Behrend v. State

• Decision Date: 08 April 1987
• Docket Number: No. 352-84,352-84
• Citation: 729 S.W.2d 717
• Parties: Charles Dwayne BEHREND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 717

729 S.W.2d 717

Charles Dwayne BEHREND, Appellant, v. The STATE of Texas, Appellee.

No. 352-84.

Court of Criminal Appeals of Texas.

April 8, 1987.

Michael Byck, Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty. and Anne B. Wetherholt, Dennis Jones and Barbara Gibbs, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of murder pursuant to V.T.C.A. Penal Code, § 19.02. Punishment was assessed by the jury at 99 years confinement in the Texas Department of Corrections.

Appellant's conviction was affirmed by the Dallas Court of Appeals in an unpublished opinion. Behrend v. State, No. 05-82-01289-CR, delivered January 4, 1984. On July 11, 1984, we granted Appellant's Petition for Discretionary Review to determine whether the State complied with the requirements of the Texas Speedy Trial Act, Art. 32A.02, V.A.C.C.P. ¹ We affirm.

The record reflects that Milton Russell Caron was killed on or about January 6, 1981. His body was weighted and thrown into a well where it remained undiscovered for over one year. Appellant was arrested in connection with this offense on January 28, 1982.

On April 3, 1982, the Dallas County Grand Jury returned an indictment against appellant in Cause No. F-82-80882, charging him with capital murder pursuant to V.T.C.A. Penal Code, § 19.03(a)(2). The indictment alleged that appellant knowingly and intentionally caused the death of Milton Russell Caron "by suffocating deceased by holding a cloth soaked with chloraform [sic] over the mouth and nose of deceased, causing the deceased to inhale said chloraform [sic]," and that the death was caused while appellant was in the course of committing and attempting to commit the offense of robbery. On May 18, 1982, 110 days after appellant's arrest, the State filed a written announcement of ready for trial in Cause No. F-82-80882.

On September 8, 1982, appellant was reindicted by the Dallas County Grand Jury in Cause No. F-82-78435 for the lesser included offense of the murder of Milton Russell Caron pursuant to V.T.C.A. Penal Code, § 19.02(a)(1). This indictment alleged that "the exact manner and means of causing death is unknown to the Grand Jurors." The record does not indicate that the initial indictment was dismissed by the State. The return of the subsequent indictment occurred 223 days after appellant's arrest. Trial commenced on October 4, 1982, 249 days after appellant's arrest.

Appellant moved for discharge under the Speedy Trial Act contending that the State could not have been ready within the time limits imposed by the Act. Appellant reasoned that since the State announced that it was ready to try the first indictment, which alleged the cause of death to be by chloroform inhalation, it could not have been ready all along to try the second indictment, which alleged the cause of death to be unknown. Appellant additionally contends that even if the State were ready on the first indictment, the readiness could not carry over to the second indictment because of the different allegations, citing Rosebury v. State, 659 S.W.2d 655 (Tex.Cr.App.1983). Appellant alleges that since the second indictment was not returned until the time limits of the Act had run, the State could not have been ready on the second indictment within those time limits. The State countered that it was ready on the first indictment and that readiness "carries over" to the second indictment, even though the second indictment did not come into existence until seven months after appellant was arrested.

Concerning appellant's first contention, Article 32A.02, § 1, V.A.C.C.P., provides:

"Sec. 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:

(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony."

It is undisputed that this criminal action commenced upon appellant's arrest on January 28, 1982. See Art. 32A.02, § 2, V.A.C.C.P.

At the outset, we are confronted with the issue of whether the State met its burden of showing readiness to try the first indictment within the time limits imposed by the Act. Appellant contends that since the State chose to reindict him for committing murder by a manner and means unknown to the grand jury, the State could not have actually been "ready" to try him on an indictment alleging that death was caused by suffocating the deceased with chloroform. Essentially, appellant contends that since "manner and means unknown" and "death by chloroform" are mutually inconsistent, the State could not have been ready to prove both to a jury. We disagree.

The question of whether the State's "readiness" within the time limits set by the Act refers to preparedness of the prosecution for trial. Scott v. State, 634 S.W.2d 853 (Tex.Cr.App.1982). When the State's readiness is challenged we must determine whether the State was prepared for trial within the applicable time period. McMahon v. State, 630 S.W.2d 730 (Tex.App.-Houston [14th] 1982); White v. State, 630 S.W.2d 900 (Tex.App.-Amarillo 1982). Taylor v. State, 666 S.W.2d 157 (Tex.App.-Houston [14th] 1983, pet. ref'd).

Certainly, without the presence of the defendant the State cannot be prepared for trial, Stokes v. State, 666 S.W.2d 493 (Tex.Cr.App.1983). The time limits within which the State must be ready may be tolled, however, if the defendant is absent under certain circumstances. Art. 32A.02, § 4(4) & (5), V.A.C.C.P.

The concept of what constitutes readiness under the Act vis-a-vis charging instruments was examined in Ward v. State, 659 S.W.2d 643 (Tex.Cr.App.1983). There it was contended that because the misdemeanor affidavit supporting the information was not sworn to, in violation of Art. 21.22, V.A.C.C.P., the State could not have been "ready" under that information. Although such a defect would have rendered the conviction void and caused reversal on appeal, Carter v. State, 398 S.W.2d 290 (Tex.Cr.App.1966), the concept of "ready" does not demand that the State have a "perfect" indictment or information. Rather:

"A defective indictment or information is treated in much the same manner as other causes for trial delay with the nature of the defect and the length and reasonableness of the delay weighed in determining whether or not the State was, in fact, not prepared for trial. [citing Ward, supra]"

Carter v. State, 702 S.W.2d 774, 777 (Tex.App.-Fort Worth 1986).

While the total failure to file an indictment or information indicates some unpreparedness for trial, see Golden v. State, 672 S.W.2d 895 (Tex.App.-Dallas 1984), an error such as that present in Ward does not (although other error or circumstances surrounding charging instrument error might so indicate, in another case). The Court in Ward pointed out that there was no showing of bad faith on the part of the State when it announced ready. Thus the State may be prepared for trial even though the indictment that forms the basis for the prosecution of the offense is so defective as to be void, assuming no bad faith.

No bright line rule has emerged concerning just how much or what type of evidence the State must have available for trial in order to be prepared for trial. Some examples, however, do exist. A showing that the "State did not have a key witness or piece of evidence available" would rebut the assertion that the State was ready, Brown v. State, 667 S.W.2d 630 (Tex.App.-Fort Worth 1984), Mallard v. State, 661 S.W.2d 268 (Tex.App.-Fort Worth 1983), as would a showing that the State had not procured the presence of a key witness, McCartin v. State, 662 S.W.2d 794 (Tex.App.-Corpus Christi 1983, pet. ref'd) (procured in the sense of into the jurisdiction of the State--witness outside U.S. border). This is, in part, inferred from the Act itself, which excludes a period of delay because of the unavailability of material evidence. Art. 32A.02, § 4(6)(A), V.A.C.C.P.

Concerning the specific contention before us, that the State could not be ready on both of two mutually inconsistent theories of commission of an offense, we find nothing in the case law or in the Act prohibiting the State from changing theories of prosecution for a particular offense and then choosing a route which better fits the evidence. In fact we glean just the opposite from the cases discussed above and a plain reading of the Act.

So long as the State was "ready" or prepared to go to trial on the allegation of murder by chloroform suffocation and in good faith was ready to attempt with witnesses or evidence to persuade a jury of the first theory within the time limitations, the readiness requirements of the Act are satisfied. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). It is of no moment that the State may reconsider the case, change its initial position, and recharge a criminal defendant with the same offense but under theories more consistent with the evidence. The State may be ready on this second theory, regardless of its consistency with the first theory, if it in good faith has witnesses or evidence to attempt to persuade a jury of the second theory.

At the hearing on the motion to dismiss the indictment, the State first announced that it was ready to try the present criminal action and also that it had been ready to go to trial since the return of the first indictment against appellant. This was all the State needed to do in order to present a prima facie case of readiness and shift the burden to the appellant to show that the State was not in fact ready at some time required by the Act. Barfield, supra; Ostoja v. State, 631 S.W.2d 165 (Tex.Cr.App.1982); Jackson v. State, 657 S.W.2d 874 (Tex.App.-Texarkana 1984, pet. ref'd); Weathers v. State, 695 S.W.2d 367 (Tex.App.-San Antonio 1985, pet. ref'd). Answering this burden shift, appellant called the investigator...