Texas Courts of Appeals

State v. Simpson

Nos. 05-25-01068-CR & -01070-CR                  5/20/26

Issue:

Did the trial judge err in dismissing two indictments against the defendant without the State’s consent when the defendant was found incompetent and one of the defendant’s alleged victims testified that she wanted the State to drop charges?

Holding:

Yes. The judge had no authority to sign an order of transfer for civil commitment proceedings and dismiss the charges under Code of Criminal Procedure Art. 46B.151 “in the interest of justice.” The defendant had been indicted for committing two aggravated assaults with a deadly weapon. A psychologist testified that the defendant was incompetent and unlikely to regain competency. A witness from the Collin County mental health department testified that if the State did not dismiss the charges and the trial court signed a commitment order, the defendant would be confined in the county jail until a bed became available in a limited secure mental health facility, and the wait time would be up to three years. The defendant’s grandmother asked for charges to be dropped, testifying that while on bond, the defendant was living with her and the other victim, took medication, participated in therapy, and had committed no further assaults. 

In dismissing the cases without the State’s consent, the trial judge said: “I object to the way the State has handled this and has failed to consider at all what this would do to our jail, people that are actually violent and a danger to themselves and their community that need the spaces that we still don’t have enough of in Vernon and Terrell. And I welcome your office to appeal this case and hope that maybe this will be the thing that spurs the legislature to do something about this because this is about as gross a miscarriage of justice I can see.” The Court of Appeals noted that there is no general authority that would permit a trial court to dismiss a case without the prosecutor’s consent. The State assumed for purposes of the appeal that the trial judge presumed that the defendant’s Eighth and Fourteenth Amendment rights were violated because the defendant could be confined in jail without optimal treatment and placed on a wait list prior to transfer. The Court agreed with the State that these issues were not ripe for review because the defendant had not yet spent time in custody awaiting a mental health bed and therefore could not demonstrate a constitutional violation. Without a constitutional violation, the trial court had no authority to dismiss the case without the State’s consent, and the Court of Appeals vacated the dismissal orders. Read opinion.

Commentary:

Although the circumstances of this case may not arise frequently, this opinion provides a helpful reminder about when a trial court can (and cannot) dismiss a charging instrument with prejudice, which is a drastic remedy appropriate only in extreme situations. Notably, while a trial court has authority to dismiss a charging instrument when it finds that the State has violated the accused’s constitutional rights (even when the violation is not one that appellate courts have previously recognized as a basis for dismissal), the trial court’s dismissal authority does not extend to constitutional violations that are hypothetical, speculative, or not yet ripe (i.e., have not yet occurred). Although this opinion is unpublished, it can still serve as helpful, persuasive authority for prosecutors who find themselves at odds with a trial judge who subjectively believes that further prosecution of a case is unwarranted and seeks to terminate charges, but the State disagrees.

Rodriguez v. State

No. 11-24-00297-CR                   5/21/26

Issue:

Is Code of Criminal Procedure Art. 38.37, §2(b) unconstitutional both on its face and as applied to the defendant because it allows a judge to admit evidence that the defendant committed a separate sexual assault offense against a child other than the complainant?

Holding:

No. The Court concluded that the defendant had not preserved his constitutional challenges, but even if he had, “they would fail.” The defendant argued that Art. 38.37, §2 is so inherently prejudicial as to invert the presumption of innocence that is due every defendant, and that the statute’s procedural protections “are insufficient and illusory.” The Court noted that other courts of appeals have addressed this issue and in every case, resolved against the defendant’s position. “In holding that Article 38.37, §2(b) does not violate due process, our sister courts emphasized that the procedural safeguards present in the statute itself as well as the protections embodied in Rule 403 of the Texas Rules of Evidence, are adequate to ensure that a defendant receives a fair trial.” The Court also rejected the defendant’s argument that the extraneous offense evidence should have been excluded under Rule 403. “Here, the extraneous-offense evidence was highly probative of [the defendant’s] propensity to sexually abuse children, carried a low likelihood of unfair prejudice, and bore on a crucial issue: whether [the defendant] had a sexual interest in young male children within his immediate family or from a household that treated him like family.” Read opinion.

Commentary:

With this opinion, the Eleventh Court of Appeals joins all the other Texas intermediate appellate courts with criminal jurisdiction in upholding the constitutionality of Art. 38.37, §2, against facial and as-applied challenges. Accordingly, the constitutionality of that statute is now the law across the state, practically speaking, even though the Texas Court of Criminal Appeals has not made any ruling to that effect. And given that the CCA has consistently refused defendants’ petitions for discretionary review of that issue for more than a decade (and likely would do so in this case, too, if the defendant seeks it), prosecutors may safely presume that this legal matter is as well-settled as it can be.

Job Posting: Domestic Violence Resource Prosecutor (DVRP)

May 28, 2026

The Texas District and County Attorneys Association (TDCAA) seeks a licensed attorney to serve as our Domestic Violence Resource Prosecutor (DVRP).

Overview

The DVRP is a full-time legal position based in Austin, Texas, which is primarily responsible for the development, production, and evaluation of regional and statewide domestic violence training offered by TDCAA. The DVRP also provides technical assistance to Texas prosecutors and allied professionals to improve their ability to see justice done in these complex cases.

Specific Responsibilities

• Developing and executing a strategy for providing regional domestic violence training programs and materials to service group members and allied professionals
• Under the direction of the TDCAA Training Director, delivering the Association’s existing training programs on domestic violence issues
• Conducting needs assessments to evaluate and determine the domestic violence educational needs of Texas prosecutors
• In conjunction with the TDCAA Communications Director, providing timely and relevant domestic violence articles and related materials for the TDCAA website and Association publications
• Assisting the TDCAA training team in the production of other live and online training events
• Monitoring criminal justice issues related to domestic violence
• Coordinating with external entities’ domestic violence training and advocacy
• Other duties as assigned by the TDCAA Executive Director or Training Director

Requirements

• Licensed member in good standing of the State Bar of Texas
• At least three full years of experience as a prosecutor in a county attorney’s or district attorney’s office in Texas
• Ability to travel regularly within Texas to provide in-person legal training, including overnight travel

Compensation and Location

The initial annual salary starts at $113,300 (negotiable commensurate with experience and qualifications). Health care and 401(k) retirement benefits are also available.

This is a full-time position requiring regular in-office collaboration with other TDCAA employees. TDCAA may allow limited hybrid work-from-home opportunities in the greater Austin area, but this is not a remote work position.

To Apply

Please provide a cover letter and resume to TDCAA Executive Director Shannon Edmonds at apply@tdcaa.com. Applications submitted through other means will not be accepted.