Opinion
No. 05-09-00167-CR
Opinion issued April 20, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Criminal Court at Law No. 11, Dallas County, Texas, Trial Court Cause No. M07-32876-N.
Before Justices MORRIS, BRIDGES, and MURPHY. Opinion By Justice MORRIS.
OPINION
In this appeal by the State of Texas, we must determine whether the trial court erred in granting Ntiense N. Essien's motion to quash the information in the case. We conclude the trial court erred, reverse the trial court's order, and remand the cause for further proceedings. Appellee was charged by information with the offense of violating a protective order. He filed a motion to quash and exception to the substance of the information alleging that the information "contains matter which is a legal defense or bar to the prosecution." He specifically argued that the permanent protective order in the case was void because he did not have an opportunity to be heard at the time it was issued. At a hearing on the motion to quash, the parties stipulated that appellant was in jail when the temporary restraining order was granted in the case and when the hearing on the permanent protective order took place, and the State tendered for admission other documentary evidence. While he was incarcerated, appellant was given notice of the hearing on the permanent protective order and ordered to appear at the hearing. At the motion to quash hearing, appellee argued that because he was not afforded the opportunity to be heard on the permanent protective order, he was denied his right to due process and the protective order was thereby invalid. He moved that the information in the case be quashed on the basis of an invalid protective order. The trial court granted appellee's motion. In its sole issue, the State makes two arguments. It first argues that the trial court erred in going beyond the face of the information when it considered appellee's motion to quash. A charging instrument must be facially tested under the law by itself as a pleading. It can neither be supported nor defeated by evidence introduced at a pretrial hearing. See State v. Siebert, 156 S.W.3d 32, 35 (Tex. App.-Dallas 2004, no pet.). A trial court errs in considering such evidence. See id. Here, however, the State did not timely raise this complaint at the hearing. Moreover, it stipulated to evidence, jointly offered documentary evidence with the defense, and tendered its own documentary evidence. The State has not preserved its argument for appeal. See Tex. R. App. P. 33.1. The State next argues in the alternative that appellee failed to show a due process violation. In particular, the State argues that because appellee offered no evidence showing he made an attempt to be heard on the protective order, he did not meet his burden of proving a due process violation that would justify the motion to quash. The trial court in this case made its decision based only on the substance of the information and the parties' agreement that appellee did not attend the hearing on the protective order because he was incarcerated. Accordingly, we conduct a de novo review of the trial court's decision to grant the motion to quash. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Appellee had the burden of proof on the motion to quash. See Wheat v. State, 537 S.W.2d 20, 21 (Tex. Crim. App. 1976). A prison inmate's right to access the courts does not necessarily equate to the right to appear personally. See Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.-Dallas 1987, no writ). Nor does the right imply that he can simply ignore a trial setting with impunity. Id. It was appellee's burden to attempt to seek some way to appear in the case, either by a bench warrant or by some other means. See In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003). When a trial court determines that an inmate will not be allowed to appear personally, the inmate may be allowed to proceed by some other effective means. See Johnson v. Handley, 299 S.W.3d 925, 929 (Tex. App.-Dallas 2009, no pet.). Nothing in the record before us indicates appellant ever requested to appear at the protective order hearing, either in person or by other means. Cf. In re Marriage of Bolton, 256 S.W.3d 832, 834 (Tex. App.-Dallas 2008, no pet.) (reversing trial court's dismissal of incarcerated husband's divorce complaint where trial court required Bolton to appear at hearing but refused to act on his motion for bench warrant or to conduct hearing by telephone conference or other means). Therefore, by failing to show that he ever requested an opportunity to appear at the hearing, he further failed to meet his burden of showing a denial of due process. See Hinojosa v. Tagle, 667 S.W.2d 927, 928-29 (Tex. App.-Corpus Christi 1984, no writ). We resolve the State's sole issue in its favor. We reverse the trial court's judgment and remand the cause to the trial court for further proceedings.