Ex parte Knight, 01-94-01152-CR

• Decision Date: 11 May 1995
• Docket Number: No. 01-94-01152-CR,01-94-01152-CR
• Citation: 904 S.W.2d 722
• Parties: Ex parte Darryll KNIGHT, Appellant. (1st Dist.)
• Court: Texas Court of Appeals

Page 722

904 S.W.2d 722

Ex parte Darryll KNIGHT, Appellant.

No. 01-94-01152-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

May 11, 1995.

Opinion Overruling Motion for Rehearing

Aug. 24, 1995.

Discretionary Review Refused Nov. 8, 1995.

Stanley G. McGee, Angleton, for appellant.

Jerome Aldrich, David Bosserman, Angleton, for appellees.

Before TAFT, COHEN and MIRABAL, JJ.

OPINION

TAFT, Justice.

Appellant, Darryll Knight, appeals the trial court's denial of the relief requested in his pretrial petition for writ of habeas corpus. This case addresses the effect of a justice court's dismissal of a complaint upon a defendant's right to obtain a dismissal with prejudice in district court for delay by the State in presenting an indictment or information. We affirm.

Summary of Facts

By complaint filed in the justice of the peace court, appellant was alleged to have committed the felony offense of obtaining a controlled substance by fraud in September 1993. The complaint was filed on March 1, 1994, and appellant was arrested on March 23, 1994. The docket sheet from the justice court contains contradictory entries about the disposition of the case: (1) "TRANSFER TO DISTRICT COURT MAR 28 1994"; and (2) "DISMISSED; DATE 10/31/94; REASON Nolle Prosequi."

On October 25, 1994, appellant filed an application for writ of habeas corpus in the District Court of Brazoria County. In his application, appellant stated that he was charged by complaint pending in the justice of the peace court. Appellant complained of the denial of his sixth amendment right to a speedy trial and the failure of the State to present an indictment or information against him at the next term of the court after his commitment or admission to bail pursuant to TEX.CODE CRIM.P.ANN. art. 32.01 (Vernon 1989). Relying on TEX.CODE CRIM.P.ANN. art. 28.061 (Vernon 1989), appellant requested that charges against him be dismissed with prejudice.

On October 31, 1994, a hearing was held on appellant's application for writ of habeas corpus. At appellant's request, the trial court took judicial notice that the terms of the Brazoria County Grand Jury were from October 1, 1993, through March 31, 1994, and from April 1, 1994, through September 30, 1994. The State agreed and stipulated that no indictment against appellant had been returned through the time of the hearing.

Counsel for appellant argued that chapters 28 and 32 of the Code of Criminal Procedure mandated that charges against appellant be dismissed with prejudice. The State objected to the grant of writ before being allowed to present evidence or show cause why the indictment had not been presented. Defense counsel acknowledged a variety of good reasons for delay in obtaining an indictment, but he argued the provision was mandatory, regardless of any such reasons. The State offered the docket sheet from the justice court as evidence that the complaint had been dismissed earlier that day in the justice court, thereby rendering the issue moot. Defense counsel argued that denial of appellant's writ for mootness would allow the State to take the case directly to the grand jury, requiring appellant to obtain another bond and suffer further harm and delay.

The trial court commented that it understood petition for discretionary review had been granted on the case relied upon by the defense, with which defense counsel concurred. ¹ The trial court then denied the writ.

Dismissal for Failure to Timely Indict

In appellant's sole point of error, he complains the trial court erred in denying his application for writ of habeas corpus by failing to dismiss the prosecution with prejudice under articles 32.01 and 28.061.

Article 32.01 provides that:

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.

(Emphasis added.)

Article 28.061 provides, in pertinent part, that:

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 offenses discharged and for any other offense arising out of the same transaction....

(Emphasis added.)

As appellant observes, it is undisputed that he was not indicted during the term following his admission to bail. Relying on articles 32.01 and 28.061, Nix v. State, 882 S.W.2d 474 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd), and Nguyen v. State, 882 S.W.2d 471 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd), appellant argues he was entitled to be released from bail and to have the prosecution of his case dismissed with prejudice. The State argues that the trial court properly denied the writ because: (1) the complaint was dismissed prior to the writ hearing; and (2) articles 32.01 and 28.061 are unconstitutional per Meshell v. State, 739 S.W.2d 246, 257 (Tex.Crim.App.1987). The State also points out that if appellant's case were heard in the 239th District Court of Brazoria County, rather than the 23rd District Court, then the second term of court would not have passed.

a. Effect of the Justice Court Dismissal

1. The State's Argument

The State claims that dismissing the charges in the justice court should be treated in the same way as obtaining an indictment. The State relies on cases where relief is denied if an indictment is obtained prior to a hearing on an application for writ of habeas corpus based on article 32.01. See Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App.1974); Garay v. State, 683 S.W.2d 21, 22 (Tex.App.--Waco 1984, pet. ref'd); Wilkinson v. State, 899 S.W.2d 20, 21-22 (Tex.App.--San Antonio, 1995).

We note that all but one of the cases cited by the State preceded the 1987 amendment of article 28.061, making it applicable to article 32.01. See Act of May 20, 1977, 65th Leg., R.S., ch. 787, § 4, 1977 Tex.Gen.Laws 1970, 1972, amended by Act of May 22, 1987, 70th Leg., R.S., ch. 383, §§ 1, 4, 1987 Tex.Gen.Laws 1885, 1885, 1887 (effective for offenses committed on or after Sept. 1, 1987). ² Prior to the application of article 28.061, there was no right to dismissal with prejudice for a violation of article 32.01. Under those circumstances, nothing barred the State from reinitiating charges after the trial court had dismissed charges pursuant to article 32.01. Therefore, the only relief provided for a defendant by article 32.01 was a temporary dismissal of charges unless and until the State refiled them. When understood within the legal context at the time, the cases of Tatum and Garay make sense. The rationale is that it would be a useless act for a trial court to dismiss the accused under the old charges where a new indictment required the defendant to be reincarcerated. See Garay, 683 S.W.2d at 22. Thus, an indictment rendered an article 32.01 complaint moot.

Wilkinson is a different matter. The court of appeals did not discuss the 1987 amendment of article 28.061. See 899 S.W.2d at 21-22. Where a defendant now has a right to dismissal of charges with prejudice whenever the State fails to timely present an indictment or information, or file an affidavit satisfactorily showing good cause for failing to do so, the harmless error reasoning of the prior cases no longer applies. We disagree with the approach in Wilkinson, but note the result appears to be correct because the State provided a reasonable explanation for not timely presenting an information or indictment. See 899 S.W.2d at 20-23.

Thus, even if we agreed with the State, that dismissal of the underlying complaint has the same effect as an indictment, we would not apply the old rule which precluded relief under article 32.01 whenever an indictment was obtained prior to the hearing on the accused's application for writ of habeas corpus. Nevertheless, we find the dismissal of justice court charges dispositive for another reason.

2. Dismissal Renders Writ Moot

Despite the language on the justice court docket sheet concerning a transfer to district court on March 28, 1994, no transfer appears to have been effected. Appellant's application for writ of habeas corpus filed on October 25, 1994, states the case was pending in the justice court. The justice court apparently exercised jurisdiction on October 31, 1994, by dismissing the charges against appellant. The record does not reflect any other charges pending against appellant. Therefore, the dismissal of the justice court complaint removed the threat of illegal restraint and confinement of which appellant complained in his application for writ of habeas corpus. This dismissal rendered appellant's application moot. See Armes v. State, 573 S.W.2d 7, 9 (Tex.Crim.App. [Panel Op.] 1978) (reaffirming the principle that the writ of habeas corpus lies only where the applicant is under some form of restraint of liberty, either imprisoned or on bail).

While it is not clear upon what basis the trial court denied relief to appellant, one basis before the court was mootness following the dismissal of the justice court complaint earlier that day. Therefore, we hold that the trial court did not abuse its discretion in denying the application for writ of habeas corpus.

b. Effect of Differing Terms of Court in Brazoria County

The State raises a troubling issue by pointing out that, in the 239th District Court of Brazoria County, the terms of court are different than in the 23rd District Court in the same county. The result in this case could differ depending on the court assignment of appellant's case. However, this question is not before us today.

c. The Constitutionality of...