Holleman v. State

• Decision Date: 14 April 1997
• Docket Number: No. 07-96-0180-CR,07-96-0180-CR
• Parties: Joe Dale HOLLEMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 232

945 S.W.2d 232

Joe Dale HOLLEMAN, Appellant, v. The STATE of Texas, Appellee.

No. 07-96-0180-CR.

Court of Appeals of Texas,

Amarillo.

April 14, 1997.

Rehearing Overruled June 16, 1997.

Richard R. Gore, Lubbock, for appellant.

William C. Sowder, Criminal District Attorney, Michael West, Appellate Chief, Lubbock, for appellee.

Before BOYD, C.J., QUINN, J., and REYNOLDS, Senior Justice. ^*

REYNOLDS, Senior Justice (Assigned).

A jury found appellant Joe Dale Holleman guilty of the offense of incest, and the trial court, finding that appellant previously had been convicted of three felony offenses, assessed his punishment at imprisonment for life. With two points of error, appellant seeks, in inverse order, a reversal and dismissal with prejudice or, alternatively, a new trial, on the contentions that the trial court erred in (1) not affording his trial counsel ten days time to prepare for trial after appointment, and (2) denying his motion to set aside the indictment. The points will be overruled and the judgment will be affirmed.

The evidential record reveals that on 30 March 1994, appellant had sexual intercourse with his daughter, and then took her to a friend's house, where he was arrested for criminal trespass. He made bond and was released. Subsequently, appellant was indicted for the offenses of sexual assault, aggravated sexual assault, and indecency with a child. He was arrested on 18 July 1994, and the booking sheet reflects that he was charged with sexual assault, aggravated sexual assault, indecency with a child, parole violation, and aggravated sexual assault. An amount of bond was set for each offense, except the parole violation for which a "No Bond" notation was entered. Appellant remained incarcerated.

On 20 March 1996, a grand jury returned to the 137th Judicial District Court of Lubbock County an indictment against appellant for the offense of incest, the subject of the present prosecution, and for two offenses of sexual assault of a child, all of which were alleged to have occurred on or about 30 March 1994. The State characterizes the indictment as a reindictment alleging a new offense. By order, the cause was transferred to the 237th Judicial District Court of Lubbock County, and counsel was appointed to represent appellant in the trial court.

In pursuing his first point of error, appellant, represented by different appellate counsel, posits that he was indicted for the offense of incest on 20 March 1996, the order appointing his trial counsel was filed on 28 March 1996, and his trial commenced on 1 April 1996. As a result, he contends, trial counsel was denied the ten days preparation time required by article 1.051(e), Texas Code of Criminal Procedure Annotated (Vernon Supp.1997); ¹ and, even though no objection was made in the trial court, the denial may be raised for the first time on appeal, Marin v. State, 851 S.W.2d 275, 280 (Tex.Cr.App.1993), and a violation of the article is not subject to a harm analysis. Id. at 281.

To determine compliance with the article, the consistent focus is on the preparation time afforded appointed counsel, not the time of the formal appointment. Marin v. State, 891 S.W.2d 267, 270 (Tex.Cr.App.1994). And there is no violation of the article by forcing appointed counsel to trial within ten days of reindictment where counsel had been appointed on the original indictment in excess of ten days. Id. at 271.

The record reveals that at the time the trial court signed the 28 March 1996 order, by which trial counsel was formally appointed to represent appellant "in this case," trial counsel had been representing appellant, so he later certified, since his formal appointment on 20 September 1994 on three indictments "covering the same factual material as the instant case ... with additional counts alleging the same factual allegations as are alleged in two (2) of the prior indictments." He added that he had numerous visits with appellant, had conducted research and discovery, had received notice of the indictment for incest on 20 March 1996, and had received notice of the arraignment on 21 March 1996, at which time he discussed with appellant the allegations of the new indictment and the arraignment.

So far as the record shows, the difference in the previous indictments and the current one is negligible. Given trial counsel's certification, it is not surprising that he did not request additional time for preparation after the filing of his formal appointment on 28 March 1996; and, since trial counsel's representation of appellant "covering the same factual material" was continuous during the preceding eighteen months, it cannot be seriously contended that there was insufficient time for him to prepare for trial. Guzman v. State, 521 S.W.2d 267, 270 (Tex.Cr.App.1975); Hayles v. State, 507 S.W.2d 213, 214-15 (Tex.Cr.App.1974). Appellant's first point of error is overruled.

Pretrial, on 28 March 1996, appellant moved to set aside the indictment. The ground for the motion was that he "was arrested on July 18, 1994 on the instant charges and has remained incarcerated ... continuously since that arrest." The "instant charges" were recited to be the indictment returned on 20 March 1996 by the grand jury, which "was the fourth such Grand Jury empaneled since [appellant's] incarceration on these charges." Appellant alleged that since he was not timely indicted, he was entitled to relief under article 32.01, Texas Code of Criminal Procedure Annotated (1989), which provides:

When a defendant has been retained 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.

The trial court overruled the motion, giving rise to appellant's second point of error.

Appellant now argues that although incest was an offense not charged when he was arrested in 1994, the State's attempt to characterize the 1996 indictment as a reindictment was an admission that he had been held for conduct occurring on 30 March 1994. The State, he adds, knew of the 30 March 1994 incident the day it occurred and had plenty of opportunity to indict him for the present offense. He notes that the terms of the 137th District Court, the court to which article 32.01, supra, applies, Norton v. State, 918 S.W.2d 25, 27 (Tex.App.--Houston [14th Dist.] 1996, no pet'n), begins on the first Mondays in January and July of each year. Tex. Gov't Code Ann. § 24.239 (Vernon 1988). Therefore, he concludes, over two full terms of court elapsed between his arrest and indictment, a clear violation of article 32.01, supra. The violation, appellant further argues, requires that he be discharged because of the delay, and that further prosecution be barred under a statute which, since its amendment in 1987, provides:

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 charged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute.

Tex.Code Crim. Proc. Ann. art. 28.061 (Vernon 1989). ²

In reply, the State points out that during the pretrial hearing, the trial court was advised that appellant was held on the blue warrant, i.e., the parole violation, until November, 1995. No denial or contradiction of the State's information by trial counsel appears in the...