THE STATE OF TEXAS v. IVAN GABALDON (2025)

OPINION

The Court today correctly denies Appellee's motion for rehearing. In addition to the reasons I detailed in my concurrence to the Court's opinion on the State's petition for discretionary review,¹ I write separately here to emphasize my belief that we should explicitly acknowledge removal as an option for redress of the misconduct in this and other like cases or suggest some other viable option to assist the trial court.

Where vindictive prosecution is established, as it was here in this case, I cannot rely on optimism that the State will remedy its own wrong. See Gabaldon, No. PD-0149-23, at *14. I agree with Appellee (and Judge Finley) that our existing disposition leaves the State entirely without consequence for this abuse. But this case involves more than abuse of a litigant's right to petition for recognition of his right to a speedy trial. It also involves the blatant disregard for the trial court's decision denying the State's request to continue the trial. Leaving all of this unpunished and undeterred is concerning and unacceptable.

The majority opinion notes that the trial court remains free to fashion other remedies to vindicate the rights of the accused and the court itself. Taking the majority at its word and dismissing any dicta to the contrary, that would leave the court free to fashion any remedy, short of dismissal with prejudice. That would include removal of the District Attorney's Office and replacement with another attorney, including the Attorney General, as the trial court deems appropriate. See Tex. Code Crim. Pro. Ann. art. 2A.104.

There should be some remedy for this “folly,” Gabaldon, No. PD-0149-23, at *14, and it should be sufficient to deter like abuses in the future. See Chambers v. NASCO, 501 U.S. 32, 44–45 (1991). For these reasons, I concur in the Court's decision.

FOOTNOTES

1.   State v. Gabaldon, No. PD-0149-23, 2025 WL 2588858, at *14–23 (Tex. Crim. App. Sept. 3, 2025) (Schenck, P.J., concurring).

Schenck, P.J., filed a concurring opinion.