Whalon v. State
| Decision Date | 19 February 1986 |
| Docket Number | No. 67324,67324 |
| Citation | 725 S.W.2d 181 |
| Parties | John Edward WHALON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
A jury convicted appellant of felony theft, found the enhancement allegation in the indictment to be true, and assessed punishment at twenty years' confinement.
Appellant raises fourteen grounds of error along with several additional contentions alleged in his supplemental briefs. We will first address appellant's contentions that his right to a speedy trial under the Texas Speedy Trial Act and the Texas and United States Constitutions was violated.
Appellant was arrested on December 16, 1979. The State announced ready on Thursday, April 10, 1980, 115 days after arrest. The State filed a motion for continuance on April 14 and filed an amended motion on April 15. On Tuesday, April 15, the court held a hearing on the State's motion for continuance and on appellant's motion to dismiss on speedy trial grounds. 1 At the hearing the prosecutor testified that when he announced ready he had all of the evidence lined up, including statements from all of the witnesses. After he announced ready he issued subpoenas for all of his witnesses and learned that the complainant had moved out of state. In his motion for continuance he stated that he had contacted the complainant who told him that due to the unexpected hospitalization of the employee who would replace him, the complainant would be unable to testify until a week later than the week of April 14th. The case was originally set for trial on April 16. The State filed a motion for continuance on the same day, Monday, April 14, and then filed an amended motion for continuance on April 15, including more detail on the cause for the absence of the witness.
The court granted the State's motion for continuance and set the case for trial on April 28, because the court's docket was too crowded to try the case the very next week of April 21st.
The applicable portion of Art. 32A.02, Sec. 1 states: "A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within: (1) 120 days of the commencement of a criminal action if the defendant is accused of a felony." The criminal action commenced on December 16, 1979, when appellant was arrested. The State announced ready on April 10, 1980, which was 115 days after the commencement of the criminal action. An announcement of readiness for trial by the State within 120 days is a prima facie showing of compliance with Art. 32A.02, and the burden to rebut this showing then falls on appellant. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). Appellant contends that because a key witness for the State was not available to testify within the 120 days, he has rebutted the State's announcement of readiness for trial.
We agree with appellant that the State's announcement of ready was rebutted by the showing that the complainant in the case could not appear until the week of April 21st, which was after the 120 day limit. The burden thus shifts to the State to show that sufficient time is excludable under Art. 32A.02 to bring them within the 120 day limit. Lloyd v. State, 665 S.W.2d 472 (Tex.Cr.App.1984).
Appellant was indicted on March 27, 1980, and the case was set for trial on April 16. The State issued a subpoena for the witness on Friday, April 11, and discovered that the subpoena could not be served because the witness had moved to Oklahoma. The prosecutor stated that subpoenas were not issued earlier and no effort was made to contact witnesses because he already had statements from all his witnesses and mainly because the State waited until arraignment before issuing subpoenas in order to determine whether the case was going to trial.
Appellant was arraigned April 10. The State issued subpoenas the next day and then learned that the witness had moved out of state. The prosecutor then contacted the witness by telephone and learned that the witness would not be able to appear until April 21, the next week, due to the unexpected hospitalization of the one co-worker who would replace him. On April 14, the State requested a continuance and then amended the motion on April 15, stating that a material and essential witness was unavailable because the one co-worker who would replace him was unexpectedly hospitalized and no replacement could be procured until April 21st. The court granted the motion.
Art. 32A.02, Sec. 4(6)(A) states that the following period of time is excludable:
a reasonable period of delay resulting from a continuance granted at the request of the state if the continuance is granted: (A) because of the unavailability of evidence that is material to the state's case, if the state has exercised due diligence to obtain the evidence and there are reasonable grounds to believe the evidence will be available within a reasonable time;
Appellant contends that the State did not exercise due diligence in attempting to obtain evidence from a key witness, and that the time should not be excluded. Under Art. 32A.02, Sec. 4(6)(A) diligence is required in obtaining the evidence. Under these facts we cannot say that the State did not exercise due diligence to secure the presence of the witness. The prosecutor had all of the evidence, including witness statements and, apparently, addresses to contact witnesses. He thus announced ready. After issuing the subpoenas and discovering that a material witness could not be served because he was working out of state, the prosecutor located the witness, learned that because of unexpected circumstances at work, the witness could not appear until the next week. The prosecutor's actions to secure the presence of the witness--issuing the subpoena, and locating and contacting the witness as soon as possible after the subpoena could not be served--was diligent. Lack of diligence on the part of the State had no part in the witness's absence. The fact that the State delayed in indicting appellant and setting the case for trial until near the end of the statutory time limits for speedy trial did not affect the availability of the witness. The unexpected hospitalization of a replacement employee caused the witness to be unavailable. We hold that Sec. 4(6)(A) applies in the instant case and that the prosecutor used due diligence to secure the appearance of the witness within reasonable time. Cf. Canada v. State, 660 S.W.2d 528 (Tex.Cr.App.1983).
Therefore, the time from the filing of the motion for continuance until the trial date is properly excluded from calculating the 120 day limit. Even if we consider April 15 as the date of filing, it was the 120th day after commencement of the criminal action. We exclude all the time from April 15 until appellant was actually tried on April 28. Thus, the State just met the 120 day limit and complied with Art. 32A.02. The ground of error is overruled.
Appellant also contends that his constitutional rights to a speedy trial were violated. After considering four factors often suggested as considerations we overrule appellant's ground of error.
The four factors are length of delay, reason for delay, defendant's assertion of the right, and prejudice to the defendant resulting from the delay. See Hull v. State, 699 S.W.2d 220 (Tex.Cr.App.1985); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Appellant was tried within 133 days of his arrest. We doubt that this length of delay is sufficient to invoke constitutional considerations. However, assuming it is, the other factors clearly weigh against appellant. Appellant asserted his right at the time the statutory limits were reached and contends simply that he was prejudiced by the delay. There is no evidence of any prejudice. In fact, the delay may only have aided appellant. The record reflects that appellant requested the court to allow him time to locate certain witnesses and that the court offered to grant him a continuance to do so. Appellant refused the continuance. Appellant has not pointed to any prejudice and the record does not reflect any.
The State asserted a valid reason for the slight delay in trying appellant beyond the Texas Speedy Trial Act limitations and appellant shows no prejudice from the delay. When the four factors are balanced, they clearly weigh against appellant. The ground of error is overruled.
Appellant contends that the trial court erred in granting the State a continuance to secure the presence of the complainant because the State did not use due diligence required of them to secure the witness. See Art. 29.04, V.A.C.C.P.
The reasons for the continuance are set out in our discussion of appellant's speedy trial contention and we need not repeat them here. This is not a case of an uncooperative or unwilling witness. The witness was going to appear. The State contacted him after its subpoena was returned unserved. The continuance requested was for one week only and was filed as soon as the State learned that certain unexpected circumstances would prevent a key witness from appearing. The State complied with Art. 29.04. Additionally, the delay was brief and would not indefinitely delay the trial. See Varela v. State, 561 S.W.2d 186 (Tex.Cr.App.1978). Nor is there any suggestion or evidence that appellant was prejudiced in any way by the delay.
A motion for continuance rests in the trial court's discretion. Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App.1981); Corley v. State, 582 S.W.2d 815 (Tex.Cr.App.1979). Based upon the facts in the instant case in which the State moved for a continuance at the earliest possible time, due to the unexpected absence of a material witness, we cannot say that the trial...
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