Defense attorney filed motion to dismiss b/c victim/wtness has recanted her story. Defense Atty, cites Owens v. Sate, 916 SW2d 713, Ramirez v. State, 987 S.W. 2d 938 as grounds for dismissal. This is a assualt-family violence 2nd case. To my knowledge, it is not grounds for a dismissal if victim changes
his/her story. If anyone has case law or can cite
me a portion of the Code citing it does not matter if victim is cooperative, please advise. Thanks. Scott

Here is a case where the motion you are dealing with was rejected on appeal. Jackson v. State
110 S.W.3d 626, 630-31 Tex.App.-Houston [14 Dist.],2003, pet. ref'd):

"Generally, a trial court does not have the power to dismiss a case unless the prosecutor requests dismissal. Ex parte Seidel, 39 S.W.3d 221, 223 (Tex.Crim.App.2001) (citing State v. Johnson, 821 S.W.2d 609, 613 (Tex.Crim.App.1991)). In addition, "[t]his court cannot review the sufficiency of the evidence to support an indictment, or question whether the grand jury had probable cause to indict." Brochu v. State, 927 S.W.2d 745, 749 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Finally, we note that a criminal conviction, which requires proof beyond a reasonable doubt, may rest on hearsay despite the lack of the complainant's testimony or even the complainant's recantation. See, e.g., Salley v. State, 25 S.W.3d 878, 881 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding evidence legally sufficient although largely presented through responding officer when complainant testified she could not remember any of the events leading to husband's arrest); Peters v. State, 997 S.W.2d 377, 382-83 (Tex.App.- Beaumont 1999, no pet.) (holding evidence legally sufficient to establish sexual assault despite being based largely on unobjected to hearsay in face of complainant's recantation); Tejeda v. State, 905 S.W.2d 313, 318 (Tex.App.- San Antonio 1995, pet. ref'd) (holding hearsay evidence of responding officer and physical evidence of cuts and bruises legally sufficient despite complaint's having claimed spousal privilege not to testify against husband)."

Here is a case like yours where the evidence was held to be sufficient Reese v. State, No. 05-04-00271-CR, 2004 WL 2799550 (Tex.App.-Dallas December 7, 2004) (not for publication).

This case might also help:
"The State has a right to prove its case in any way it may see fit under proper rules and regulations, and a defendant cannot direct either the method or manner of proof. Johns v. State, 155 Tex.Crim. 503, 236 S.W.2d 820, 822 (1951). Thus, the State cannot be forced to introduce any particular evidence in making proof of its case. Bowers v. State, 398 S.W.2d 279, 281 (Tex.Crim.App.1986); see also Hanes v. State, 170 Tex.Crim. 394, 341 S.W.2d 428, 430 (1961).
An accused's right to be confronted by the 'witnesses against him' speaks to the right of confrontation that a defendant enjoys, not to the state's burden of production or the number of witnesses required for conviction."

Shelvin v. State, 884 S.W.2d 874, 877 (Tex.App.-Austin 1994, pet. ref'd).

Although I only did the appeal on the case so not familiar with the exact circumstances we had a FV case where the victim and another witness to the event both refused to testify - the witnesses were under subpoena, filed a writ of attachment and they spent the night in jail until brought to testify. Of course the victim recanted, but was impeached with her statement to police on the night. We got a guilty verdict. Don't know how this would work if the victim is the spouse though (spousal privilege) - in this case they were just living together. Guilty verdict - issue on appeal whether we proved up "household member" No COA opinion yet.

Spousal privilege doesn't apply in cases where the spouse, a minor child, or a member of the household is the victim. TRE 504(a)(4)(C)

I was, unfortunately, one of the prosecutors on the Owens case. The victim was under subpoena, refused to testify (she showed up at court). We put her on the stand where she took the 5th we then requested immunity which was granted. She finally testified to some BS story about an unknown assailant beating her half to death. Our problem came when we impeached her with a written statement given the night of the assault. It was introduced without any limiting instruction as I recall but it was the only evidence Owens committed the assault. We were obviously reversed.

About six months ago I had a recalcitrant witness in an Aggravated Robbery. He was a jailhouse snitch. He had liberated himself from our custody prior to trial. He then refused to testify. We got a Writ of Attachment. My investigator extended the Court�s invitation to join us. He was literally carried into the courtroom in handcuffs and shackles and set in the witness stand like a big sack of potatoes. The court had an attorney on standby to advise him of the consequences of his decision not to comply with the subpoena as well as the penalties of perjury. I began my direct and, to my surprise, he started answering my questions. I did not get to the point where a contempt hearing was necessary but we were prepared to proceed with one. My biggest concern was delaying the trial while the witness cooled his heels in jail. At some point, we would have to proceed with the trial possibly without his testimony.

In short, the defense attorney�s motion is no bueno. You don�t know what these yahoos will do until you get there. Arrange to get your witness an attorney who will clearly explain things like perjury, false report, contempt, etc.

Tuck,
Congratulations on your 100th post. And, it's cool that it came on the anniversary of the day that Elvis got his first G.I. haircut. Sorry I didn't get you anything, but I'll run over to the half price card store and see if they have something nice.

An original banjo serenade would be nice

Can I bring my throw-down drummer along -- he could probably use a break from the intoxicated-enema-slaughter case, and if there's going to be dancing, there are a couple of fellows who can noodle-up some dates and provide some fishy entertainment, no extra charge for the smell.