Trull v. State
| Decision Date | 30 September 1986 |
| Docket Number | No. 12-85-0096-CR,12-85-0096-CR |
| Citation | 721 S.W.2d 378 |
| Parties | Maxie Don TRULL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Clifton L. Holmes, Longview, for appellant.
John Tunnell, Dist. Atty., Longview, for appellee.
Appellant was convicted of forgery and assessed a punishment of five years' confinement and a $5,000 fine. He contends that the trial court erred when it granted a State's motion for continuance, overruled his motion to dismiss under the Speedy Trial Act, 1 and admitted into evidence contents of a briefcase that were obtained from a warrantless search. Since our resolution of the speedy trial issue is dispositive of the case we shall confine our discussion to those facts related to that question.
The following chronology is pertinent to a consideration of the speedy trial dispute:
November 8, 1982 Arrest
February 24, 1983 Indictment
March 4, 1983 Defendant arraigned; State announced ready
case set for April 18, 1983
June 6, 1983 Case called for trial, reset to June 27, 1983,
due to State's witness problems.
June 27, 1983 State 'announced'; Defendant announced ready;
Motion to Dismiss Under Speedy Trial Act filed; case
reset to July 11, 1983.
January 14, Jury selected and instructed to return
1985 January 15, 1985.
January 15, State granted continuance due to absent witness,
1985 over Defendant's objection; jury discharged and
mistrial declared; case reset for
January 28, 1985.
January 25, First Amended Motion to Dismiss Under Speedy
1985 Trial Act filed.
January 28, First Amended Motion to Dismiss Under Speedy
1985 Trial Act overruled; jury selected.
January 30, Trial of case; Defendant convicted and sentenced.
1985
The State announced ready March 4, 1983, 116 days after the commencement of the criminal action. Appellant argues that the State's periods of unreadiness may be aggregated, Hernandez v. State, 663 S.W.2d 5 (Tex.App.--El Paso 1983), and that, therefore, proof of only four more days of unexcused delay attributable to the State should compel the dismissal of the indictment. Appellant concedes that he had the burden of rebutting the State's prima facie showing of conformity with the Speedy Trial Act resulting from the declaration of readiness within the statutory limit. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). The court heard defendant's first amended motion to dismiss under the Act immediately prior to trial on January 28, 1985. Appellant contends he satisfied his obligation to rebut the State's prima facie showing by demonstrating that the State was unready at the June 6, 1983, setting when, as the docket sheet recites, the case was continued until June 27, 1983, "due to State's witness problems." In appellant's view, the State's unreadiness was further established on January 15, 1985, when, after the selection of the jury, it moved to continue the case because of the unavailability of a material witness. Appellant maintains that, upon this showing, the burden devolved upon the State to prove that the periods of delay occasioned by the two continuances were excludable under the Act. Since the State did not attempt to do this, appellant urges that the intervals of delay referable to the trial postponements of June 16, 1983, and January 15, 1985, must be added to the initial 116-day period in determining the State's compliance with the Act. Since the 116-day interval between arrest and the State's first announcement of ready, when added to either period of delay attributable to the State's continuances, totals more than 120 days, appellant argues the Act requires dismissal of the indictment.
The Texas Speedy Trial Act does not demand that the defendant be accorded a speedy trial; rather it "is designed to cause the prosecution to be 'ready for trial' speedily." Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979); Clinton, Speedy Trial--Texas Style, 33 Baylor L.Rev. 707, 743 (1981). Read literally, its provisions require only that the prosecution be prepared to go to trial within the time limits prescribed. However, it is implicit in appellant's position and we agree that, as construed by the Court of Criminal Appeals in Barfield and subsequent cases, the Speedy Trial Act not only mandates preparedness by the prosecution before the expiration of the time limit appropriate to the offense, but that the Act also imposes a continuing obligation on the State to remain in readiness thereafter unless the periods of unpreparedness are excludable under section 4.
Appellant properly raised the issue by presenting to the court his motion for discharge for failure of the prosecutor to adhere to the Act's requirements. Although the appellant did not present evidence challenging the readiness of the State at the time of its initial announcement, the evidence adduced at the hearing on his motion demonstrated that the State announced not ready on June 6, 1983, resulting in a three-week postponement. The prosecuting attorney also testified that he "couldn't have gone very far" without the witness missing at the January 15, 1985, setting. When the statutory period has expired and the accused has properly invoked the Act, the trial court must grant the defendant's motion for discharge unless the State establishes that it was then ready for trial and had been ready for trial at all times since the criminal action commenced, or it establishes that sufficient periods of time within the prescribed period are excludable under the Act. Teamer v. State, 685 S.W.2d 315, 318 (Tex.Cr.App.1984); Smith v. State, 659 S.W.2d 828, 830 (Tex.Cr.App.1983).
A voluntary announcement of ready by the State which is made, as in the instant case, before the running of the applicable time limit and before the defendant's invocation of the Act, creates a presumption of readiness which the defendant must rebut. Smith v. State, 659 S.W.2d 828 (Tex.Cr.App.1983). The announcement effectively tolled the running of the Act until the presumption of readiness was rebutted by appellant or until the State announced not ready. Canada v. State, 660 S.W.2d 528, 529 (Tex.Cr.App.1983). The State's readiness on the date of its March 4, 1983, announcement was uncontroverted by the appellant. The running of the Act was therefore tolled until June...
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