Orellana v. State, 13-84-055-CR

• Decision Date: 14 February 1985
• Docket Number: No. 13-84-055-CR,13-84-055-CR
• Citation: 686 S.W.2d 703
• Parties: Servando ORELLANA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 703

686 S.W.2d 703

Servando ORELLANA, Appellant, v. STATE of Texas, Appellee.

No. 13-84-055-CR.

Court of Appeals of Texas,

Corpus Christi.

Feb. 14, 1985.

Humberto Trejo, Houston, for appellant.

Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.

Before NYE, C.J., and KENNEDY and SEERDEN, JJ.

OPINION

KENNEDY, Justice.

In a jury trial appellant was convicted of involuntary manslaughter. Punishment was assessed by the trial court at ten years' imprisonment. We affirm.

In his first ground of error appellant contends that he was denied a Speedy Trial as required by TEX.CODE CRIM.PROCE.ANN. art. 32A.02 (Vernon 1984) of the Texas Code of Criminal Procedure. The original complaint was filed on March 10, 1983 and appellant was placed in custody on March 14, 1983, but he was not tried until October 18, 1983, a period far exceeding the 120 day period authorized. However, Section 4(3) of Article 32A.02 provides that in computing the time by which the State must be ready for trial, the State may exclude "a period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel ... [Emphasis added]. The record contains a series of "Agreed Settings" pursuant to which this case was repeatedly postponed. Each of the Agreed Settings was signed by appellant's trial attorney. At the hearing on the Motion to Dismiss for failure to grant a Speedy Trial, the trial judge specifically found that "all previous resets were by agreement between counsel for the defendant, the defendant, and the State [and that the] State announced ready before the expiration of a hundred twenty days." When the delay attributable to the agreed postponements is excluded, appellant was tried well within the 120 day period. Garcia v. State, 625 S.W.2d 831 (Tex.App.--Houston [14th Dist.] 1981, pet ref'd). Appellant's first ground of error is overruled.

In his second ground of error appellant contends that a juror conversed with the State's "main witness" during a recess from its deliberations and "that the State failed to rebut the presumption of harm resulting from jury separation." Ms. Felicitas Orellano, appellant's sister, testified that all the jurors had been allowed out of the courtroom for coffee and that she observed one of the jurors talking to Mr. Tony Rodriguez (a witness for the State) for about ten minutes when the witness returned. Appellant filed a Motion for New Trial in which he alleged that the juror had conversed with Tony Rodriguez "about the facts of the case resulting in injury to the Defendant" with "a juror, name unknown, but described as 5'10", blonde hair, round face, and heavy set ...." Ms. Orellano could not testify personally about what the juror and Mr. Rodriguez might be discussing because she could not understand English.

Appellant concedes that the "law regarding juror separation is well stated in McDonald v. State, 597 S.W.2d 365, 367 (Tex.Crim.App.1980) ...." That case notes, however, that it is appellan...