Arivette v. State, 48546

• Decision Date: 18 September 1974
• Docket Number: No. 48546,48546
• Citation: 513 S.W.2d 857
• Parties: James Earl ARIVETTE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 857

513 S.W.2d 857

James Earl ARIVETTE, Appellant, v. The STATE of Texas, Appellee.

No. 48546.

Court of Criminal Appeals of Texas.

Sept. 18, 1974.

Rehearing Denied Oct. 9, 1974.

John J. Brown, Houston (Court-Appointed), for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Warren White, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

REYNOLDS, Commissioner.

Under the court approved reduction of the indicted offense of robbery by assault with a firearm, appellant was tried for and convicted of robbery by assault. The jury assessed punishment at confinement for one hundred (100) years.

Appellant's twenty-one grounds of error are positioned correlatively to a statement of the case detailing the sequential events of five days beginning July 10, 1969, during which there was described the appellant's complicity in several offenses, including the robbery by assault for which he was convicted, the evidence supporting which is not directly challenged. The description was permitted under the trial court's ruling that the State would be allowed 'to prove the main issue and that is the robbery by assault as well as malice, intent and motive and anything involved in the flight . . . while the two complaining witnesses are in captivity,' although the court denied the State's offer to show that appellant subsequently escaped from the Harris County jail. The narration is from the evidence produced by the State; appellant did not testify nor call any witnesses in his behalf.

During the afternoon of July 10, 1969, appellant and his fourteen year old stepbrother, Larry Foster, discussed getting some easy money, kidnapping someone and leaving the State. After purchasing two pistols by giving a check for which the vendor received no money, appellant, accompanied by Foster and a thirteen year old girl, Cathleen Callier, went to the Pasadena home of complainant Floy Chambers Sackett.

Appellant was admitted to the home by complainant's twelve year old daughter on his pretext of calling about an automobile Mrs. Sackett had for sale. Appellant shoved a pistol under the complainant's chin and said, 'Don't scream or I will blow your brains out and I mean every word I say.' Appellant placed her on the bed, and bound her hands and disrobed her. He said he wanted her money and her car, stating that he had beaten some man and had literally cut him to bits and taken what money he had. He also told complainant that there was a gun on her daughter, who was in another room with appellant's companions. Unable to accomplish an unnatural sex act, appellant untied the complainant and, while she was dressing, he took $115 from her purse on the dining room table. All during this confrontation and the sequential events terminating on the fourth day thereafter with appellant's capture and the freeing of complainant and her daughter, the complainant was in fear for her life and that of her daughter or of serious bodily injury either to herself or to both of them.

Appellant forced the complainant and her daughter to leave with him and his two companions. With the complainant driving her car at appellant's direction, the five persons drove to Eagle Lake, where they spent the night in one motel room. That night, appellant raped the complainant.

The following day they drove to and spent the night in Carlsbad, New Mexico. Appellant was particularly interested in the television news to ascertain if they had been reported missing. That evening appellant beat Cathleen Callier as a result of which both of her eyes were badly bruised and blackened.

The next day, Jury 12th, they drove to Silverton, Colorado, where they stayed that night. During this trip, appellant and Foster played tic-tac-toe with a knife on Cathleen Callier's left thigh, leaving marks discernible two days later.

On the following day, their travels took them to the Battle Mountain Lodge in Wyoming, where they spent the night, and on the next day, July 14th, they went to Idaho. Appellant decided to return to the Battle Mountain Lodge.

Arriving at the lodge, appellant and Foster robbed the owners of the lodge, holding them and others present captive. Appellant announced to the assemblage that he had abducted complainant and her daughter at gunpoint and brought them all the way to Wyoming; that he would use his gun on the wife of the lodge owner; that he could kill all of them and if he killed one, he might as well kill all; that 'he didn't intend to leave there alive'; and 'he went on to tell us about the times he had done in the different Penitentiaries.'

During that evening on July 14th, Foster shot Cathleen Callier five times, apparently killing her. Her body was taken outside the lodge where appellant shot her in the head.

Later that evening, Wyoming police officers arrived and surrounded the lodge. Following gunfire, appellant and Foster threw out their guns and surrendered. It was then discovered that a police officer had been shot and killed during the shooting.

During the entire episode, complainant either had no chance to escape or she was deterred from attempting escape by the threats made by appellant to her or about her daughter. She feared that appellant would fulfill those threats. When she was not in appellant's immediate presence, her daughter was kept as a hostage.

Appellant's twentieth ground that the denial of a speedy trial entitled him to a dismissal of the charge arrives without the development of proof to sustain his allegation. Indeed, in lieu of developing the matter, appellant's counsel stated to the trial court at the presentation of the motion to dismiss for failure to grant a speedy trial, '(w)e will just let the Court overrule that.' Nonetheless, the motion allegations projected against the record do not support appellant's contention that his Sixth Amendment constitutional right was violated.

Appellant was taken into custody by Wyoming officers on July 14, 1969. The charge out of which this Texas prosecution grew was lodged against appellant on January 4, 1971, in the Justice of the Peace Court, Precinct No. 2 of Harris County, and a detainer was placed on appellant, who then was incarcerated in the Wyoming penitentiary. The indictment was presented January 25, 1971. On February 2, 1971, appellant executed his motion for a speedy trial, stating he would waive extradition if the Wyoming authorities would release him.

Appellant was returned to Harris County on March 8, 1971, and, on March 12, 1971, appellant declined the speedy trial offered him by moving for a continuance, which was granted. Thereafter in 1971, the case was passed or continued six more times, twice at appellant's request and four times without assignment of a specific reason, although it appears two of these delays were occasioned by appointment of counsel for appellant. In 1972, two previously set trial dates were vacated, once on appellant's motion and once when counsel was again appointed for appellant, and trial was set for February 19, 1973. Just before this trial date co-counsel was appointed for appellant, and the case was reset for trial on April 3, 1973, the date the trial actually began. Prior thereto on March 16, 1973, appellant filed his motion of dismissal for failure to grant him a speedy trial, and this is the motion presented to 'let the Court overrule that.'

Appellant insists that his motion based on the four factors of (1) length of delay; (2) reason for the delay; (3) his assertion of his right; and (4) prejudice to him, considered in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), established a prima facie denial to him of a speedy trial since the State did not controvert his allegations of applicability of these factors to show his constitutional right was violated. Barker, however, is not so definite. There, it was announced that although these four are some of the factors to be considered, they have no talismanic qualities, and the courts must still engage in a sensitive balancing process on an ad hoc basis. See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).

Previously, these four factors have been considered at length by this court, ¹ and it would be superfluous to again discuss the rationale of applicability. Suffice it to state that, applied to the existent facts of this case, none of the factors affords appellant the relief he seeks.

The length of delay is measured from the time the defendant is accused. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The length of delay here--twenty-seven months from the original accusation on January 4, 1971 (and less from the indictment) to the trial on April 3, 1973--is not, per se, a denial of a speedy trial. McCarty v. State,498 S.W.2d 212 (Tex.Cr.App.1973).

The reason for the delay is not alleged to be, and the record will not support a claim of, any deliberate attempt by the State to delay the trial; rather, the record reflects that, except for appellant's resistance, the State would have accommodated him with a speedy trial. Following appellant's February 2, 1971 motion for a speedy trial--a month after he was formally accused and some eight days after his indictment--and his return to Harris County on March 8, 1971, appellant refused a speedy trial on March 12, 1971. Instead, his motion for continuance was granted, as were his other motions for continuance, two of which were made that year and one of which was presented in 1972. At least three continuances were granted for the benefit of appellant's counsel. The record does not show that any continuance was granted at the request of the State.

As to the assertion of his right to a speedy trial, appellant early did make such an assertion, but he thereafter declined the offers of a speedy trial. Obviously, he took no action to press his initial application for a speedy trial.

The prejudice resulting is alleged in appella...