Ex parte Hilliard, 68963
| Decision Date | 06 March 1985 |
| Docket Number | No. 68963,68963 |
| Citation | 687 S.W.2d 316 |
| Parties | Ex Parte Jodie A.D. HILLIARD, III. |
| Court | Texas Court of Criminal Appeals |
This is an application for a post conviction writ of habeas corpus. See Art. 11.07, V.A.C.C.P. Applicant pled guilty to burglary with the understanding that he could appeal the denial of his pre-trial motion to dismiss, which alleged a violation of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P. His conviction in Cause No. 63,808 was affirmed in an unpublished per curiam opinion delivered June 25, 1980. 600 S.W.2d 341. The panel opinion held that his guilty plea waived his right to appeal his speedy trial claim.
In Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983) we held that such rights claimed by an accused under the Texas Speedy Trial Act are not lost by a subsequent guilty plea. Accordingly, we deny applicant's request for relief in the form of a plea withdrawal, but we grant his underlying request for appellate review of his speedy trial contention. We will treat the merits of his speedy trial claim on the basis of the record in his original appeal, our Cause No. 63,808.
Applicant was arrested on August 13, 1978, for the offense of burglary. He was indicted for that burglary on September 11, 1978. Subsequently, on October 13, applicant was notified that a hearing would be held concerning a violation of his parole, based in part on the aforementioned burglary.
Applicant waived his right to an on-site hearing concerning his parole violation, admitted the parole violation, and was sent to the Texas Department of Corrections in Huntsville for a hearing on the violation. 1 The hearing was scheduled for November 1, 1978, but, for reasons not shown in the record, was not held until December 13.
At the hearing on his motion to dismiss, applicant argued that because the State announced ready for the first time on January 8, 1979, 149 days after his arrest for the burglary, the burglary case should be dismissed pursuant to Art. 32A.02, V.A.C.C.P. 2 The trial court denied the motion, ruling that 59 days should be excluded from the calculations, thus bringing the State into compliance with the statutory limits. The court ruled that the excluded days were from October 24, the date that applicant was sent to Huntsville, to December 21, the date his motion to dismiss was received. 3
The State's announcement of ready within the statutory time period establishes a prima facie case of compliance with the Texas Speedy Trial Act. The burden is then on the defendant to show that the State was not ready within the time limit. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). If the State announces ready at a time not within the applicable limits and does not say that it was ready within the statutory time limit, then the burden is on the State to prove that certain times are excludable under Section 4 of the Act, so as to bring the State within the time limit. Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980).
The latter rule applies in the instant case. Applicant was arrested August 13, 1978, and the State announced ready January 8, 1979, 149 days after the commencement of the action. The State did not say they had been ready before January 8. Thus, the State had the burden to prove that certain time could be excluded. Pate, supra.
The State's sole argument is that applicant's waiver of an on-site hearing and subsequent transfer to Huntsville was a voluntary act and relieved them of the requirement to be ready for trial within 120 days of applicant's arrest. We do not agree.
The Speedy Trial Act places the onus on the State to be ready for trial. In Newton v. State, 641 S.W.2d 530, 531 (Tex.Cr.App.1982) we said:
Because the statute specifically excludes time periods when the defendant is absent under the limited circumstances stated in Sec. 4(4), (5) and (9) quoted above, it is obvious that mere absence of the defendant is a circumstance that, except for those specific statutory exclusions, does not toll the statute and therefore prevents the State from being ready within the meaning of the statute. If the absence of the defendant was intended by the Legislature to have no effect on the readiness of the State, there would be no need for the statutory exclusions of Sec. 4(4), (5) and (9).
Also, if a defendant is absent or causes the delay by attempting to avoid apprehension, the State might well be permitted to exclude certain time under the provisions of the Act. Hamilton v. State, 621 S.W.2d 407 (Tex.Cr.App.1981), Newton, supra. We do not believe that applicant's actions are of this nature.
We must examine the facts of the case to determine if certain times are excludable under Section 4 of the Act.
Sec. 4 states in pertinent part In computing the time by which the state must be ready for trial, the following periods shall be excluded:
(1) a reasonable period of delay resulting from other proceedings involving the defendant, including but not limited to proceedings for the determination of competence to stand trial, hearing on pretrial motions, appeals, and trials of other charges;
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(5) a period of delay resulting from the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resists being returned to the state for trial;
(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial; and
(10) any other reasonable period of delay that is justified by exceptional circumstances.
Subsections (5) and (9) do not apply because the record contains no evidence that the State exerted any effort or attempted to return applicant from Huntsville to Nolan County for trial, or that applicant resisted return. Similarly, there is no evidence that applicant's confinement in Huntsville was an exceptional circumstance under subsection (10).
Subsection (1) presents the most likely argument for the exclusion of time in the instant case. The State is permitted to exclude "a reasonable period of delay resulting from ... trials of other charges." (emphasis added). Subsection (1) permits exclusion of time for proceedings which must be carried out before a defendant can be tried--competency hearings, pre-trial matters, and also excludes time involving other proceedings, obviously because when a defendant is being tried on other charges, he cannot possibly be in two places at one time. Necessarily then, this section contemplates two things: reasonable delay and other proceedings which cause the delay in the trial of the case at issue. See Taylor v. State, 666 S.W.2d 157 (Tex.App.--Houston (14th Dist.), 1984).
In the instant case the State did not present any evidence to show why a one day...
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