The State of Texas v. Margot Vasquez

                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                         No. 07-23-00277-CR


                             THE STATE OF TEXAS, APPELLANT

                                                    V.

                                MARGOT VASQUEZ, APPELLEE

                         On Appeal from the County Court at Law No. 9
                                     Bexar County, Texas1
                 Trial Court No. CC703808, Honorable Gloria Saldana, Presiding

                                        December 20, 2023
                                 MEMORANDUM OPINION
                       Before PARKER and DOSS and YARBROUGH, JJ.


        Appellee, Margot Vasquez, was charged by information with assault.2 After the

trial court granted Appellee’s motion to dismiss the action, the State appealed. We

reverse and remand.



        1 This case was transferred to this Court from the Fourth Court of Appeals pursuant to the Supreme

Court’s docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. In the event of any conflict, we
apply the transferor’s case law. TEX. R. APP. P. 41.3.
        2 See TEX. PENAL CODE ANN. § 22.01(a)(1).
                                               BACKGROUND


         The information was filed on March 21, 2023, and set for trial. On June 5, the

parties appeared for the jury trial setting. Before trial, counsel for Appellee presented her

motion in limine. The motion sought, among other things, to exclude:


         all statements made by Shirley Barr3 to any individual as such statements
         are a violation of [Appellee’s] 6th amendment right to confrontation and
         [Appellee’s] 14th amendment right to Due Process. This includes any
         statements made on any recording: 911, body worn cam and dash cam as
         well as statements made to any officer, medical personell [sic] or lay
         witness.
The trial court granted Appellee’s motion in limine, saying, “so basically I am denying the

ability of anyone to come in in place of the complaining witness to – to say anything about

this.”


         The State asked if the police officers would be allowed to testify under the trial

court’s ruling. The trial court expressed a concern about hearsay and then stated:


         I just don’t see why we need to have somebody come in here and testify in
         favor of the complaining witness. She can do that herself, and if she is not
         willing to do it herself, then I don’t think you can do it – nobody else can do
         it because, I mean, she is not going to be asked questions by the defendant.
         I mean, basically it is taking away the right to confrontation, and that is a
         very important right. I mean, jury trials are really very strict.

         Appellee’s counsel subsequently made an oral motion to dismiss for lack of

evidence, arguing that the State could not prove its case without the complaining witness.

The State responded that it was still able to establish all the elements of the crime and


         3 Shirley Barr is the complaining witness in the case.   The parties informed the trial court that Barr
would not be testifying at trial. The State indicated its intent to present testimony from two police officers
who responded to the incident and from Barr’s thirteen-year-old child. The State also intended to introduce
a videotape and photographs.

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asked the trial court not to dismiss the case. The trial court stated, “[I]t is a waste of the

Court’s time, and I don’t want to do anything to undermine the Constitution.” After noting

that she had viewed the video evidence the State intended to introduce, the trial court

continued, “I have a lot of experience in court proceedings, and I feel like I can discern a

lot that the average person who is not even a lawyer would not be able to discern. So I

do not want to take a chance, and it is too bad if somebody’s disappointed. . . . And I’m

going to grant this dismissal.”


       After the hearing, Appellee filed a written motion to dismiss, which requested

dismissal of the action for the stated reason of “Missing Witness AND VIOLATION OF 6TH

Ammendment/Crawford [sic].” The trial court granted Appellee’s motion, dismissing the

cause with prejudice. No findings of fact or conclusions of law appear in the record.


                                         ANALYSIS


       In a single issue on appeal, the State argues that the trial court abused its

discretion by dismissing the cause without the State’s consent. We apply a bifurcated

standard when reviewing the dismissal of an indictment. State v. Krizan-Wilson, 

 (Tex. Crim. App. 2011). While we give “almost total deference to a trial

court’s findings of facts that are supported by the record, as well as mixed questions of

law and fact that rely upon the credibility of a witness,” we apply “a de novo standard of

review to pure questions of law and mixed questions that do not depend on credibility

determinations.” 

       “Generally speaking, a court’s authority to act is limited to those actions authorized

by constitution, statute, or common law.” State v. Johnson, 

 (Tex.

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Crim. App. 1991) (en banc). The Texas Constitution does not confer upon the trial court

the general ability to maintain its docket by causing or preventing the dismissal of

prosecutions. State v. Williams, 

 (Tex. Crim. App. 1997). Thus, a

trial court may not ordinarily act on its own to dismiss a prosecution. Johnson, 

 (“there is no general authority, written or unwritten, inherent or implied, which would

permit a trial court to dismiss a case without the prosecutor’s consent”); State v. Mungia,

 (Tex. Crim. App. 2003) (“It is well established that there is no

general authority that permits a trial court to dismiss a case without the prosecutor’s

consent.”).


       The few exceptions to this general rule include when a defendant was denied a

speedy trial, when the charging instrument is defective, when a defendant was detained

and no charging instrument was properly presented, and when a defendant was denied

his constitutional rights. Mungia, 

 (citing Johnson, 

n.2). Where there is no constitutional violation, or where a defendant’s rights were

violated but dismissal of the indictment is not necessary to neutralize the taint of an

unconstitutional action, the trial court abuses its discretion in dismissing the charging

instrument without the consent of the State. State v. Terrazas, 

 (Tex.

Crim. App. 1998) (en banc).


       Here, the trial court granted Appellee’s motion to dismiss without the State’s

consent based on a “missing witness” and an alleged violation of the Sixth Amendment

right to confrontation. Appellee relies on State v. Frye, 

 (Tex. Crim.

App. 1995) (en banc), as authority supporting the instant dismissal on Sixth Amendment

grounds.      However, Frye involved prosecutorial misconduct which violated the
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defendant’s Sixth Amendment right to counsel and harm that could not be remedied by

the suppression of evidence; it did not implicate the Confrontation Clause. 

.

The concerns presented in Frye are not present here.


       Appellee sought dismissal based on the hypothetical possibility of a Confrontation

Clause violation, a wholly theoretical complaint. Given that no trial occurred and no

testimony was presented, no actual violation occurred. Moreover, an accused is not

denied her right to confront and cross-examine a witness against her if the complaining

witness does not testify at trial. Chavez v. State, 

 (Tex. Crim. App.

1974). It is well-established that the State does not have to call any particular witness to

prove its case, and the “State has a right to prove its case in any way it may see fit under

proper rules and regulations, and a defendant cannot direct either the method or manner

of proof.” Shelvin v. State, 

 (Tex. App.—Austin 1994, pet. ref’d).


       We find no authority supporting the trial court’s dismissal of this case on the

circumstances presented here. Accordingly, we sustain the State’s sole issue.


                                       CONCLUSION


       We reverse the trial court’s order dismissing this cause and remand for

proceedings consistent with this opinion.


                                                        Judy C. Parker
                                                           Justice

Do not publish.




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