Smith v. State, 63984

• Decision Date: 19 October 1983
• Docket Number: No. 63984,63984
• Citation: 659 S.W.2d 828
• Parties: Bruce Wade SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 828

659 S.W.2d 828

Bruce Wade SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 63984.

Court of Criminal Appeals of Texas En Banc.

Oct. 19, 1983.

Rehearing Denied Nov. 30, 1983.

Paul Tatum, Nacogdoches, for appellant.

Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

TEAGUE, Judge.

Upon a plea for not guilty by reason of insanity, Bruce Wade Smith, appellant, was convicted by a jury of murdering his father. The jury also assessed appellant's punishment at life imprisonment in the penitentiary. Because the trial court reversibly erred in not granting appellant's "Motion To Dismiss For Failure To Comply With The Speedy Trial Act," we will reverse the conviction and order the prosecution dismissed.

The facts of the case on this issue reflect that on October 8, 1977, appellant was arrested for committing the offense of capital murder of his father. On November 14, 1977, he was indicted. ¹ Thereafter, a jury trial occurred on appellant's competency to stand trial. On December 6, 1977, the jury found appellant competent to stand trial.

Several months later, on March 21, 1979, appellant filed his "Motion To Dismiss For Failure To Comply With The Speedy Trial Act." A formal hearing was held on the motion. The record reflects the following, regarding the hearing and the trial court's disposition of the motion:

THE COURT: All right, at this time the Court calls the State of Texas vs. Bruce Wade Smith, Cause Number 11,184. What says the State?

MR. BILL WARREN [District Attorney]: The State is ready.

THE COURT: What says the Defendant?

MR. PAUL TATUM [Defense Attorney]: Your Honor, at this time, the Defendant would like to urge its motion to dismiss under the provisions of the speedy trial act.

THE COURT: Overruled ...

We first observe that Art. 32A.01, et seq., V.A.C.C.P., the Speedy Trial Act, only has prospective application from July 1, 1978, the effective date of the Act. Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978); Goocher v. State, 633 S.W.2d 860 (Tex.Cr.App.1982). Thus, in this instance in making the determination whether the trial court correctly ruled on appellant's motion to dismiss, all periods of time prior to July 1, 1978, must be excluded.

By the provisions of the Act, 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 excludable under the Act. See Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979); Fraire v. State, 588 S.W.2d 789 (Tex.Cr.App.1979).

However, once appellant timely filed and urged his motion to dismiss, which was made after the statutory 120 day time period had expired, see Art. 32A.02, Sec. 1(1), supra, which governs the time period where the offense is a felony, the trial court became obligated under the Act to grant the motion, unless the State established that it was then ready for trial and had been ready for trial at all times since the commencement of the criminal action, or it established that sufficient periods of time were excludable under the Act. In this instance, the statutory 120 days did not commence to run until July 1, 1978, because that is the date the Act went into effect. See Barfield v. State, supra; Fraire v. State, supra.

It is only in the instance where the State makes a declaration or announcement of readiness for trial within the statutory time period that the accused must rebut the State's announcement of ready for trial, i.e., produce evidence of the State's unpreparedness for trial. Barfield v. State, supra.

However, if the statutory time period has expired, and the accused invokes the Act, then the State must demonstrate both that it was then ready and had in fact been ready for trial at all times within the statutory time period, or else the State must demonstrate or establish that sufficient periods of time are excludable by the Act, in order to bring its announcement of readiness within the statutory 120 days. See Apple v. State, 647 S.W.2d 290 (Tex.Cr.App.1983); Lee v. State, 641 S.W.2d 533 (Tex.Cr.App.1982); Jordan v. State, 639 S.W.2d 477 (Tex.Cr.App.1982).

In this instance, the record is devoid of any evidence or assertion by the State that it had been ready within the statutory time period of 120 days, or 120 days from July 1, 1978. Nor does the State assert that any time periods are excludable after July 1, 1978.

The record clearly reflects that after July 1, 1978, at least 264 days, a period well in excess of the statutory 120 days, had elapsed before the State made its first and only announcement of ready for trial.

The State's perfunctory announcement of ready for trial on the day of trial, without any showing or claim that it had been in fact ready for trial within the statutory 120 day time limit, or that sufficient periods of time were excludable under the Act, was insufficient to establish a prima facie case that it was then ready for trial and had been ready for trial before the expiration of the statutory 120 days, or 120 days after July 1, 1978.

Therefore, the trial court erred in summarily overruling appellant's motion to dismiss the indictment for failure of the State to comply with the Speedy Trial Act.

The judgment is reversed with directions to the trial court to set aside the indictment and dismiss the prosecution.

MILLER, Judge, dissenting.

The majority reverses appellant's conviction because the trial court erred in summarily overruling appellant's motion to dismiss the indictment under the Speedy Trial Act. Although I agree that the trial court erred in summarily dismissing the motion without a hearing, I disagree with the majority's remedy. Instead of reversing the judgment with directions to set aside the indictment and dismiss the prosecution, I would abate the appeal and remand the cause to the trial court for a hearing.

The trial court, in summarily overruling appellant's motion to dismiss, denied the State an opportunity to announce whether it had been ready at all appropriate times and denied appellant the opportunity to rebut any such announcement from the State...