Wilson v. State, 08-81-00141-CR

• Decision Date: 09 June 1982
• Docket Number: No. 08-81-00141-CR,08-81-00141-CR
• Citation: 633 S.W.2d 952
• Parties: Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 952

633 S.W.2d 952

Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee.

No. 08-81-00141-CR.

Court of Appeals of Texas, El Paso.

June 9, 1982.

Pickett & Teter, P. C., Ross Teter, Carrollton, for appellant.

Henry Wade, Criminal Dist. Atty., Steve Wilensky, Robert E. Whaley, Asst. Dist. Attys., Dallas, for appellee.

Before WARD, OSBORN and SCHULTE, JJ.

OPINION

OSBORN, Justice.

Appellant was indicted for attempted burglary alleged to have occurred in Dallas County, Texas, on January 3, 1978. The State invoked the habitual offender provision of the Penal Code, Sec. 12.42, alleging prior convictions for burglary of a habitation and burglary of a vehicle.

Trial was held on May 14, 1979. The jury returned a verdict of guilty. The penalty phase was tried to the court and resulted in a life sentence. We reverse and remand for a new hearing on the penalty only.

In Ground of Error No. One, Appellant contends that the evidence was insufficient to sustain the conviction. We disagree. Arresting Officer Gary Wren observed a vehicle parked in front of a washateria at 3:00 a. m., January 3, 1978. He drove closer to the scene and saw one individual, who had been reading, motion to someone in the rear of the building. He then saw the Appellant standing in the rear of the washateria. A third individual emerged from a closet. When back-up units arrived, Appellant and the first individual started to leave. The third subject started to leave as officers entered the building. Officer Wren observed that no washers had been used. The Appellant and the third individual had sheetrock dust on their clothes. The officers found that a hole had been cut in the sheetrock in the washateria closet. The hole led to an adjacent television store. A hammer and screwdriver were found in the closet. Mr. Hanna, owner of the television store, testified as to non-consent, the nature of the building, and the fact that the business was closed. The court charged on circumstantial evidence.

We hold that there was sufficient evidence upon which the jury could base its verdict. Ground of Error No. One is overruled.

Grounds of Error Nos. Two and Three complain of the trial court's refusal to grant Appellant's motion to dismiss for failure to provide a speedy trial. The undisputed facts disclose that Appellant was arrested on January 3, 1978. He was indicted for attempted burglary during that month. The parties agree that the State filed a written announcement of ready within 120 days of the arrest. The Speedy Trial Act, Article 32A.02 of the Code of Criminal Procedure, became effective on July 1, 1978. On November 15, 1978, Appellant was reindicted. There was no change in the primary offense charged, but two prior convictions were added for habitualization purposes.

A habeas corpus hearing was held but the transcript is not before us. The court denied Appellant's motion to dismiss.

The court docket reflects that the first trial setting was for January 8, 1979. The cause was passed by agreement of the parties to March 5, 1979. It was again reset by agreement of the parties to March 12, 1979. Two more settings were passed, including one on May 7, 1979, which bears an annotation that the court was in trial on two other cases. Trial finally commenced on May 14, 1979.

The primary goal of the Speedy Trial Act is to afford an individual his right to a prompt adjudication of any criminal charge against him. Barfield v. State, 586 S.W.2d 538, 539 (Tex.Cr.App.1979). The Act provides for a 120-day period between commencement of the felony action and announcement of ready by the State. Since this cause was pending on the effective date of the Act, the action commenced on July 1, 1978. Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978). The reindictment took place on November 15, 1978, 138 days after the Speedy Trial Act took effect. This is a case of first impression.

The criminal charge against Appellant was attempted burglary. It is uncontested that the State announced ready on this charge under the first indictment in a manner comporting with the Speedy Trial Act. There was no change in this allegation under the second indictment. It is also settled that the Speedy Trial Act is directed at prosecutorial delay only. Barfield, supra. Delays due to the state of the court's docket are not attributable to the State and will not justify dismissal.

There is no indication of delaying actions by the State, from first indictment to ultimate trial, other than joint agreements to pass the cause on January 8 and March 5, 1979. Particularly significant is the absence of any showing that the reindictment process produced any delay in reaching trial. Had the original indictment been carried to trial on May 14, 1979, there is no question that the denial of the motion to dismiss would have been proper.

Bearing in mind the primary purpose of the Speedy Trial Act, as announced in Barfield, the relationship between the primary charge and the enhancement allegations is critical in assessing the consequences of reindictment. The habitual offender statute does not create an offense. It merely provides a more severe punishment for repeated criminal behavior. Porier v. State, 591 S.W.2d 482 (Tex.Crim.App.1979). The enhancement allegations are not substantive elements of the primary offense charged. They are a guide for the court or the jury in assessing punishment. Passmore v. State, 544 S.W.2d 399 (Tex.Cr.App.1976). Therefore, Appellant's right to a speedy trial related to the primary offense of attempted burglary. This charge was not changed in the reindictment, and the State's original announcement of ready as to this allegation carries forward through the second indictment to the time of trial. The record reveals a situation in which the usual non-prosecutorial delays afforded the State an opportunity to enhance the punishment aspect of its case. We do not interpret the Speedy Trial Act to prohibit this opportunism. Accordingly, we find no error in the denial of Appellant's motion to dismiss.

This ruling still protects Appellant's right to a speedy trial. Where a change in the allegation of the primary offense takes place on reindictment, the original announcement of ready would not carry forward. Where the reindictment for enhancement is shown to cause a delay in the primary offense coming to trial, the established rules of Article 32A.02 may be relied upon. The State would have to justify the prosecutorial delay on the basis of one of the statutory exceptions. This case does not present either situation. Grounds of Error Nos. Two and Three are overruled.

In Ground of Error No. Four, Appellant alleges that the trial court abused its discretion in failing to set aside the indictment on grounds that the enhancement constituted prosecutorial vindictiveness. After the first indictment, Appellant was successful in obtaining reversal of three prior Dallas convictions. He contends that this was the reason for his reindictment and constituted a violation of his right to appeal. He relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Ronk v. State, 578 S.W.2d 120 (Tex.Cr.App.1979).

Pearce, Ronk and their progeny flow not only from the due process clause of the Constitution, but also from the double jeopardy prohibition. See also: Blackledge v. Perry, 417 U.S. 21, 28-29, 94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628, 634-635 (1974). In each and every case, the appellant had obtained a reversal of his conviction. Subsequently, the prosecutor, prior to retrial, reindicted in a fashion exposing the appellant to a harsher penalty. The reindictments all flowed out of the same transaction which was the basis for the first conviction. The appellate courts found these to be acts of prosecutorial vindictiveness which unconstitutionally intimidated criminal defendants from pursuing their appellate remedies.

The present case is immediately distinguishable in that the reversals obtained for Appellant were in cases unrelated to his attempted burglary trial. In Pearce, Blackledge and Ronk, the State's first indictment was a reflection of the prosecuting authority's appraisal of the severity of the crime and the dangerousness of the defendant. Absent a showing of intermediate misconduct, the harsher reindictments could be attributed only to prosecutorial vindictiveness. That is not the case here. Prosecutorial vindictiveness is one possible interpretation. On the other hand, the first indictment for attempted burglary did not necessarily represent the total appraisal by the State of the punishment needs for this particular repeat offender. During the summer of 1978, the State lost thirty-five years of consecutive sentencing in Appellant's three collateral cases. It obviously sought to make up this loss by reindictment as a habitual offender. This is not necessarily an act of vindictiveness, but may well have been a legitimate exercise of punishment options aimed at satisfying community needs regarding the criminal activity of the Appellant.

The vindictiveness interpretation is further weakened by the fact that all three convictions which were reversed were similarly enhanced by two prior convictions. The enhancement allegations were dismissed as part of plea bargain arrangements in those cases.

The cases relied upon by Appellant are not controlling due to the factual distinction. The suggestion of prosecutorial vindictiveness is not sufficiently supported by the facts to justify setting aside the indictment. Ground of Error No. Four is overruled.

In Ground of Error No. Five, Appellant alleges error in failure to grant his motion to quash based upon the Grand Jury returning an indictment without evidence having been presented. Cross-examination of Officer Wren revealed that he did testify before the Grand Jury. A transcript of his testimony was presented to the defense during trial and utilized during cross-examination. Ground of...