State v. Condran

• Decision Date: 25 July 1997
• Docket Number: 05-96-01314-CR,Nos. 05-96-01313-C,s. 05-96-01313-C
• Citation: 951 S.W.2d 178
• Parties: The STATE of Texas, Appellant, v. Charles Franklin CONDRAN, Appellee.
• Court: Texas Court of Appeals

Page 178

951 S.W.2d 178

The STATE of Texas, Appellant, v. Charles Franklin CONDRAN, Appellee.

Nos. 05-96-01313-CR, 05-96-01314-CR.

Court of Appeals of Texas Dallas.

July 25, 1997.

Robert Udashen, Dallas, for Appellee.

Tom O'Connell, Criminal District Attorney, Angela Gholson D'Amore, Assistant Criminal District Attorney, McKinney, for Appellant.

Before LAGARDE, WHITTINGTON and JAMES, JJ.

OPINION

JAMES, Justice.

The State appeals from the district court's order dismissing the prosecution against appellee Charles Franklin Condran pursuant to article 32.01 of the Texas Code of Criminal Procedure and barring further prosecution pursuant to article 28.061 of the Texas Code of Criminal Procedure. The State asserts three points of error. First, the State contends the district court erred in dismissing appellee's prosecution because the grand jury indicted appellee before the hearing on appellee's writ of habeas corpus, and therefore, the issue was moot. Second, the State contends articles 32.01 and 28.061 are unconstitutional because both articles violate the separation of powers doctrine. Last, the State contends the district court abused its discretion in finding the State did not have good cause for delaying the indictment. Because we conclude that article 28.061 violates the separation of powers doctrine and that appellee had to obtain a ruling on his article 32.01 complaint prior to indictment, we reverse the district court's order.

On May 1, 1994, the police arrested appellee for sexual assault. Subsequently, appellee posted bond with the condition he appear before the court to answer any criminal accusations against him. On June 27, 1995, the grand jury indicted appellee for sexual assault. On April 23, 1996, appellee filed an application for writ of habeas corpus requesting that the sexual assault indictment be dismissed because the State had not obtained the indictment pursuant to article 32.01. ¹ On May 7, 1996, the grand jury re-indicted appellee for aggravated sexual assault for actions arising out of the same May 1, 1994 incident. On May 22, 1996, appellee filed an amended application for writ of habeas corpus requesting that both indictments be dismissed pursuant to articles 32.01 and 28.061.

On August 12, 1996, after hearing evidence on the merits of appellee's amended application for writ of habeas corpus, the district court granted the requested relief. The district court dismissed the prosecution for sexual assault and aggravated sexual assault pursuant to article 32.01 and barred further prosecution pursuant to article 28.061.

Before addressing the State's points of error, we find it necessary to set out the applicable law in question. Article 32.01 states:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.

TEX.CODE CRIM. PROC. ANN. art. 32.01 (Vernon 1989). Article 28.061 acts as an enforcement mechanism for article 32.01. According to article 28.061, when a trial court discharges a defendant under article 32.01, it acts as a bar to further prosecution for the offense charged and for any other offense arising out of the same transaction. TEX.CODE CRIM. PROC. ANN. art. 28.061 (Vernon 1989).

In 1994, the district court terms in Collin County began on the first Monday in January and the first Monday in July. See TEX. GOV'T CODE ANN. §§ 24.302, 74.096 (Vernon 1988). Because the police arrested appellee on May 1, 1994, article 32.01 required the State to present an indictment or information against appellee before the end of the next term of court or by December 31, 1994. The State presented the first indictment against appellee on June 27, 1995 and the second indictment against appellee on May 7, 1996. It is undisputed that the State failed to indict appellee before the end of the next term of court after his arrest.

I.

The State's second point of error attacks the constitutionality of articles 32.01 and 28.061. We are reluctant to decide constitutional questions unless absolutely necessary. See Meshell v. State, 739 S.W.2d 246, 250 (Tex.Crim.App.1987); see also Burton v. State, 805 S.W.2d 564, 574 (Tex.App.--Dallas 1991, pet. ref'd). Therefore, the party raising a constitutional claim must show a present injury before we decide an issue involving the constitutionality of a statute. See Meshell, 739 S.W.2d at 250; see also Burton, 805 S.W.2d at 574.

We first address whether the district court abused its discretion in finding the State did not have good cause for delaying the indictment. If the trial court did not abuse its discretion, the dismissal stands and the State is barred from further prosecution of appellee. Only a dismissal with prejudice will establish a present injury to the State. See Meshell, 739 S.W.2d at 250.

Appellee filed an application for writ of habeas corpus with the trial court. In a habeas corpus proceeding, the petitioner must show he is entitled to the relief he seeks. See Hoang v. State, 810 S.W.2d 6, 8 (Tex.App.--Dallas 1991), aff'd, 872 S.W.2d 694 (Tex.Crim.App.1993), cert. denied, 513 U.S. 863, 115 S.Ct. 177, 130 L.Ed.2d 112 (1994). We review the record as it existed before the district court at the time of the habeas hearing in the light most favorable to the ruling to determine whether the trial court abused its discretion. See Ex parte Zavala, 900 S.W.2d 867, 870 (Tex.App.--Corpus Christi 1995, no pet.).

At the habeas corpus hearing, the State presented evidence to support its contention that it had good cause for delaying the indictment. A factual summary of the offense and subsequent investigation follows:

At approximately 3:00 a.m. on May 4, 1994, a man driving a red sports car ran into the complainant's vehicle. When the complainant got out of her car to check the damage, the man pulled her onto the median and sexually assaulted her. The man left the scene in his vehicle after three people in another vehicle pulled up to the location. The complainant pursued him in her own vehicle in an attempt to determine his license number.

Officer Zander observed the cars travelling westbound on Park Boulevard and called for back-up. Zander stopped the complainant. Two back-up patrol cars observed and pursued a red sports car fitting the description given by the complainant that had emerged from a nearby side street. During the chase, appellee drove in excess of 80 miles per hour. The officers eventually overtook appellee and arrested him for outstanding warrants and as a suspect in the sexual assault. The officers took appellee back to where Zander had stopped the complainant's car. No one could positively identify appellee as the assailant or his vehicle as the assailant's vehicle.

Detective Billy Meeks investigated the sexual assault allegations. The preliminary investigation revealed that the assailant had brown hair, probably had mud stains on his trousers after the assault, and probably had scratches on his face from the complainant. Meeks met with appellee the night of his arrest. Appellee was wearing a pair of trousers with mud stains on the knees, had a scratch on his face, and had blond hair, although he said he used a spray to color his hair brown. Appellee denied sexually assaulting the complainant. Appellee explained that he had recently dropped off a hitchhiker at another location near the area where the assault occurred. He said the mud stains on his trousers were from a scuffle with another man earlier in the evening. Meeks made inquiries, but was unable to confirm any of these alleged facts. Later, Meeks learned that appellee's vehicle had a broken license plate bracket consistent with running into another vehicle.

On June 7, 1994, Meeks filed the case against appellee with the district attorney's office. After filing the case, Meeks sent the clothing he had collected the night of the offense to the Southwestern Institute of Forensic Science (SWIFS), which had a backlog of work because several technicians resigned between June and August 1994. In October, SWIFS contacted Meeks and requested hair samples from appellee to compare with a hair found on his trousers. Meeks said he made three attempts to set up an appointment with appellee to collect the sample. Finally, Meeks executed a search warrant for the hair samples on December 9, 1994. Meeks sent the samples to SWIFS on December 13, 1994. SWIFS gave Meeks the results on January 24, 1995.

Laura Britton, the assistant district attorney in charge of the grand jury, testified she accepted the case against appellee on June 20, 1994. Britton said she intended to place the case before the grand jury during the July 1994 term. Meeks asked her to hold the case until he received the forensic test results because no one could positively identify appellee as the assailant. On September 1, 1994, Britton sent Meeks a letter requesting that he notify her when SWIFS completed the testing. In November, she checked with Meeks to determine if SWIFS had reported the test results. Meeks advised her the tests could not be completed until Meeks could obtain hair samples from appellee.

Britton rescheduled appellee's case and presented it to the grand jury on January 31, 1995. Four witnesses, including Meeks, testified before the grand jury. The grand jury passed the case for further investigation. Britton reset the case for March 21, 1995. Because Meeks could not be present, Britton reset the case for April 4, 1995. Meeks did not appear on April 4, but Britton presented a polygraph test at the request of appellee and a videotape of Meeks's interview with appellee. The grand jury again passed the case for two weeks so...