Meshell v. State

• Decision Date: 01 July 1987
• Docket Number: No. 1339-85,1339-85
• Parties: Fred MESHELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 246

739 S.W.2d 246

Fred MESHELL, Appellant, v. The STATE of Texas, Appellee.

No. 1339-85.

Court of Criminal Appeals of Texas,

En Banc.

July 1, 1987.

Frank B. Brooks, William B. Jeter, Houston, for appellant.

Robert W. Gage, Co. Atty., Fairfield, Robert Huttash, State's Atty., Austin, for State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted, after a plea of guilty, of the offense of theft of property valued at more than $200 but less than $10,000. Punishment was assessed at five years confinement in the Texas Department of Corrections, probated for five years.

The Tenth Court of Appeals, in an unpublished opinion, affirmed appellant's conviction and held the "Speedy Trial Act," Acts 1977, 65th Leg., p. 1970, ch. 787, unconstitutional on the basis of a defective title or caption under Article III, § 35, of the Texas Constitution. ¹ Meshell v. State, No. 10-84-168-CR (Tex.App.--Waco 10/17/85). We granted appellant's petition for discretionary review to determine 1) whether the Speedy Trial Act (Act) is unconstitutional because it violates Article III, § 35, or Article II, § 1, of the Texas Constitution ² and 2) whether the indictment against appellant should have been dismissed under the Act or under the speedy trial clauses of the federal or state constitutions. Art. 32A.02, § 1(1), V.A.C.C.P.; U.S. Const. amend. VI; Tex.Const. art. I, § 10. ³ We will affirm.

I. Procedural History

In early May of 1983, appellant was questioned by a Walker County deputy sheriff in the course of an investigation of the theft of a truckload of pipe. On or about May 20, 1983, a warrant for appellant's arrest was issued in Walker County and teletyped to Harris County, where appellant was known to reside. Appellant was arrested by a Harris County deputy sheriff on May 25, 1983 and transported to Walker County the next day. On June 21, 1983, a motion for nolle prosequi was granted because the Walker County Criminal District Attorney had discovered that the offense had been committed in Freestone County. Appellant was no-billed by a Walker County grand jury. Appellant returned home to Harris County.

On June 21, 1983, the Walker County Sheriff's Office forwarded the results of their investigation to the Freestone County Attorney's Office. On June 28, 1983, a warrant for appellant's arrest, issued by a Freestone County Justice of the Peace, was received by the Freestone County Sheriff's Office. On June 29, 1983, the warrant, which contained an incorrect address of appellant's residence, was teletyped to the Harris County Sheriff's Office. On July 21, 1983, a Freestone County grand jury indicted appellant for felony theft. Appellant was not aware of either the warrant or the indictment.

On August 9, 1983, after the felony theft charge had been filed against appellant, data regarding appellant and the warrant for his arrest were entered by the Freestone County Sheriff's Office onto the Texas Crime Information Center and the National Crime Information Center computer networks. On September 22, 1983, the Freestone County Sheriff's Office sent a second teletype to the Harris County Sheriff's Office, correcting appellant's address and requesting help in enforcing the warrant. On August 6, 1984, appellant was arrested by an officer with the LaPorte Police Department.

On September 4, 1984, appellant filed a motion to dismiss the indictment pending against him. In the motion, appellant cited the State's failure to be ready for trial within 120 days under the Speedy Trial Act as the basis for dismissal. On September 7, 1984, a hearing on appellant's motion was held, revealing the above facts. By way of an explanation for the delay in arresting appellant, the State offered into evidence a stipulation as to the backlog of warrants in Harris County. Appellant agreed, and the stipulation follows:

1) As of June 1984, in Harris County there were 12,620 out-of-county and 18,000 in-county outstanding warrants;

2) the Harris County Sheriff's Office (HCSO) receives approximately 75-100 new in-county felony warrants each day and 200-300 teletypes each month;

3) the HCSO has 26 deputy sheriff's in the warrant service division, working in 13 two man teams;

4) the HCSO attempts to serve approximately 130 warrants/day but successfully serves approximately 500/month.

(R. II-58).

The State also filed a response to appellant's motion for dismissal, arguing that the Speedy Trial Act was unconstitutional. In part, the motion stated:

The State would show that the caption of said bill [Acts 1977, 65th Leg., Ch. 787, pg. 1970] is defective in that it does not and did not contain sufficient information as to inform members of the Legislature as to its content and therefore violates the caption requirement and Art. III, Sec. 35 of The Texas Constitution.

The State would further show that the Texas Speedy Trial Act is a violation of the separation of powers doctrine, Art. II, Sec. 1, and also is a violation of The Texas Constitution, Art. V, Sec. 8, Art. V, Sec. 16, Art. V, Sec. 19, and any other applicable provisions of the Texas Constitution.

(R. I-8).

At the conclusion of the hearing, the trial court agreed with appellant that the State had violated the Act but denied appellant's motion after holding the Act unconstitutional. No reason was given by the trial court for its ruling.

On October 3, 1984, appellant entered a plea of guilty and was sentenced pursuant to a plea bargain that included preservation of his claim for "the limited area of the constitutionality of the Speedy Trial Act." (Record of Guilty Plea, pp. 5, 10, 11). On appeal, appellant raised his Speedy Trial claim as his sole ground of error. In a supplemental brief, appellant responded to the State's constitutional attacks upon the Act and also claimed not to have waived his right to a speedy trial under either the United States or Texas Constitutions.

II. Requirement of Present Injury

Before a court decides an issue involving the constitutionality of a statute, it must first assure itself that the party raising such a claim has presently been injured by the statute. Ex parte Spring, 586 S.W.2d 482, 485 (Tex.Cr.App.1979) and cases cited therein. This requirement stems from our reluctance to decide constitutional questions unless absolutely necessary. Ex parte Salfen, 618 S.W.2d 766, 770 (Tex.Cr.App.1981). Therefore, this Court must assure itself that the State's constitutional claim is not "based upon an apprehension of future injury." Spring, supra.

The Court of Appeals, without citing any authority, held that "[t]he record supports the trial court's ruling that the State was not ready for trial within 120 days after commencement of this felony criminal action." ⁴ Meshell, supra, slip op. at 2. If the Court of Appeals was correct, then the trial court would be required to dismiss the indictment, thus barring the State from further prosecution of appellant. Art. 28.061, V.A.C.C.P. It is this threat of dismissal with prejudice that establishes present injury to the State in this cause.

Article 32A.02, § 1(1), supra, requires the State to be ready for trial within 120 days after commencement of a felony criminal action or risk dismissal of the indictment with prejudice. ⁵ Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979); Art. 28.061, supra. A felony criminal action commences when an indictment against a defendant for a felony offense is filed in court or when the defendant is arrested for the same offense, whichever occurs first. Art. 32A.02, § 2(a), supra; Euziere v. State, 648 S.W.2d 700, 704-705 (Tex.Cr.App.1983). However, a defendant must make a claim under the Act before the State is required to prove its readiness. Art. 32A.02, § 3, supra; Barfield, supra, at 542.

Once a defendant has raised a claim under the Act, the State must respond with proof of its readiness for trial. Id. Normally, a prima facie showing of readiness will take the form of an announcement that the State is ready for trial and has been ready at all times required by the Act. Id. However, further proof may be necessary if the defendant rebuts the announcement by demonstrating that the State was not ready for trial within 120 days after commencement of the felony criminal action. Id.

"... [S]ecuring the defendant's presence is a readiness burden which falls upon the State under the Speedy Trial Act." Lyles v. State, 653 S.W.2d 775, 777 (Tex.Cr.App.1983). See Art. 32A.02, § 4(4), (5) & (9), supra. Even if a defendant's location is known, the State must exert due diligence in obtaining his presence for trial. Art. 32A.02, § 4(5), supra; Ex parte Hilliard, 687 S.W.2d 316, 319 (Tex.Cr.App.1985). Moreover, "[t]he prosecutor cannot excuse a lack of due diligence on his part [in obtaining the defendant's presence] by pointing the finger at the Sheriff or other law enforcement agency." Lyles, supra, at 779. Indeed, if a prosecutor seeks the presence of a defendant by capias, he "is obliged by [his] own assigned responsibility to exercise due diligence to follow though in the endeavor to obtain the presence of an accused for trial." Id., at 780 (Clinton, J., concurring).

In the trial court of the instant case, appellant rebutted the State's readiness by showing that his presence had not been obtained until at least 12 months had elapsed from the time he was indicted by a Freestone County grand jury on July 21, 1983 to his arrest on August 6, 1984. This time period obviously exceeded the 120 day time limit of the Act.

The Freestone County Attorney countered that Article 32A.02, § 4(10), supra, excused the delay in his preparation for trial, vis a vis obtaining appellant's presence. ⁶ The Freestone County Attorney argued that the Harris County Sheriff Department's backlog in executing warrants presented an "exceptional circumstance" that excused the one year delay in arresting appellant. However, before the Court of Appeals, the State conceded that...