Lyles v. State, 08-81-00244-CR

• Decision Date: 07 July 1982
• Docket Number: No. 08-81-00244-CR,08-81-00244-CR
• Parties: D. L. LYLES, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 268

636 S.W.2d 268

D. L. LYLES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 08-81-00244-CR.

Court of Appeals of Texas, El Paso.

July 7, 1982.

Talbert, Giessel & Stone, Donald Burger, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Randy McDonald, Asst. Dist. Attys., Houston, for appellee.

Before STEPHAN F. PRESLAR, C. J., and WARD and OSBORN, JJ.

OPINION

OSBORN, Justice.

This is an appeal from a conviction for criminally negligent homicide. The jury assessed punishment at one year probation and a $1,000.00 fine. We reverse.

Appellant presents five grounds of error alleging deprivation of his right to a speedy trial. At the hearing on Appellant's speedy trial motion, the State presented evidence that Assistant District Attorney Henderson had reviewed the offense reports, photographs and scale diagrams in the case file. He also requested further investigation by his own investigator. He then authorized the filing of the criminal information on August 13, 1979. He testified that, at that time, the State was ready for trial from an evidentiary standpoint.

Assistant District Attorney Von Korsigk testified that she was responsible for the case from the filing of the pleadings until her transfer in February, 1980. Within a few days of August 13, 1979, she personally reviewed the file and instructed her investigator to contact the necessary witnesses. On or about August 20, 1979, she instructed her investigator to "run the warrant" on the Appellant. Appellant was residing in Robertson County, a fact known to the State at that time. On September 4, 1979, she received a letter from the Robertson County Sheriff stating that Appellant could not be found. Von Korsigk testified that the State was ready for trial within the 90-day speedy trial limit and at all times thereafter, except for securing the presence of the Appellant.

Assistant District Attorney McDonald testified as to the State's readiness from February 1980 until the actual trial, again excluding the presence of the Appellant.

The defense attempted to rebut the State's claim of readiness by eliciting that the prosecutors had not visited the scene, personally interviewed witnesses, begun preparation for the voir dire and charge, or issued subpoenas for witnesses.

The delay in bringing this case to trial was a result of confusion over the Appellant's arrest and bond status. The trial court was not advised of his arrest until March 20, 1980, and therefore had not set the case or summoned the Appellant.

Appellant was allowed to proceed to his home in Hearne, Robertson County, Texas, following his arrest on August 1, 1979, the date of the collision. He remained in Hearne where he owned a business. At no time did he flee, evade service, or refuse a summons.

On August 20, 1979, a warrant was issued which was transmitted from Harris County to Robertson County. The Robertson County officials initially advised Harris County that Appellant could not be located. Nine days later, on September 13, 1979, he was arrested in Hearne and immediately posted a property bond. He was then released.

The bond was transferred to the Harris County Sheriff's Department on September 17, 1979; it was rejected by the Sheriff's Warrant Section. Neither Deputy Mendenhall nor any of the State's witnesses were able to testify with certainty as to the reason for the rejection. There was some suggestion that a property bond was not acceptable in Harris County, although it was in Robertson. In any event, the Harris County Sheriff's Department treated the arrest and bond as a nullity. Robertson County law enforcement recognized the bond and would not rearrest the Appellant. As a result, Appellant was carried in a non-arrest status and his case was never docketed by the county court.

Assistant District Attorney Henderson became aware of the situation on March 20, 1980, when Appellant tendered a second bond. The second bond provided the same security as the first. To avoid further impasse, Henderson called the trial judge and vouched for the bond. The case was then docketed and a summons issued for March 28, 1980.

The attack on the State's evidence is without merit. Testimony indicated that pre-information review of criminally negligent homicide cases is more extensive in Harris County than with any other misdemeanor offense. Three prosecutors testified that they had personally examined the offense reports, diagrams, photographs and witness statements. Additional investigation had been conducted by the District Attorney's own investigators. The witnesses had been contacted, if not subpoenaed. The Chief Prosecutor, Mr. Henderson, testified that the State was prepared to prove each and every element of the offense at the time the information was filed.

Failure to visit the scene of the accident does not demonstrate inadequate preparation through photographs and diagrams. Similarly, the absence of personal interviews with the witnesses does not show a lack of readiness at that stage of the proceedings. Witness statements had been reviewed and no date for the live testimony had been set. Since no jury panel had even been formed, the State could hardly be found unready for not presenting a prepared voir dire or jury charge.

The State testified that it was ready from an evidentiary standpoint within the 90-day limit established by Article 32A.02 of the Code of Criminal Procedure. The contrary evidence was insufficient to rebut this assertion. Appellant's Grounds of Error Nos. Two and Three are overruled.

Grounds of Error Nos. Four and Five both require review under the standard established in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972); Ex parte Beech, 591 S.W.2d 502, 504 (Tex.Cr.App.1979). Appellant does not present a compelling claim under the Barker doctrine. The seven and one-half month delay in this case hardly compares to the five year delay in Barker. The Appellant asserted his speedy trial claim at the time of his first trial setting on March 28, 1980, but promptly agreed to three continuances, resulting in three additional months of delay. Appellant also failed to demonstrate any harm resulting from the delay. He was in jail less than one day, and remained at liberty under the disputed bond for the remainder of the time. There was no evidence of disruption of his family life or business. Nor did he demonstrate any prejudice to his defense by loss of favorable evidence. The cause of the delay lacks any justification, but, standing alone, will not justify a conclusion that Appellant's constitutional rights were violated, depriving him of a fair trial. Grounds of Error Nos. Four and Five are overruled.

We are constrained to agree with Appellant's Ground of Error No. One. Article 32A.02 directs the trial court to grant...