Lopez v. State

• Decision Date: 11 February 1999
• Docket Number: No. 03-97-00661-CR,03-97-00661-CR
• Citation: 990 S.W.2d 770
• Parties: Eliazar Charlie LOPEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 770

990 S.W.2d 770

Eliazar Charlie LOPEZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-97-00661-CR

Court of Appeals of Texas,

Austin.

Feb. 11, 1999.

Larry O. Rasco, San Marcos, for Appellant.

Charles R. Kimbrough, Crim. Dist. Atty., Lockhart, for State.

Before Justices JONES, YEAKEL and ONION. ^*

JOHN F. ONION, Jr., Justice (Retired).

Appellant Eliazar Charlie Lopez was convicted by a jury of two offenses of aggravated sexual assault based on a two-count indictment. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3620-21 (Tex. Penal Code § 22.02(a)(1)(B)(i)(iii), (2)(B)). ¹ The trial court assessed punishment at 45 years' imprisonment in each case with the sentences running concurrently.

Points of Error

Appellant does not challenge the sufficiency of the evidence to sustain the convictions. He advances two points of error. First, he claims that the "trial court erred when it failed to dismiss the cause for violation of Texas Code of Criminal Procedure article 32.01 which requires timely indictment of the accused." Second, appellant urges that the trial court abused its discretion by allowing evidence of appellant's prior convictions to be presented at the guilt/innocence stage of the trial.

Timely Indicted?

Appellant was indicted on January 6, 1996, in the 22nd Judicial District Court. Both offenses were alleged to have occurred on June 10, 1995. Appellant asserts in his brief that he was arrested on June 25, 1995, and shortly thereafter was released on bail. Appellant's jury trial commenced on August 25, 1997. On that date appellant filed a "motion to set aside indictment for failure to afford constitutional right to speedy trial." In the motion, appellant cited both the federal and state constitutional provisions as to the right of a speedy trial and included an additional reference to article 32.01 of the Texas Code of Criminal Procedure. After the jury was selected, the trial court conducted a hearing on the motion. Appellant offered no evidence. The hearing consisted of legal argument about the application of article 32.01. At the conclusion of the hearing, the trial court held that the motion, being presented after indictment, came too late, but in a secondary ruling held that the State by affidavit had shown good cause for the delay.

Appellant now urges such action was error. He relies upon the version of article 32.01 in effect at the time of the offense and the return of the indictment which provided:

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.

Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 441. The present version of article 32.01 is applicable only to offenses after May 26, 1997. See Tex.Code Crim. Proc. Ann. art. 32.01 (West Supp.1999) (Act of May 12, 1997, 75th Leg., R.S., ch. 289, §§ 2, 4, 1997 Tex. Gen. Laws 1304).

The terms of the 22nd Judicial District Court of Caldwell County commence on the first Monday in March, June, September, and December of each year. See Tex. Gov't Code Ann. § 24.123(c)(1) (West 1988). ² Appellant asserts that he was arrested on June 25, 1995, and that a violation of Article 32.01 occurred when he was not indicted by the last day of the September term of the 22nd Judicial District Court. He notes that the indictment was not returned until January 6, 1996, well into the December term of court.

Appellant contends that a violation of article 32.01 entitled him to a dismissal of the cause with prejudice because at the time article 28.061 of the Code of Criminal Procedure was the enforcement mechanism for such violations.

Article 28.061 in effect at the time provided:

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, 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.

Act of May 20, 1977, 65th Leg., R.S., ch. 787, § 4, 1977 Tex. Gen. Laws 1970, 1972 amended by Act of June 1, 1987, 70th Leg., R.S. ch. 383, § 1, 1987 Tex. Gen. Laws 1985. ³

Article 28.061 was declared unconstitutional in Meshell v. State, 739 S.W.2d 246, 257 (Tex.Crim.App.1987). Meshell held that the Texas Speedy Trial Act (Tex.Code Crim. Proc. art. 32A.02) violated the separation of powers doctrine (Tex. Const. art. II, § 1). Meshell, 739 S.W.2d at 257. However, the legislature's 1987 amendment to article 28.061 after the Texas Court of Criminal Appeals' decision in Meshell, as set out above, made the statute a viable enforcement statute for article 32.01 since the statutory language included article 32.01 whereas the earlier version of article 28.061 had not. Article 28.061 was earlier declared unconstitutional only in its capacity as an enforcement mechanism for the Speedy Trial Act. The 1987 amended version survived Meshell insofar as it applied to article 32.01 ⁴ prior to its 1997 amendment and is applicable to appellant's case if there was in fact a violation of article 32.01 at the time and prior to its 1997 amendment.

Article 32.01 and its forerunners have long been a part of the codes of criminal procedure in Texas. See Ex parte Lerma, 167 Tex.Crim. 5, 317 S.W.2d 751, 752 (Tex.Crim.App.1958); Ex parte Johnson, 142 Tex.Crim. 483, 154 S.W.2d 854, 855 (Tex.Crim.App.1941); Payne v. State, 109 Tex.Crim. 287, 4 S.W.2d 53, 54 (Tex.Crim.App.1928). The version of the statute set out above as applicable to appellant's case has been held constitutional. See Ex parte Mallares, 953 S.W.2d 759, 762-63 (Tex.App.--Austin 1997, no pet.).

In 1974, the Court of Criminal Appeals held that article 32.01 had no application once an indictment is returned, although it is returned by a grand jury subsequent to the next term of court after the defendant was held to bail or detained in custody. See Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App.1974). At the time of Tatum, article 28.061 was not in existence.

Under the Tatum interpretation of Article 32.01, the State was free to refile the charges once the case had been dismissed under that statute. See Fisk v. State, 958 S.W.2d 506, 507 (Tex.App.--Texarkana 1997, pet. ref'd). The dismissal was without prejudice. Thus, the defendant was provided only temporary relief until the State refiled the charges. See State v. Ybarra, 942 S.W.2d 35, 38 (Tex.App.--Corpus Christi 1996), pet. dism'd improvidently granted, 977 S.W.2d 594 (Tex.Crim.App.1998). The Tatum decision was a consistent interpretation of the statute by the Court of Criminal Appeals. See Payne, 4 S.W.2d at 54.

With the 1987 amendment to article 28.061 making it for the first time an enforcement mechanism for a dismissal under article 32.01, the various courts of appeals began to split as to the proper interpretation to be given to a dismissal under article 32.01. According to certain case law, further prosecution is barred when an accused is arrested or released on bail and is not indicted by the grand jury within its next term of court, unless the State can show good cause for its failure to bring a timely indictment. See Ybarra, 942 S.W.2d at 36. Certain appellate courts began to hold that the Tatum rationale no longer applied in light of the 1987 amendment to article 28.061. See, e.g., Ex parte Lawson, 966 S.W.2d 532, 535 (Tex.App.--San Antonio 1996, no pet.) (overruling Wilkinson v. State, 899 S.W.2d 20 (Tex.App.--San Antonio 1995, pet. ref'd)); Ybarra, 942 S.W.2d at 38; Norton v. State, 918 S.W.2d 25, 28 (Tex.App.--Houston [14th Dist.] 1996), pet. dism'd improvidently granted, 969 S.W.2d 3 (Tex.Crim.App.1998); Ex parte Knight, 904 S.W.2d 722, 725 (Tex.App.--Houston [1st Dist.] 1995, pet ref'd).

Other courts of appeals have continued to follow Tatum and hold that the proper remedy for the unindicted accused is to seek and obtain a ruling on an article 32.01 motion prior to indictment. See, e.g., Steinmetz v. State, 968 S.W.2d 427, 432 (Tex.App.--Texarkana 1998, no pet.); Ex parte Barnes, 959 S.W.2d 313, 320 (Tex.App.--Fort Worth 1997, pet. granted); Fisk, 958 S.W.2d at 509; State v. Condran, 951 S.W.2d 178, 191-92 (Tex.App.--Dallas 1997) (holding in part that the 1987 version of article 28.061 was unconstitutional), pet. dism'd improvidently granted, 977 S.W.2d 144 (Tex.Crim.App.1998); Holleman v. State, 945 S.W.2d 232, 235-36 (Tex.App.--Amarillo 1997, no pet.).

In Ex parte Crowder, 959 S.W.2d 732 (Tex.App.--Austin 1998, pet. ref'd), the applicant sought habeas corpus relief following indictment, using article 32.01 as the basis for his claim to the right of dismissal of the charge against him. This Court pointed out that by its express terms, article 32.01 is restricted to persons who are (1) restrained for an offense and (2) not charged by an indictment or information at the conclusion of the next term of court. Citing Tatum, we stated: "when Crowder first invoked article 32.01 after he was indicted, however, he invoked a statute that no longer applied to his circumstances by its very terms--he was no longer restrained in the absence of an indictment or information." Crowder, 959 S.W.2d at 733. Habeas corpus relief was denied.

It does not appear that the Court of Criminal Appeals intends to resolve the split of authority between the courts of appeals. See Condran, 977 S.W.2d at 144-47 (Keller, J.,...