Rolando G. Flores v. State of Texas--Appeal from County Court at Law No 4 of Bexar County

No. 04-00-00812-CR
Rolando G. FLORES,
Appellant
v.
The STATE of Texas,
Appellee
From County Court at Law No. 4, Bexar County, Texas
Trial Court No. 745119
Honorable Sarah Garraghan-Moulder, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: July 25, 2001

APPEAL DISMISSED

Memorandum Opinion

Appellant complains that the trial court abused its discretion in granting the State's motion to dismiss for insufficient evidence an information charging him with displaying a fraudulent insurance document. Appellant seeks a reversal of the dismissal claiming that the prosecutor gave the wrong reason for the dismissal because he, in fact, had no evidence, rather than insufficient evidence.

Some years ago, however, the court of criminal appeals ruled that substantial compliance was all that was needed for a voluntary dismissal:

The statute does not prescribe any particular reasons to be assigned; therefore he may assign any reason which the court may deem sufficient upon which to base his action in dismissing the case. It is our opinion that the statute is directory and not mandatory, because the directions given in the statute are not of the essence of the thing to be done, but are prescribed with a view of orderly conduct, the omission of which, or if done in some other manner, would not prejudice the rights of any party. It makes but little difference in what manner the required thing is done so long as the end is in fact accomplished. It is manifest from a reading of the statute that the district attorney could not dismiss a case without the permission of the court; but when the district attorney requests the dismissal of a case, stating his reasons therefor, whatever they may be, and the court in the exercise of his discretion deems them sufficient, and dismisses the case by an order spread upon the minutes of his court in which the reasons are incorporated, then it seems that the statute has been at least substantially complied with.

Ex parte Rusk,128 Tex. Crim.135, 79 S.W.2d 865, 866 (Tex. Crim. App.1935).

The State, in its response brief, challenges this court's jurisdiction to consider the appeal of an order of dismissal. See Petty v. State, 800 S.W.2d 582, 584 (Tex. App.-Tyler 1990, no pet.)(except for narrow exception of habeas corpus proceeding, order dismissing indictment is not order from which appellant can appeal). We see no distinction between the dismissal of an indictment and the dismissal of an information in this regard. Appellant filed no reply to this challenge, and we find no authority to the contrary. Accordingly, this appeal is dismissed for want of jurisdiction.

Alma L. L pez, Justice

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