Fraire v. State

• Decision Date: 26 September 1979
• Docket Number: No. 2,Nos. 61331-61336,s. 61331-61336,2
• Citation: 588 S.W.2d 789
• Parties: Arturo FRAIRE, Appellant, v. The STATE of Texas, Appellee. Edmundo MORALES, Appellant, v. The STATE of Texas, Appellee. Mario Rubio GUZMAN, Appellant, v. The STATE of Texas, Appellee. Mario GUZMAN, Appellant, v. The STATE of Texas, Appellee. Gus ARGEANAS, Appellant, v. The STATE of Texas, Appellee. Kosta Andrew ARGEANAS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 789

588 S.W.2d 789

Arturo FRAIRE, Appellant, v. The STATE of Texas, Appellee.

Edmundo MORALES, Appellant, v. The STATE of Texas, Appellee.

Mario Rubio GUZMAN, Appellant, v. The STATE of Texas, Appellee.

Mario GUZMAN, Appellant, v. The STATE of Texas, Appellee.

Gus ARGEANAS, Appellant, v. The STATE of Texas, Appellee.

Kosta Andrew ARGEANAS, Appellant, v. The STATE of Texas, Appellee.

Nos. 61331-61336.

Court of Criminal Appeals of Texas, Panel No. 2.

Sept. 26, 1979.

Rehearing En Banc Denied Oct. 31, 1979.

Robert E. Golden, El Paso, for Fraire and Morales.

Richard C. Robins, El Paso, for Guzman in 61333 and 61334.

Gary J. Hill, El Paso, for Argeanas in 61335 and 61336.

Steve W. Simmons, Dist. Atty. and Leo B. Garcia, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and CLINTON, JJ.

OPINION

DOUGLAS, Judge.

Arturo Fraire was convicted of burglary of a habitation; his punishment was assessed at eight years, probated. Edmundo Morales was convicted for the offense of aggravated robbery; his punishment was assessed at five years. Mario Rubio Guzman was convicted for the unauthorized use of a vehicle; his punishment was assessed at seven years, probated. Mario Guzman was convicted of burglary of a habitation; his punishment was assessed at ten years, probated. Gus Argeanas was convicted for the offense of robbery; his punishment was assessed at eight years. Kosta Andrew Argeanas was convicted for aggravated robbery with a prior conviction alleged for enhancement; his punishment was assessed at twenty-five years. He was also convicted for aggravated robbery, three counts; his punishment was assessed at twenty-five years.

In each of these cases it is contended that the trial court erred in not setting aside the indictment when the trial did not begin within 120 days of July 1, 1978, under the provisions of Article 32A.02, V.A.C.C.P.

In Cause No. 61,331, Arturo Fraire was arrested January 27, 1978. The State filed its announcement of ready July 3, 1978. On October 27, 1978, appellant filed a motion requesting an immediate trial. On October 30, 1978, he filed a motion to dismiss prosecution because he had not been brought to trial within 120 days of July 1, 1978, the effective date of Article 32A.02, supra, the Speedy Trial Act. The motion was overruled. On November 8, 1978, he entered a plea of guilty.

Article 32A.02, Section 1, V.A.C.C.P., provides:

"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."

Fraire relies upon Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978), which held that for causes pending at the effective date of the Act the 120 day period began July 1, 1978.

Section 3 of the Act provides that the failure of a defendant to move for a 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.

There are many instances in the Act which exclude certain time before the trial before the Act is applicable. It was not provided for by the Legislature that the cause must be tried within 120 days. Unusual circumstances may justify further delay. ¹

In each case the State announced ready for trial within the 120 day period starting from July 1, 1978. This announcement was unchallenged by either appellant. The announcement is prima facie showing that without challenge or rebuttal by an accused the provision of the statute has been complied with.

We hold that when the State announces ready and there is no challenge to this announcement to show otherwise by an accused we will presume that the State was ready. Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979) (opinion concurring in part and dissenting in part at page 919). See also Hazen v. Pickett, 581 S.W.2d 694 (Tex.Cr.App.1979).

The contention by one of the appellants that the constitutional right of the Sixth Amendment to the Constitution of the United States guaranteeing a speedy trial has been violated was not raised in the trial court and will not be considered.

The facts in the other cases show different dates but in each case the State announced ready within the 120 day period of the effective date of the Speedy Trial Act, and the statute for the reasons set out above has been complied with.

No error has been shown. The judgments are affirmed.

1 Section 4 of the Act provides:

"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,...