Rosebury v. State, 806-82

• Decision Date: 09 November 1983
• Docket Number: No. 806-82,806-82
• Citation: 659 S.W.2d 655
• Parties: Richard C. ROSEBURY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 655

659 S.W.2d 655

Richard C. ROSEBURY, Appellant, v. The STATE of Texas, Appellee.

No. 806-82.

Court of Criminal Appeals of Texas En Banc.

Nov. 9, 1983.

Roy Beene, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., James C. Brough and Randy McDonald, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted by a jury for possession of marihuana in a usable quantity of more than four ounces and punishment was assessed at five years and a $5,000 fine. The Court of Appeals affirmed the conviction and this Court granted appellant's petition for review to consider whether the Court of Appeals properly disposed of the asserted Speedy Trial Act, Art. 32A.02, V.A.C.C.P. violation.

The procedural chronological list of events summarized by the Court of Appeals adequately reflects the problem.

"February 6, 1979: Appellant was arrested after delivering approximately five and one-half pounds of compressed marihuana to undercover officers.

"February 20, 1979: Indictment was returned in Cause No. 291,916, alleging delivery and possession of 'a controlled substance, namely Tetrahydrocannabinols.'

"April 11, 1979: Appellant filed a waiver of speedy trial in Cause No. 291,916.

"July 13, 1979: Appellant pleaded guilty, was sentenced to eight years confinement and gave notice of appeal.

"December 13, 1979: Appellant was granted a new trial pursuant to Few v. State, 588 S.W.2d 578 (Tex.Cr.App.1979).

"January 7, 1980: Appellant was reindicted in Cause No. 306,916 for possession of 'Tetrahydrocannabinol other than marihuana.'

"January 18, 1980: Appellant filed a waiver of speedy trial in Cause No. 306,916.

"August 4, 1980: The State announced ready in Cause No. 306,916. While assembling witnesses for trial, the prosecutor learned from the State's chemist that the controlled substance in question was marihuana.

"August 18, 1980: Appellant was again reindicted in Cause No. 319,011 for possession of 'marihuana in a usable quantity of more than four ounces.' No waiver of a speedy trial was filed.

"September 15, 1980 through November 10, 1980: At a non-trial setting, the case was reset by agreement for November 3, 1980. On November 3, it was reset for November 10, 1980, and on November 10, 1980, was reset for trial December 8, 1980. Testimony showed all resettings were by agreement.

"December 8, 1980: Appellant filed his motion to dismiss for violation of the Speedy Trial Act, which was brought to the court's attention on January 19, 1981.

"December 11, 1980: An agreed trial setting for January 19, 1981, was filed.

"January 19, 1981: Appellant's motion to dismiss for violation of the Speedy Trial Act was overruled with other pre-trial motions, and trial commenced."

Appellant does not complain of delays after return of the third indictment on August 18, 1980. In his brief he makes it clear that he complains only of the time period before August 18, arguing that the State could not possibly have been ready for trial before that date because the State had not taken steps to prosecute him for possession of marihuana even though a laboratory report over six months earlier showed the substance possessed was marihuana, not tetrahydrocannabinol, as had been alleged in the first two indictments.

In light of this formulation of the issue by appellant, the focus of consideration must be on whether his waivers of a speedy trial filed under the first two indictments constituted waivers for purposes of the marihuana prosecution. Recognizing the pivotal role of this question in resolving the ground of error, appellant argues that Richardson v. State, 629 S.W.2d 164 (Tex.App.--Dallas 1982), controls. In that case the court held that an announcement of ready in one case did not constitute an announcement of ready on a second indictment for a different offense arising out of the same transaction. The reason given for that holding was, "Although both [cases] have the same complaining witness, they are different offenses subject to different proof, and therefore are not the 'same case' even though they are from the same transaction. Consequently, the announcements of ready in one case will not apply to the other case."

In this case the issue is different yet similar. Instead of the scope of effectiveness of an announcement of ready, as in Richardson, we consider the scope of effectiveness of appellant's waiver. In relevant part the two form waivers recite:

"I do knowingly and voluntarily waive my rights under the Texas Code of Criminal Procedure to a speedy trial within 120 days from the commencement of this case ... and further waiver my right for dismissal or discharge if the State is not ready for trial within 120 days of the commencement of this case...."

The waiver clearly applies to the case, not the transaction. The issue, therefore, reduces itself to whether the indictments constitute prosecutions for a single case or for separate cases arising out of the same transaction.

In Richardson, supra, the two offenses were theft and burglary. These were correctly found to be distinct cases although arising out of a single transaction. Here the first indictments alleged possession of tetrahydrocannabinol while the final indictment alleged possession of marihuana. As in Richardson, under statute these are "different offenses subject to different proof." Richardson, supra, at 165. Nevertheless, the facts of this case reveal only a single offense: only a single substance was possessed, a substance originally alleged to be tetrahydrocannabinol and subsequently found to be and correctly alleged to be marihuana. Under the facts there was only one case: a single offense was committed and a single offense was alleged, although at first erroneously pleaded. Had appellant possessed both substances a different issue would be presented. On these facts, however, we find Richardson distinguishable, and hold appellant's waiver of his rights under the Speedy Trial Act applied to the case, which included the third indictment.

The judgment of the Court of Appeals is affirmed.

McCORMICK and MILLER, JJ., concur in the result.

TEAGUE, J., not participating.

CLINTON, Judge, concurring.

Settled is that time limitations prescribed by the Act pertain to when the State must be ready for trial--not when trial must be held. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979) and Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979) (Clinton, concurring). But specifically, when does "a criminal action" commence within the meaning of Article 32A.02, V.A.C.C.P.?

Putting aside for the moment special situations such as retrials, id., § 2(b) and dismissals, § 2(c), usually initiated by an accused, § 2(a) provides that a criminal action commences when an indictment, information or complaint is "filed in court" unless the accused has been held to answer for the same offense or any other offense "arising out of the same transaction," and in that case the criminal action commenced when he was first arrested.

Thus it is clear that the legislative objective is to cause the State promptly to sort out its offenses, obtain one or more charging instruments and get ready for trial within the prescribed period of time from commencement of the criminal action. See Buford v. State, 657 S.W.2d 107 (Tex.Cr.App.1983) and Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980), both of which imply that an appropriate charging instrument must be on file in the proper court in order for an announcement of ready to be meaningful and effective. ¹

The implied rationale of Buford and Pate, supra, comports with the Act. It contemplates that a prior arrest--before an instrument charging an accused with an offense is "filed in court"--will commence a criminal action, the notion being that the State will not be allowed to avoid its duty to be ready timely for trial by simply delaying filing a charging instrument, while an accused remains subject to constraints of custody or bail. ² Consistent with such notion is the fact that of the ten periods of time that may be excluded only one mentions delay after the "charge is dismissed upon motion of the State or ... is disposed of by final judgment" and the accused is subsequently "charged with the same offense or another offense arising out of the same transaction," § 4(7). Clearly, then, the statutory mandate is that the State be ready for trial on a charging instrument extant in the file of a court in which the offense is to be tried.

Under the Act readiness on the part of the prosecution must be timely challenged by the accused by a motion to set aside the charging instrument on the only ground available--that the State is not ready for trial. Articles 28.061 and 32A.02, §§ 1 and 3; Barfield v. State, supra, at 542. Once that is done the State "must declare its readiness for trial then and at the times required by the Act," ibid.--a declaration that the accused may rebut by evidence that the State was not ready for trial "during the Act's time limits," ibid. Obviously, a motion to set aside a charging instrument will be filed in, heard and decided by the court having "threshold jurisdiction" to try the alleged offense. ³

Though the Texas Speedy Trial Act was drawn from the federal scheme promulgated by the Second Circuit, in which the government was required to communicate its readiness to the court within the specified six month period, ⁴ Barfield, supra, at 541; Ordunez v. Bean, supra, at 917, 919, we have not imposed upon the prosecution such "a useless thing," "a meaningless and perfunctory gesture," Barfield, supra, at 541. But that is not to say that every announcement of ready is so sterile.

The only allusion to the State's announcing ready for trial one quickly finds in the code of criminal procedure is in connection with a case being called for trial by jury. Article 35.01,...