Ex parte Barnes

• Citation: 959 S.W.2d 313
• Decision Date: 02 December 1997
• Docket Number: Nos. 2-96-321-C,2-96-322,s. 2-96-321-C
• Parties: Ex Parte Elton Ray BARNES. CR, 2-96-323CR.
• Court: Court of Appeals of Texas

Page 313

959 S.W.2d 313

Ex Parte Elton Ray BARNES.

Nos. 2-96-321-CR, 2-96-322 CR, 2-96-323CR.

Court of Appeals of Texas Fort Worth.

Dec. 2, 1997.

Rehearing Overruled Jan. 29, 1998 .

Robinson, Smart and Gary D. Smart, Tarrant County, for Appellant.

Tim Curry, Criminal District Attorney, Charles Mallin, and Christy Jack, Assistant District Attorneys, Tarrant County, for Appellee.

OPINION

BRIGHAM, Justice.

Introduction and Background

Appellant Elton Ray Barnes was indicted, in three separate indictments, for the offenses of indecency with a child and aggravated sexual assault of a child. He filed a pretrial application for writ of habeas corpus asserting that the trial court had an obligation to discharge him under articles 32.01 and 28.061 of the code of criminal procedure because the State had not timely indicted him. The trial court conducted a hearing at which it found that the State had failed to timely indict appellant but had demonstrated good cause for its failure to do so. Accordingly, the trial court denied the requested relief.

In our review, we determine that the State did not have good cause for failing to timely indict appellant. We hold, however, that article 28.061 is unconstitutional ¹ because it violates the separation of powers provision of the Texas Constitution in much the same way as did the Speedy Trial Act. We further hold that article 32.01 is constitutional because it does not unduly infringe on prosecutorial discretion. Therefore, appellant was required to obtain relief under article 32.01 before indictment. Accordingly, we affirm the trial court's denial of habeas relief.

Appellant was indicted for all three offenses on February 15, 1996. The corresponding arrests occurred on May 16, 1995 and August 10, 1995. Appellant filed three pretrial applications for writ of habeas corpus, seeking dismissal of prosecution with prejudice on grounds of delay of indictment. ² The trial court denied appellant's request for habeas relief on July 8, 1996. ³

Appellant's Point of Error

In his sole point of error, appellant claims the trial court erred in denying the writ and failing to dismiss the prosecutions with prejudice. He relies on articles 32.01 and 28.061 of the code of criminal procedure which provide:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the Court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the Court which is held after his commitment or admission to bail.

TEX.CODE CRIM.PROC.ANN. art. 32.01 (Vernon 1989).

If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article or Article 32.01 of this code is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction....

TEX.CODE CRIM.PROC.ANN. art. 28.061 (Vernon 1989). ⁴

Appellant claims that because the State failed to indict him within the next term of court, the trial court was required by article 32.01 and article 28.061 to dismiss the prosecutions with prejudice.

''Good Cause" For Delay of Indictment

The State argues that while it is undisputed that appellant's indictment was delayed beyond the next term of court, it met its burden of showing that good cause existed. ^{5 5} See TEX.CODE CRIM.PROC.ANN. arts. 28.061, 32.01. The precise definition of good cause remains undefined. See State v. Condran, 951 S.W.2d 178, 182 (Tex.App.--Dallas 1997, pet. filed); see also In re Striegler, 915 S.W.2d 629, 642 (Tex.App.--Amarillo 1996, writ denied). However, at least one court has said that the good cause exception allows the State to present factors such as those set out in Barker v. Wingo. ⁶ See Norton v. State, 918 S.W.2d 25, 29 (Tex.App.--Houston [14th Dist.] 1996, pet. granted). The trial court's consideration of these factors is not mandatory because they relate to a defendant's constitutional right to a speedy trial, not to preindictment delay. See Condran, 951 S.W.2d at 182.

At the hearing on appellant's application for habeas relief, Christy Jack, a prosecutor in the Crimes Against Children Unit of the Tarrant County District Attorney's Office, testified that the investigation was "massive" and on-going, and involved the Fort Worth and White Settlement police agencies, Child Protective Services, and a task force from the Federal Bureau of Investigation. She also testified that the State was delayed by having to reorder information on appellant's previous federal offense, and there were numerous exhibits, including videotaped statements from the alleged victims and witnesses. She further testified that the caseload for grand jury indictments was transferred to her on August 14, 1995, after appellant was arrested but before he was indicted. Jack explained that it is the goal of the Tarrant County District Attorney's Office to present the grand jury with comprehensive information, conducting its own review of a case, and not relying solely on information in an arrest warrant.

However, Jack also testified that in all three cases, Fort Worth Police Detective John McCaskill completed an initial investigation before appellant was arrested. She acknowledged that each of McCaskill's affidavits in support of the arrest warrants detailed information obtained from the investigations, including statements of the alleged victims and potential witnesses. Jack testified that there was sufficient evidence in August 1995 to present the cases to the grand jury. She also acknowledged that, although she had to reorder appellant's federal penitentiary packet, she received the second packet on September 8, 1995, five months before appellant was indicted. At the close of the hearing, the trial court found that the State had met its burden of showing good cause for its failure to timely indict appellant.

The court of criminal appeals has recently discussed the amount of deference that we, as an appellate court, should afford to trial court rulings. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). In Guzman, the court stated that an appellate court should defer to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. See id. at 88-89. Appellate courts should afford the same deference to a trial court's rulings on the application of law to fact questions, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See id., at 88-89 However, appellate courts may review de novo "mixed questions of law and fact" not falling within this category. Id. at 89. Because the facts set out by the State in this case to establish good cause for its failure to timely indict appellant are undisputed, and because our determination of whether those facts establish good cause within the meaning of article 32.01 requires us to apply the law to those facts, we exercise our discretion under Guzman to review the trial court's ruling de novo. See id.

Reasons for the delay in indictment similar to the ones the State provided at the writ hearing have been considered and rejected in the context of a defendant's right to a speedy trial. For instance, the court of criminal appeals did not consider a defendant's attempts to informally resolve a related civil action together with the pending criminal case at issue an "exceptional circumstance" to excuse the delay of trial. See McClellan v. State, 742 S.W.2d 655, 656 (Tex.Crim.App.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1048, 98 L.Ed.2d 1010 (1988). Likewise, the State's failure to analyze drug evidence and the fact that the grand jury already had a full case load were not exceptional circumstances justifying delay. See Lloyd v. State, 665 S.W.2d 472, 475-76 (Tex.Crim.App. [Panel Op.] 1984). Similarly, the delay resulting from a mistake in the processing of a bail bond in a sheriff's office did not constitute an exceptional circumstance. See Lyles v. State, 653 S.W.2d 775, 778 (Tex.Crim.App.1983).

In Condran, the trial court's finding that the State had failed to show good cause for the delay in indicting Condran was upheld based on the State's lack of diligence in submitting evidence for forensic examination. See Condran, 951 S.W.2d at 183-84. Reviewing the evidence presented to the court at the writ hearing in this case de novo, the State essentially presented no evidence to support its position that it was unable to indict appellant timely. Accordingly, we conclude that the State did not meet its burden to show sufficient good cause for failing to indict appellant at the next term of court. ⁷

Constitutionality of TEX.CODE CRIM.PROC.ANN. arts. 32.01

& 28.061

Separation of Powers Provision

Because the State did not establish good cause, it is barred from prosecuting appellant unless either article 32.01 or article 28.061 is unconstitutional. Because this bar to prosecution establishes a present injury to the State, we will consider the State's contention that these articles are unconstitutional. See Meshell v. State, 739 S.W.2d 246, 251 (Tex.Crim.App.1987). The State argues that articles 32.01 and 28.061 infringe on an exclusive prosecutorial function in violation of the separation of powers doctrine ⁸ of the Texas Constitution. The constitutionality of these provisions has recently been addressed by both the Dallas and the Austin Courts of Appeals. See State v. Condran, 951 S.W.2d at 184; Ex parte Mallares, 953 S.W.2d 759, 761-64 (Tex.App.--Austin 1997, n.w.h.). ⁹ In Condran, the court relied on the court of criminal appeals decisions in Meshell, 739 S.W.2d at 250 and Jones v....