1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________

NO. 09
- 15
- 00183
- CR NO. 09
- 15
- 00184
- CR

____________________ 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)

__________________________________________________________________ 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 Mes sina was indicted for two counts of online solicitation of a minor. See Tex. Penal Code Ann. § 33.021 (West 2011). The record reflects that2 Messina sign ed an “Agreed Setting” form, which indicated that a plea hearing and sentencing hearing were scheduled f or February 27, 2015. On May 1, 2015, the trial court called the case for a hearing and noted that Messina and his couns el 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. T he 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

an nounced ready , and the Montgomery County prosecutor “wholly failed to appear and failed to prosecute this case.” The t rial court stated that the case was therefore dismissed with prejudice. In its sole issue, t he 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 St ate’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

1 The clerk’s record does not conta in a written motion to dismiss.3 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 proc eeding 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 199 4, 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 dis missal 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); Curr y 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.4 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.