We are going to trial on a sexual assault of a trial case. The prior elected district attorney dismissed a prior indictment of this offense for lack of evidence. When the new district attorney came into office he reindicted the case and is proceeding to trial. Is the prior dismissal of the indictment admissable into evidence at this jury trial? We anticipate the defense attempting to get it before the jury.

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- Mendiola v. State, 61 S.W.3d 541 (Tex. App.---San Antonio 2001, no pet.) (trial court acted within discretion in excluding evidence -- during punishment phase of trial -- that district attorney had dismissed indictment against defendant for alleged sexual contact with great neice).

- Dennis v. State, 178 S.W.3d 172 (Tex. App.---Houston [1st Dist.] 2005, pet. ref'd) ("Third, to the extent that Dennis attempts to use the [dismissal] evidence as another's opinion of M.W.'s credibility, it is improper.")

- Additionally, evidence of prior indictment's dismissal during guilt-innocence undoubtedly violates Rule 403 of the Texas Rules of Evidence (among a bazillion other reasons it should be kept out of G/I).

[This message was edited by APorter on 10-14-10 at .]