State ex rel. Wade v. Mays, 69329
| Decision Date | 06 February 1985 |
| Docket Number | No. 69329,69329 |
| Citation | 689 S.W.2d 893 |
| Parties | The STATE of Texas ex rel. Henry WADE, Criminal District Attorney, Dallas County, Petitioner, v. Honorable Richard MAYS, Judge, 204th District Court, Dallas County, Respondent. |
| Court | Texas Court of Criminal Appeals |
This cause seeks to invoke the original subject matter jurisdiction of the Court provided by Tex. Const. V, § 5, 1 and is denominated an original application for writ of prohibition by the petitioner. The salient undisputed facts follow.
On March 12, 1984, 2 one Joseph Jones was apparently killed during the course of an aggravated robbery. On the same day, Joe and Cathy Cody were arrested in connection with this offense.
Joe and Cathy Cody were subsequently, in April, indicted separately 3 for the murder of Joseph Jones. On the last day of April the State filed an announcement of ready in Joe Cody's murder case; in the middle of May, an announcement of ready was filed in the Cathy Cody murder prosecution.
Both defendants were, in midJuly, additionally indicted for the March 12 aggravated robbery of Joseph Jones. 4 The State filed an announcement of ready in the Cathy Cody aggravated robbery case on July 31, which was 140 days after "the commencement of the criminal action" against her. 5 An announcement of ready in the Joe Cody aggravated robbery case was filed on August 2, which was 143 days after "the commencement of the criminal action" against him.
Both Joe and Cathy Cody thereafter in August moved the court to set aside their indictments for aggravated robbery, alleging the State's failure to be ready thereon within 120 days of their arrests for the offense of murder, arising out of the same transaction, entitled them to discharge under Article 32A.02, supra, § 1. 6
The Honorable Richard Mays, Judge of the 204th Judicial District Court and Respondent herein, granted these motions and discharged each defendant from the aggravated robbery indictments, apparently without any contest or argument from the State. 7
Very shortly after Respondent dismissed the aggravated robbery indictments against the Codys, each defendant moved the court in September to dismiss also the murder charges pending against them on the authority of Article 28.061, V.A.C.C.P., which provides:
A hearing was convened on these motions at which time it was stipulated by the parties that the murder charges arose out of the same transaction as the previously dismissed aggravated robbery charges.
Respondent announced his belief that under the mandatory language of Article 28.061, supra, he had no discretion to do anything other than grant the motions and discharge the Codys.
The State, however, contended the trial court need not comply with Article 28.061, supra, because the caption to the legislation creating the Speedy Trial Act [hereinafter, "the Act"] is defective for reasons discussed in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983) (); therefore the Act itself is void and of no effect. In the alternative, the state argued that--in the event the Act is not void--Respondent erred in dismissing the aggravated robbery charges against the Codys since they arose from the same transaction as the murder charges on which the State was timely ready; thus, under the "transactional approach" taken by this Court in Kalish v. State, 662 S.W.2d 595 (Tex.Cr.App.1983), once the State was ready on the original charge, the State could subsequently bring additional charges without violating the Act.
Counsel for Cathy Cody agreed that Kalish, supra, was controlling, but argued it mandates dismissal of any further prosecution arising out of the same transaction as the aggravated robbery charges. He also contended the State had waived this argument by failure to raise it at the time Respondent dismissed the robbery charges.
Attorney for Joe Cody contended that Kalish, supra, notwithstanding, the unambiguous language of Article 28.061, "doesn't talk at all about which charge comes first and what they are ready on or not ready on;" therefore, the trial court was required to follow the clear dictates of the Legislature. He also argued that when the State, through its Legislature, passes an act into law and a citizen relies on it, the State, through its enforcers of the law (prosecutors), is attempting to deny due process of law "by coming in and saying, in effect, 'King's X, Joe Cody; you can't rely on the law the State of Texas passed, because we didn't get a complete caption on the bill.' "
After hearing these arguments Respondent informed the parties that Article 28.061 and Kalish, both supra, barred prosecution of the murder cases and therefore required dismissal of the murder indictments against the Codys. He then announced his intention to enter written orders to such effect within 10 days. On request of the State, Respondent agreed to stay his ruling so that the State could seek extraordinary remedies from this Court. Respondent then admitted Joe and Cathy Cody to bail.
In this Court, all interested parties have filed briefs in which they essentially elaborate on their positions in the court below; therefore, we will not reiterate those arguments.
Effective January 1, 1978, Art. 5, § 5, Tex. Const. was amended in order to confer upon the Court powers to grant extraordinary writs in cases "regarding criminal law matters," in addition to the previously existent mandamus and prohibition authority to enforce its own jurisdiction. See generally State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978); Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978) (Onion, P.J., concurring).
In determining the specific nature of the extraordinary relief sought, this Court will not be limited by the denomination of petitioner's pleadings, but will look to the essence of the pleadings, including the prayers, as well as the record before us. See, e.g., Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App.1978); see also Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971); and City of Dallas v. Dixon, 365 S.W.2d 919 (Tex.1963).
The essential difference between the writ of prohibition and the writ of mandamus is that the former issues to prevent the commission of a future act whereas the latter operates to undo or nullify an act already performed; the former will not be granted when the act sought to be prevented is already done, but will lie when such act is not a full, complete and accomplished judicial act. White v. Reiter, 640 S.W.2d 586 (Tex.Cr.App.1982); Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980); Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973).
It is clear from the record that the State seeks to have us prevent Respondent from dismissing the murder indictments pending against Joe and Cathy Cody, and the relief sought is therefore prohibition.
Knowles v. Scofield, 598 S.W.2d 854, 860 (Tex.Cr.App.1980). 9
Here, the State's only allegation as to its entitlement to the relief sought is that the "relevant facts are completely undisputed [and] the question resolves itself to a pure question of law." In these regards, the State is correct. Accordingly, the threshold questions we confront are whether this condition of the dispute before us entitles the State, as a matter of indisputable right, to the extraordinary relief it seeks, and, if not, whether, the action sought to be prevented otherwise constitutes an unequivocal duty devolving on Respondent such that his failure to desist constitutes a proper subject of the exercise of our extraordinary writ authority.
The State is correct in its implied observation that disputed facts automatically defeat a petitioner's entitlement to extraordinary relief, e.g., Knowles v. Scofield, supra; it is also true that there are no disputes as to the facts here. But whether entitlement is demonstrated by the sole presentation of a hotly contested unsettled "question of law" is another matter. For, the law is clear that petitioner must show no impediment to the doing of the act sought to be compelled or prohibited and must also show he...
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