Canada v. State

660 S.W.2d 528, 1983 Tex. Crim. App. LEXIS 1184

• Court: Court of Criminal Appeals of Texas
• Decided: October 5, 1983
• Docket: 018-83
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of the offense of burglary of a habitation and punishment was assessed at five years confinement in the Department of Corrections. The Fourth Court of Appeals in San Antonio, 636 S.W.2d 632, affirmed appellant’s conviction. Appellant, in his petition for discretionary review, argues that the affirmance by the San Antonio Court of Appeals, based on its interpretation of the Speedy Trial Act,¹ Art. 32A.02, V.A.C.C.P., was in error. We disagree and affirm.

The appellant was arrested on January 31, 1980. An indictment was filed on April 2, 1980. On May 12, 1980, both the appellant and State made announcements of ready which were noted on the court’s docket and the case was scheduled for trial on June 30. For reasons undeterminable from the record the case was continued. On July 1, the appellant filed a “Motion to Set Aside the Indictment for Failure to Grant a Speedy Trial.” A hearing was had in chambers. An assistant district attorney announced that a certain witness who was vital to his case was in the hospital suffering from a gunshot wound and an automobile accident. Appellant’s motion was denied and the cause was reset for July 14. At that time the appellant’s motion was re-urged. The State informed the court that the witness had “taken a turn for the worse” and the court reset the cause for August 25. On that date the court overruled the appellant’s motion to dismiss for lack of speedy trial and attempted to proceed to trial. The assistant district attorney then requested the court to allow the State to withdraw its announcement of ready because not everybody on the subpoena list had been served. He specifically pointed to a material witness who was out of town and who would not be able to testify until September 2. The judge passed the case and it was reset for September 2. The trial commenced on September 2.

The appellant contends that every day beyond the May 12 announcement of ready and up until trial should be counted against the State and that the 120 day limit was thereby exceeded. We have determined, however, that a proper computation of the period of delay reveals that only 102 days elapsed during which the State was not ready for trial. That computation is: 62 days between arrest and indictment, and 40 days between indictment and announcement of ready.

The State’s announcement of ready on May 12 was uncontroverted by the appellant. The announcement thereby effectively tolled the running of the Act until the presumption of readiness was sufficiently rebutted by the appellant or until the State announced it was not ready. On July 1 the appellant filed the following motion to dismiss based on the Act:

“Now comes Roger Canada, Defendant, and respectfully moves the Court to set aside the indictment against him for the failure:

“1. To accord him a speedy trial under the provisions of Article 32A.02, V.A.C. C.P., and

“2. To accord him a speedy trial as required by the Sixth Amendment, United States Constitution, and Article I, Sec. 10, of the State Constitution and the provisions of Article 1.05, Y.A.C.C. P.”

That the instrument set out above is but a naked motion unsupported by any evidence is clear. However, the motion was sufficient to rebut the presumption of readiness. Nevertheless, in the instant case the motion was not sufficient to overcome² the State’s rebuttal.

The appellant argues that, even if the State be allowed to exclude the period between its May 12 announcement of ready and its first announcement of not ready, there followed periods of time³ not excludable by the Act which, when added to the 102 days noted above, total well over the 120 day statutory limit. Again we disagree.

That the State was not ready at the hearing on appellant’s motion to dismiss on July 1 is undisputed. The State was again not ready on July 14 and on August 25. The record reflects, however, that on both July 1 and July 14 it was brought to the attention of the court that a certain important State’s witness was in the hospital and thus unable to testify on those dates. The court overruled the appellant’s motion to dismiss on both occasions, citing Art. 32A.02, See. 4(10), which provides that:

“In computing the time by which the State must be ready for trial, the following periods shall be excluded:

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

On August 25, the court again overruled the appellant’s motion to dismiss, and reset the case because of “extraordinary reasons.” The case was called at the next setting, and the State announced ready; the witness was present and testified at the trial.

The appellant argues that the prosecutor’s statements referring to the hospitalization of the witness were not competent evidence. In Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975) an objection made by the defense attorney to the prosecutor’s closing argument included the following:

“Your Honor, we’re going to object to that comment. He is obviously commenting — inferring by the place he stood — let the record reflect that he stood right behind the defendant, raised his voice, at that time, and objected — excuse me — not objected — said, ‘We haven’t heard from somebody in this court.’ At that time, Mr. Casey looked down at the defendant in such that his actions and inferences and comments made, was a comment on not testifying by the defendant.”

This Court held that the defense attorney had properly placed the event in the record by his statement and that the record thereby supported his claim. Presiding Judge Onion, citing Art. 40.09, V.A.C.C.P.,⁴ wrote:

“This statement, made for the purpose of the record and recorded by the court reporter as to the prosecutor’s physical actions, was undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made.”

As in Hicks, supra, there were no objections made to this portion of the record in the instant case. The record was approved by the trial court.⁵ The record affirmatively establishes that the State’s witness was unable to testify at that time. The State thus properly invoked the exclusionary provision of the Act relating to exceptional circumstances. Cf., Jordan v. State, 639 S.W.2d 477 (Tex.Cr.App.1982); Newton v. State, 641 S.W.2d 530 (Tex.Cr.App.1982), relied upon by the appellant in his brief.

From the date of the State’s announcement of ready until the date on which the instant case was tried the running of the Act was tolled. A total of 102 days ran before the State was ready for trial; the requirements of the Act were met.

The judgment of the court of appeals is affirmed.

1 . Hereinafter referred to as The Act.

2 . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

3 . The appellant counts 62 additional days, covering the period of July 1 to September 2.

4 . Art. 40.09, subd. 4, reads in pertinent part:

“4. ... A transcription of the reporter’s notes when certified by him and included in the record shall establish the occurrence and existence of all testimony, argument, motions, pleas and objections, exceptions, court actions, refusals of the court to act and other events thereby shown and no further proof of the occurrence or existence of same shall be necessary on appeal; provided, however, that the court shall have power, after hearing, to enter and make part of the record any finding or adjudication which the court may deem essential to make any such transcription speak the truth in any particular in which the court finds it does not speak the truth and any such finding or adjudication having support in the evidence shall be final.”

5 . Art. 40.09, subd. 7, reads in pertinent part:

“7. ... If neither files and presents to the court in writing any objection to the record, within 15 days after the mailing of such notice and if the court has no objection to the record, he shall approve the same.”