STATE v. GABALDON (2025)

OPINION

Appellee was initially indicted for murder. After he sought dismissal on speedy trial grounds the State dismissed the murder charge and reindicted Appellee for capital murder with the intent to seek the death penalty. The trial court, after finding that the State's reindictment was unconstitutionally vindictive, dismissed the case with prejudice. The El Paso 8th Court of Appeals agreed and affirmed the trial court. The question before this Court is whether the trial court abused its discretion in doing so. We hold that the trial court did abuse its discretion and reform the trial court's order to remove the “with prejudice” language from its dismissal. In doing so, as urged by the State, we allow them to reindict Appellant but limited to the original charge of murder or any other lesser-included offense per its discretion.

BACKGROUND

On February 27, 2021, Appellee Ivan Gabaldon was detained by the El Paso Police Department in the course of a murder investigation following the discovery of the body of Juan Garcia Flores. (1 CR 209-10). According to the complaint affidavit which was filed the next day (February 28), Flores's body had been discovered in a small bathroom following a call to police for a welfare check in the morning hours of February 23, 2021. (1 CR 209-10). Police believed he had died on February 22 after suffering multiple stab wounds to his back and neck. The complaint affidavit identified Appellee as the alleged perpetrator of the stabbing and further alleged that the stabbing happened because of a disagreement while Appellee was receiving oral sex in exchange for money in Flores's truck.

In the complaint affidavit, Appellee claimed that Flores pulled a knife and threatened Appellee while stating a desire to perform other sexual acts on Appellee against Appellee's wishes. (1 CR 209-10). Appellee claimed that he then appropriated and drove Flores's truck away after he threw the knife out onto an unknown street. (1 CR 209-10). According to the affidavit allegations, Appellee then sold the stolen truck for $200, changed his clothes, and then fled to Juarez, Mexico. (1 CR 209-10). A warrant for Appellee's arrest was signed on the same day as the complaint affidavit and executed on the February 28th. (1 CR 208).

On March 5, 2021, Appellee, his counsel, and the State appeared before a magistrate for a bond hearing after his original bond was set for $1 million. (2 RR 1; 1 CR 212). There, Appellee requested that his bond be reduced to a more reasonable amount and be given a personal recognizance bond with strict reporting conditions. (2 RR 4-6). In support, Appellee's trial counsel represented that Appellee was a natural citizen who worked in downtown El Paso to support his pregnant wife and child living in Juarez, Mexico. Trial counsel also argued that the bond amount should be lowered because Appellee had a strong self-defense claim.

The State opposed bond reduction and stated the following:

Judge, we don't believe that the defendant is even a U.S. citizen, and I think that this claim that he was born in Chicago is false. We know that he is crossing the border on a very regular basis during the week using a false Social Security card.

(2 RR 6). The State further alleged that the birth certificate was fake and that Appellee had no real ties to the community. (2 RR 6-7). According to the State, Appellee was also a danger to the community because Appellee was arrested and was on bond for two pending fourth degree felony charges, Possession of Stolen Vehicles (1st Offense) and Non-residential Burglary, in New Mexico allegedly committed only 12 days prior to the alleged murder. (2 RR 6-7; 1 CR 42 (“Notice of Extraneous Offenses” alleging Appellee had pending felonies from Dona Ana County, New Mexico)). After the State highlighted Appellee's alleged efforts to hide evidence in the instant case and flee to Juarez, the magistrate denied Appellee's request and continued the bond at $1 million. (2 RR 9).

 First Indictment

On March 10, 2021, the Grand Jury returned an indictment against Appellee for a single count of Murder under trial court cause number 20210D00530 and assigned to the 210th District Court for El Paso. (1 CR 9). On March 17, Appellee filed a formal request for all discovery pursuant to Texas Code of Criminal Procedure Article 39.14. (1 CR 214).

On May 18, at the judge's conference, the court coordinator mentioned on the record that trial was set for November 5, 2021. (3 RR 4). Another status conference was held on August 19. (4 RR 1). There the State announced that it had no plea recommendations yet. Defense, in response, responded “I think we're just going to wait for our trial date ․” (4 RR 4).

On October 5, 2021, a month before trial, the trial court held a hearing on Appellee's motion to inspect the evidence. There, Appellee complained that the State still hadn't turned over required discovery including Appellee's own statements made to the police. (5 RR 4-16). In spite of the missing discovery, Appellee announced that he was ready for trial on November 5. Appellee's counsel also announced Appellee's opposition to any continuance or that Appellee be released under a personal recognizance bond. The State said that it was sending evidence to DPS labs for forensic testing and promised that the missing statement would be given to Appellee via their digital discovery portal. The trial judge, while noting the State's tardiness in this case and other serious cases, acknowledged that there was no jury panel available on November 5 due to COVID-19 protocols. (5 RR 10-14). The trial court then reset the trial to December 2, 2021 and announced another hearing in two days (October 7) to receive updates on the State's progress. (5 RR 15).

On October 7, the trial court reconvened to receive updates. After dealing with additional discovery matters including items of evidence recently submitted by the State for DNA testing, the trial court proclaimed that it would still go forward with trial on December 2 with two jury panels. (6 RR 14). The trial court also granted Appellee's motion for discovery and inspection of evidence and set October 19 as the date to reconvene. Nevertheless, Appellee's counsel once again, despite having complained about discovery issues, declared the defense ready for trial on December 2.

On November 15, 2021, the State filed a motion for a continuance of the December 2 trial date. In support, the State provided three reasons:

(1) The lead prosecutor, Curtis Cox, had jury duty set for December 3, 2021—the day after jury trial was to commence.

(2) DNA testing on 10 items submitted to DPS had not yet been completed.

(3) Three material witnesses, including one that may have had exculpatory information, could not be located.

(1 CR 264-65). Appellee's counsel responded with a motion objecting to the continuance and requesting a speedy trial dismissal. (1 CR 269). A hearing was held on November 16, to address these motions and a contemporaneous State's motion objecting to masked jurors during jury selection. During the hearing and in addition to the three arguments above, Curtis Cox, on behalf of the State, also claimed that he intended to take the case to be reindicted under the capital-murder statute and needed time to evaluate the case. (8 RR 16).

At the hearing, Appellee's trial counsel, in response, opposed the continuance and asserted that the State's need for a continuance was of its own making after failing to exercise due diligence in locating witnesses and testing evidence. Appellee's counsel once again announced its readiness for trial—even on a capital-murder reindictment—and declared it would be willing to waive its 10 days to prepare for it. (8 RR 17-22).

 Second Indictment and State's Motion to Seek the Death Penalty

On November 17, 2021, the State motioned the trial court to dismiss Appellee's murder charge without prejudice which the court granted. At the same time, the State reindicted the case under the capital-murder statute to be tried in the 210th District Court (Cause number 20210D02909). (1 CR 8). On November 18, the State renewed their November 15 request for a continuance in an amended motion. In their amended motion, the State added a fourth reason that the State needed time to evaluate whether to pursue the death penalty. Subsequently, “State's Notice of Intent to Seek the Death Penalty” was filed on November 22.

 Defense Motion to Dismiss on Prosecutorial Vindictiveness

On November 23, 2021, Appellee filed his “Motion to Dismiss Based on Prosecutorial Vindictiveness.” (1 CR 76). In the motion, Appellee claimed that the State elected to seek the death penalty as “retribution for [Appellee] asserting his speedy trial rights” and as a means of delaying the trial. (1 CR 78). In support, Appellee argued that the State's justifications for seeking the death penalty were contradicted by other contemporaneous actions such as offering a PR bond. Notably, Appellee alleged that they were implicitly threatened during the November 16 hearing where the following exchange happened on the record:

Defense: But, you know, we're in a situation where weeks before trial now we're – you know, now we're looking at a capital murder. And my thought is this is just a way to delay. We are ready and if they indict, Your Honor, we are willing to waive our ten days.

The Court: Okay. All right.

Defense: May I say –

Prosecutor: I do not think you can do that while we consider whether to seek the death penalty. However, I will seek the death penalty if that's what becomes necessary.

Defense: We'll still waive our ten days.

(8 RR 17).

The State countered in a written response that it had reindicted the case under the capital-murder statute because of the horrific aggravating facts of the case. The State alleged that Appellee had committed a murder motivated by hate in the course of committing a premeditated robbery. Per the State, the victim had been stabbed approximately 20 times while on his knees and had been targeted because of his sexual orientation. The State asserted that it was essentially correcting the misjudgment of prior prosecutors who undercharged the alleged offense. (1 CR 111). With regard to the State's proposal to release Appellee on a personal recognizance bond, the State asserted that while Appellee was a continuing danger to society, he had “the presence of mind necessary to conform his behavior while being watched by the criminal justice system.” (1 CR 113).

 Trial Court's Hearing on Vindictiveness

On November 29, the trial court held a hearing and heard arguments regarding a number of pretrial matters including Appellee's motion to dismiss. While both parties re-urged arguments from their written motion, the State also announced that it was now ready for trial on December 2. (10 RR 66). Nevertheless, at the end of the hearing, the trial court, in light of the late developments, delayed trial tentatively to January 14, 2022 on its own motion. (10 RR 105).

On December 14, 2021, the trial court orally informed the parties in a hearing that it was granting Appellee's motion to dismiss.

Trial Court: There are several points that the Defense has brought up or highlighted, but clearly I saw the proceedings transpire as they did. I simply find the State's reasoning and explanations for its decision to reindict and ultimately seek the death penalty as not credible.

I am therefore granting the Defense Motion to Dismiss for Prosecutorial Vindictiveness.

I am very concerned. I am very concerned and have been concerned for a while because of the lack of diligence that the State of Texas has, the manner in which they've been handling–you-all have been handling these cases. It is with no pleasure whatsoever that I am looking at this case and just feeling, in my years as a prosecutor and being in this courthouse, I certainly did not expect to be in a position to see the State of Texas literally disregard some of the most serious cases, to include this one, but as I know that there are others.

***

There are families of victims that are not being well served when cases within the DA's office can just be disregarded. And there are so many troubling things, I agree. I'm not going to reiterate. But I do feel that the Defense has provided sufficient evidence that the reindictment and the decision to seek the death penalty was an unjustifiable penalty resulting solely from [Appellee] exercising his right to go to trial.1

(11 RR 7-8). A written order dismissing the case with prejudice was entered that same day which the State appealed. (1 CR 173, 174-75).

At the Eighth Court of Appeals, the State argued that the dismissal was an abuse of the trial court's discretion and that the “with prejudice” portion was judicial overreach. The State asserted that there was no competent evidence to support the trial court's finding that the reindictment was motivated by prosecutorial vindictiveness. According to the State, Appellee's speedy trial right was not asserted until after the State notified them of their intent to reindict the case. The State further asserted that it had not yet received evidence concerning the robbery of the truck (necessary to invoke the capital-murder statute) until well after the original murder indictment as further justification for the late reindictment. Per the State, the receipt of the “new evidence” irrefutably rebutted any support for the trial court's factual findings. Thus, the State concluded that the trial court's findings were effectively unsupported and must be reviewed de novo. Alternatively, the State argued that dismissal with prejudice was unwarranted and that the State should be allowed to prosecute the case as a non-capital murder or another lesser-included offense.

The Eighth Court of Appeals, however, deferred to the trial judge's credibility findings and found evidence of actual vindictiveness on the part of the State. “The State reindicted [Appellee] for capital murder as punishment for his opposition to their requests for a continuance.” State v. Gabaldon, 661 S.W.3d 558, 568 (Tex. App.—El Paso 2023). Thus, the lower appellate court found no abuse of discretion from the trial court. And because the Eighth Court of Appeals opined that there was no other way to “neutralize the taint of the State's egregious conduct in this case,” they affirmed the dismissal of the indictment with prejudice. Id.

On discretionary review, the State continues its position that dismissing with prejudice is unwarranted even if there was a constitutional violation. Moreover, the State does not concede that prosecutorial vindictiveness was the reason for re-charging Appellee with capital murder and pursuing the death penalty.² The State contends the mere dismissal of the capital murder charge (but without prejudice) would have cured any perceived taint of unconstitutionality. Thus, the State argues that the trial court unnecessarily invaded the exclusive province of the State's prosecutorial discretion in forcing a dismissal with prejudice. And in doing so, the State urges this Court to allow the reindictment of Gabaldon but limited to the offense of murder or any other lesser-included offense.

APPLICABLE LAW

“[T]here 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. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991); see also State v. Dinur, 383 S.W.3d 695, 699 (Tex. Crim. App. 2012). This includes dismissals without prejudice and dismissals with prejudice. Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001); State v. Plambeck, 182 S.W.3d 365 368 (Tex. Crim. App. 2005). Even under its inherent judicial authority, trial courts lack this power because “dismissal of a case does not serve to ‘enable our courts to effectively perform their judicial functions and to protect their dignity, independence, and integrity.’ ” Johnson, 821 S.W.2d at 613 (quoting Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979)).

A trial court only gains the authority to dismiss (over the State's opposition) when it is “authorized by constitution, statute, or common law.” State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). Our case law recognizes a trial court's authority to dismiss a case without the prosecutor's consent in the following situations:

(1) where a defendant has been denied a right to a speedy trial;

(2) where there is a defect in the charging instrument;

(3) where a defendant is detained and no charging instrument is presented (in violation of Texas Code of Criminal Procedure Article 32.01); and

(4) to remedy certain Sixth Amendment violations to the right to counsel—where the “defendant suffers demonstrable prejudice, or a substantial threat thereof, and where the trial court is unable to identify and neutralize the taint by other means.”

Dinur, 383 S.W.3d at 700; Johnson, 821 S.W.2d at 612; State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995). Moreover, “other constitutional violations not yet identified may also support a trial court's dismissal of a case.” Dinur, 383 S.W.3d at 700.

Nevertheless, dismissing a case, especially with prejudice, is “a drastic measure only to be used in the most extraordinary circumstances.” Mungia, 119 S.W.3d at 817 (quoting Frye, 897 S.W.2d at 330). Generally, the scope of a judicial remedy should be narrowly tailored to cure the harmful conduct without “unnecessarily infringing on competing interest.” United States v. Morrison, 449 U.S. 361, 364, 365 (1981). Dismissal with prejudice is only warranted when there is no other means to nullify the violative act. See id. at 365-66. “Therefore, where there is no constitutional violation, or [defendant's] rights were violated but dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing the charging instrument without the consent of the State.” Dinur, 383 S.W.3d at 700 (citing State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 2003)).

To answer whether the trial court's dismissal with prejudice was an abuse of discretion, we first look to see if there is evidence supporting prosecutorial vindictiveness in the record. There was. Both the trial court and the court of appeals agree the State's actions were vindictive, and the record supports that finding. As a result, we must next answer the question of whether the finality of dismissing with prejudice was necessary to “neutralize the taint” of the State misconduct. In this case, Appellee alleges that he was vindictively reindicted for capital murder where the State pursued the death penalty because Appellee asserted his right to a speedy trial. Thus, based on the above facts and assumptions, “neutralizing the taint” requires the Court to question what would have happened to the State's case had the alleged misconduct never happened. If a neutralized condition can be achieved with reasonable ease, then this Court should take such steps to achieve it. However, if it is impossible to remove the poison from the State's case, only then does this Court have the authority of employing the “drastic remedy” of dismissing with prejudice.

The “decision whether or not to prosecute, and what charges to file” generally rests in the discretion of the prosecutor “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Thus, “[a]n initial indictment—from which the prosecutor embarks on a course of plea negotiation—does not necessarily define the extent of the legitimate interest in prosecution.” United States v. Goodwin, 457 U.S. 368, 380 (1982).

Nevertheless, the Due Process Clause is violated when criminal charges are brought in retaliation for the defendant's exercise of his legal rights. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004).

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional.

Bordenkircher, 434 U.S. at 363.

On appellate review, we “afford almost total deference to a trial court's determination of the historical facts that the record supports.”³ Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We similarly afford the same deference to “trial court rulings on application of law to fact questions” if the resolution turns on evaluations of credibility and demeanor. Id. However, we review de novo “mixed questions of law and fact” not depending on such evaluations of credibility and demeanor. Id.

 Speedy Trial

The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ․” The constitutional guarantee is that “the Government will move with the dispatch that is appropriate to assure him [the accused] an early and proper disposition of the charges against him. ‘[T]he essential ingredient is orderly expedition and not mere speed.’ ” United States. v. Marion, 404 U.S. 307, 313 (1971) (quoting Smith v. United States, 360 U.S. 1, 10 (1959)). “The constitutional right is that of a speedy trial, not a dismissal of the charges.” Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008) (describing dismissal of the charges on speedy trial grounds as a “radical remedy”); United States v. Loud Hawk, 474 U.S. 302, 314 (1986) (“unsatisfactorily severe remedy of dismissal”). “It does not preclude the rights of public justice.” Beavers v. Haubert, 198 U.S. 77, 87 (1905).

Per its own text, “the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to persons who have been ‘accused’ in the course of that prosecution.” Marion, 404 U.S. at 313. Therefore, “the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused.” United States v. MacDonald, 456 U.S. 1, 6 (1982) (citing Marion, 404 U.S. at 313). “Thus, a person who has not yet been formally charged cannot seek protection from the Speedy Trial Clause, and the State is not required ‘to discover, investigate, and accuse a person within any particular period of time.’ ”⁴ Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014) (citing Marion, 404 U.S. at 313, 320) (“Rather, ‘any delay between commission of the crime and indictment is controlled by the applicable statute of limitations.’ ”).

“Dismissal of the charging instrument with prejudice is mandated only upon a finding that an accused's Sixth Amendment speedy-trial right was actually violated.” Cantu, 253 S.W.3d at 281 (emphasis added). “This is a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried.” Barker v. Wingo, 407 U.S. 514, 522 (1972). The trial court “must use a balancing test in which the conduct of the State and the defendant are weighed” in order to analyze such claims. Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003) (citing Barker, 407 U.S. at 530). Each case must be analyzed “with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed.” Cantu, 253 S.W.3d at 281 (emphasis added) (citing Barker, 407 U.S. at 534–35) (rejecting defendant's claim that his speedy-trial right was violated despite a five-year delay where the record strongly indicated that the defendant did not actually want a speedy trial). These factors, as defined under Barker, include:

(1) the length of the delay;

(2) the reason for the delay;

(3) the defendant's assertion of his speedy trial right; and

(4) the prejudice to the defendant resulting from the delay.5

Barker, 407 U.S. at 530; Shaw v. State, 117 S.W.3d 883, 888–89. “No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial.” Shaw, 117 S.W.3d at 889. “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533. This is because a dismissal resulting from “a wooden application of the Barker factors would infringe upon ‘the societal interest in trying people accused of crime.’ ” Cantu, 253 S.W.3d at 281.

 Length of Delay

The length of delay, also called a “double inquiry,” is the prima facie “triggering mechanism” that begins the Barker analysis. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. Presumptive prejudice “simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Munoz, 991 S.W.2d at 822 (quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)). “[A]n accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay ․” Doggett, 505 U.S. at 651. If the defendant makes this showing, the trial court must consider among other factors, “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Id. Although every case should be examined under an ad hoc basis, “[i]n general, delay approaching one year is sufficient to trigger a speedy trial inquiry.” Doggett, 505 U.S. at 652 n.1; Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003); Shaw, 117 S.W.3d at 889.⁶

 Reason for Delay

“In assessing the reasons for delay, a court must accord different weights to different reasons, and it must ask ‘whether the government or the criminal defendant is more to blame for the delay.’ ” Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017) (emphasis added) (quoting Doggett, 505 U.S. at 651–52). Deliberate attempts to delay trial to hamper the defense should be weighed against the government heavily. Barker, 407 U.S. at 531; Munoz, 991 S.W.2d at 822. “A more neutral reason such as negligence or overcrowded courts should be weighted less heavily.” Id. “[A] valid reason, such as a missing witness, should serve to justify appropriate delay” and not be weighed against the government at all.⁷ Id. “Delay caused by the defense weighs against the defendant.”⁸ Hopper, 520 S.W.3d at 924. Furthermore, “delay which is attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim.” Munoz, 991 S.W.2d at 822 (citing Barker, 407 U.S. at 529 (stating “delay attributable to the defendant” can waive speedy trial claims under the standard waiver doctrine)). This is especially the case in light of “the reality that defendants may have incentives to employ delay as a ‘defense tactic’: delay may ‘work to the accused's advantage’ because ‘witnesses may become unavailable or their memories may fade’ over time.” Vermont v. Brillon, 556 U.S. 81, 90 (2009).

 Defendant's Assertion of his Speedy Trial Right

“Whether and how a defendant asserts his right is closely related to the other factors ․ The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences.” Barker, 407 U.S. at 531. Although a defendant's failure to assert his speedy trial right does not amount to a waiver of that right, failure to assert the right ․ makes it difficult for a defendant to prove he was denied a speedy trial.” Dragoo, 96 S.W.3d at 314. Moreover, “the longer the delay becomes, the more likely a defendant who wished a speedy trial would be to take some action to obtain it.” Id. Therefore, “[t]his factor is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right to a speedy trial.” Gonzales v. State, 435 S.W.3d 801, 810–11 (Tex. Crim. App. 2014). “This is so because a defendant's failure to make a timely demand for a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not having one.” Shaw v. State, 117 S.W.3d 883, 890 (2003). Furthermore, “[f]iling for dismissal instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a speedy one. If a defendant fails to first seek a speedy trial before seeking dismissal of the charges, he should provide cogent reasons for this failure.” Cantu, 253 S.W.3d at 283; see Barker, 407 U.S. at 534–35 (finding that the defendant right to a speedy trial was not prejudiced despite a five-year delay by the State because defendant's actions—including a motion to dismiss the indictment—showed that he did not want trial at all).

 Prejudice to the Defendant

In assessing whether there is prejudice to the defendant, the trial court must do so “in light of the interests of defendants which the speedy trial was designed to protect:”

(1) to prevent oppressive pretrial incarceration;

(2) to minimize the accused's anxiety and concern; and

(3) to limit the possibility that the accused's defense will be impaired.

Dragoo, 96 S.W.3d at 315 (citing Barker, 407 U.S. at 532). “[W]ith respect to the third interest, relating to the defendant's ability to defend himself, affirmative proof of prejudice is not essential to every speedy trial claim, because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify.” Shaw, 117 S.W.3d at 890 (citing Doggett, 505 U.S. at 655). Nevertheless, the Supreme Court has recognized that “delay is a two-edged sword․ The passage of time may make it difficult or impossible for the Government to carry this burden [of proving its case beyond a reasonable doubt].” Loud Hawk, 474 U.S. at 315. Thus, “this presumption of prejudice to the defendant's ability to defend himself is ‘extenuated ․ by the defendant's acquiescence’ in the delay.” Dragoo, 96 S.W.3d at 315; Shaw, 117 S.W.3d at 890 (both citing Doggett, 505 U.S. at 655).

“[I]n the absence of ‘excessive’ bad-faith or ‘excessive’ negligent delay by the government, a defendant usually has to show ‘specific prejudice’ to his defense.” Munoz, 994 S.W.2d at 829 (citing Doggett, 505 U.S. at 655–57). “Although a showing of ‘actual prejudice’ is not required in Texas, the burden is on the accused to make some showing of prejudice which was the caused by the delay of his trial.” Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex. Crim. App. 1971)). A finding of prejudice requires a showing that “lapses of memory” in witnesses “are in some way ‘significant to the outcome’ of the case.” Munoz, 994 S.W.2d at 829 (quoting Barker, 407 U.S. at 534). A “bare assertion of ‘dimming memories’ ” is insufficient. Id. To show prejudice via emotional distress, the Defendant is required to show “any anxiety or concern beyond the level normally associated with being charged” with the specific offense in question. Shaw, 117 S.W.3d at 890. In the case of missing witnesses, “the Appellee must show that the witnesses are unavailable, their testimony might be material and relevant to his case, and that he has exercised due diligence in his attempt to find them and produce them for trial. Harris, 489 S.W.2d at 308.

ANALYSIS

Here, we first note that the trial judge factually found the State prosecutor's justifications for the alleged retaliatory reindictment and pursuit of the death penalty as not credible. The record, to which the trial judge had first-hand knowledge, supports the trial judge's finding. For instance, the record documents late discovery disclosures by the State to which Appellee's attorney made repeated requests and complaints. The State also admitted to the trial judge that a prior prosecutor from among a string of prosecutors assigned to the case had, “for at least ․ six months, effectively did nothing.” (8 RR 7). Another notable statement, moreover, was where the lead State prosecutor simultaneously maintained that Appellee should be allowed to be placed on a personal recognizance bond while pursuing the death penalty for an extremely violent murder.

But perhaps most prominent is the timing of the State's reindictment conveniently right after Appellee asked the trial court for a speedy trial dismissal. The State asserted that reindictment was not sought to avoid a potential speedy trial dismissal. Instead, reindictment was justified only after the State discovered evidence of the aggravating robbery of Flores's truck and that the murder victim was a homosexual man. This eleventh-hour “discovery of new evidence” happened mere weeks before the December 2021 trial date and, per the State, gave rise to a possible hate crime. However, these claims are completely inconsistent with the complaint affidavit filed roughly nine months earlier. (1 CR 209-10). As noted above, the complaint affidavit attested that there was probable cause to believe that Appellee engaged in a homosexual act with Flores, stabbed him to death multiple times, and then stole his truck. The trial judge was not outside the zone of reasonableness in disbelieving that the State only became aware of these inculpatory details nine months after the State began its prosecution for murder. The trial judge also based this conclusion on her awareness of the State's mishandling of other cases in her court.

Thus, the trial judge's credibility finding is supported by evidence of actual vindictiveness in the record. And because Appellee has shown evidence showing actual vindictiveness, we conclude that the State, at least in part, retaliated against Appellee for exercising a legal right.

Next, we examine whether the trial court's authority to “neutralize the taint” necessitated dismissal with prejudice. To do so, we begin by looking at Appellee's assertion of his right to a speedy trial. We look to see if Appellee's speedy trial right was actually violated. If it was, then dismissal of the case with prejudice would have been the natural untainted result—and the trial court had the authority to effectuate that result. Cantu, 253 S.W.3d at 281. However, if Appellee's speedy trial right was not actually violated, then dismissal with prejudice would have been an abuse of discretion.

Here, we note that Appellee was publicly accused of Flores's murder on February 2, 2021. At the time of the State's misconduct, Appellee's trial was set for December 2, 2021. Thus, only around nine months would have passed had the case gone to trial. It is arguable that this amount of time is insufficient in a murder prosecution to trigger a Barker analysis. Doggett, 505 U.S. at 652 n.1 (stating that although cases are evaluated on an ad hoc basis, delays “approaching one year” may be sufficient to trigger Barker analysis). We note that there are a number of cases involving serious offenses that survived Barker analysis despite a delay measuring in years. Nevertheless, assuming arguendo that this time span is presumptively prejudicial enough to trigger Barker, there has been de minimus delay. We note that “the extent to which the delay stretches beyond the bare minimum needed” is near-zero. Doggett, 505 U.S. at 651. Thus, the length of the delay factor lends no weight in favor of Appellee.

The reasons for delay, likewise, offer little-to-no weight in support of a speedy trial dismissal. Although the State sought continuances multiple times, the trial court never granted them. In other words, although they likely lacked diligence in pursuing the prosecution, the State never caused any delay. The only continuance ever issued by the trial court was when it reset the trial date of November 5 to December 2 because a jury panel was not available amidst the COVID-19 pandemic. Accordingly, in asking the question “whether the government or the criminal defendant is more to blame for the delay,” we find the State blameless. Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017) (quoting Doggett, 505 U.S. at 651–52).

The third Barker factor, however, weighs against Appellee, though not heavily. We first note that Appellee, through counsel, timely asserted his right to a speedy trial. In a hearing on October 5, 2021, Appellee attorney, while complaining of missing discovery, orally announced that he was ready for trial and asked that any anticipated State requests for continuances be denied. (5 RR 8-9). Appellee's attorney maintained his oral demand for a speedy trial to take place on December 2 in subsequent hearings over the next month until November 15, 2021. (6 RR 21; 7 RR 7).

In response to the State's written motion for a continuance and roughly two weeks before the December 2 trial date, Appellee filed a written motion to dismiss with prejudice claiming a violation of his speedy trial right. (1 CR 269-71). And as noted earlier, “[f]iling for dismissal instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a speedy one.” Cantu, 253 S.W.3d at 283. Thus, when Appellee filed for a dismissal instead of a speedy trial prior to the trial date he initially demanded, he contradicted his own demands for a speedy trial on December 2. He revealed a conflicting desire to avoid trial altogether.

Neither do the facts under the fourth Barker factor lean in Appellee's favor. We initially note that because we are assuming that the length of delay is barely past the point of triggering Barker analysis, Appellee must show more acute or egregious prejudice (created by the delay) than if the delay had been longer. See Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex. Crim. App. 1971)). In his motion to dismiss, Appellee claimed that he was suffering from oppressive pretrial incarceration because had been in prison since his February arrest. (1 CR 270). He additionally claimed that this had caused him “much anxiety and concern regarding the outcome of the trial.” (1 CR 270). At a hearing dealing with Appellee's speedy trial motion and several other motions, Appellee's trial counsel also represented that the incarceration was causing economic hardship to Appellee's family in Mexico.⁹ (8 RR 13). Neither his written motion nor his claim of economic hardship, however, offer “any anxiety or concern beyond the level normally associated with being charged” with murder. Shaw v. State, 117 S.W.3d 883, 890 (2003).

Furthermore, the record provides items, though not fully developed in the record, that undercut Appellee's claims of prejudice. We initially note that when Appellee was initially arrested, he had documented pending felony charges in New Mexico for which he was out on bail when the alleged murder of Flores occurred. (2 RR 6-7; 1 CR 42). The State also asserted in a “Notice of International Criminal Record” that Appellee had approximately six pending criminal cases in Chihuahua, Mexico ranging from dealing cocaine to assaultive offenses. (1 CR 170). Additionally, the State asserted at Appellee's initial bond hearing that Appellee was a flight risk because he had entered the United States illegally utilizing fraudulent documents.¹⁰ (2 RR 6-7). Nevertheless, even with Appellee's contemporaneous criminal cases kept out of the analysis, Appellee fails to show an acute prejudice beyond the stresses normally associated with being prosecuted for murder—especially in light of the fact that the length of delay was minimally (if at all) sufficient to trigger Barker.

Combining the Barker factors together, Appellee's right to a speedy trial was not violated. And because it was not violated, had there been no prosecutorial vindictiveness, the case would not have necessitated a dismissal with prejudice on speedy trial grounds. Thus, the trial court abused its discretion in dismissing the case with prejudice without the State's consent after finding the State had been unconstitutionally vindictive in retaliation for Appellee's speedy trial motion. The trial court's authority to “neutralize the taint” only extended to dismissing the capital-murder charge but leaving the door open for the State to reindict Appellee for murder based on the facts of the case before it.¹¹ Dismissing the case with prejudice, however, went well past returning the case to its original state and punitively invaded the exclusive province of the State's prosecutorial discretion. And in doing so, the trial court exceeded both its enumerated and inherent authority.

 Potential Remedies

Having found dismissal with prejudice too drastic, we now explore whether the additional remedial condition of forced recusal (over any State objection) is required to neutralize the taint under the facts of this case. Although there are variety of reasons and avenues to remove or recuse a district attorney, we note the Appellant has not requested that at any time. On remand, Appellant would not be foreclosed from seeking that as a remedy, but there is nothing in the record to suggest that is a remedy they desire.

“Relying on Tex. Const. Article V, Section 21, Texas courts have uniformly declared that the offices of county and district attorneys are constitutionally created and therefore constitutionally protected. The authority of county and district attorneys cannot be abridged or taken away.” State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990) (internal citations and quotes omitted). Our statutes further mandate that “[e]ach district attorney shall represent the state in all criminal cases in the district courts of the attorney's district ․” Tex. Code Crim. Proc. art. 2A.102 (formerly Article 2.01 (emphasis added)). And unless some explicit authority requires otherwise, we have long held that “[t]he responsibility for making the decision to recuse himself is on the district attorney himself; the trial court cannot require his recusal.” Coleman v. State, 246 S.W.3d 76, 81 (Tex. Crim. App. 2008) (citing Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 939 (Tex. Crim. App. 1991)).

The Legislature has given us several statutory avenues that permits us to interfere with the authority of the district attorney. Of these statutes, none apply to the circumstances of this case. Chapter 87 of the Local Government Code allows for the complete removal of a district attorney from office for incompetency, official misconduct, or intoxication. Local Gov't Code § 87.013 However, such a removal can only be done by filing a petition for removal followed by conducting a full jury trial. Local Gov't Code §§ 87.015, 87.018.

The Code of Criminal Procedure requires recusal in specified scenarios where the prosecutor is disqualified. Tex. Code Crim. Proc. art. 2A.105 (formerly Article 2.08). However, the record here does not reflect that the current District Attorney for the 34th Judicial District or any member of his office is or would be disqualified. No party has even suggested that the District Attorney is disqualified, nor implicated any conflicts of interest. See Tex. R. Prof. Conduct 1.09 (prohibiting an attorney from representing another person “in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client”); Landers v. State, 256 S.W.3d 295, 305-07 (Tex. Crim. App. 2008) (utilizing Tex. R. Prof. Conduct 1.09 as “guidance” in interpreting Tex. Code Crim. Proc. art. 2.08 (now Article 2A.105)). We reiterate that no party has requested the recusal of the District Attorney and is not precluded from doing so on remand.

Secondly and from a more pragmatic perspective, just like we cannot take a case away from a prosecuting authority, we also lack the authority to force a neighboring prosecuting authority to take the case. We cannot require a neighboring authority to travel to another jurisdiction to prosecute a case against their consent. There is no incentive for a neighboring nor any other district attorney to do so. They receive no additional compensation nor even travel costs for taking the case. Especially in this case, the nearest neighboring prosecuting authority to the District Attorney's Office for the 34th Judicial District is a considerable distance away. This presents additional logistical challenges compared to other areas in Texas where the geographical distance between neighboring county seats is far shorter. Moreover, most of these are small offices. It is dangerous to set a precedent that cannot be applied evenly throughout the state.

Finally, the nearest neighboring district attorney's office may not be in a position or be otherwise equipped to take on such a complex case. Some offices have only a handful of part-time attorneys and have little-to-no experience dealing with a potential capital-murder case. Other offices may have their own challenges such as overwhelming caseloads or shortages of either human or equipment resources.

In summary, dismissal without prejudice without forced recusal is the sure-footed path forward here. Indeed, the past problematic district attorney was recently defeated and replaced with a newly elected district who may very well be acceptable to Appellee. In accordance with Supreme Court case law, the scope of this remedy is narrowly tailored to cure the harmful conduct in this case without “unnecessarily infringing on competing interest.” United States v. Morrison, 449 U.S. 361, 364, 365 (1981).

CONCLUSION

It is undisputed that prosecutors for the State have immense discretion in deciding whom to criminally charge and what criminal charges to pursue. Still, utilizing the death penalty—the ultimate punitive measure—in retaliation for the valid exercise of a constitutional right is incongruent with the prosecutor's compelling “obligation to govern impartially” and duty as a servant of the law to refrain from striking “foul blows.” Berger v. United States, 295 U.S. 78, 88 (1935). Thus, the circumstances that led to this case are concerning. And partly because of the State's mishandling of this case and other cases from this time period, we note that multiple administrations have come and gone at the Office of the District Attorney for the 34th Judicial District.¹² We remain optimistic that the current administration will not continue such folly.

Nonetheless, we hold that the trial court exceeded its authority in dismissing Appellee's capital murder charge with prejudice. Doing so abused the trial court's power to neutralize the taint of prosecutorial vindictiveness. Consequently, we reverse the court of appeals and modify the trial court's dismissal to be without prejudice. In doing so, we grant the State's request to allow a reindictment of Appellant for the original charge of murder or any other lesser-included offense per its discretion.

OPINION

In this case, the trial court chose to remedy a finding of prosecutorial vindictiveness by dismissing the indictment with prejudice. The majority holds that doing so was an abuse of discretion, while Judge Finley's dissent finds no other adequate remedy. I write separately to ascertain a remedy between these two extremes, address the standard of review, and expand on what I see as available remedies for a finding of vindictive or otherwise unconstitutional prosecution.

As detailed below, I believe the factual determination of prosecutorial vindictiveness is best left to the trial court and should be reviewed for clear error. The question of the permissible remedies is a critical one and antecedent to any analysis of the exercise of discretion in selecting among them. The task of identifying those remedies is primarily on this Court and, in my view, is in urgent need of development to address the risk of prosecutorial abuse. While the trial courts obviously share in this task, the decision of whether a remedy is potentially viable would be reviewed de novo and should be addressed regardless. The selection among remedies should then be reviewed for abuse of discretion.

I see no abuse in selecting some remedy here and disagree with the majority's finding of an abuse of discretion in the lower court's selection of the only available option this Court has identified to remedy the unconstitutional abuse at issue here. That said, I also see dismissal at this stage ¹ as extreme and inappropriate given the circumstances, as it imposes the consequences of the prosecutor's misconduct on an innocent public and should be reserved for prosecutions that would not otherwise have been brought but for a due process violation. Because I doubt the trial court would have selected that option were another available, I believe we should make clear that disqualification of the District Attorney is available as a remedy for a constitutional violation by that office. While we have not identified this option previously, I believe it is vital we do so now in view of developments in our jurisprudence over the last several decades precluding other, structural forms of constitutional oversight to check abuse of the prosecutorial function. To the extent the majority opinion may be read to foreclose this option to the trial judge on remand, I disagree.

I will address these points in turn.

DISCUSSION

I. THE STANDARD OF REVIEW FOR VINDICTIVE PROSECUTION DETERMINATIONS

The majority evaluates both the trial court's factual finding of prosecutorial vindictiveness and its rulings under an abuse of discretion standard, affording almost total deference to the trial court's determination. Maj. Op. at 11–13. The State does not challenge the trial court's factual finding of vindictiveness. The majority, however, appears to address the factual question of vindictiveness through the lens of abuse of discretion. That standard is known to be “the most deferential standard of review available with the exception of no review at all.” Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 469, 480 (1988).

The abuse of discretion standard has varying applicability stemming from the trial court's primary role in managing its docket and the movement of cases. The standard's early development began in the civil context, and its application slowly expanded to a wider variety of issues, such as admission of expert testimony and voir dire. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–42, 146 (1997) (citing Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)); Connors v. United States, 158 U.S. 408, 415–16 (1895). It also may play a proper role in contexts of mixed questions of law and fact ² where the trial judge's decision required observation of witnesses and a determination of their credibility.³ I have no concerns with its application to docket management, evidentiary rulings, and other matters that should generally defy appellate micro-management after judgment. But the question of whether something has happened that might trigger the need for the exercise of judicial judgment is a distinct inquiry. I am not inclined, as a general matter, to license the trial courts to self-declare the need for the exercise of their own discretion.

Thus, I do not subscribe to abuse of discretion as the proper standard for our review of the factual determination of prosecutorial vindictiveness. Instead, I believe the analysis should be two-fold: first, we should determine whether the finding of vindictiveness was clearly erroneous; and second, whether the trial court abused its discretion in ordering dismissal or any other remedy.

While we have neither clearly embraced clear error nor formally announced it as the proper standard to govern the factual determination of vindictiveness, we have signaled as much in Neal v. State, 150 S.W.3d 169, 174 n.15 (Tex. Crim. App. 2004) (citing federal clear error standard but avoiding resolution on waiver grounds). Our courts of appeals have routinely relied on that declaration and deploy the clear error standard in reviewing factual findings of vindictiveness.⁴ Additionally, “the majority of federal circuits that have addressed the standard of review for claims of prosecutorial vindictiveness review the district court's factual findings for clear error and its legal rulings de novo.” Simms v. United States, 41 A.3d 482, 487 (D.C. 2012) (collecting cases); United States v. Dvorin, 817 F.3d 438, 455 (5th Cir. 2016) (citing United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008)); United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987).⁵

I find these cases persuasive and see no reason to depart from their interpretation of United States Supreme Court precedent, nor from our own earlier Neal decision. Under the clearly erroneous standard, we would still give significant, if not nearly complete deference to the trial court's finding. Specifically, we would affirm unless, after examining the entire record, we are left with the definite and firm conviction that a mistake has been committed. Cooper v. Harris, 581 U.S. 285, 309 (2017); Alexander v. S.C. State Conference of the NAACP, 602 U.S. 1, 18 (2024).

Furthermore, neither the U.S. Supreme Court nor this Court have limited the presumption of prosecutorial vindictiveness to post-conviction situations where a defendant has exercised his right to an appeal and obtained a new trial.⁶ In all events, dismissal for vindictiveness before trial should be available in extreme cases where the prosecution would not have been brought but for the abuse. See, e.g., State v. Hill, 558 S.W.3d 280, 288 (Tex. App.—Dallas 2018, no pet.) (Schenck, J., concurring) (three justices agree on vindictiveness to affirm pretrial dismissal with prejudice; two also find due process disqualification). The power to prosecute, no less than the power to tax,⁷ can just as obviously operate as the power to destroy. Relief from an abusive prosecution after the fact may not be relief at all. While the facts of this case do not warrant outright dismissal, they do evidence vindictiveness beyond the reach of clear error attack, proving the point that some remedy and oversight is necessary.

The prosecutor here faced a speedy trial invocation, sought a continuance, and lost. His response was to dismiss the existing case, reindict, and add pursuit of the death penalty. The trial court was well within its bounds to find this prosecutor's action vindictive of this defendant's speedy trial assertion. Yet the prosecutor's action was even more than that; it reflected a contempt of the defendant's place in a constitutional order and for the court itself. Forcing the defendant and the judge to submit to a trial in anticipation of later appellate relief ignores the nature of the injury, undermines the authority of the court, and, most importantly, serves as little restraint on an abuse of power. Where, as here, the fact of abusive prosecution is beyond doubt, a trial judge's decision to impose a remedy sufficient to correct the abuse and send a clear message sufficient to deter repetition from the same office is not just within the trial judge's discretion, it's essential to maintaining constitutional order.⁸

II. DECLARING THE REMEDY FOR VINDICTIVE PROSECUTION

The majority's opinion concludes that the trial court abused its discretion in fashioning a remedy for its vindictiveness finding. I agree with the majority that dismissing a case with prejudice is a “drastic” measure, but I do not think the trial court necessarily exceeded its authority in imposing that remedy if it was the only remedy available. Maj. Op. at 28. However, I believe others were and should be available.

In its analysis, the Court has forgone what I think to be a necessary discussion of the due process right and this State's Constitution, as well as the role of the courts—including and especially this Court's role—in developing that law. The remedy question is, at least initially, purely legal and one this Court is obliged to develop. See Owens v. State, No. PD-0075-24, 2025 WL 1587690, at *11 n.6 (Tex. Crim. App. June 4, 2025) (Parker, J., concurring and dissenting, joined by Schenck, P.J.). As detailed below, I would develop that legal question before reversing the trial court and allow it to first exercise its discretion in selecting among the available remedies before reversing. As it stands, it appears we have come to two extreme and different conclusions in this case. Neither is mandatory or proper in my view.⁹ Instead, I would make clear that a district court faced with prosecutorial abuse may fashion another remedy, including removal of the district attorney from the case and substitution of either the Attorney General or a neighboring district attorney, or any other means he or she believes is necessary to maintain the integrity of the judiciary.

A. Abuse of the Prosecutorial Office Affects the Entire Judicial Process

The prosecutorial vindictiveness claim is rooted in due process and in this State's Constitution. The Due Process Clause prohibits a prosecutor from punishing a defendant for exercising his lawful constitutional or statutory rights. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.”); United States v. Goodwin, 457 U.S. 368, 372 (1982) (“[W]hile an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.”).

B. A Dismissal Remedy for Vindictiveness is Necessary, but Should Not Be Lightly Imposed on the Public or the Defendant Who Suffers the Abuse

The majority frowns on dismissal with prejudice as a remedy here. I share that concern. I also agree that a trial court's actions must be supported in one of four ways: by the Constitution, statute, common law, or where the power to act arises from its inherent or implied power. State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991). To narrow our focus, we can start by ruling out the two former circumstances; Texas has no specific constitutional provision or statute authorizing the trial court to dismiss a case with prejudice without the prosecution's consent or on its own motion.

The Texas Legislature once permitted dismissal with prejudice under the Speedy Trial Act, wherein dismissal for violation of a defendant's Sixth Amendment speedy trial right was automatically with prejudice, which was codified in Article 28.061 of the Texas Code of Criminal Procedure. Tex. Code Crim. Pro. Ann. art. 28.061. However, this Court held that provision unconstitutional as a violation of separation of powers within the Texas Constitution. Ex parte Young, 213 S.W.3d 327, 331–32 (Tex. Crim. App. 2006). Naturally, our common law likewise provides no such authority. Johnson, 821 S.W.2d at 613. This and other like holdings (discussed further below) would appear to leave little room for any statutory basis for constraining the abuse of the power to prosecute. Still, this Court has recognized its authority (and hence obligation) to uphold the Constitution's substantive speedy trial command. Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002).

This would appear to leave the question of whether a trial court's authority to dismiss with prejudice arises from its inherent or implied power, which the majority answers in the negative. Maj. Op. at 28-29. I see that question somewhat differently at least insofar as inherent power is intertwined with this Court's general constitutional mandate of administration or to various specific constitutional mandates in the Bill of Rights. See Tex. Const. art. V, § 21 (mandating open courts and remedy for injuries).

I concede the Constitution does not speak—directly at least—to virtually all the potential abuses that may occur in our courts and before our grand juries beyond demanding that its citizens be afforded “due course of law.” It instead created a bifurcated appellate system with one court (this one) responsible for the management of all criminal law matters, including what course of law is “due” and what remedy (if any) should follow from departure. That requires stewardship and oversight of the inferior officers and other actors within the judicial branch playing a role in those matters. Accountability, like charity, starts at home.

A hallmark of our rule-based, republican form of government is that “[e]very right, when withheld, must have a remedy.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803). As these problems will come in a myriad of forms and in individual cases, we cannot assume a passive posture and await guidance from elsewhere, particularly where we have foreclosed it under our separation of powers decisions. As I see it, the judiciary possesses the primary check on the enforcement of the rule of law within the judicial department itself through the exercise of judicial power. See Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 124 (2015) (Thomas, J., concurring). This check exists to ensure that the government generally respects constitutional values, integral to our role in maintaining the rule of law. See Richard H. Fallon Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1788 (June 1991). To sit on our hands while the office of prosecutor makes its own law or functions apart from the constitutional order would be a mistake.

When determining which remedy may be proper to redress a violation of a constitutional right, we should consider the broader remedial principals from our Constitution. Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L.J. 2537, 2538 (July 1998). It is not a simple inquiry, and it requires us to assess and understand our constitution's history, text, and structure. Id. Constitutional remedies serve two basic functions: first, to redress individual violations; and second, to reinforce values underlying the separation of powers and the rule of law. Richard H. Fallon Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1787 (June 1991).

III. REMEDIES CAN ONLY COME FROM WITHIN THE JUDICIARY AT THIS POINT

The majority seeks to ascertain the amount of authority the Legislature has conferred on the judiciary to police vindicative or abusive prosecutions. Maj. Op. at 29–30. Though well-reasoned in this regard, to me the valuation is irrelevant and underscores the underlying, structural constitutional problem. A disagreement between the surgeon and the anesthetist over who has less authority in the operating room still leaves the patient to die on the table. As detailed below, we have already effectively kicked the anesthetist in the shins and left little room for anyone but us to come up with a remedy more meaningful than the one employed here.

Meanwhile, the problem of abusive prosecutions (and arrests) persists across the country, making one wonder how it might ever be checked in Texas. See, e.g., People by James v. Trump, No. 2023-04925, 2025 WL 2412681, at *108–12 (N.Y. App. Div. Aug. 21, 2025) (Friedman, J., concurring in part and dissenting in part) (stressing need to judicially correct abusive political litigation brought by state attorney general).¹⁰ While we have dithered over the proper source of authority to oversee and correct abuse of the authority to initiate criminal proceedings and whether or to what extent the Legislature can constrain the exercise of that power, the U.S. Supreme Court and other courts have acted. E.g., id.; see also Gonzales v. Trevino, 602 U.S. 653, 655 (2024) (Texas official arrested on charges, even if supported by probable cause of violation, but whose pursuit could not be explained but for constitutional vindictiveness finds a constitutional remedy in federal court).¹¹

I view our “duties and responsibilities” as including the obligation to oversee unconstitutional abuses of our constituents via misuse of the courts by inferior officers of the judiciary. This Court has often held that “a trial court does not have the power to dismiss a case unless the prosecutor so requests.” Ex parte Seidel, 39 S.W.3d 221, 223 (Tex. Crim. App. 2001). That may be fine as a general proposition, but these decisions are founded on the underlying notion that the “inherent judicial power of a court is not derived from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities.” Eichelberger, 582 S.W.2d at 398 (emphasis added). Given that we have largely eliminated other avenues for constitutional oversight of prosecutorial misconduct, I believe the Constitution requires us to act in cases like the one before us today.

We have recognized this oversight role in the past, if not with respect to dismissal. When a prosecutor maintains a conflict of interest rising to the level of a due process violation, this Court has already held a trial court may disqualify the conflicted prosecutor should he refuse to step down. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994). More than ten years later in Landers, this Court explained a due-process violation may be found if the defendant has established “actual prejudice.”¹² In her concurrence, Presiding Judge Keller analogized that situation to one where “the State assures an accused that exercising a certain right will carry no penalty.” Landers v. State, 256 S.W.3d 295, 311 (Tex. Crim. App. 2008) (Keller, P.J., concurring). That same due process interest was applied by the majority in the Dallas Court of Appeals to mandate dismissal with prejudice where the prosecutorial abuse resulted in the initiation of a proceeding that would not otherwise have been initiated. Hill, 558 S.W.3d at 288.

A. The Office of Prosecutor is Not a Fourth Department of Government Immune From any Form of Check or Balance

It is a testament to the skill and resolve of our county and district attorneys that we have confronted questions like this so rarely. Nevertheless, these questions do arise and will continue to do so with increasing frequency if we do not identify some effective form of oversight from abuse, including dismissal, disqualification, and perhaps other remedies, if necessary to assure adherence to our constitutional form of government from all who operate within it. I would therefore overrule Seidel and its progeny to the extent those decisions operate on a contrary premise.

Whether one calls it inherent or implied power—or simply a recognition of the escalating responsibility to administer the judicial department ¹³ —some effectual remedy is necessary to check prosecutorial abuse, however rare it might be. Tex. Const. art. II, § 1. To that end, it is important to consider how this decision plays into the unique structure of the Texas prosecutor and the existing precedent of this Court. Given development in this Court's jurisprudence in recent decades, that mandate takes on additional significance, requiring the court to effectuate these remedies where necessary, as that jurisprudence drives the other departments of government from participating in the discussion and formulating a solution. E.g., Young, 213 S.W.3d at 331–32.

Texas is unique in that it “establishes the offices of County and District Attorneys” under the “Judicial” department of government. Tex. Const. art. V, § 21. Our Constitution provides that those officers “shall represent the State in all cases in the District and inferior courts in their respective counties ․” and we have read this provision both to reach to criminal matters and to be exclusive. Id.; see State v. Stephens, 663 S.W.3d 45, 50 (Tex. Crim. App. 2021); Meshell v. State, 739 S.W.2d 246, 254 (Tex. Crim. App. 1987); Young, 213 S.W.3d at 331–32; Seidel, 39 S.W.3d at 223. These decisions carry serious implications. While nominally rooted in “separation of powers” concerns, they have effectively concentrated all power to initiate and preside over criminal cases in the judicial department and, in turn, this Court. This brings up two concerns.

First, I believe this was a mistake, however well-intentioned, and should be corrected to avoid what I see as a misdirection of power (and responsibility, whether we acknowledge it or not) into the judiciary and this Court. Our Stephens decision was well-written and reasoned within the limits of its own field of view. But it failed, in my view, to ask the controlling, first question in any separation of powers question raised by our Constitution: where did the framers place this power when they drafted Article II? In other words, if the power to investigate and initiate a criminal matter would have been understood to be executive in nature, all, not some, of that power would have resided exclusively in that department of government, except as specifically otherwise permitted by the remaining constitutional text. Having skipped that question, the Court in Stephens focused on Article V's creation of the offices of county and district attorney, noting that it is the only provision authorizing the filing of cases in lower courts.¹⁴

Seizing on the fact that Article V authorized district and county attorneys to represent the state in the inferior courts,¹⁵ we then treated that authorization as exclusive, driving the Legislature and the Executive departments from the scene and, hence, excluding any role for oversight or assignment of the power to the executive in any case,¹⁶ regardless of its subject matter or implications. We never asked if this grant of authority was, instead, necessary to exercise to permit any portion of the authority otherwise assigned to the executive by direct operation of Article II.¹⁷

The U.S. Supreme Court has repeatedly characterized the power to “investigate and prosecute crimes” to be “a quintessentially executive function” since before the time of enactment of our Constitution in 1876. Trump v. United States, 603 U.S. 593, 620 (2024); Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting); Heckler v. Chaney, 470 U. S. 821, 832 (1985); Buckley v. Valeo, 424 U. S. 1, 138 (1976); United States v. Nixon, 418 U. S. 683, 693 (1974); The Confiscation Cases, 74 U.S. 454, 457 (1869). Meanwhile, our plain constitutional text makes clear that Texas county and district attorneys, though placed in Article V, are not exercising a judicial power. Tex. Const. art. V, § 1 (listing those on whom the judicial power is vested and omitting county and district attorneys). That being the case, the power to prosecute would have been assigned directly to the executive branch by the plain language of Article II, with any particular assignment (or reservation) of that power left to the Legislature as indicated by the text of Article IV, Section 22 conferring on the Legislature the authority to add to the Attorney General's executive function “such duties as may be required.”¹⁸

The provision in Article V, Section 21 authorizing and mandating district and county attorneys to represent the state in the inferior courts was thus essential because Article II would have otherwise precluded it by direct operation of the last sentence of its text: “no person, or collection of persons, being of one of those departments, shall exercise any power, properly attached to either of the others, except in the instances herein expressly permitted.” Tex. Const. art. II, § 1 (emphasis added).

Second, this oversight and this result, in my view, ignored general separation of power norms and, ironically, placed all authority for oversight of criminal prosecutions in a single department of government.¹⁹ While the Constitution's text explicitly invited legislative enlargement of the Office of the Attorney General through which the framers provided a functional balance of authority among the three departments, we rejected its application to the prosecutorial function over Judge Yeary's dissent. Thus, we appear to have foreclosed the prospect of legislative remediation of prosecutorial abuse, making oversight by this Court the only prospect of effectuating a remedy or assuring due course of law insofar as the use of the prosecutorial power is concerned. Unless and until we revisit our separation of powers decisions like Young and Stephens, we have left ourselves with no choice but to oversee the yielding of the power to prosecute as against abuses that would have the effect of undermining public confidence in the fairness of its courts.²⁰

If this state is not to be subjected to the abuses of the prosecutorial function that has been seen elsewhere in recent years, it is only this Court that can remedy it.

B. Disqualifying the District or County Attorney Must Be an Option

The trial court in this case chose to remedy its prosecutorial vindictiveness finding by dismissing the indictment with prejudice. I believe that decision must be available, if exercised only in rare circumstances, including cases of vindictiveness. The majority holds that in doing so here the trial court abused its discretion,²¹ while Judge Finley's dissent finds that remedy appropriate through the operation of the Constitution's speedy trial assurance. I disagree with either holding at this stage. Instead, I would first explicitly recognize the judicial power of oversight over the Office of the District Attorney and recognize the trial court's authority to disqualify that office as a remedy in a case ²² like this.²³ This would preserve the right to a merits-based resolution of an otherwise viable prosecution. I would generally reserve the remedy of dismissal with prejudice to circumstances where the prosecution would not have been initiated but for a due process abuse or where continuation of it is similarly barred. State v. Hill, 558 S.W.3d 280, 288 (Tex. App.—Dallas 2018, no pet.).

While I share Judge Finley's speedy trial concerns, I believe those concerns should first be addressed by the trial court.24 To that end, I would first remand this case to permit that court to exercise its superior judgment over the available options recognizing the rights and interests of public in seeing its criminal laws enforced, the defendant to be free from abusive prosecution, and the government in promoting confidence in its actions and oversight of its inferior officers.

CONCLUSION

At a minimum, before holding that the trial court abused his discretion, I would remand for consideration of other possible remedies, including disqualification of the District Attorney's Office, and defer to the trial court's discretion so long as the chosen remedy arguably lies within it.

Therefore, I concur in the majority's decision to reverse the ruling from the court of appeals, modify the trial court's dismissal to one without prejudice, and allow for reindictment of the offense or any offense qualifying as lesser included. However, I believe our Court is empowered to exercise its oversight to prevent the obstruction of justice, and thus ought to make clear that the trial court's options here are not restrained to a simple dismissal “with” or “without” prejudice.

DISSENTING OPINION

This is not a speedy trial case. This is a prosecutorial vindictiveness case. The State indicted Appellee for murder. Nine months after the filing of Appellee's indictment, at a pre-trial hearing, the State indicated that it was not ready to proceed to trial. Appellee stated he opposed any continuance to his trial date. Despite opposing bond at an earlier juncture in the case, the State offered that Appellee be released on his own recognizance in exchange for a continuance. Appellee declined. The trial court did not immediately rule on the State's motion for continuance but indicated from the bench that it would likely deny the State's motion to continue. The very next day, the State reindicted Appellee for capital murder, and later filed a notice indicating its intent to seek the death penalty. Appellee moved to dismiss the capital murder indictment, arguing that the State violated his due process rights, and that the prosecution was vindictive. After an evidentiary hearing, the trial court concluded that the State reindicted Appellee in retaliation for Appellee's insistence to proceed to trial and granted Appellee's motion to dismiss for prosecutorial vindictiveness. The trial court's order specifically stated that the case was dismissed “with prejudice.” The State timely appealed, and the court of appeals affirmed. State v. Gabaldon, 661 S.W.3d 558, 563 (Tex. App.—El Paso 2023). The State's Petition for Discretionary Review does not challenge the finding of prosecutorial vindictiveness and instead is limited to the question of remedy. I would affirm. Because the Court does not, I respectfully dissent.

I. Applicable Law

“It is well established that there is no general authority that permits a trial court to dismiss a case without the prosecutor's consent.” State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003) (collecting cases). A trial court should ordinarily avoid dismissing an indictment because dismissal is a “drastic measure only to be used in the most extraordinary of circumstances.” State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995). Absent the State's consent, a trial court commits an abuse of discretion by dismissing an indictment “where there is no constitutional violation, or where the appellee's rights were violated but dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action.” Mungia, 119 S.W.3d at 817 (citing Terrazas, 962 S.W.2d at 42). These principles outline the “basic test” used to determine whether a trial court abused its discretion in dismissing an indictment. Terrazas, 962 S.W.2d at 42 n.4.

A trial court, by dismissing an indictment with prejudice, is in effect, instructing the prosecutor not to proceed with future charges arising from the same offense. State ex rel. Holmes v. Denson, 671 S.W.2d 896, 897–98, 900 (Tex. Crim. App. 1984). A trial court may not dismiss an indictment with prejudice without the prosecutor's consent except when it is authorized to do so “by constitution, statute, or common law.” Mungia, 119 S.W.3d at 816. Some of these circumstances include “when a defendant has been denied a speedy trial, when there is a defect in the charging instrument, or ․ when a defendant is detained and no charging instrument is properly presented.” Johnson, 821 S.W.2d at 612 n.2 (emphasis added).

II. Analysis

To “punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’ ” United States v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). It is “patently unconstitutional” whenever the state “pursue[s] a course of action whose objective is to penalize a person's reliance on his legal rights.” Bordenkircher, 434 U.S. at 636 (citing Chaffin v. Stynchcombe, 412 U.S. 17, 32–33 n.20 (1973)). Appellee alleges that the State reindicted him for the offense of capital murder to punish him for exercising his speedy trial rights.

United States v. Morrison, 449 U.S. 361 (1981), is instructive to the resolution of this case. There, Morrison was indicted on two counts of distributing heroin. Id. at 362. After Morrison retained private counsel and knowing that Morrison had retained counsel, agents of the Drug Enforcement Agency (DEA) met with her to persuade her to cooperate in a related investigation. Id. During the conversation, the DEA agents disparaged Morrison's retained counsel, and “indicated that [she] would gain various benefits if she cooperated but would face a stiff jail term if she did not.” Id. Morrison subsequently sought “to dismiss the indictment with prejudice on the ground that the conduct of the [DEA] agents violated her Sixth Amendment rights to counsel.” Id. at 363. The district court denied the motion but, on appeal, the Third Circuit reversed. Id. The Supreme Court reversed once more, holding that dismissal with prejudice was unwarranted because the “egregious behavior” of the DEA agents “had no adverse impact upon the criminal proceedings.” Id. at 367. The Court stressed that “[t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.” Id. at 366.

Appellee's case is worse than Morrison, and the Morrison framework supports affirming the court of appeals. The State's “transgression” here was reindicting Appellee for capital murder and seeking the death penalty. Although not challenged, the trial court and the court of appeals found that Appellee “produced objective evidence” of prosecutorial vindictiveness. Gabaldon, 661 S.W.3d at 565. The “fruits” of the State's “transgression” were, in effect, a continuance to which it was not entitled. The State sought that continuance by reindicting Appellee for capital murder, in hopes that it would receive additional time to prepare for trial. The State violated Appellee's due process rights.¹ If the State may proceed with prosecuting Appellee for murder, then it will profit from the fruits of its own transgressions. Thus, the trial court was within its discretion to determine that the proper remedy was barring the State from prosecuting Appellee for the alleged murder offense.²

This conclusion is supported in our prior jurisprudence. As we explained in Mungia, a trial court abuses its discretion by dismissing a prosecution with prejudice where dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action. 119 S.W.3d at 817. Furthermore, in Johnson, we recognized that one of the circumstances in which dismissal with prejudice is justified includes “when a defendant has been denied a speedy trial.” 821 S.W.2d at 612 n.2. The State sought reindictment for the purpose of receiving a continuance for its prosecution of Appellee's murder case. The only means to “neutralize the taint” of this violation is to prevent the State from further prosecuting Appellee. The trial court was within its discretion to decide that the proper remedy was a complete dismissal of the charges against Appellant.

III. Conclusion

The question before the Court, in essence, is whether a lesser remedy than dismissal with prejudice is available to correct the State's transgressions. The State suggests that dismissal without prejudice would do the trick. But dismissal without prejudice would give the State exactly what it has always sought: a continuance and an opportunity to prosecute Appellee again.³ The State wants another bite at the apple, even though it had ample opportunity to prepare for trial on December 2, 2021. Yet 2021 was too soon for the State, so it resorted to retaliation. There is no lesser remedy than the one endorsed by the court of appeals below. Anything short of a complete prohibition on prosecuting Appellee would incentivize the State to act in the same way in future cases, flagrantly disregarding the rights of defendants. The trial court was within its discretion when it declined to endorse such conduct. I, too, will not endorse such conduct today.⁴ Because the Court implicitly does, I dissent.

FOOTNOTES

1.   We note that Yvonne Rosales, the District Attorney for the 34th Judicial District during the pendency of this case, submitted her resignation letter to be effective on December 14, 2022. Resignation Letter from Dist. Attorney Yvonne Rosales to Gov. Greg Abbott (Nov. 28, 2022). At the time, Rosales was facing a petition to remove her from office after allegations were made of official misconduct and widespread incompetence during her administration. State of Texas ex rel. Omar Carmona v. Yvonne Rosales, No. 2022DCV2472 (346th Dist. Ct. Aug. 24, 2022). In addition to the alleged prosecutorial vindictiveness in the instant case, the allegations of incompetence included the dismissal of hundreds (with thousands more expected) of criminal cases by the jail magistrate for District Attorney Rosales's failure to secure an indictment or information. Id. at *3-4. Also included in the allegations were her alleged mishandling of the mass murder case, State v. Patrick Wood Crusius, Nos. 2019D004878 & 20200D02631. Id.; see also In re State, 705 S.W.3d 443 (Tex. App.—El Paso 2024) (discussing the alleged facts of Crusius and the State's alleged violation of the trial court's explicit orders during that case). Per the petition to remove, District Attorney Rosales's office had failed to file a single pleading in eighteen months while overseeing the case. Simultaneously, she also promised to hire new prosecutors to oversee Crusius and take it to trial in less than a year. Ex rel. Carmona, No. 2022DCV2472, at *3. District Attorney Rosales's resignation became effective the day prior to a hearing set for December 15, 2022, which would have decided whether she should be temporarily suspended from office and another appointed in her place pending trial. See Order Setting Hearing on Temp. Suspension of the Respondent/Defendant Pending Trial, Ex rel. Carmona, No. 2022DCV2472.More than one administration has occupied the District Attorney's office since former-D.A. Rosales. Former-D.A. Bill D. Hicks was appointed by Governor Abbott, on December 14, 2022, to succeed Rosales and finish the remainder of her term. Governor Abbott Appoints Hicks as 34th Judicial District Attorney, Office of the Texas Governor: Greg Abbott (Dec. 14, 2022), https://gov.texas.gov/news/post/governor-abbott-appoints-hicks-as-34th-judicial-district-attorney. He was succeeded by the current D.A. James Montoya beginning in 2025. Elected District Attorneys Through the Years, El Paso County: District Attorney James Montoya, https://www.epcounty.com/da/meet.htm (last visited May 22, 2025).

2.   “If there was prosecutorial vindictiveness in this case, which the State does not concede, the dismissal of the capital-murder indictment cured any constitutional violation.” St. Br. at *8. “While not agreeing with the trial court or the Court of Appeals on the finding and holding of prosecutorial vindictiveness in this case, ․ what the State contests is that any taint in the capital-murder indictment occasioned by prosecutorial vindictiveness did not ever extend to the original murder indictment, ․” St. Br. at *11-12.

3.   There is no noticeable difference between the proposed “clearly erroneous” standard and the Guzman standard applied to the trial judge's findings. Under the clearly erroneous standard, the reviewing court pays great deference to the trial court's findings unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364m 395 (1948). Although we utilize different nomenclature, that is exactly what we are doing here.

4.   As the Supreme Court has explained:The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.* * *But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending ․ Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.United States v. Macdonald, 456 U.S. 1, 8–9 (1982).

5.   Although the Texas Constitution independently guarantees an accused the right to a speedy trial, this Court has traditionally applied the same Barker analysis to determine a speedy trial claim under the Texas guarantee as well as the federal equivalent. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).

6.   In Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992), this Court found that a thirteen-month delay was presumptively unreasonable and thereby sufficient to trigger the need for Barker analysis. The Court supported this finding by citing to LaFave & Israel, Criminal Procedure § 1832(b) (1984) with a parenthetical stating that some courts found eight months or longer as presumptively unreasonable. See also Zamarano v. State, 84 S.W.3d 643, 649 n. 26 (Tex. Crim. App. 2002) (“See Harris v. State, 827 S.W.2d at 956 (recognizing that courts generally hold that any delay of eight months or longer is presumptively unreasonable and triggers speedy trial analysis.).”).

7.   “Delay caused by good faith plea negotiations is not the result of negligence or a ‘deliberate attempt to delay the trial.’ We decide delay caused by good faith plea negotiations ․ should not be weighed against the prosecution.” State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999); see also Doggett v. United States, 505 U.S. 647, 656 (1992) (“Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. The government may need time to collect witnesses against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down.”).

8.   This includes the actions of defense counsel because “each party is deemed bound by the acts of his lawyer-agent.” Coleman v. Thompson, 501 U.S. 722, 753 (1991) (quoting Link v. Wabash R. Co., 370 U.S. 626, 634 (1962)).

9.   We question whether Appellee's trial counsel's representations constitute competent evidence. Nevertheless, we will assume it is for the sake of argument.

10.   We question whether the State's representations regarding Appellee's pending cases in Mexico and his allegedly illegal entry based on fake documents into the United States constitute competent evidence. We will assume it is for the sake of argument.

11.   We do not foreclose the possibility of dismissal with prejudice as an appropriate remedy in other circumstances. We merely hold that it was not necessary to neutralize the taint in this case.

12.   The District Attorney for the 34th Judicial District serves not only the entirety of El Paso County, but also acts as the district attorney for Culberson and Hudspeth counties as well.

1.   I share in Judge Finley's thoughtful concerns with respect to timing. I would, however, allow the trial court to address that question first and after being afforded an opportunity to decide what, other than nothing, should be done as a result of the prosecutorial abuse.

2.   State v. Cortez, 543 S.W.3d 198, 203–04 (Tex. Crim. App. 2018).

3.   Of course, regard for the trial court's observation of witnesses is also accounted for in other standards, like clear error.

4.   Our courts of appeals have applied the clear error standard in reliance on Neal. See Amaya v. State, No. 08-11-00265-CR, 2013 WL 5593110, at *8 (Tex. App.—El Paso Oct. 9, 2013, no pet.); Ex parte Legrand, 291 S.W.3d 31, 42 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd); Guerra v. State, No. 13-04-328-CR, 2005 WL 2878071, at *2 (Tex. App.—Corpus Christi–Edinburg Nov. 3, 2005, pet. ref'd); Ex parte Hilliard, No. 08-22-00179-CR, 2023 WL 4678675, at *4 (Tex. App.—El Paso July 21, 2023, no pet.).

5.   For purposes of evaluating a federal vindictiveness claim, it appears the United States Supreme Court has not weighed in as of yet. Cf. Ornelas v. United States, 517 U.S. 690, 698-99 (1996) (while district court findings of probable cause and reasonable suspicion should ultimately be reviewed de novo, findings of historical fact should be reviewed for clear error).

6.   See, e.g., United States v. LaDeau, 734 F.3d 561, 567 (6th Cir. 2013) (“[It] is incorrect to suggest that Goodwin categorically bars a district court from finding that the requisite ‘stake’ could arise in the pretrial setting.”); United States v. Barner, 441 F.3d 1310, 1317–18 (11th Cir. 2006) (“[N]othing in the language or rationale of Goodwin rules out the possibility that a case could present additional factors that would make it appropriate to use the presumption in a pretrial setting.”); Simms, 41 A.3d at 488 (“[A] presumption of vindictiveness is available pretrial.”).

7.   McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819).

8.   The happenstance that a district attorney or the assistant prosecutor most responsible for the abuse is no longer with the offending office does not control that exercise of discretion. If the local district judge believes that a cannon shot through the hallway is necessary to communicate to the current and future generation of local prosecutors that abuses will not be tolerated, I would defer to that judgment. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (stressing deterrent objective of sanctions for civil misconduct). “A [Texas] trial court has inherent power to sanction bad faith conduct during the course of litigation that interferes with administration of justice or the preservation of the court's dignity and integrity.” Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1995, no writ). In my view, that power does not obtain only in civil proceedings.

9.   As I will discuss, the first question is whether any other option is available. I would answer that legal question “yes” and believe it is emphatically our duty to articulate such options. While I might be inclined to select that third option were I a district court, that is a decision best left to the trial court which is closest to the facts and actors at issue and should be reviewable only for abuse thereafter.

10.   Had the same case been brought in Texas, I wonder what authority my colleagues imagine we would have to correct it—particularly if we are obliged to await legislative invitation that we would ultimately say is beyond the authority of the Legislature in the first place? Regardless of which side of the aisle the abuse emanates from, the judiciary's obligation and authority to police it seems obvious.

11.   The federal constitutional standard for “vindictive,” “retaliatory,” or “malicious” prosecution and arrest is the same. See Nieves v. Bartlett, 587 U.S. 391, 401, 405, 407 (2019). Why our citizens would have to take a case to federal court to seek redress in either instance is what concerns me. Whether the case is brought for the sole apparent purpose of marketing the indictment to a contributor, Hill, retaliation for exercise of constitutional right as here, or a naked political intimidation effort, as in the Gonzales and James matters, the trial judge has the authority to end it.

12.   This case obviously does not present the question of whether a prosecutor might ever be permitted to initiate and pursue charges against his former client, as the Court in Landers considered, though Landers and the case before us both pose questions of due process violations.

13.   The more our decisions drive others from the field, the more critical our oversight becomes.

14.   Never mind that the section makes no reference to criminal law, indictments or the like, the first question is why is the power placed and acknowledged there?

15.   I recognize that the Court also pointed to the presence of the word “shall” in the constitutional text concerning county and district attorneys’ representation in cases filed in their respective courts. That term connotes obligation more than exclusivity. Anyone who grew up in a household with siblings can understand this concept—our mother's words “you shall take out the trash” directed toward one sibling neither prevented nor foreclosed the possibility of any other being directed to the same task at any point in the future.

16.   Removal from office is a power this Court has not yet touched. It is, in all events, distinct from the right (if any) of our citizens to a remedy in any given case.

17.   Meanwhile, having found the language in Article V, Section 21 providing that county and district attorneys “shall” represent the state in the lower courts to be so comprehensive and mandatory as to preclude legislative recognition of a like role for the Attorney General—despite the text of Article IV so suggesting—every local county and district attorney is somewhere given the ability—despite the “shall” directive—to decline to represent the state and instead to confer that power on the Attorney General. “Shall,” it would seem, becomes “may” or “may not,” and local attorneys are empowered to expand the authority of the Attorney General to that even the Legislature is denied by decision of this Court, if not Articles II and IV.

18.   Article II's text is plain and self-effectuating:Separation of powers of government among three departmentsThe powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.Tex. Const. art. II, § 1 (emphasis added).

19.   The concentration of the authority to initiate and preside over a criminal proceeding was the hallmark of an English system set up in the Star Chamber Act of 1487. It was eliminated by the Habeas Corpus Act in 1640 and precluded from revival in this country in Article IV, § 4 of the U.S. Constitution.

20.   The suggestion that courts might lack the power to hold rogue prosecutors accountable directly conflicts with the constitutionally-implied powers the courts must possess, at least in the civil context. See Webster v. Comm'n for Lawyer Discipline, 704 S.W.3d 478, 489–90 (Tex. 2024). Given the gravity of circumstances involved in criminal proceedings and the bifurcated nature of the Texas high courts, I doubt this implied power could simply disappear because this Court has not yet chosen to employ it. Nothing in Article V of our Constitution supports a contrary rule, Stephens notwithstanding.

21.   While the standard of review for a trial court's finding of prosecutorial vindictiveness is clear error, ante at 3–7, we review its imposition of a remedy for an abuse of discretion. See State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998); State v. Mungia, 119 S.W.3d 814, 817 (Tex. Crim. App. 2003).

22.   This power would include the right to direct the case to an adjoining county or district attorney or to the Attorney General. I recognize that our Stephens decision (wrongly in my view) precluded the Legislature from exercising this authority when it does not have any logical application within the judicial department itself. Indeed, a contrary conclusion would render the District Attorney's Office a fourth branch of government immune from any constitutional correction at all.

23.   I appreciate the majority's concern for the limited authority (purportedly) conferred on us by the Legislature to oversee the conduct of our District Attorneys in the first place. But, if we believe—as we have repeatedly held—that the Legislature lacks constitutional authority to interfere with the operations of the Office of the District Attorney because it sits with us in the judicial branch, what authority would the Legislature have to confer and why would we await its exercise in any case?

1.   It does not matter whether “Appellee's right to a speedy trial was not violated.” Contra Maj. Op. at 27. To “punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’ ” Goodwin, 457 U.S. at 372. Appellee's due process rights were violated when the State vindictively reindicted Appellee for capital murder in retaliation for Appellee exercising his right to a speedy trial.

2.   Certainly, if one happened to have a time machine, one could go back in time and find a lesser remedy. The trial court could have, in the moment, dismissed the capital murder prosecution and forced the parties to trial on the alleged murder offense, thereby obviating any speedy trial concerns. But that did not happen, and the State appealed, so that remedy is no longer available.

3.   Article 29.03 of the Code of Criminal Procedure provides that, “A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion. A continuance may be only for as long as is necessary.” Tex. Code Crim. Proc. art. 29.03. “The matter of continuance is traditionally with the discretion of the trial judge.” Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). The Court's opinion today creates, in essence, a legal loophole to circumvent Article 29.03 and a trial judge's discretion to deny a motion to continue a trial setting. After today, the State can receive a free continuance, knowing that the Court's decision today renders a trial court's decision to dismiss a case with prejudice an abuse of discretion. The State cannot have its cake and eat it, too.

4.   This decision could have served as strong medicine to remedy the State's misconduct. The concurring Justice below had it right: “[T]he State's misconduct has robbed the community, most especially the [complainant's] loved ones, of the process of determining the truth about what happened” in this case. See Gabaldon, 661 S.W.3d at 568 (Soto, J., concurring).

Richardson, J., delivered the opinion of the Court in which Newell, Walker, McClure, and Parker, JJ., joined.

Schenck, P.J., filed a concurring opinion. Yeary, J., concurred. Finley, J., filed a dissenting opinion in which Keel, J., joined.