Durbin v. State - Case Law

OPINION

OSBORN, Chief Justice.

This is an appeal from a conviction for the offense of involuntary manslaughter. The jury assessed punishment at two years imprisonment. We affirm.

In Ground of Error No. One, the Appellant asserts that the trial court erred in overruling the Appellant’s motion to dismiss the indictment for lack of a speedy trial pursuant to Article 32A.02, Tex.Code Crim.Pro.Ann. The Appellant was indicted for the offense of murder on June 3, 1981. The State’s announcement of ready was filed on June 4, 1981. Trial commenced on November 1, 1982. The jury returned a guilty verdict for the lesser included offense of involuntary manslaughter. The jury was unable to reach a decision at the punishment stage of trial and a mistrial was declared.

Two subsequent motions to dismiss for denial of speedy trial were denied by the trial court. On January 16,1984, Appellant was retried under the original murder indictment. A defense motion for mistrial based on double jeopardy was granted, terminating the second trial short of verdict. Thereafter, on January 26, 1984, persuaded by Appellant’s repeated double jeopardy assertion, the State’s prosecuting attorney secured a reindictment on a charge of involuntary manslaughter, the instrument upon which the present conviction is founded. The State announced ready on this reindictment on January 27, 1984.

Upon an announcement of ready, the burden was upon the Appellant to demonstrate the State’s lack of readiness. Barfield v. State, 586 S.W.2d 538 (Tex.Crim.App.1979). The Appellant’s only assertion of unreadiness is founded in his belief that the guilt finding on the lesser included offense served as an acquittal upon the offense of murder, rendering the original murder indictment invalid. His three motions to dismiss were all based exclusively on the theory that due to the “result” of the first trial, there was never any timely, subsequent valid charging instrument upon which the State could announce ready. There is no suggestion of evidentiary unreadiness or trial delay on the part of the State. Appellant argues that the partial verdict of the first jury

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rendered the murder indictment invalid under the doctrine of double jeopardy. We note that jeopardy did not attach in this instance. See: Article 37.07(3)(c), Tex.Code Crim.Pro.Ann. (Vernon 1981). Morris v. Mathews, 475 U.S.-, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), cited in the dissenting opinion, is not applicable because in that case there was a valid, final conviction on the aggravated robbery charges prior to charges being filed for aggravated murder which arose out of the robbery. In our case, the hung jury resulted in a mistrial, but not a conviction or an acquittal. The Appellant could have been retried on the murder charge at any time. The fact that the State chose to reindict on the charge of manslaughter caused the case to fall within the ambit of Article 32A.02(4)(7), Tex.Code Crim.Pro.Ann. (Vernon Pamphlet Supp.1986). As the murder indictment was still valid, it appears that the manslaughter charge was an alternative charge. When the murder case was dismissed, the speedy trial limitations were governed by the commencement by the State of the subsequent charge.

Even the delay caused by the ultimate dismissal of the murder indictment and the process of reindicting on the lesser charge was not attributable to the State. The trial court’s granting of the nonmerito-rious motion for mistrial in January, 1984, necessitated such action by the State. This was at most invited error and invited delay chargeable to the defense. As no other delay is suggested, we find that there is no violation of the Speedy Trial Act. Ground of Error No. One is overruled.

In Ground of Error No. Two, the Appellant asserts that the court erred in overruling his request for a charge on vol-untariness pursuant to Section 6.01, Tex. Penal Code. This assertion is based upon the Appellant’s testimony that the deceased charged his vehicle and the Appellant swerved away from the deceased. The deceased was then struck by the side mirror of the vehicle and fell underneath its wheels. We fail to see how this constitutes nonvolitional conduct. The fact that the Appellant’s version of the events indicates he did not intend to cause the result does not warrant the requested instruction. See: Williams v. State, 630 S.W.2d 640 (Tex.Crim.App.1982). The conduct in swerving his vehicle was clearly voluntary. See: George v. State, 681 S.W.2d 43 (Tex.Crim.App.1984). Ground of Error No. Two is overruled.

The judgment of the trial court is affirmed.