The State of Texas v. Ismael Vela--Appeal from County Court of Starr County

No. 04-00-00318-CR

The STATE of Texas,

Appellant

v.

Ismael VELA,

Appellee

From the County Court, Starr County, Texas

Trial Court No. CR- 92-479

Honorable J.M. "Chuy" Alvarez, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 16, 2001

REVERSED AND REMANDED

The State of Texas appeals from the dismissal of the complaint and information with prejudice. Because the trial court did not have authority to dismiss, we reverse and remand.

Appellee, Ismael Vela, was charged by complaint and information with the offense of driving while intoxicated. When the case was called to trial, the State orally requested additional time to prepare, which the court denied. The court then dismissed the case for lack of prosecution, and this appeal by the State followed.

Unless requested by the State, a trial court may not dismiss a case, except when authorized by constitutional, statutory, or common law, see State v. Terrazas, 962 S.W.2d 38, 41 (Tex. Crim. App. 1998), such as when a defendant's Fifth Amendment right to a speedy trial has been violated, when a defendant's Sixth Amendment right to counsel has been violated, when there is a defect in the indictment, or when the indictment is unduly delayed. Id.; State v. Johnson, 821 S.W.2d 609, 612 n. 2 (Tex. Crim. App. 1991). None of the circumstances under which a trial court may dismiss a case are present here; therefore, the trial court abused its discretion when it dismissed the complaint and information.

We reverse the trial court's judgment and remand the cause for further proceedings.

Tom Rickhoff, Justice

DO NOT PUBLISH