## NUMBERS 13

- 23 -00330-CR, 13-23-00331- CR

CO URT OF APPEALS

T HIRTEENTH DISTRICT OF TEXAS

CO RPUS CHRISTI

– EDINBURG

T HE STATE OF TEXAS

, Appellant,

v

.

S ANDRAVASQUEZ, Appellee.

ON APPEAL FROM THE 38TH DISTRICT COURT

OF UVALDE COUNTY, TEXAS



## OPINION

Be fore Justices Benavides, Tijerina, and Silva

Opinion by Justice Silva2 The State of Texas appeals the trial court ’s dismissal s with prejudice of its two indictments

against appellee, Sandra Vasquez

. 1 By one issue, the State contends that the trial court

lacked legal authority to dismiss either case. We affirm the dismissals in both causes

.

I. B ACKGROUND

On November 15, 2021, the State indicted Vasquez , a former elementary school

teacher, on two charges of bodily injury to a child . The indictments alleg ed that she “ hit [] ”

and “ slapp[ed] ” two students. Five months later, Vasquez filed a “ Motion to Enforce Non

Prosecution Agreement and Dismiss Indictment

, ” arguing she had previously come to an

agreement with the State : in exchange for surrender ing her teaching certificate

, the State

would not indict or following indictment, the State would dismiss. The State ’s failure to

dismiss the indictments , she argues, was a deprivation of her right to due process 2 and

ran afoul of contractual principles.

In support of her motion, Vasquez attached a Texas Department of Family and

Protective Services l etter ruling out allegations of physical abuse against the two

students ; her Texas Education Agency (TEA) certificate indicating she had voluntarily

surrendered her license ; and several email s exchanged by her and the Uvalde County

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio

pursuant to a docket

- equalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the

authority to transfer cases from one court of appeals to another at any time that there is “ good cause ” for

the transfer). Because this is a transfer case, we apply the precedent of the San Antonio Court of Appeals

to the extent it differs from our own. See T EX

. R. A PP

. P. 41.3.

2 Vasquez argued that she “ surrendered a valuable property right —h er teaching certificate

— in

reliance on the State ’s repeated promises not to prosecute her. ” See generally Goldberg v. Kelly

, 397 U.S.

254, 262 n.8 (1970) (observing the existence of non

- traditional property rights, including professional

licenses); Scally v. Tex. State Bd. of Med. Exam ’ rs

, 351 S.W.3d 434 (Tex. App.

—Austin 2011, pet. denied)

( recognizing that a professional license is a property right for purposes of the d ue p rocess c lause).3 District Attorney ’s Office (UCDAO)

, which we summarize below

.

On December 14, 2021, Vasquez ’s counsel contacted UCDAO D istrict A ttorney

Christina Busbee

, stating in relevant part:

[I]f you will recall, on [A] ugust 8th, you and I agreed in a telephone

conference that if Ms. Vasquez did not go back to teaching, that the above

cases regarding the student ’s allegations of assault would not “ be filed [.] ”

Now it appears that they have, even though Ms. Vasquez did not go back

to teaching and in fact has agreed to the revocation of her Teaching

Certificate [.]

Busbee responded that the case s were indicted after TEA informed her office that

Vasquez “ was fighting the permanent relinquishment of her teaching certificate ” in

contravention of their “ agreement. ”

Vasquez ’s counsel replied, disputing the characterization that Vasquez had been

“ fighting ” anything . Vasquez’s counsel explained that Vasquez was “ trying to ensure that

what she signed [from the TEA] could not be used as an admission against her in the

criminal case. ” Attached to the email was a signed document representing that Vasquez

had agreed to the temporar y revocation of her teaching certificate.

Busbee notified Vasquez ’s counsel that the attached document was insufficient

proof of Vasquez’s fulfillment of the agreement because the revocation was limited to

“ only a [two -] year suspension

, ” and the ir agreement was that Vasquez would “ need to

permanently surrender her teaching certificate. ”

In r esponse, Vasquez ’s counsel maintained that it was “a complete suspension ” of

Vasquez ’s teaching certification but acknowledged that under the terms of the attached

document

, Vasquez ’s certification could be reinstated following an application, panel

review, and testing.4 Two days later, a fter receiving no answer from Busbee, Vasquez ’s counsel sent

another email: “I would really like to get some resolution of this before Ms. Vasquez gets

arrested and booked. Can we get a phone conference today or in the morning please [?]

Ms. Vasquez has agreed to a complete and permanent revocation of her license. ”

On December 20, 2021, UCDAO Investigator Shayne Gilland responded to

Vasquez ’s counsel and provided him with the document that Vasquez needed to fill out

and return to the TEA to effectuate her license suspension. Vasquez signed and

submitted the form on the same day.

On January 4, 202 2

, in response to a follow

- up email from Vasquez inquiring on

the status of the dismissal s, Investigator Gilland stated:

I apologize for the confusion, and you are correct that the case [s] will be

dismissed as agreed. However, [Busbee] has requested for our Victims

Assistance Coordinator [(VAC)] to reach out once again to the victims to

ensure they are still fine with our agreement. They had previously indicated

they were fine with that agreement [;] however [,] we just want to confirm that

with them prior to the final dismissal and closing the case[s]

. Our VAC will

attempt to contact them today so we will let you know the outcome as soon

as possible [.]

At a hearing on Vasquez ’s motion, the above emails were admitted into evidence

without objection from the State. Vasquez reiterated her argu ment that the State had

breached their agreement pre - and post

- indictment and that she sought s pecific

performance

. The State

— while conceding discussions regarding non

- prosecution and

later, dismissal

, had occurred

— argued it was improper for the trial court to weigh in on

plea bargaining matters. The State also maintained it was within its authority to withdraw

its offer of dismissal irrespective of whether Vasquez had performed

, i.e., surrendered

her teaching certification

. Vasquez refuted the State ’s characterization of the agreement5 as a “ plea bargain agreement. ”

The trial court granted Vasquez ’s motion and thereafter issued an order which

included untitled findings of fact and conclusions of law. In relevant part, the trial court

found that there had been an agreement between the State and Vasquez, wherein the

State would not indict and/or dismiss the indictments against Vasquez if she permanently

surrender ed her teaching certification ; Vasquez accepted these terms and acted in

reliance of the agreement ; and following the State ’s breach of the agreement, Vasquez

has been irreparably harmed by the loss of her professional certification and livelihood

.

T his appeal followed.

II. D ISCUSSION

By a single issue, the State argues the trial court was without any authority to

dismiss the cases

.

A. Standard of Review and Applicable Law

“ An appellate court must uphold a trial court ruling that is reasonably supported by

the record and is correct under any theory of law applicable to the case. ” State v. White

,

306 S.W.3d 753, 757 n.10 (Tex. Crim. App. 2010) ; see State v. Hatter

, 665 S.W.3d 584,

586 (Tex. Crim. App. 2023). When reviewing a trial court ’s decision on a motion to

dismiss, we give almost total deference to the trial court ’s fact findings that are supported

by the record. See State v. Krizan

- Wilson

, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011);

State v. Fellows

, 471 S.W.3d 555, 561 (Tex. App.

— Corpus Christi

– Edinburg 2015, pet.

ref ’ d). For pure questions of law or mixed questions that do not depend on credibility6 determinations, our review is de novo. See Krizan

- Wilson

, 354 S.W.3d at 815; Fellows

,

471 S.W.3d at 561.

“ [T]he dismissal of an indictment is a drastic measure only to be used in the most

extraordinary circumstances. ” State v. Hill

, 499 S.W.3d 853, 872 n.69 (Tex. Crim. App.

2016). Generally, a trial court lacks authority to dismiss a case without the State ’s

consent. State v. Mungia

, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003) ; see also State v.

Garcia

, No. 13

- 21

- 00404

- CR, 2022 WL 3452413, at *3 (Tex. App.

— Corpus Christi

–

Edinburg Aug. 18, 2022, no pet.) (mem. op., not designated for publication). The Texas

Court of Criminal Appeals has acknowledged exceptions for dismissal without

prosecutorial consent, including “ when a defendant is denied a right to speedy trial, when

there is a defect in the charging instrument, when necessary to remedy certain Sixth

Amendment violations, or when a defendant is detained without a charging instrument in

violation of article 32.01 of the Texas Code of Criminal Procedure. ” State v. Villaloboz

,

658 S.W.3d 320, 326 (Tex. App.

— El Paso 2022, pet. ref ’ d); see Mungia

, 119 S.W.3d at

817 . T rial courts

, however, are not limited to these delineated exceptions. Mungia

, 119

S.W.3d at 816

– 17 (“ [A]s we explained in Frye and Terrazas, although a particular

constitutional violation has not yet been recognized as a basis for a trial court to dismiss

a charging instrument, this does not preclude a trial court from having authority to dismiss

on that ground. ” ); State v. Terrazas

, 962 S.W.2d 38, 41 (Tex. Crim. App. 1998) (observing

that “ [t]he list of authorized dismissal situations in Johnson

. . . was a list of examples

only ” ); State v. Johnson

, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991) (setting forth7 circumstances under which a trial court may dismiss a charging instrument without the

prosecutor ’s consent).

B. Analysis

Despite the State addressing the merits of Vasquez ’s motion and making several

arguments before the trial court, including that Vasquez failed to perform in accordance

with the agreement

, on appeal the State summarily argues that the trial court was without

authority to dismiss because “ [n] one of the exceptions to the general rule are applicable

herein. ” Although a trial court ’s ability to dismiss a case is limited , t he State is incorrect

that the trial court ’s ability is bound by the confines of the aforementioned listed

“ exceptions to the general rule

. ” S ee Mungia

, 119 S.W.3d at 816

.

Moreover, t hough it is unclear under what legal theory the trial court granted

Vasquez ’s motion, we recognize that Vasquez sought dismissals under at least two legal

theories : contractual and due process

. Courts have recognized that a dismissal with

prejudice may be granted on either. See generally Hatter

, 665 S.W.3d at 594

– 95

( reviewing a trial court ’s dismissal with prejudice, finding evidence of “ the beginning of a

plea bargain agreement ” between the State and Hatter, and remanding for the lower

appellate court to determine whether “ the trial court ’s decision granting Appellee ’s motion

for specific performance is correct under any other theory of law applicable to the case,

including but not limited to

. . . whether Appellee was entitled to specific performance ”);

Terrazas

, 962 S.W.2d at 42 (“If Appellee ’ s rights to due process and due course of law

were violated, and dismissal of the indictment was the appropriate means to neutralize

the taint of the constitutional violation, then the trial court did not abuse its discretion.”) ;8 see also Santobello v. New York

, 404 U.S. 257, 261

– 63 (1971) (discussing the

contractual principles that apply to plea agreements and concluding that, where the State

failed to perform its obligations under an agreement, the trial court had discretion to award

the defendant the relief it found most appropriate including, but not limited to, “specific

performance of the agreement”)

.

B ecause the State is incorrect as to the trial court ’ s limitat ions and does not

address the merits of the dismissals under either legal theory before the trial court

, we

conclude the trial court did not abuse its discretion in dismissing the indictments

. See

State v. Copeland , 501 S.W.3d 610, 613

– 14 (Tex. Crim. App. 2016) (holding the State

forfeited its challenge to the trial court’s ruling where the State did not address a theory

of law applicable to the case on appeal ); State v. Sandoval

, 842 S.W.2d 782, 785 (Tex.

App.

— Corpus Christi

– Edinburg 1992, pet. ref ’ d) (“ Therefore we hold that the

State

. . . must challenge every ground raised in the motion s [to dismiss a charging

instrument] to preserve its right to appellate review. ” ); State v. Francis

, No. 13

- 14

- 00356

-

CR, 2016 WL 462696, at *3 (Tex. App.

— Corpus Christi

– Edinburg Feb. 4, 2016, no pet.)

(mem. op., not designated for publication) (affirming the trial court ’s dismissal with

prejudice where State failed to challenge all of the trial court ’s findings). We overrule the

State ’s sole issue.9 III. C ONCLUSION

We a ffirm the trial court ’s order s of dismissal.

CLARISSA SILVA

Justice

P u blish.

T EX

. R. A PP

. P. 47.2 (b )

.

Delivered and filed on the

25th day of

J uly, 202 4.