More v. State

• Decision Date: 23 May 1985
• Docket Number: No. A14-83-837-CR,A14-83-837-CR
• Citation: 692 S.W.2d 912
• Parties: Kenneth Bradley MORE, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 912

692 S.W.2d 912

Kenneth Bradley MORE, Appellant, v. The STATE of Texas, Appellee.

No. A14-83-837-CR.

Court of Appeals of Texas Houston (14th Dist.)

May 23, 1985.

Catherine Greene Burnett, Houston, for appellant.

John B. Holmes, Dist. Atty., Eleanor Montague McCarthy, Asst. Dist. Atty., Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

ELLIS, Justice.

This is an appeal from the judgment of conviction for the felony offense of capital murder. The jury found appellant guilty and assessed his punishment at confinement for life in the Texas Department of Corrections. We affirm.

Appellant, Kenneth Bradley More, raises six grounds of error on appeal. Appellant's first ground of error asserts that the trial court erred in denying appellant's motion to dismiss for the State's failure to comply with TEX.CODE CRIM.PRO.ANN art. 32A.02 (Vernon Supp.1985) (The Speedy Trial Act) because the State failed to show due diligence to obtain appellant's presence for trial. In his second ground of error, appellant argues that the trial court erred in overruling his motion for directed verdict as to the capital aspect of the case based on exculpatory material introduced by the State and not disproved by it. Ground of error three asserts that the evidence is insufficient to support a conviction for capital murder upon the jury's finding that death was caused by choking and strangling. Appellant argues in ground of error four that the trial court erred in failing to charge the jury on the lesser included offense of robbery. He asserts in ground of error five that the trial court erred in failing to submit a jury instruction on causation. In his last ground of error he argues that the trial court erred in admitting the autopsy report over appellant's objection.

On April 3, 1981, the body of the deceased, Lawrence Steven Pearson, was found in his garage apartment in Houston, Texas. When his body was found, it had a cord wrapped twice around his neck. His apartment had been ransacked and his car was missing.

Several witnesses testified that they saw appellant with the deceased several times during the week before the murder. On April 20, 1981, a Florida State Trooper observed appellant driving the deceased's car in Martin County, Florida, and ran a check on the car. When the check revealed the car was a stolen vehicle belonging to a murder victim, appellant was stopped and arrested. Appellant subsequently signed a written confession to the crime.

The police obtained a search warrant to search the deceased's car. Their search revealed, among other things, Pearson's checkbook, his wallet, and some of his jewelry. A search of appellant's person revealed a pawn ticket.

The medical examiner testified that he performed an autopsy on the deceased and found that the deceased received a blunt laceration to the head, abrasions to his legs, and pressure grooves around the neck. The medical examiner observed that a cord has been wrapped twice around the complainant's neck. He testified that the cause of death was strangulation and skull fracture. He testified that either cause could have independently produced death.

In his first ground of error appellant contends that the State failed to meet its burden of proof on whether it exercised due diligence to obtain appellant's presence for trial. He argues that his motion to dismiss should have been granted since more than 120 days elapsed from the commencement of the allotted time under the Speedy Trial Act. We disagree.

On April 20, 1981, the Houston Police Department received a teletype from Florida Highway Police informing them that appellant had been arrested that day driving Pearson's car in Martin County, Florida. A complaint was filed in Harris County, Texas, on April 21, 1981, charging appellant with the capital murder of Pearson. Houston police officers went to Florida on April 28, 1981, with an arrest warrant for appellant.

In Florida, they learned that appellant would be released to Nevada authorities who had a prior murder warrant for appellant's arrest. The Houston officers returned without appellant. In April, 1981, a "hold" for Harris County was placed on appellant while he was in custody in Las Vegas, Nevada. This "hold" was placed on appellant by the Harris County Sheriff's Office for the capital murder warrant in this case.

At the speedy trial hearing, Thomas Royce, the Harris County prosecutor initially assigned to this case, testified that he first contacted the Las Vegas District Attorney's office on April 22, 1981, the day the Texas warrant was issued. He stated that from that day he was in continual contact with the Las Vegas District Attorney for the purpose of securing appellant's presence at trial in Harris County. The Las Vegas authorities told Royce that appellant would not be released to Texas authorities until the Nevada case was tried. Royce estimated that between April 22, 1981, and May 19, 1982, he called Nevada authorities approximately 20 times to check on the status of appellant's case. On May 19, 1982, Royce learned that a Nevada court sentenced appellant on May 15, 1982, to 30 years for second degree murder and that appellant was available for the Harris County trial. Royce filed a detainer pursuant to the Interstate Agreement on Detainers, TEX.CODE CRIM.PRO.ANN. art. 51.14 (Vernon 1979). Royce and his successor, George Godwin, were told that the Interstate Agreement would not be honored for the following reasons: (1) A defect existed in the paperwork; (2) A Nevada judge questioned the constitutionality of the detainer statute; (3) appellant refused to sign the papers and was resisting his return to Texas to stand trial.

In September, 1982, Nevada authorities told Godwin that the paperwork filed by Mr. Royce was in order, but they needed an identification affidavit to complete the procedure. Sometime in January, 1983, a photograph of appellant was received from Florida. The affidavit was sent to Nevada in February, 1983, and about thirty days later, in March, 1983, appellant was transported to Harris County, Texas.

Royce testified that the State had been ready to try the case within the time period set forth in the Speedy Trial Act except for the absence of appellant. We find that the State exercised due diligence in its attempt to secure appellant's presence for trial and that the period of delay caused by the Nevada proceeding involving appellant was reasonable and is excluded under the Speedy Trial Act.

TEX.CODE CRIM.PRO.ANN. art. 32A.02 § 1(1) (Vernon Supp.1985) provides:

A court shall grant a motion to set aside an indictment ... if the State is not ready for trial within ... 120 days of the commencement of a criminal action....

Section 2(a) of the statute further provides that a criminal action "commences", for the purposes of the Speedy Trial Act, when an indictment or complaint is filed in court, unless the defendant has been arrested at an earlier time for the same offense or another offense arising out of the same transaction, in which event the criminal action commences with the arrest.

We must look at what constitutes readiness for trial on the part of the State. It is not necessary that a defendant actually be put on trial within 120 days of the commencement of a felony action against him. Fraire v. State, 588 S.W.2d 789, 791 (Tex.Crim.App.1979). The Speedy Trial Act requires that the prosecutor be ready for trial, rather than requiring that the court system as a whole be ready and able to give the defendant a trial on the evidence. Barfield v. State, 586 S.W.2d 538 (Tex.Crim.App.1979). The Barfield court also discussed the burden of proof:

Section 3 [of the Act] ... would seem to require that the first move be made by the accused rather than the state.... Once the defendant files his motion to dismiss for failure to adhere to the provisions of the Act, the state must declare its readiness for trial then and at the times requires by the Act. This declaration is a prima facie showing of conformity to the Act, but can be rebutted by evidence submitted by the defendant demonstrating that the state was not ready for trial during the Act's time limits.

The prima facie showing of readiness which flows from the State's announcement of ready may be rebutted by a showing that the appellant was absent during the time in which the State claimed to be ready. Newton v. State, 641 S.W.2d 530 (Tex.Crim.App.1982).

When the prima facie showing of readiness is rebutted, the State must show excludable time periods of delay that would extend the initial time limitation. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App.1982).

In the instant case three subsections of TEX.CODE CRIM.PRO.ANN. art. 32A.02 § 4 (Vernon Supp.1985) would exclude the time that appellant spent in Nevada.

Subsections (1), (5), and (9) of art. 32A.02 § 4 of the Act provides that the following periods 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, hearing on pretrial motions, appeals, and trials of other charges

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(5) a period of delay resulting from the the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resist being returned to the state for trial

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(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial ...

Section 4(1) of art. 32A.02 is couched in terms of reasonableness when looking at a period of delay. Slaughter v. State, 683 S.W.2d 746 (Tex.App.--Corpus Christi 1984). The determination of reasonable delay must be made on a case by case basis. Parish v. State, 632 S.W.2d 200, 202 (Tex.App.--Ft. Worth 1982, no pet.).

We...