W.3d 679, 681 (Tex. Crim. App. 2022) (noting that
Article 44.01(a)(1) “focus[es] upon the effect of the trial court’s order rather than the
particular proceeding that leads to the trial court’s order”); State v. Lohse, 881 S.W.2d
171 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (“The State need not comply with [the
predecessor to Texas Rule of Appellate Procedure 33.1], which applies to evidentiary
rulings, to preserve its right to appeal a dismissal of an information.”); State v. Morales,
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804 S.W.2d 331, 333 (Tex. App.—Austin 1991, no pet.) (“We conclude that the State did
not[, by failing to object at trial,] waive its right to complain, on appeal, of the trial court’s
dismissal.”); State v. Garrett, 798 S.W.2d 311, 313 (Tex. App.—Houston [1st Dist.] 1990)
(“The basis of the State’s appeal under [A]rticle 44.01(a)(1) is the trial court’s order setting
aside the indictment . . . , not an objection by the State under [the predecessor to Rule
33.1].”), aff’d, 824 S.W.2d 181 (Tex. Crim. App. 1992).
Nevertheless, in arguing that the State failed to preserve error for review, Perez
directs us to our sister court’s decision in State v. Nueman, 631 S.W.3d 866 (Tex. App.—
San Antonio 2021, no pet.). In Nueman, the trial court, without notice or a hearing, sua
sponte dismissed a misdemeanor complaint for want of prosecution, and the State filed
its notice of appeal. Id. at 867. The court of appeals first noted that, in general, the rules
of error preservation apply equally to the State and defendant, and it then analyzed
whether the State was required to object to the trial court’s dismissal to preserve error for
review. Id. at 868. In doing so, it reviewed the “three distinct kinds” of error preservation
rules in criminal cases: (1) unwaivable and unforfeitable rights (category one); (2) rights
that “enjoy special protection because they are fundamental to the proper functioning of
the adjudicatory process and may be abandoned only if the record reflects that they have
been plainly, freely, and intelligently waived in the trial court” (category two); and (3) rights
that may be asserted at the litigant’s option and are forfeitable for failure to raise the
matter by an objection (category three). Id. at 869 (quoting Proenza v. State, 541 S.W.3d
786, 792 (Tex. Crim. App. 2017)).
The court first noted that a trial court has no authority to dismiss a case without a
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prosecutor’s consent. Id. (quoting State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim.
App. 1991)). The court next stated that “the State’s right to maintain a criminal prosecution
enjoys special protection because it is fundamental to the proper functioning of the
adjudicatory process.” Id. Accordingly, the court concluded that the trial court’s sua sponte
dismissal in that case “implicate[d] a category-two right.” Id. at 869. The court thus held
that “[w]hile the State may waive a complaint about such an improper dismissal by
consenting to dismissal,” under the facts of that case, because it did not waive its right,
the State did not need to object to the dismissal to raise its argument for the first time on
appeal. Id.
Assuming without deciding that the State’s right to maintain a criminal prosecution
is a category-two right subject to waiver by consent, the record in this case does not
reflect that the State “plainly, freely, and intelligently” waived its right to prosecute Perez.
See Proenza, 541 S.W.3d at 792; Nueman, 631 S.W.3d at 869. First, the State neither
filed a motion to dismiss nor requested one at trial. Instead, the State sought a
continuance and argued against the dismissals at trial by informing the trial court that it
was working to transfer Perez from federal to state custody. Second, immediately after
the State informed the court that it had yet to secure Perez’s transfer and requested a
continuance, the trial court denied the State’s request and warned the State that if it did
not dismiss the cases, then the trial court would. While the trial court then inquired whether
the State had any objections or wanted to put anything on the record, the trial transcript
reflects that any objection by the State would have been futile. Besides for the trial court’s
“dismiss or I will dismiss” statement, the trial court clearly and expressly indicated its intent
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to dismiss the cases, notwithstanding any objections, when it informed the State it was
“not going to have another hearing” on the matter. In fact, even after the State “rest[ed],”
the trial court dismissed the cases rather than ruling on Perez’s guilt or innocence.
Nevertheless, in response to the trial court’s inquiry, the State reiterated its desire
to prosecute Perez. It informed the court that it had worked to transfer Perez to state
custody, that it was in the process of securing a plea deal with him, and that there was
some trial schedule confusion. The trial court’s dismissal order even states that “the
State of Texas desired to prosecute [Perez].” The trial court replied that nothing required
it to accept a plea to proceed in Perez’s absence and that, even with scheduling
confusion, the State failed to file anything to secure Perez’s presence. The trial court then
repeated that if the State did not dismiss the cases then it would. The court concluded by
asking the State whether it had any objection to the dismissal of the cases. The record
reflects there was “[n]o response” to the court’s question. The court again prompted a
response from the State: “Anything else from the State? Any reason I don’t have the
authority to dismiss [the five cases] for all the reasons that [the court] stated?” It was only
then at the trial court’s urging that the State responded, “No objections[] from the State.”
Far from demonstrating the State’s plain, free, and intelligent waiver of its right to
prosecute Perez, the record in this case reflects the trial court’s decision to dismiss the
cases regardless of the State’s objections. Consequently, we conclude that the State did
not consent to the dismissal of the five cases against Perez, and that error is preserved
for our review. See TEX. R. APP. P. 33.1; Nueman, 631 S.W.3d at 869.
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III. DISMISSAL OF COMPLAINTS
By its sole issue on appeal, the State argues that the trial court erred by sua sponte
dismissing five misdemeanor complaints against Perez.
A. Applicable Law & Standard of Review
“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. Hill, 558 S.W.3d 280, 284 (Tex.
App.—Dallas 2018, no pet.) (citing State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim.
App. 2003)). “A trial court may dismiss a charging instrument to remedy a constitutional
violation, but such dismissal is ‘a drastic measure only to be used in the most
extraordinary circumstances.’” Id. (quoting Mungia, 119 S.W.3d at 817); see State v. Frye,
897 S.W.2d 324, 330 (Tex. Crim. App. 1995). We review a trial court’s dismissal of a
charging instrument for an abuse of discretion. State v. Terrazas, 962 S.W.2d 38, 42 (Tex.
Crim. App. 1998). “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
indictment without the consent of the State.” Hill, 558 S.W.3d at 284 (citing Mungia, 119
S.W.3d at 817).
B. Analysis
The trial court dismissed Perez’s five misdemeanor charges sua sponte, citing the
“violat[ion of] many constitutional principles as they relate to the attachment of a
defendant in a criminal case,” including Perez’s “right to the effective assistance of
counsel,” “right to due process and due course of law,” and “right to confront and cross-
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examine.” Specific details as to how those rights were purportedly violated are entirely
lacking. Indeed, Perez never requested the dismissal of his charges; rather, he was
negotiating a plea agreement with the State. Nonetheless, we address, to the extent
possible, the bases for dismissal cited by the trial court.
As to an ineffective assistance of counsel claim, both the Federal and Texas
Constitutions guarantee an accused the right to reasonably effective assistance of
counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see TEX. CODE CRIM. PROC.
ANN. art. 1.051; Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish
ineffective assistance of counsel, an appellant must show by a preponderance of the
evidence that: (1) trial counsel’s performance fell below an objective standard of
reasonableness; and (2) the deficient performance prejudiced the defense. Strickland,
466 U.S. at 686; Ex parte Garza, 620 S.W.3d 801, 808 (Tex. Crim. App. 2021). Failure to
satisfy either prong defeats an ineffective assistance claim. Strickland, 466 U.S. at 697;
Ex parte Garza, 620 S.W.3d at 808. Here, Perez never claimed that his trial counsel was
ineffective, and, in any event, we see nothing in the record evidencing deficient
performance. Perez’s counsel was present at the status hearing, presented the court with
Perez’s motion for plea in absentia, and announced ready at the September 27 bench
trial. Accordingly, the trial court could not have dismissed the complaints on a theory of
ineffective assistance of counsel. See Mungia, 119 S.W.3d at 817.
Next, the trial court did not specifically state how Perez’s rights to due process and
due course of law were allegedly violated in this case. To the extent the court sought “to
protect [Perez]’s due process rights proscribing oppressive delay, we . . . note that
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[Perez] never raised such a complaint and the due process clause applies to oppressive
delays from the time of the alleged offense to the time the charging instrument is filed.”
State v. Mason, 383 S.W.3d 314, 316 (Tex. App.—Dallas 2012, no pet.). Due process
requires dismissal of a complaint if a defendant shows that a pre-complaint delay caused
(1) substantial prejudice to the defendant’s rights to a fair trial and (2) that the delay was
an intentional device to gain tactical advantage over the accused. United States v. Marion,
404 U.S. 307, 322 (1971); State v. Krizan-Wilson, 354 S.W.3d 808, 814 (Tex. Crim. App.
2011). Here, in each case, (1) the State charged Perez by complaint between four days
and three and one-half months after the alleged offense date, (2) there is no evidence
that Perez was prejudiced by the delay in bringing charges, and (3) there is no evidence
that the State delayed charging Perez or that the purported delay was intentional. See
Krizan-Wilson, 354 S.W.3d at 814 (holding that a twenty-three-year period between the
offense date and the date the State charged appellee with murder did not violate
appellee’s due process rights); Mason, 383 S.W.3d at 316 (holding that a four-month
period between the offense date and the date the State charged appellee by information
did not violate appellee’s due process rights). Thus, the record fails to support the trial
court’s action on the basis of oppressive delay. See Mungia, 119 S.W.3d at 817.
To the extent the trial court dismissed the five cases on speedy trial grounds, Perez
never moved for a speedy trial or complained of a delay in this case. See Barker v. Wingo,
407 U.S. 514, 532 (1972) (“We emphasize that failure to assert the right [to speedy trial]
will make it difficult for a defendant to prove that he was denied a speedy trial.”); Neuman,
631 S.W.3d at 870 (reversing and remanding the trial court’s dismissal order as, “[t]o the
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extent the trial court’s order intended to specify [appellee]’s right to a speedy trial as a
basis for the dismissal, [appellee] never asserted his constitutional rights to a speedy trial
or sought dismissal on speedy trial or due process grounds” (citing State v. Munoz, 991
S.W.2d 818, 825 (Tex. Crim. App. 1999))); Mason, 383 S.W.3d at 316 (“[T]he record
contains no evidence showing appellee moved for a speedy trial or complained of a delay
in the case. In fact, the record shows appellee was not incarcerated as he awaited trial.
Accordingly, the trial court had no authority to dismiss the case with prejudice based on
a speedy trial ground.”). Moreover, the State and Perez were actively negotiating a plea
agreement, and Perez filed a motion for the cases to proceed in his absence. Accordingly,
the trial court could not have dismissed these cases on speedy trial grounds. See Mungia,
119 S.W.3d at 817; Mason, 383 S.W.3d at 316.
On appeal, the State focuses its arguments primarily on the trial court’s ruling that
Perez’s “right[s] to confront and cross-examine” were violated. The State contends that
those rights “are properly protected by trial and not by dismissal.” Further, the State
argues the trial court was without authority in this case to order a bench trial.
The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI; see Garcia v. State, 149 S.W.3d 135, 140 (Tex.
Crim. App. 2004). “One of the most basic of the rights guaranteed by the Confrontation
Clause is the accused’s right to be present in the courtroom during his trial.” Garcia, 149
S.W.3d at 140 (citing Illinois v. Allen, 397 U.S. 337, 338 (1970)). “The right of confrontation
includes not only the right to face-to-face confrontation, but also the right to meaningful
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and effective cross-examination.” Coronado v. State, 351 S.W.3d 315, 325 (Tex. Crim.
App. 2011) (cleaned up). “Indeed, it is that personal presence of the defendant and the
right to ask probing, adversarial cross-examination questions that lies at the core of an
American criminal trial’s truth-seeking function.” Id.; see Hughes v. State, No. 14-20-
00628-CR, 2022 WL 778980, at *3 (Tex. App.—Houston [14th Dist.] Mar. 15, 2022, pet.
granted).
The United States Constitution and the Texas Constitution also both guarantee the
right to a jury trial. Rios v. State, 626 S.W.3d 408, 413 (Tex. App.—Dallas 2021, pet.
granted) (first citing U.S. CONST. amend. VI; and then citing TEX. CONST. art. 1, § 15); see
also TEX. CODE CRIM. PROC. ANN. art. 1.12 (“The right of trial by jury shall remain
inviolate.”). A defendant, however, may waive his right to a jury trial. “As a matter of
federal constitutional law,” to proceed with a bench trial in such a situation, “the State
must establish, on the record, [the] defendant’s express, knowing, and intelligent waiver
of jury trial.” Rios, 626 S.W.3d at 413 (citing Hobbs v. State, 298 S.W.3d 193, 197 (Tex.
Crim. App. 2009)). “A defendant’s mere acquiescence in proceeding to trial without a jury
does not constitute an express waiver.” Id. (citing Ex parte Lyles, 891 S.W.2d 960, 962
(Tex. Crim. App. 1995)).
Texas law provides that in cases other than criminal prosecutions in which the
State seeks the death penalty, a defendant
shall have the right, upon entering a plea, to waive the right of trial by jury,
conditioned, however, that . . . the waiver must be made in person by the
defendant in writing in open court with the consent and approval of the court,
and the attorney representing the state. The consent and approval by the
court shall be entered of record on the minutes of the court, and the consent
and approval of the attorney representing the state shall be in writing,
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signed by that attorney, and filed in the papers of the cause before the
defendant enters the defendant’s plea.
TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (emphasis added).
Perez never waived his right to a jury trial, and the State never consented to a
bench trial. See id. The trial court thus erred by setting the cases for a bench trial. See In
re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim. App. 2021) (“The [trial court] simply
does not have the authority to conduct a bench trial when the State has not consented.”)
(orig. proceeding); State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex. Crim. App.
1992) (“We hold [the trial court] does not have the discretion to serve as a factfinder in
the trial of a misdemeanor case absent the consent and approval of the State as
prescribed by Art. 1.13(a) . . . to the accused’s waiver of jury trial”); State v. Allen, 953
S.W.2d 769, 771 (Tex. App.—Corpus Christi–Edinburg 1997, no pet.) (reversing the trial
court’s judgment and remanding for a jury trial “[b]ecause no waiver of jury trial was made
by appellee or approved by the prosecution, [thus,] the trial court was without authority to
conduct a ‘trial’ or sit as factfinder”). 2
Moreover, assuming, arguendo, that a bench trial was properly ordered and
Perez’s absence at the bench trial violated his confrontation and cross-examination rights,
the trial court had sufficient options to “neutralize the taint” of the purported constitutional
2 Perez argues on appeal that Article 1.13 “is specifically enumerated for when the accused is
planning on taking a plea, which is clearly not the case here, since the accused by his attorney, agreed to
a [b]ench [t]rial,” and so the trial court had the ability to order a bench trial without the State’s consent. See
TEX. R. CRIM. PROC. ANN. art. 1.13. We disagree for two reasons. First, Article 1.13 applies “upon entering
a plea.” See id. In misdemeanor cases, one can “enter a plea” of not guilty, guilty, or nolo contendere. See
id. arts. 27.14, 27.16. Perez evidently misconstrues the “enter a plea” language to mean “enter a plea
agreement with the State.” Second, Article 1.13 sets out the requirements for a defendant to waive a jury
trial—including a written waiver by the defendant made in person. See id. art. 1.13. Those requirements
were not met in this case, so Perez’s attorney was unable to waive Perez’s rights on his behalf. See id.14
violation, such that dismissal of the five complaints was improper. See Mungia, 119
S.W.3d at 817. Indeed, two options then before the court were to either proceed in Perez’s
absence—as Perez requested—or grant the State’s request for a continuance to allow
for Perez’s transfer to state custody. See id. Nothing in the record sufficiently explicates
why those options were not adequate or accepted. Accordingly, we cannot conclude that
the facts in this case created an “extraordinary circumstance” permitting the trial court to
dismiss the five cases against Perez without the State’s permission. See Mungia, 119
S.W.3d at 816; Frye, 897 S.W.2d at 330; Hill, 558 S.W.3d at 284. For the same reason,
we do not venture to determine whether any other theoretical constitutional violation has
occurred. See State v. Harbor, 425 S.W.3d 508, 516 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (“We do not need to determine whether any other constitutional violation
has occurred because, even if it has, we hold that it is not necessary to dismiss the charge
against appellee in order to neutralize the taint [of any purported constitutional
violation].”). 3
We thus sustain the State’s issue on appeal. On remand, the parties may properly
decide whether to try these cases by a jury or bench trial, or if Perez still desires to enter
a plea agreement. 4
3 Perez further argues that “the State violated [his] access to . . . his counsel.” He does so by citing
authority regarding the attachment of a defendant’s right to counsel in a criminal case. The record reflects
that Perez was represented by counsel in each cause and lacks an argument by Perez that he was
questioned in violation of his Sixth Amendment right to counsel. See U.S. CONST. amend. VI; TEX. R. APP.
P. 33.1.
4 The State also argues that, under Article 27.19 of the Texas Code of Criminal Procedure, the trial
court erred by failing to grant Perez’s motion for plea in absentia. See TEX. CODE CRIM. PROC. ANN. art.
27.19(a) (“Notwithstanding any other provision of this code, a court shall accept a plea of guilty or nolo
contendere from a defendant who is confined in a penal institution” if certain procedural safeguards are
met). The State appears to believe that Perez, by his motion, sought to enter a plea of guilty or nolo
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IV. CONCLUSION
We reverse the trial court’s order dismissing the five complaints in these cases and
remand the cases to the trial court for further proceedings consistent with this
memorandum opinion.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
25th day of August, 2022.
contendere in absentia, and it contends that Article 27.19’s “shall” language clearly shows the trial court
erred by not allowing him to do so. See id. However, citing Article 42.14, Perez’s motion requests only that
the cases proceed in his absence. See id. art. 42.14 (“In a misdemeanor case, the judgment and sentence
may be rendered in the absence of the defendant.”). The motion lacks any indication that Perez sought to
plead guilty or nolo contendere in absentia pursuant to Article 27.19. See id. art. 27.19. We overrule the
State’s Article 27.19 argument.
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