Wright v. State, 2-84-044-CR

• Decision Date: 25 September 1985
• Docket Number: No. 2-84-044-CR,2-84-044-CR
• Citation: 696 S.W.2d 288
• Parties: Bobby Ray WRIGHT, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 288

696 S.W.2d 288

Bobby Ray WRIGHT, Appellant, v. The STATE of Texas, State.

No. 2-84-044-CR.

Court of Appeals of Texas Fort Worth.

Sept. 25, 1985.

Charles Grantham, Grand Prairie, for appellant.

Tim Curry, Dist. Atty., and David Chapman, Asst. Dist. Atty., Fort Worth, for appellee.

Before ASHWORTH, JORDAN, JOE SPURLOCK, II and HILL, JJ.

OPINION

ASHWORTH, Justice.

A jury found appellant guilty of burglary by committing and attempting to commit theft. See TEX.PENAL CODE ANN. sec. 30.02 (Vernon 1974). The court found two enhancement allegations to be true and set appellant's punishment at forty-five years confinement in the Texas Department of Corrections.

We reverse and remand.

On April 15, 1982, the secretary of St. Luke's Cumberland Presbyterian Church discovered that the church had been burglarized during the night and that church property had been stolen. Later, on the same date, appellant and two other men sold the property to an undercover police officer. This sale was recorded by a concealed videotape camera. The resulting video recording was shown to the jury at trial. Appellant did not present any evidence.

In his single ground of error, appellant contends that the trial court committed reversible error in overruling appellant's motion to set aside the indictment for the State's violation of the Texas Speedy Trial Act. TEX.CODE CRIM.PROC.ANN. arts. 32A.01-.02 (Vernon Pamp. 1966-1985).

Appellant was first charged with the offense on which this prosecution is based on August 20, 1982. However, on August 6, 1982, two weeks earlier, appellant had been sent to T.D.C. for a parole violation. On August 25, 1982, the State placed a detainer on appellant in T.D.C. Appellant was indicted on October 26, 1982.

On November 4, 1982, the State filed its announcement of ready. The case was set for pre-trial hearings on November 19, 1982. On either November 19 or November 29, 1982, the State announced ready despite the fact that appellant was still in T.D.C. Additionally, on either November 19 or November 29, 1982, the State requested that appellant be bench warranted from T.D.C. However, this was not done.

Carol Christy, the administrative clerk of Criminal District Court No. 3, testified regarding the setting for the week of Monday, November 29, 1982, on which appellant's name appeared. She stated that appellant's name was typed on page 8 of the Setting Sheet and that on page 2, the following handwritten notation appeared: "Bench Bobby Ray Wright--TDC." She further stated that this indicated a request for a bench warrant and that most requests for bench warrants were made orally. Thereafter, the clerk would make a handwritten notation on the Setting Sheet to remind him to issue it. Additionally, she testified that no bench warrant was issued and that she did not know why the notation regarding the requested bench warrant appeared on a page different from the one on which appellant's typed name appeared. Finally, she stated that the notation could have either been made on November 29, 1982, the day the actual cases were called to trial, or November 19, 1982, the day any pre-trial matters were heard. The record reflects no further action on the part of the State to procure appellant's presence.

The court's docket reflects no further action on appellant's case in 1982 except that on November 24, 1982, it was "Passed By The Court Not Reached." Appellant was released from T.D.C. on January 7, 1983 despite the pendency of the State's valid detainer. In August of 1983, appellant, for whom an attorney had been appointed, was served a copy of the indictment.

TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Pamp. 1966-1985) provides, in pertinent parts, as follows:

Section 1. 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;

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Sec. 2. (a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when an indictment, information, or complaint against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.

Id. Based upon this section, it was stipulated at appellant's hearing on his motion to dismiss the indictment because of non-compliance with the Speedy Trial Act that the 120-day period expired on December 18, 1982.

It is well settled that the Speedy Trial Act addresses itself to prosecutorial delay rather than the judicial process as a whole. Barfield v. State, 586 S.W.2d 538, 541 (Tex.Crim.App.1979). Therefore, the Act refers to the preparedness of the prosecution for trial and does not encompass the trial court and its docket. Id. An announcement of ready by the State constitutes a prima facie showing that the State has complied with the requirements of the Speedy Trial Act. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App.1982); Barfield, 586 S.W.2d at 542. However, this prima facie showing may be rebutted by proving that the defendant was absent during the time in which the State claimed to be ready. Id. at 542. Securing the defendant's presence is a readiness burden which falls upon the State under the Speedy Trial Act. Lyles v. State, 653 S.W.2d 775, 778 (Tex.Crim.App.1983); Newton v. State, 641 S.W.2d 530, 531 (Tex.Crim.App.1982).

TEX.CODE CRIM.PROC.ANN. art. 32A.02, sec. 4(5), (9) and (10) (Vernon Pamp. 1966-1985) are as follows:

Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded:

* * *

* * *

(5) a period of delay resulting from the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resists being returned to the state for trial;

* * *

* * *

(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial; and

(10) any other reasonable period of delay that is justified by exceptional circumstances.

Id.

The State, in its brief, asserts that once the State makes a timely request for a bench warrant, it has discharged its Speedy Trial Act readiness obligation to have the accused present for trial within the time required by the Act. With this contention we cannot agree. See Newton, 641 S.W.2d at 531; Ybarbo v. State, 659 S.W.2d 898, 900 (Tex.App.--San Antonio 1983, no pet.) (except for specific exclusions stated in TEX.CODE CRIM.PROC.ANN. art. 32A.02, sec. 4(5), (9) and (10), absence of defendant does not toll this article and therefore prevents State from being ready within meaning of this article.).

The resolution of whether or not the absence of the appellant falls within TEX.CODE CRIM.PROC.ANN. art. 32A.02, sec. 4(5) and (9) (Vernon Pamp. 1966-1985), boils down to a determination of whether, under the circumstances, the State used "due diligence" to obtain appellant's presence within the 120-day period. See Lyles, 653 S.W.2d at 778.

In Lyles, the Court held that a negligent mistake in the sheriff's office--its inexplicable rejection of a bail bond posted by defendant--did not excuse the State's failure to secure the defendant's presence. Id. at 778-79. That Court stated:

The prosecutor cannot excuse a lack of due diligence on his part by pointing the finger at the Sheriff or other law enforcement agency. The circumstances reflect the situation was resolved once the prosecutor began to exercise diligence in the matter. The delay is attributable to the prosecuting authority and not the court. The delay could have, and should have been avoided by simple means, not requiring any stenuous (sic) exercise of due diligence by the State.

Id. at 779; see also Lopez v. State, 663 S.W.2d 908, 909 (Tex.App.--Corpus Christi 1983, pet. granted) (prosecutor who had asked trial judge to issue bench warrant to bring defendant, who was being detained on another charge, back for trial, could have easily checked progress of trial court's bench warrant and expedited matter within 120-day period within which the State had to be ready for trial; therefore, prosecutor who failed to do so failed to exercise due diligence in obtaining presence of defendant whose location was known, and period of delay resulting from unavailability of defendant would not be excluded from 120-day period.).

Based on the above authority, we find that the State did not exercise due diligence in obtaining appellant's presence within the 120-day period. Therefore, we hold that merely requesting the issuance of a bench warrant to procure a defendant's presence at trial, does not constitute due diligence within the meaning of TEX.CODE CRIM.PROC.ANN. art. 32A.02, sec. 4(5) and (9) (Vernon Pamp. 1966-1985).

The next question which we must determine is whether or not the delay in the instant case was the result of exceptional circumstances within the purview of TEX.CODE CRIM.PROC.ANN. art. 32A.02, sec. 4(10) (Vernon Pamp. 1966-1985).

In its brief, the State cites three cases in support of its contention that the facts of the instant case come within the exceptional circumstances exception. See Ostoja v. State, 631 S.W.2d 165, 168 (Tex.Crim.App.1982) (time period between resignation of regular duly elected judge of defendant's trial court until his vacancy was filled by permanent successor was excludable under Speedy Trial Act as reasonable period of delay that is justified by exceptional circumstances); Hamilton v. State, 621 S.W.2d 407, 410 (Tex.Crim.App.1981) (where defendant was arrested on unrelated charge and placed in confinement under an assumed name prior to filing complaint...