MICHAEL DAVID LEDBETTER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 28, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00481-CR
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MICHAEL DAVID LEDBETTER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 2
Grayson County, Texas
Trial Court Cause No. 2006-2-417-CR
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OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice O'Neill
        Appellant Michael David Ledbetter appeals his conviction for failure to identify while a fugitive from justice. After appellant pleaded guilty, the trial court assessed punishment, pursuant to a plea bargain agreement, at ten days' confinement and a $500 fine. Appellant presents five issues. In his first issue, appellant complains of an illegal detention under the Fourth Amendment to the United States Constitution. In his remaining four issues, appellant generally contends the trial court erred in failing to dismiss the case against him with prejudice for charging delay, bad faith and harassment of the prosecution, and denial of his right to a speedy trial. For the following reasons, we affirm the trial court's judgment.
        Appellant was charged by information for failure to identify while a fugitive from justice. The offense was alleged to have occurred on June 6, 2005. Appellant was arrested at that time, and was later released on a $1500 cash bond. After about nine months with no charges being filed, appellant filed a “writ of habeus corpus” complaining of the State's retention of his cash bond while failing to either charge him or dismiss the prosecution.
        Article 32.01 provides:
 
        When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever is later.
 
Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon 2006). If a prosecution of a defendant is dismissed under article 32.01, the defendant may be rearrested for the same criminal conduct alleged in the dismissed prosecution only upon presentation of indictment or information. See Tex. Code Crim. Proc. Ann. art. 15.14 (Vernon 2005).
        On March 13, 2006, the Grayson County Court at Law No. 1, in response to the writ of habeas corpus, entered an “Order Discharging Bond on Unfiled Charge.” The dismissal was without prejudice. On March 28, 2006, the Grayson County District Attorney charged appellant by information. Appellant then filed a motion to dismiss seeking dismissal of the charges against him for violations of the “Fourth, Fifth, and Sixth” amendments to the United States Constitutions. The trial court denied appellant's motion to dismiss. Appellant then pleaded guilty pursuant to a plea bargain agreement and the trial court assessed punishment in accordance with the agreement. The trial court certified appellant's right to appeal the pretrial issues.         In his first issue, appellant contends the trial court erred in “finding” his Fourth Amendment rights were not violated. In his motion to dismiss, appellant complained his Fourth Amendment rights were violated by an illegal traffic stop. However, appellant did not seek suppression of any evidence from the stop, but sought only dismissal of the charges with prejudice pursuant to the trial court's “inherent power.” To support his contention that dismissal was appropriate, appellant asserts the trial court possesses “inherent power” to dismiss a case with prejudice to prevent injustice. Contrary to appellant's suggestion, a trial court has no such inherent power. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003); Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001); Johnson v. State, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991). The remedy for violation of Fourth Amendment rights is suppression of the wrongfully obtained evidence. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Appellant has not articulated how the drastic measure of dismissal was necessary to neutralize the taint of any alleged constitutional violation in this case. See Mungia, 119 S.W.3d at 817. Moreover, because appellant did not file a motion to suppress or obtain an evidentiary ruling thereon, the State was never given the opportunity to present evidence to justify the stop. We resolve the first issue against appellant.
        Appellant's second and fourth issues both concern complaints regarding the State's delay in filing the information. Appellant first asserts the delay in charging him violated article 32.01 of the code of criminal procedure and should have resulted in a dismissal with prejudice. Here, appellant sought and was granted relief under article 32.01, but the dismissal was without prejudice and he was subsequently formally charged by information. See Tex. Code Crim. Proc. Ann. art. 15.14 (Vernon 2005). Contrary to appellant's assertion, dismissals under article 32.01 are without prejudice and a defendant can later be charged by presentment of an indictment or information. Ex parte Seidel, 39 S.W.3d at 224.         Appellant also contends the State's delay in charging him violated his right to due process under the Fifth Amendment. For a delay in filing charges to amount to a Fifth Amendment due process violation, the delay must have been intentionally undertaken by the government for the purpose of gaining some tactical advantage over the accused or for some other impermissible bad faith purpose. State v. Horner, 936 S.W.2d 668, 672-73 (Tex. App.-Dallas 1996, pet. ref'd); United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996) (en banc). Here, there is no suggestion that any delay was deliberate.
        Appellant next asserts the delay amounted to a violation of his Sixth Amendment right to a speedy trial. Here, appellant complains of the nine-month charging delay and the nearly two year trial delay. In his motion to dismiss, however, appellant complained only of the nine-month charging delay. An appellate court reviewing a trial court's decision on a motion to dismiss for a speedy trial motion must do so in light of the arguments, information, and evidence the trial court had before it at the time it made its ruling. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). Thus, we consider only the nine-month delay between appellant's arrest and the filing of the information. According to appellant, he was prejudiced by this delay because he was deprived of his property for nine months, he suffered anxiety and his graduate school pursuits were being hampered due to the unresolved proceeding. However, appellant did not present any evidence at the hearing on the motion to dismiss or assert to the trial court how his right to a speedy trial under the Sixth Amendment was violated. Because appellant did not present any argument or evidence in support of his motion to dismiss, we conclude he has not established a speedy trial violation. See Hill v. State, 213 S.W.3d 533, 539 (Tex. App.-Texarkana 2007, no pet.). We resolve the second and fourth issues against appellant.
        In his third issue, appellant contends the charges against him should have been dismissed with prejudice because of prosecutorial misconduct. The only misconduct appellant complains of concerns the prosecutor's alleged phone call in which the prosecutor “taunted” him, called him “vulgarities,” and hung up on him. Appellant cites no authority for the proposition that a trial court can dismiss a case with prejudice for rude unprofessional behavior. Nor has appellant articulated how his defense was in any way prejudiced by any alleged misconduct. We resolve the third issue against appellant.
        In his fifth issue, appellant asserts article 32 A. 02 of the code of criminal procedure, known as the Speedy Trial Act, required the charges against him be dismissed with prejudice. The Speedy Trial Act required the State to be ready for trial within 180 days after the commencement of a felony criminal action or risk dismissal of the indictment with prejudice. See TEX.CODE CRIM. PROC. ANN. art. 32 A. 02, § 1(1) (Vernon 1989), repealed Act of May 29, 2005, 79th Leg., R.S., ch. 1019,§ 2, 2005 Tex. Gen. Laws 3464, 3464 (effective June 18, 2005). In Meshell v. State, the court of criminal appeals held the Speedy Trial Act was unconstitutional because it violated the separation of powers doctrine. See Meshell v. State, 739 S.W.2d 246, 257 (Tex. Crim. App. 1987). Appellant asserts Meshall was wrongly decided. We are bound by the opinions of the court of criminal appeals. We resolve the fifth issue against appellant.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
        
Do Not Publish
Tex. R. App. P. 47
070481F.U05