What, if any, authority does Judge have to force State to go on 1 particular case when 2 are set for same day? (1 defendant, 2 separate cases). Are representations made in pretrial weeks ahead of the trial setting carved in stone? What happens if things change during continued case preparation?

2 separately indicted, different cases w/different offense dates but same defendant.

Offense timeline:
Murder offense happened but not enough to file on Defendant. Defendant claims self-defense, saying CW pulled his handgun first. Nobody knows nothin' about nothin' (meaning no witnesses; case is only Def's statement and ballistics).

Subsequently, a few months later, the Defendant shoots AggAssault CW (a distant relative through marriage) with the very gun that the Defendant took from the Murder CW months earlier. Not many witnesses on this one either.

Both cases set for trial on same day. In pretrial, State said it was planning to put on the Murder in case-in-chief and the Agg Assault in punishment.

Once finally getting the Spanish-to-English translation (approx 2 weeks ago) of defendant's video recorded statements regarding both offenses, finally findng the AggAssault CW, and strategizing some more, the State changed it's mind and prefers to go on the Agg Assault in case-in-chief. Immediately infomed defense but this was now the Wednesday before trial setting.

PLease note that defense atty is fluent in Spanish and has had the upper hand all along b/c all statements, affidavits, etc are in Spanish.

Defense pitched a fit.

Judge claiming she is going to force us to go on the Murder. If we announce Not Ready on the Murder and Ready on the AggAssault, we anticipate the Defense to do the opposite (Ready on Murder and Not Ready on AggAssault). Judge says she will not "ding the defense b/c the State decided to change strategy at the last moment."

Judge also claims that if this happens "her hands are tied," and that she HAS to PR Bond the Def on BOTH cases. My reading of CCP 17.151 is that while she may have an argument for PR Bonding on the Murder, I don't see how she gets there on the AggAssault since it's also set for trial and the State is Announcing Ready on that.

Dismiss the murder case and announce ready on the aggravated assault. You can always re-indict on murder if needed.

Any good reason to think the judge is going to agree to sign an order dismissing the murder case? Based on the original post, it appears that the judge may be less than likely to cooperate.

That would lead you to another thread on the subject of who controls dismissals:

Details.

Marcia -

I agree with JB that the only way that you may be able to push the AggAsslt case ahead of the murder case is by dismissing it and refiling.

As to keeping your judge from PR'ing your AggAsslt case, I have a couple of ideas.

1. If defense asks for continuance, put your foot down and demand that any request for continuance be in strict compliance with the code -- i.e. must be in writing, and must be sworn ('verified') pleading.

2. Demand a hearing. At hearing introduce copy of pass sheet as hearing exhibit 1. Pass sheet will have BOTH defendant's signature and defense attorney's signature on face of document with AggAsslt cause number, giving clear undeniable proof that they were notified -- IN WRITING -- that the AggAsslt was set for trial that day and therefore cannot constitute undue surprise.

3. Call appellate -- this might be one of those rare circumstances where you the state can actually file an interlocutory appeal.

Just my two cents.

LBW

It looks to me like the previous thread does not really apply here, since the state has apparently previously announced ready. Also, this is not a case where the state wants jeopardy to attach, so the point at which the dismissal is granted becomes much more relevant. This also differs from the prior thread in that it is not likely that the defense will agree to a dismissal if they are aware that the case is going to be reindicted at a later date.

I have a piddly B misdemeanor, the DA has a good felony, the defendant is going down for 15. CCL refuses to continue until the felony pleads and refuses to dismiss. Filed a 12.45 letter today; may be addressing a jury on it Monday...

Gotta hate politics...

Lisa L. Peterson
Nolan County Attorney

I know of the previous thread, but since then there was an opinion holding that it was not a ministerial act. See In State ex rel. Valdez, 294 S.W.3d 337 (Tex. App.--Corpus Christi 2009, no pet.). I tend to agree with their reasoning. 32.02 was meant as a check on prosecutorial discretion, not a rubber stamp. If the judge won't agree to dismiss the case, I don't think he can be forced to.

There in lies the impasse - the State can't be forced to try it, and Court can't be forced to dismiss....

Lisa L. Peterson
Nolan County Attorney

Sounds like a political problem.