DeVaughn v. State

• Decision Date: 15 August 1984
• Docket Number: No. 04-83-00094-CR,04-83-00094-CR
• Citation: 678 S.W.2d 143
• Parties: Lernard DE VAUGHN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 143

678 S.W.2d 143

Lernard DE VAUGHN, Appellant, v. The STATE of Texas, Appellee.

No. 04-83-00094-CR.

Court of Appeals of Texas San Antonio.

August 15, 1984.

Rehearing Denied Sept. 12, 1984.

Mark Stevens, San Antonio, for appellant.

Sam Millsap, Jr., Dist. Atty., Edwin E. Springer, Edward Coffey, Edward F. Shaughnessy, III, Asst. Criminal Dist. Attys., San Antonio, for appellee.

Before CADENA, C.J., and CANTU and TIJERINA, JJ.

OPINION

CANTU, Justice.

Appellant seeks review of his conviction for the first degree felony offense of burglary of a habitation. TEX.PENAL CODE ANN. § 30.02(a)(3) (Vernon 1974).

Trial was to a jury and punishment was assessed by the trial court at ten (10) years' confinement in the Texas Department of Corrections.

Appellant challenges trial court rulings refusing to grant motions to dismiss for failure to afford a speedy trial and to quash the indictment. The sufficiency of the evidence is not challenged.

Appellant, eighteen years old at the time of the offense, was arrested by Live Oak police officers on August 9, 1982 for a burglary which forms the basis of the instant conviction. A confession ¹ was obtained by the arresting officers; however, appellant, rather than being booked, was released to his parents.

On October 20, 1982, the Bexar County Grand Jury returned an indictment and a capias warrant issued. On October 26, 1982, the State filed an announcement of ready for trial containing the rubber stamped signature of an assistant criminal district attorney. Appellant was rearrested as a post-indictment fugitive on November 9, 1982.

On November 22, 1982 while appellant remained incarcerated, counsel was appointed by the trial court to represent him.

On December 13, 1982, appellant appeared before the trial court, waived pre-trial arraignment, filed a motion seeking the appointment of an investigator, filed discovery and suppression motions and sought a continuance of the case for 60 days and until such time as the investigation of the case was completed and pre-trial motions disposed of.

In addition to the filing of the aforesaid motions, appellant in open court and with approval of the State's attorney, his defense attorney and the trial court, agreed in writing:

... that in computing the time by which the State must be ready for trial under Art. 32A.02, C.C.P., a period of 60 days should be excluded.

Acknowledged and agreed:

... that the State of Texas through its District Attorney, Bexar County, announced ready for trial on December 13, 1982 ...

... that the defendant waives all of his rights to a speedy trial afforded by the Constitutions of Texas and the United States ...

... that the defendant waives his right to move for discharge under the provisions of Article 32A.02, Texas C.C.P. ...

In accordance with appellant's request, the cause was continued for the time requested and reset for trial on February 14, 1983.

On February 11, 1983, appellant filed his motion to quash indictment and on February 14, 1983, the case being called for trial hearings were had on pending motions to suppress and motions to quash.

Numerous other trial motions including a motion to dismiss for failure to afford a speedy trial were filed on the day of trial, February 15, 1983.

The trial court did not conduct a hearing on appellant's 32A.02 motion until February 18, 1983, after the jury had returned its guilty verdict but before the punishment phase began.

At the commencement of the hearing, the trial court acknowledged that appellant "wanted a hearing [on his speedy trial motion] before the trial, and I kept putting him off ..."

The State argues that appellant's motion was not timely filed under the Speedy Trial Act because it was filed on the day of trial. Numerous cases have commented on an accused's failure to file his motion prior to the date of trial. See Jumper v. State, 636 S.W.2d 502 (Tex.App.--Fort Worth 1982, no pet.); Maddox v. State, 635 S.W.2d 456 (Tex.App.--Fort Worth 1982, no pet.); Kennedy v. State, 630 S.W.2d 509 (Tex.App.--Fort Worth 1982, no pet.); Finch v. State, 629 S.W.2d 876 (Tex.App.--Fort Worth), pet. granted, 643 S.W.2d 414, 415, on remand, 638 S.W.2d 215, pet. dism'd, 643 S.W.2d 415, 416 (1982); Leal v. State, 626 S.W.2d 866 (Tex.App.--Corpus Christi 1981, no pet.); Rocha v. State, 624 S.W.2d 789 (Tex.App.--Fort Worth 1981, no pet.). However, in each of those cases, we believe the controlling factor to be a failure to PRESENT the motion to the trial court for a ruling prior to announcing ready for trial and actually entering his plea.

The State relies on TEX.CODE CRIM.PROC.ANN. art. 32A.02, § 3 (Vernon Supp.1984) which provides:

The failure of a defendant to move for discharge under the provisions of this article prior to trial or the entry of a plea of guilty constitutes a waiver of the rights accorded by this article.

See Humphrey v. State, 646 S.W.2d 949, 950 (Tex.Crim.App.1983); Rocha v. State, 624 S.W.2d at 790.

The instant case is more akin to Finch v. State, 643 S.W.2d at 415 (See lower court opinions at 629 S.W.2d 876, on remand, 638 S.W.2d 215).

The trial court's actions and comments support a conclusion that the motion was timely presented for consideration and that total fault in not ruling on it prior to commencing the trial was the trial court's. We hold that appellant preserved his speedy trial issue for review. Finch v. State, 643 S.W.2d at 415.

Appellant argues that the evidence adduced at the hearing effectively discredited the State's announcement of ready filed on October 26, 1982. We need not, however, decide whether appellant is correct in such assertion because the record indicates, independent of the hearing proof, that the State's announcement of ready on October 26, 1982 was rebutted.

Appellant was a post-indictment fugitive at the time the State filed its announcement and, therefore, the State did not and could not have secured his presence for trial until November 9, 1982, the date of his arrest.

In Newton v. State, 641 S.W.2d 530, 530 (Tex.Crim.App.1982), the Court held that the accused's absence at the time of the State's announcement of ready conclusively rebuts the prima facie showing of readiness made by the State. In doing so, the Court recognized that a contrary holding would in effect, emasculate much of the legislative intent evidenced by the statutory exclusions in TEX.CODE CRIM.PROC.ANN. art. 32A.02, § 4 (Vernon Supp.1984).

While the State may have been ready for trial from an evidentiary standpoint, it could not have been ready for trial, under Article 32A.02 without the presence of the appellant. See Stokes v. State, 666 S.W.2d 493, 494 (Tex.Crim.App.1983); Newton v. State, supra at 531; see also Lyles v. State, 636 S.W.2d 268, 271 (Tex.App.--El Paso 1982), aff'd, 653 S.W.2d 775 (Tex.Crim.App.1983).

For purposes of the Act, a criminal action commenced when the appellant was first arrested. Lee v. State, 641 S.W.2d 533, 535 (Tex.Crim.App.1982).

The burden is on the defendant to make the first move by filing a motion to dismiss under the Speedy Trial Act and his failure to do so constitutes a waiver.

Upon a showing that the State is not ready for trial within the time allowed by the statute, the burden shifts back to the State to prove there were excludable periods of delay that would extend the initial time limitation. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App.1982).

Once a defendant files his motion to dismiss for failure to adhere to the provisions of the Speedy Trial Act the State must declare its readiness for trial then and at the times required by the Act. Barfield v. State, 586 S.W.2d 538, 542 (Tex.Crim.App.1979). A declaration by the State of its readiness for trial is a prima facie showing of conformity to the Speedy Trial Act that can be rebutted by evidence submitted by a defendant demonstrating that the State was not ready for trial during the Act's time limits. Phipps v. State, 630 S.W.2d at 947.

There is nothing in the record that tends to raise excludable periods of delay. See TEX.CODE CRIM.PROC.ANN. art. 32A.02 § 4(4)(A), § (4)(B), § (5), § (9) (Vernon Supp.1984). There remains, however, the motion for continuance and the instrument containing the various waivers approved by the trial court.

From August 9, 1982 to December 13, 1982, the date acknowledged by appellant that the State was ready, is 126 days. The appellant did not, however, acknowledge that the State had been ready at all times during the period covered by the Act. ² The State may, therefore, not rely upon the announcement of ready made on December 13, 1982. See Lee v. State, 641 S.W.2d at 535; Scott v. State, 634 S.W.2d 853, 855 (Tex.Crim.App.1982). It need not, however, do so.

Appellant's motion to dismiss was not filed until the 191st day following his initial arrest. However, it is not necessary for the accused to file the motion prior to expiration of the 120th day or other applicable period. Valadez v. State, 639 S.W.2d 941, 942 (Tex.Crim.App.1982). The motion for continuance filed after the expiration of 120 days did not constitute a waiver or otherwise breathe new life into the prosecution. Id.

There remains the question of the waivers executed by appellant and approved by the trial court. Appellant contends that these waivers applied prospectively only and did not affect his Speedy Trial Act rights which had accrued as of that date. He asks this Court to treat the waivers like the continuances in Valadez and in Scott. He attempts to distinguish Durrough v. State, 620 S.W.2d 134 (Tex.Crim.App.1981) because the waivers in that case were executed during the 120 day period. We are not persuaded that the facts in the instant case call for a result different from Durrough.

TEX.CODE CRIM.PROC.ANN. art. 1.14 (Vernon 1977) provides:

The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.

Waiver...