AFFIRM as modified; Opinion issued October 30, 2012

In The 

## (!nurt uf pithi 

## Viftt! 1i!ttICt tit iXWi tit IZIftW No. 05-I2-00382-CR
THE STATE OF TEXAS, Appellant V. CRAIG MASON, Appellee
On Appeal from the County Criminal Court No. 6 Dallas County, Texas Trial Court Cause No. M09-261-39 

### OPINION Before Justices Morris, Francis, and Murphy Opinion By Justice Morris The trial court in this case denied the State’s first motion for continuance on the day Craig Mason’s trial for driving while intoxicated was setto begin. Afterthe trial court denied its motion forcontinuance, the State filed a motionto dismiss the case withoutprejudice. The trial court, over the States objection. dismissed 

### the case withprejudice. The State contends on appeal that the trial court had no authority to dismiss the prosecution with prejudice without the State’s consent. We modify the trial court’s order to delete the “with prejudice” language and affirm the order as modified. I. At the Iirst trial setting in appellee’s DWI case. the State filed a written motion forcontinuance. Ilie prosecutor explained that the State had subpoenaed the otheer who stopped appellee but the officer had not appeared that morning for trial. The State had also attempted to reach the oftcer through his police department, but the department had been unable to locate the officer. who was on patrol. The trial court denied the State’s motion br continuance, at which time the State filed a motion to dismiss the case without prejudice. At the conclusion ofthe hearing on the motion for continuance and the motion to dismiss, the trial judge made clear that she intended to dismiss the case with prejudice, noting that almost three years had passed from the time ofthe alleged offense to the time ofthe first trial setting. The trialjudge also mentioned apossible “time bar” in the case. The trialjudge asked where the “good faith” was in the State’s reflhing the case. The prosecutorresponded that the State still believed it could “make our case once we have the presence ofour officer.” At that point, the judge again decried the fact that almost three years had passed from the time ofthe alleged offense to the trial date. She stated that both the motion for continuance and the motion for dismissal had not been timely filed. She then stated that she thought appellee was entitled to a dismissal with prejudice. The dismissal order doesjustthat. The record contains no evidence ofa speedy trial motion being filed by appellee. in addition, the record reflects that appellee was released on bond, rather than incarcerated, from the time ofhis arrest to the time oftrial. 11. The State brings two issues challenging the trial court’s order. In its first issue, the State asserts thatit is permitted to appeal the trial court’s orderunderTexas Code ofCriminal Procedure article44.01 (a)(1). See TEx. CODE CRIrI. PRoc. ANN. art. 44.01 (a)(1) (West Supp. 2011). Appellee does not contest the State’s right to do so, and it is clear the order is appealable. See Id. We will therefore confine ouranalysisto the State’s second issue, whetherthe trial court erred in dismissingthe case with prejudice. The State 

### contends thatthe trial court not only committed reversible errorby dismissing the
case with prejudice withoutthe State’s consenthut also committed avoid actbecause the trial court lacked any legal authority to do so under the circumstances ofappellee’s case. A court may take a particularactiononly ifthataction is authorizedbyconstitutional provision, statute, orcommon law.
or ifthe powerrises from an inherent or impliedpower. Exparle Seidel, 39 S.W.3d 221, 223 (Tex. Crirn. App. 2001). Irialcourts have no general authority to dismiss a case without the prosecutor’s consent. See State v. Plantheck, 182 S.W.3d 365. 369 (Tex. Crim. App. 2005). And, ordinarily, a trial court may dismiss acase only ifthe prosecutor so requests. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). 1 lere, the State activelyopposed the trial coUrt’s 

### grantingthe dismissal withprejudice, andthetrial courtnevermade findings orstated its specific statutoryorconstitutional grounds for dismissing the cause with prejudice. We have found no authority permitting a trial court to dismiss a case with prejudice based
on the State’s alleged had faith or harassment ofthe defendant. See Stale v. harbor. No. 01-11- 00574-CR, 2012 WL 1355741, at *3 (Tex. App.—Houston [1St Dist.J Apr. 19. 2012, no pet.) (not yetreleased for publication). Moreover, neither the trialjudge nor appellee ever alleged the State engagedin acts demonstrating had faith orprosecutorial misconduct. 

### (‘fState v. Fiye, 897 S.W.2d 324, 331 (Tex. Crim. App. 1995) (upholding lowercourt’s decisionto affirmdismissal ofindictment without State’s consentbased on egregiousprosecutorial misconduct). To the extentthe trial court was acting in the interest of appellee’s right to a speedy trial, the record contains no evidence showing appellee moved for a speedy trial or complained ofa delay in the case. In fact, the record shows appelleewas notincarceratedashe awaitedtrial. Accordingly, thetrial courthadno authority to dismiss the case with prejudice based on a speedy trial ground. See Harbor. 2012 WI. 1355741,at *4_5: see a/so lFx. CoD[: C’RRl. PROC. ANN. art. 28061 (West 2006) (authorizing dismissal with prejudice when “amotion to set aside an indictment, information, orcomplaint for failure to provide
a speedy trial is sustained”). To the extent the court was acting to protect appellee’s due process rights proscribing oppressive delay, we again note that appellee never raised such a complaint and the due process clause applies to oppressive delays from the time ofthe alleged offense to the time the charging instrument is filed. Appellee was charged by information less than four months after the offense date. The recordfails to supportthe trial court’s actiononthis basis as well. See Harbor, 2012 WL 1355741, at *5 Further, the two-year statute oflimitations for misdemeanor-level DWI was tolled during the pendency ofthe charging instrument complained ofhere, so the trial court could not dismiss the case with prejudice based on its beliefthat any future charges would be barred by the statute oflimitations. See Ti/a v. Slate. 267 S.W.3d 3337 (Tex. Crim. App. 2008): see also TEx. CoDE CRIM. PRoc. ANN. art. 12.02 (West Supp. 2011). Althoughatrialcourtmaydismiss acharginginstrumenttoremedyaconstitutional violation. such adismissal is a“drastic measure only to be used inthe mostextraordinary circumstances.” See Man/ga, 119 S.W.3d at 817. Where the record fails to demonstrate a constitutional violation or where the appellee’s rights were violated but dismissal ofthe charging instrument is not necessary toneutralizethetaintofthe unconstitutional action, thetrial courtabuses its discretion indismissing the charging instrument withoutthe consent ofthe State. See id. inthis case, the trial courthadthe consent ofthe State to grant the State’s motion to dismiss but had no additional authority to do so with prejudice. The language in the order classifying the dismissal as “with prejudice” is not authorized by law and is therefore void. See Seidel, 39 S.W.3d at 225. Accordingly, weresolve the State’s second issue in its favor.We modify the trial court’s order to delete the phrase ‘with prejudice.” See State’ v. Pierce. 816 S.W.2d 824, 831 (Tex. App.—Austin 1)91. no pet.); see also State v, [ass, 846 S.W.2d 934, 936 (Tex. App.—Austin 1993. no pet.). We affirm the trial court’s order as modified.

JOSEYfI B MRRIS 

# ( JLSi1CE Publish TEX. R. App. P. 47 120382F.P05

## nitrt tif 

## 4Tra1 fiftIi itrict 01 

## ixai it 

## 1t1kt JUDGMENT TI IF STATE OF TEXAS. Appellant No. 05-12-003 82-CR CRAIG MASON. Appellee Appeal from the Count Criminal Court No. 6 ofDallas County, Texas. (Tr.Ct.No. M09- 261-39). Opinion delivered by Justice Morris. Justices Francis and Murphy participating.
Based on the Court’s opinion ofthis date, the trial court’s order dismissing the case against appellee is MODIFIED to DELETE the phrase “with prejudice.” As modi0ed, thejudgment is AFFIRMEI).
Judgment entered October 30. 2012.

JQsEPTT1ORR1S _—1JSTICE