Pena v. State, 13-83-093-CR

• Decision Date: 08 December 1983
• Docket Number: No. 13-83-093-CR,13-83-093-CR
• Citation: 662 S.W.2d 430
• Parties: Juan PENA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 430

662 S.W.2d 430

Juan PENA, Appellant, v. STATE of Texas, Appellee.

No. 13-83-093-CR.

Court of Appeals of Texas,

Corpus Christi.

Dec. 8, 1983.

James R. Lawrence, Corpus Christi, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, for appellee.

Before NYE, C.J., and YOUNG and UTTER, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for the felony offense of murder. Following a jury trial, appellant was found guilty, and punishment was assessed by the jury at thirty-five years confinement in the Texas Department of Corrections. Appellant raises four grounds of error. The sufficiency of the evidence is not challenged on appeal. We affirm.

In the first ground of error, appellant contends that the trial court committed reversible error by overruling his motion to dismiss the indictment as violative of the Speedy Trial Act. TEX.CODE CRIM.PROC.ANN. art. 32A.02, section 1 (Vernon Supp.1982-83). The record shows that appellant was taken into custody on August 23, 1982, when he surrendered to a police officer in the parking lot of the Corpus Christi Police Department. Appellant was incarcerated continuously from that date through the trial on the merits, which began March 14, 1983.

The facts of the case reflect that, on or about September 10, 1982, appellant was indicted for the offense of murder in cause number 82-CR-854-E. Trial was set for November 1, 1982. On that date, both the state and appellant appeared before the court and announced ready for trial. Due to conflicts in the court docket, the case was reset for December 13, 1982. On December 13, 1982, both the District Attorney and counsel for defense appeared before the court and again made announcements of ready. On that date, another felony case was reached and appellant's case was reset for February 7, 1983. At the February 7th setting, the state announced that the case pending under cause number 82-CR-854-E would be dismissed due to the fact that the initial indictment was fundamentally defective. On February 8, 1983, a hearing was held on appellant's motion to dismiss the original indictment. At this hearing, the state announced that appellant had been reindicted as of February 4, 1983, in cause number 83-CR-132-E for the same offense. The state filed a written announcement of ready for trial in the new cause number on February 8, 1983.

On February 25, 1983, appellant filed a motion to dismiss the second indictment (cause number 83-CR-132-E) pursuant to the Speedy Trial Act. Pretrial motions were heard on March 9, 1983, at which time appellant's motion to dismiss was denied. The case proceeded to trial on March 14, 1983.

Appellant contends that the state had not announced ready under the present indictment within the 120-day statutory time limit. Appellant argues that the state's previous announcements of ready under the first cause number 82-CR-854-E were ineffective announcements because the state was proceeding under a faulty indictment. The state responds that its announcements of ready in the earlier cause number were sufficient to satisfy the Speedy Trial requirements. The February 4, 1983 cause number was merely the result of a re-indictment for the same offense, and the Speedy Trial requirements were also met. We agree.

Until appellant timely and properly invoked the provisions of the Act, the state did not have to make any declaration or announcement that it was ready for trial, or that it had been in the past ready for trial, or that sufficient periods of time were exclusive under the Act. Smith v. State, 659 S.W.2d 828 (Tex.Cr.App.1983); Fraire v. State, 588 S.W.2d 789 (Tex.Cr.App.1979); Barfield v. State, 586 S.W.2d 538, 542 (Tex.Cr.App.1979). Once appellant timely filed and urged his motion to dismiss, which was after the statutory 120-day time period had expired, the state declared its readiness for trial then and at the times required by the Act. See Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980); and Barfield v. State, 586 S.W.2d at 542. These declarations, combined with the state's previous announcements of readiness for trial under the old cause number within the statutory time period, constituted a prima facie showing of conformity to the Act. At that point, appellant had the burden to rebut the state's announcements of ready for trial by introducing evidence demonstrating that the state was not ready for trial during the applicable time limits. Smith v. State, 659 S.W.2d 828 (Tex.Cr.1983); Barfield v. State, 586 S.W.2d at 542; Loftin v. State, 624 S.W.2d 351, 352 (Tex.App.--Dallas 1981, d.r. ref'd).

The Court of Criminal Appeals has held that the existence of a valid charging instrument is an element of the state's preparedness. Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980). We note, however, that the Speedy Trial Act does not require that the state be ready with a perfect indictment. Although it may be true that the defect in the first indictment would have required a mistrial or reversal of a conviction, the presence of such a problem does not necessarily indicate that the state was not ready for trial. Ward v. State, 659 S.W.2d 643 (Tex.Cr.App.1983). Like other causes for trial delay, the nature of the defect and the length of reasonableness of delay are to be weighed in determining whether or not the state is indeed not prepared for trial. Ward v. State, 659 S.W.2d 643 (Tex.Cr.App.1983); see Kernahan v. State, 657 S.W.2d 433 (1983).

In the instant case, the state moved to dismiss the first indictment upon discovering a fundamental defect in the manner in which the offense was alleged, based on a recent ruling by the Court of Criminal Appeals. ¹ Appellant had already been re-indicted for the same offense alleged to have occurred on the same day against the same complainant. Therefore, there was no undue delay between the dismissal of the first cause number and the re-indictment in the present cause.

We hold that the state established a prima facie showing of compliance with the Act by announcing ready for trial in the present cause number 83-CR-132-E at the hearings on the motions to dismiss. Further, the state established that it had been ready and had announced ready in cause number 82-CR-854-E within the time limits of art. 32A.02, section 1. The state established that any delay in getting to trial was due to the court's inability to try the case at that time and not the result of prosecutorial delay. See Barfield v. State, 586 S.W.2d at 541.

Appellant has not shown that the state's announcement of ready was not made in good faith or that the state was otherwise unprepared for trial. Appellant failed to show that the present indictment was not merely a re-indictment for the same offense. The appellant has not sufficiently rebutted the state's claim of preparedness for trial. See Ward v. State, 659 S.W.2d 643 (Tex.Cr.App.1983); Barfield v. State, 586 S.W.2d at 541. Appellant's first ground of error is overruled.

In his second ground of error, appellant complains that the trial court abused its discretion in allowing a witness to testify who was present in the courtroom after the rule regarding witnesses had been invoked. Article 36.03 of TEX.CODE CRIM.PROC.ANN. (Vernon 1981) states:

"At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the cause...."

Even where there has been a timely objection, the admissibility of testimony of a witness who has remained in the courtroom while another witness is testifying is within the sound discretion of the trial court. Beecham v. State, 580 S.W.2d 588 (Tex.Cr.App.1979); Holmes v. State, 169 Tex.Cr.R. 343, 333 S.W.2d 842 (1960). A great deal of latitude is confided in the trial judge with regard to his decision concerning the applicability of the "rule" to a particular witness, and the exercise of this discretion will not be reversed on appeal except in cases of clear abuse. Owens v. State, 503 S.W.2d 271 (Tex.Cr.App.1974); Berry v. State, 477 S.W.2d 284 (Tex.Cr.App.1972).

In the instant case, the state called a rebuttal witness named Arnold Herring after appellant had invoked the "rule." Herring was not scheduled as a witness for the state and was not placed under the rule with the other witnesses. The record reflects, however, that Herring was in the courtroom during at least part of appellant's own testimony. At some point thereafter, Herring informed the prosecutor that he could be available as a witness. Herring stated that approximately ten minutes before he was actually called by the state, the prosecutor told him outside the courtroom that he would be a witness in the case only as to truth and veracity and as to threats to the decedent.

Appellant does not question the good faith of the prosecutor. Under the facts of this case, the error, if any, was harmless. Appellant has not shown a clear abuse of discretion. See Alston v. State, 170 Tex.Cr.R. 17, 338 S.W.2d 723 (1960). Ground of error number two is overruled.

In his third ground of error, appellant contends that the trial court erred in admitting into evidence a photograph of the deceased at the hospital because the photograph only inflamed the minds of the jurors and had no probative value.

In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972), the Court of Criminal Appeals delineated the proper standard for admission of a photograph:

"... [I]f a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible."

Martin also specified that the determination as to the admissibility of photographic evidence is...