Postell v. State

693 S.W.2d 462, 1985 Tex. Crim. App. LEXIS 1412

• Court: Court of Criminal Appeals of Texas
• Decided: July 24, 1985
• Docket: 191-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

This is an appeal from a conviction for burglary of a habitation with intent to commit theft. Punishment was assessed at life. We granted appellant’s petition for discretionary review to determine when a defendant must file an election to have the jury assess punishment in cases where a pretrial hearing is held.

The record shows that during the pretrial hearing, the judge informed the appellant that he would have to make his election at that time as to who would assess punishment in the event of a guilty verdict by the jury. Although appellant objected to this procedure and argued that he should be allowed to wait and file his election after voir dire had been completed and the jury picked, appellant filed a written motion asking that the judge assess punishment. The Court of Appeals, relying on Ceaser v. State, 624 S.W.2d 669 (Tex.App. — Beaumont 1982, no pet.), held that in cases where a pretrial hearing is held in accordance with Article 28.01, V.A.C.C.P., the defendant may be required to file all pleadings and motions, including his election to have the jury assess punishment, at the pretrial hearing. Postell v. State, 663 S.W.2d 552 (Tex.App. — Houston [1st Dist.] 1983).

In his petition for discretionary review, appellant argues that the opinion of the Court of Appeals is incorrect in three respects: (1) the election to have the jury assess punishment does not have to be filed in accordance with the schedule set forth in Article 28.01, supra; (2) if Article 28.01, supra, is deemed to apply because said election constitutes a motion or pleading within the meaning of Article 28.01, supra, then appellant contends that the more specific statute of Article 37.07, V.A.C.C.P., should apply; and (3) if the Court deems that the schedule set forth in Article 28.01, supra, does apply to the election, then appellant did not receive notice of the pretrial hearing as required by that article.

We believe that the reasoning contained in the opinion of the Beaumont Court of Appeals in Ceaser is totally correct and further elucidation on the subject is unnecessary. Therefore, we adopt it in its entirety. Because we believe that it directly answers appellant’s first two contentions, we quote extensively therefrom:

“At the pretrial hearing under Art. 28.01, Sec. 1(2), the trial court is required to ‘determine’ the ‘Pleadings of the defendant.’ The defendant’s pleadings are those set out in Art. 27.02, V.A.C.C.P., and (7) thereof lables as a pleading ‘[a]n election, if any, to have the jury assess the punishment if he is found guilty.’ “... Principal reliance [by appellant] is upon language found in Toney v. State, 586 S.W.2d 856, 858 (Tex.Cr.App.1979), where the court was passing upon a complaint that it was error to permit the State to interrogate the jury panel on punishment. In Toney, the court did not mention an Art. 28.01 pretrial hearing, but, in disposing of the contention then before it, said:

‘The election must be made at the time the defendant enters his plea in open court. This has been interpreted to mean at the time the defendant makes his plea to the indictment before the jury.... In appellant’s case, the alleged error occurred during voir dire of the jury panel, clearly well before any plea to the indictment by appellant. Therefore, appellant still had the election available and could choose to exercise it.’

Unquestionably, Toney v. State, supra, was decided correctly under the plain language of Art. 37.07, § 2(b), V.A.C. C.P., when there was no pretrial hearing.

“Appellant argues that this Court should find that ‘the combined provisions of Article 27.02(7) and Articles 28.01, Section 1(2), C.C.P., are in conflict with the provisions of Article 37.07, Section 2(b)(2), C.C.P.,’ and contends that the provisions of the latter statute are controlling. ...

“The duty of this court is to harmonize all of the statutory provisions and give full effect to each if such is possible under the established rules of statutory construction. See Cuellar v. State, 521 S.W.2d 277, 279 (Tex.Cr.App.1975), citing 53 Tex.Jr.2d, Statutes, Sections 119 through 204. In Section 186, 53 Tex. Jr.2d, at 280 (1964), it is written:

‘It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature.’ “See also, the general rule set out in

73 Am.Jur.2d, Statutes § 186, at 386 (1974). The provisions of Section 3.01, Code Construction Act, Tex.Rev.Civ.Stat. Ann. art. 5429b-2 (Supp.1980-1981), creates a presumption that the entire statute was intended to be effective and that a just and reasonable result was intended. The Code Construction Act is applicable to the Code of Criminal Procedure. Barbee v. State, 432 S.W.2d 78, 82 (Tex.Cr.App.1968).

“We can give effect to each of the several statutes by the simple expedient of confining the effect of Art. 37.07 § 2(b)(2), to cases in which there has been no pretrial hearing. This holding would then be consistent with Toney v. State, supra, as we read the published opinion.

“If, on the other hand, a pretrial hearing is held, the defendant would be required to file his pleadings — his pleadings including his election to have the jury assess his punishment (under Art. 27.02(7) — within the time prescribed by Art. 28.01, § 1(2).

“With such a construction, there is no conflict between the several statutes, and each is fully operative depending only upon whether or not a pretrial hearing is conducted.” Ceaser v. State, 624 at 670-671.

As noted above, appellant argues in his third contention that even if Article 28.01, supra, does apply to the election, reversal should still occur in that he did not receive the notice as required by Section 2. The Court of Appeals held that although the record did not affirmatively show that appellant received ten days notice of the pretrial hearing, appellant made no showing of harm or prejudice so as to justify reversal because of the lack of such notice.

Article 28.01, Section 2, supra, provides in pertinent part:

“When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters.”

We read this provision not as a mandatory notice provision of ten days for every pretrial hearing, but rather a condition that a defendant will not be held to the seven day filing limitation unless he has been accorded at least ten days notice of the pretrial hearing. Having construed the section in that manner, we find no prejudice occurring to appellant and we dismiss his third contention as being without merit. Compare Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App.1968) and Smith v. State 468 S.W.2d 828 (Tex.Cr.App.1971) (where at time of trials Art. 28.01, supra, provided for five days notice, courts’ action of holding pretrial hearings without five days notice to defendants did not constitute reversible error where no harm was shown).

The judgment of the Court of Appeals is affirmed.