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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-15-00183-CR

NO. 09-15-00184-CR

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THE STATE OF TEXAS, Appellant

V.

JAMES ANTHONY MESSINA, Appellee

__________________________________________________________________ 

On Appeal from the 9th District Court 

Montgomery County, Texas

Trial Cause No. 13-10-11417 CR (Counts 1 and 2) 

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MEMORANDUM OPINION 

The State appeals the trial court’s order that dismissed the two-count 

indictment against Messina after the prosecutor failed to appear for a scheduled 

punishment hearing. We reverse the trial court’s order dismissing the indictment 

and remand the cause for further proceedings consistent with this opinion. 

James Anthony Messina was indicted for two counts of online solicitation of 

a minor. See Tex. Penal Code Ann. § 33.021 (West 2011). The record reflects that 
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Messina signed an “Agreed Setting” form, which indicated that a plea hearing and 

sentencing hearing were scheduled for February 27, 2015. On May 1, 2015, the 

trial court called the case for a hearing and noted that Messina and his counsel 

were present, but the prosecutor failed to appear. Messina’s counsel objected “to 

any further lengthening of the prosecutor’s time to show up and try and prosecute 

this case” and moved for the charges against Messina to be dismissed. The trial 

court granted Messina’s motion to dismiss.

1 In its order, the trial court stated that 

Messina’s case was set for May 1, 2015, Messina was present with his counsel and 

announced ready, and the Montgomery County prosecutor “wholly failed to appear 

and failed to prosecute this case.” The trial court stated that the case was therefore 

dismissed with prejudice. 

In its sole issue, the State argues that the trial court lacked authority to 

dismiss the case due to the prosecutor’s failure to appear. In response, Messina 

contends the dismissal should be upheld because the statute under which he was 

charged is unconstitutional. Messina does not address the State’s argument that the 

trial court lacked authority to dismiss the charges due to the prosecutor’s failure to 

appear. 

The Court of Criminal Appeals has held that a trial court lacks the authority 

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The clerk’s record does not contain a written motion to dismiss.
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to dismiss a case when the prosecutor fails to appear when the case is called for 

trial. State v. Johnson, 821 S.W.2d 609, 613-14 (Tex. Crim. App. 1991). Courts of 

appeals have likewise held that a trial court lacks the authority to dismiss a 

criminal proceeding when the prosecutor announces “not ready” for trial and when 

the prosecutor fails to timely appear for trial. State v. Lewallen, 927 S.W.2d 737, 

739-40 (Tex. App.—Fort Worth 1996, no pet.); State v. Donihoo, 926 S.W.2d 314, 

315 (Tex. App.—Dallas 1994, no pet.). We conclude that the trial court lacked 

authority to dismiss the prosecution of Messina. See Johnson, 821 S.W.2d at 613-

14; Lewallen, 927 S.W.2d at 739-40; Donihoo, 926 S.W.2d at 315. 

As discussed above, Messina contends the trial court’s dismissal should be 

upheld because the statute under which he was charged is unconstitutional. 

Generally, constitutional challenges to a statute are forfeited by the failure to object 

at trial. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Curry v. 

State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995). A challenge that a statute 

is facially unconstitutional, as well as a challenge that a statute is unconstitutional 

as applied to the defendant, must be raised in the trial court to preserve error.

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Curry, 910 

S.W.2d 490, at 496 n.2 (Tex. Crim. App. 1995). The record does not reflect that 

Messina raised this argument in the trial court. We sustain the State’s issue. 
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Accordingly, we reverse the trial court’s order dismissing the indictment against 

Messina and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

________________________________

 STEVE McKEITHEN 

 Chief Justice

 

Submitted on September 1, 2015

Opinion Delivered October 28, 2015

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.