Scott v. State
| Decision Date | 16 June 1982 |
| Docket Number | No. 63293,No. 2,63293,2 |
| Citation | 634 S.W.2d 853 |
| Parties | William Thomas SCOTT, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Zollie C. Steakley, Sweetwater, for appellant.
Frank Ginzel, Dist. Atty., and Russell L. Carroll, Asst. Dist. Atty., Colorado City, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and CLINTON and TEAGUE, JJ.
This is an appeal from a conviction for sexual abuse of a child, where the punishment was assessed at six (6) years' imprisonment following a guilty verdict.
On appeal the appellant in his sole ground of error contends the court reversibly erred in overruling his motion to set aside the indictment since the State failed to comply with Article 32A.02, V.A.C.C.P. (Speedy Trial Act, effective July 1, 1978).
Article 32A.02, § 1(1), supra, provides:
The record reflects, mainly as a result of stipulations at the hearing on the motion to set aside the indictment, that (1) the appellant was originally indicted on June 8, 1978, and was incarcerated prior to July 1, 1978. The two count indictment charged rape and sexual abuse of a child. (2) The case was first set for trial on September 18, 1978, and such notice of setting indicated that if the case was not reached on such date the case would be passed to October 23, 1978. The case was not reached. (3) The appellant was reindicted on October 12, 1978. Another count of sexual abuse was added to the new indictment. It was stipulated all three counts grew out of the same incident or transaction and the two counts were the same as in the first indictment. It does not appear the first indictment was dismissed. (4) By letter dated October 27, 1978 the cases were set for trial on November 27, 1978. (5) On November 1, 1978, the appellant filed his motion to set aside the indictment by virtue of Article 32A.02, V.A.C.C.P., alleging that the State had not been ready to go to trial during the 120 day period from July 1, 1978. (6) On November 27, 1978, the cases were apparently postponed to November 29, 1978. On November 28, 1978, the appellant filed a motion for continuance because of the death of his court-appointed attorney's grandfather on November 27, 1978, and in order that the attorney might attend the funeral in Temple. The request was to "continue" the case for at least one week. The motion does not appear to have been acted upon, but the record reflects an apparent agreement not to call the case because of the funeral. (7) On January 10, 1979, the court heard the motion to set aside the indictment for lack of a speedy trial and overruled the same. (8) The trial on the merits commenced on February 5, 1979. For the first time the State announced ready for trial on that date.
Appellant acknowledges that even though his case was pending prior to July 1, 1978, the time limitations set forth in Article 32A.02, supra, only commenced to run on his case on July 1, 1978, the effective date of the Speedy Trial Act. Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978); Lopez v. State, 628 S.W.2d 82 (Tex.Cr.App.1982). He contends there is no support in the record to show that the State was ready within 120 days from July 1, 1978 and that he was entitled to have his motion filed on November 1, 1978 granted. He urges that although his counsel and the District Attorney first told the court the 120 days ran on November 27, 1978, and later changed it to November 1, 1978, that the correct date is October 28, 1978. None of these dates are correct.
In Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App.1968), this court held that computation of times provided in the Code of Criminal Procedure was controlled by the provisions of Article 5429b-2, § 2.04(a), (b), V.A.C.S (Code Construction Act), which provides:
Therefore, in computing the 120 days in this case, we must exclude July 1, 1978. The 120 days would have elapsed on October 29, 1978. Since that date was a Sunday, the 120 days would not have run against the State until Monday, October 31, 1978.
Therefore, we must look to see if the evidence shows the State was ready for trial between July 1 and October 31, 1978. Whether the State is "ready" refers to the...
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