THE STATE OF TEXAS, Appellant v. WILLIAM E. KILPATRICK, Appellee

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Reverse and Remand;Opinion Filed November 15, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00485-CR
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THE STATE OF TEXAS, Appellant
V.
WILLIAM E. KILPATRICK, Appellee
.............................................................
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 21965
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        The State of Texas appeals the trial court's order dismissing William E. Kilpatrick's pending criminal case without prejudice. In a single issue, the State argues the court lacked authority to dismiss the indictment in this cause without the consent of the prosecutor. Because the dispositive issue is clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We reverse the trial court's dismissal order.
        Kilpatrick was arrested and charged with possession of less than one gram of methamphetamine in 2003. The case was set and re-set for trial many times throughout 2004, 2005, and early 2006. Finally, the case was set by agreement for March 27, 2006. The case was called on March 29, but the State's police witness was in training out of town, and the State chose not to proceed. Kilpatrick moved to dismiss. The trial court granted the motion, stating the dismissal “is based on this Court's general and inherent authority to dismiss an indictment without prejudice in the absence of the State's consent.” The State appeals, arguing that a trial court does not have the power to dismiss a criminal case, even without prejudice to refiling, without the State's consent.
        No general authority, written or unwritten, inherent or implied, permits a trial court to dismiss a criminal case without the prosecutor's consent. State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991); State v. Donihoo, 926 S.W.2d 314, 315 (Tex. App.-Dallas 1994, no pet.). Indeed, unless the State requests a dismissal, the trial court can dismiss only in limited circumstances, including the denial of a speedy trial, defects in the charging instrument, or when the State detains the defendant and does not properly present a charging instrument. See Johnson, 821 S.W.2d at 612 n.2. The rule is no different for a case dismissed without prejudice. State v. Plambeck, 182 S.W.3d 365, 369-70 (Tex. Crim. App. 2005). There is no exception applicable here authorizing the trial court to dismiss the case without the prosecutor's consent.
        Accordingly, we sustain the State's point of error and reverse the trial court's dismissal order. We remand this cause to the trial court for proceedings consistent with this opinion.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060485f.u05
 
 

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