Pope v. State

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

Our prior opinion in which we wrote on appellant’s first motion for rehearing is withdrawn and the following is substituted therefor.

On the day before our original opinion in this case was issued, the Court of Criminal Appeals handed down its opinion in Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983). Since such decision overruled its previous line of cases holding an accused waived his right to appellate review of his rights under the Texas Speedy Trial Act by pleading guilty, it now becomes necessary to address the merits of appellant’s third ground of error.

Appellant was arrested on February 19, 1982, and charged by complaint with the felony offense of possession of the controlled substances methamphetamine, hy-dromorphone, and marijuana. He appeared in the 177th Judicial District Court on February 22, 1982 for a probable cause hearing. The following chronology is what occurred thereafter:

DATE
ACTION
02-22-82
Agreed setting signed by counsel for state and defense setting matter for examining trial on 2-26
02-26-82
Agreed setting for presentation to grand jury on 3-5 and arraignment on 3-10
03-10-82
Agreed setting for arraignment on 3-24
03-25-82
Agreed setting for arraignment on 4-13
DATE
ACTION
04-07-82
Appellant indicted in Cause No. 350,662
04-13-82
Agreed setting for pre-trial hearing on 4-22
04r-22-82
Seven pre-trial motions filed, two of which were motions to dismiss on grounds other than lack of a speedy trial
04-22-82
Agreed setting for hearing on motion for 5-25 and trial on 6-28
06-28-82
Three motions to dismiss filed, one of which was based upon lack of a speedy trial
06-28-82
Agreed trial setting for 7-12
07-08-82
Appellant reindicted for same transaction under Cause No. 359,431 except that first paragraph alleged possession of cocaine instead of methamphetamine
07-12-82
Agreed setting for hearing motions on 8-9 and for trial on 8-16
07-14-82
Six more pre-trial motions filed by appellant, including a motion to dismiss on the basis of lack of a speedy trial
07-21-82
A notice of intent to introduce copy of letters if original not produced filed by appellant
07-23-82
Another motion to dismiss (not on basis of speedy trial) filed by appellant
07-27-82
Three additional motions filed by appellant
08-09-82
Hearing on apparently all motions including his motion to dismiss for failure to provide a speedy trial
08-16-82
Motion to dismiss indictment (not on basis of speedy trial) filed by appellant
08-16-82
Plea of nolo contendere entered by appellant and punishment assessed in accordance with plea negotiations

At the hearing on appellant’s speedy trial motion on August 9, 1982, he proved through the clerk’s records that neither an oral nor written notice of ready for *167trial had been filed by the prosecutor in the re-indicted Cause No. 359,431 and rested. The prosecutor put on no evidence, but when asked by the trial court if he wished to be heard, he responded that the court should take judicial notice of all the agreed settings of the case and stated, the “state has been ready for trial within the 120 days as provided by Speedy Trial Act.” Based upon the record before us, we are unimpressed with appellant’s argument that we cannot accept the unsworn statement of the prosecutor that the state had been ready for trial within the 120-day limit of the Act. No motions were filed on behalf of the state and the first trial setting for June 28, 1982 was made on April 22, 1982, some 62 days after appellant was arrested, well within the 120-day limit. Even if the trial had been conducted on June 28th and that date was outside the 120-day limit, this would not benefit appellant since the requirement of the Act applies to prosecutorial preparedness and does not encompass the trial court and its docket. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). When the prosecutor declared the state had been ready for trial within the 120-day time limit and appellant elicited no evidence in rebuttal thereof, the requirements of the Speedy Trial Act were fulfilled. Id. Appellant’s third ground of error is overruled.

Appellant contends we were in error in holding that by entering a plea of nolo contendere he waived his claim of a denial of a constitutional right to a speedy trial. We agree, as the Court of Criminal Appeals has held otherwise. Riggall v. State, 590 S.W.2d 460 (Tex.Cr.App.1979). We will address the merits of appellant’s fourth ground of error dealing with his constitutional claim of denial of a speedy trial and apply the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors to be weighed in determining whether an accused has been denied his right to a speedy trial are: (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. Id. According to the teaching of Barker, the four factors are to be considered together and each case is to be judged on an ad hoc basis.

Looking to the facts of this case, appellant was brought to trial in just under six months from the date of the offense. The record does not show the reason for the delay, but from the above chronological history of the case we find the case was active on the court’s docket at all times. As to appellant’s assertion of the right to a speedy trial, we find he never requested a speedy trial but only objected to the lack thereof on June 28, 1982, when the 120-day limit provided by the Speedy Trial Act had expired. Appellant attempts to show he was prejudiced by the delay by the following novel reasoning. At the hearing on his motion to dismiss for failure to provide a speedy trial, appellant called the court clerk as a witness and proved the indictment under which the proceedings were had was returned July 8, 1982; it alleged the offense to have occurred on February 19, 1982, which was more than 120 days; and appellant had been continuously in custody since commission of the offense. On cross-examination by the prosecutor, the following occurred:

Q. Do you have present with you Cause No. 350662, the old reindictment [sic]?
A. [Clerk] Yes.
Q. For the record, you have not been able to locate the docket sheet in Cause No. 350662; is that correct?
A. That is correct.
Q. Also for the record, 359431 is a rein-dictment of 350662; is that correct?
A. Yes, sir.
MR. MAGIDSON (The prosecutor):
At this time we offer into evidence official records of 350662; more specifically, for the court’s attention, all of the agreed reset forms in this case and also the docket sheets, also that. That is all we have.

When the court reporter filed her transcript of the proceedings on September 20, 1982, she included the “reset” forms as an exhibit. Appellant’s counsel then presented a motion for a supplemental statement *168of facts to the trial court, stating that “the state introduced in evidence the entire file in Cause No. 350662,” that the court reporter had not included “the entire file in Cause No. 350662 in the Statement of Facts,” and that he desired it be included in a supplemental statement of facts. On October 18, 1982, the trial court granted the motion and, consequently, there has been transmitted to this court four large manila envelopes of xeroxed copies of material that has nothing to do with this appeal. However, included with this material is a copy of appellant’s “Motion to Set Aside the Indictment Because the State has not Complied with Article 32A.02 of the Texas Code of Criminal Procedure” which was filed on June 28, 1982. This motion, signed only by appellant’s attorney and not sworn to by anyone, alleges that the “long delay in bringing [appellant] to trial has caused him to lose the benefit of the testimony of substantially all of his witnesses” since they have now moved and he can not find them. The motion further alleges that “most of those seven witnesses” would testify to facts which would show appellant was not in possession of the drugs on the occasion in question.

With this factual background, appellant argues, “[W]hen the state introduced the Defendant’s Motion to Set Aside the Indictment Because the State has not Complied with Article 32A.02 of the Texas Code of Criminal Procedure in Cause No. 350,-662, the first case, the state admitted every fact, statement, and conclusion in that motion, and the contents of that motion are conclusive against the state.” We do not agree with appellant’s contention that the prosecutor introduced appellant’s motion into evidence because the record simply belies this. As we construe that portion of the record quoted above, the prosecutor introduced the agreed reset forms and the docket sheet and appellant’s counsel has attempted to expand the prosecutor’s offer to include evidence not offered. Because of our holding that the prosecutor did not introduce into evidence the motion to dismiss, we therefore do not address appellant’s contention that the state was bound by the assertion made by appellant’s counsel in the motion. We hold (1) the length of delay was not unreasonable; (2) in the absence of any showing to the contrary, the reason for the delay is of little consequence because the case was shown to be active at all times on the trial court’s docket; (3) appellant failed to show that he ever asserted his right to a speedy trial but, to the contrary, agreed to the continuances causing the delay; and (4) appellant failed to show he was in anyway prejudiced by the delay. Accordingly, we overrule his fourth ground of error asserting a denial of a speedy trial under the Constitution.

The motion for rehearing is overruled.