Perez v. State

678 S.W.2d 85, 1984 Tex. Crim. App. LEXIS 789

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1984
• Docket: 64054
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a vehicle. Punishment was assessed at ten years.

In his first two grounds of error appellant asserts error under the Speedy Trial Act. Art. 32A.02, V.A.C.C.P. The record shows the following sequence of events. Appellant was arrested on October 14, 1978. He was indicted for burglary of a vehicle in trial court cause number 19,144 on November 9, and the State filed a written announcement of ready in that case on November 15. The following January 12 appellant was reindicted in cause number 19,320, on allegations of the same crime, plus a prior conviction alleged for enhancement. The State’s motion to dismiss the indictment in cause 19,144, for the stated reason of reindictment in cause 19,320, was granted on February 26. Trial commenced March 26, well past the statutory 120 days from arrest on October 14. Art. 32A.02, Sec. 1(1), supra.

The State argues that its announcement of ready on November 15, well within the statutory period, was sufficient to make a prima facie showing of compliance with the Act and invoke the rule of Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). With this argument we are in agreement. Although in Richardson v. State, 629 S.W.2d 164 (Tex.App.—Dallas 1982), the court held that an announcement of ready in one case did not constitute an announcement of ready on a “reindictment,” we find that case distinguishable. In Richardson the defendant was first indicted for theft and then “reindicted” for burglary of a vehicle. Although both offenses involved the same complaining witness and arose out of the same transaction, they were not the same case, and therefore the Court of Appeals properly held the State’s announcement of ready in the theft case did not apply to the burglary case. In this case the reindictment was for the same case as that in which the State had timely announced ready. The second indictment simply added a punishment allegation for enhancement purposes. The first two grounds of error are overruled.

In his remaining ground of error appellant complains of hearsay admitted over objection. The record reflects:

“Q. All right. What were the circumstances immediately proceeding [sic] your contact with him?

“A. Myself and Officer Taylor had been sent to the area around 14th and Avenue J to investigate a report of a Mexican male prowling cars in the area—

“MR. BRACKETT: Your Honor, I object to this as being hearsay.

“THE COURT: Overruled.

“MR. BRACKETT: Note our exception.

“THE COURT: Noted.

“Q. You had a report?

“A. Yes.

“Q. All right.

“A. We had a report of a Mexican male prowling cars in that area.”

It is true, as appellant contends, that hearsay relating to probable cause is not admissible before the jury when the issue of probable cause is not raised before the jury. Smith v. State, 574 S.W.2d 555 (Tex.Cr.App.1978); Smith v. State, 511 S.W.2d 296 (Tex.Cr.App.1974); Vara v. State, 466 S.W.2d 315 (Tex.Cr.App.1971). Nevertheless, such error is not always reversible. In Maxon v. State, 507 S.W.2d 234 (Tex.Cr.App.1974), the Court considered the issue and held:

"... when the hearsay evidence does not identify or connect the accused with the information, the error is not prejudicial. Green v. State, 152 Tex.Cr.R. 201, 211 S.W.2d 949. Here, there was no reference to the appellant by name or by any other identifying data. The address 1403 Blalock and the phrase ‘people living there’ were the only references made. Since the address was that of an 18-unit apartment complex where many people lived, and there was no reference to appellant’s apartment number, she was not prejudiced by the testimony.”

The facts in this case are even less prejudicial than those in Maxon, and are clearly distinguishable from those in Smith, Smith, and Vara, supra.

The ground of error is overruled.

The judgment is affirmed.