Rosebury v. State

659 S.W.2d 655

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 1983
• Docket: 806-82
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted by a jury for possession of marihuana in a usable quantity of more than four ounces and punishment was assessed at five years and a $5,000 fine. The Court of Appeals affirmed the conviction and this Court granted appellant’s petition for review to consider whether the Court of Appeals properly disposed of the asserted Speedy Trial Act, Art. 32A.02, V.A.C.C.P. violation.

The procedural chronological list of events summarized by the Court of Appeals adequately reflects the problem.

“February 6, 1979: Appellant was arrested after delivering approximately five and one-half pounds of compressed marihuana to undercover officers.

“February 20, 1979: Indictment was returned in Cause No. 291,916, alleging delivery and possession of ‘a controlled substance, namely Tetrahydrocannabi-nols.’

“April 11,1979: Appellant filed a waiver of speedy trial in Cause No. 291,916.

“July 13, 1979: Appellant pleaded guilty, was sentenced to eight years confinement and gave notice of appeal.

“December 13, 1979: Appellant was granted a new trial pursuant to Few v. State, 588 S.W.2d 578 (Tex.Cr.App.1979).

“January 7, 1980: Appellant was rein-dicted in Cause No. 306,916 for possession of ‘Tetrahydrocannabinol other than marihuana.’

“January 18, 1980: Appellant filed a waiver of speedy trial in Cause No. 306,-916.

“August 4, 1980: The State announced ready in Cause No. 306,916. While assembling witnesses for trial, the prosecutor learned from the State’s chemist that the controlled substance in question was marihuana.

“August 18,1980: Appellant was again reindicted in Cause No. 319,011 for possession of ‘marihuana in a usable quantity of more than four ounces.’ No waiver of a speedy trial was filed.

“September 15, 1980 through November 10, 1980: At a non-trial setting, the case was reset by agreement for November 3,1980. On November 3, it was reset for November 10,1980, and on November 10, 1980, was reset for trial December 8, 1980. Testimony showed all resettings were by agreement.

“December 8, 1980: Appellant filed his motion to dismiss for violation of the Speedy Trial Act, which was brought to the court’s attention on January 19,1981.

“December 11, 1980: An agreed trial setting for January 19, 1981, was filed.

“January 19, 1981: Appellant’s motion to dismiss for violation of the Speedy Trial Act was overruled with other pretrial motions, and trial commenced.”

Appellant does not complain of delays after return of the third indictment on August 18,1980. In his brief he makes it clear that he complains only of the time period before August 18, arguing that the State could not possibly have been ready for trial before that date because the State had not taken steps to prosecute him for possession of marihuana even though a laboratory report over six months earlier showed the substance possessed was marihuana, not tetrahydrocannabinol, as had been alleged in the first two indictments.

In light of this formulation of the issue by appellant, the focus of consideration must be on whether his waivers of a speedy trial filed under the first two indictments constituted waivers for purposes of the marihuana prosecution. Recognizing the pivotal role of this question in resolving the ground of error, appellant argues that Richardson v. State, 629 S.W.2d 164 (Tex.App.— Dallas 1982), controls. In that case the court held that an announcement of ready in one case did not constitute an announcement of ready on a second indictment for a different offense arising out of the same transaction. The reason given for that holding was, “Although both [cases] have the same complaining witness, they are different offenses subject to different proof, and therefore are not the ‘same case’ even though they are from the same transaction. Consequently, the announcements of ready in one case will not apply to the other case.”

In this case the issue is different yet similar. Instead of the scope of effectiveness of an announcement of ready, as in Richardson, we consider the scope of effectiveness of appellant’s waiver. In relevant part the two form waivers recite:

“I do knowingly and voluntarily waive my rights under the Texas Code of Criminal Procedure to a speedy trial within 120 days from the commencement of this case ... and further waiver my right for dismissal or discharge if the State is not ready for trial within 120 days of the commencement of this case.... ”

The waiver clearly applies to the case, not the transaction. The issue, therefore, reduces itself to whether the indictments constitute prosecutions for a single case or for separate cases arising out of the same transaction.

In Richardson, supra, the two offenses were theft and burglary. These were correctly found to be distinct cases although arising out of a single transaction. Here the first indictments alleged possession of tetrahydrocannabinol while the final indictment alleged possession of marihuana. As in Richardson, under statute these are “different offenses subject to different proof.” Richardson, supra, at 165. Nevertheless, the facts of this case reveal only a single offense: only a single substance was possessed, a substance originally alleged to be tetrahydrocannabinol and subsequently found to be and correctly alleged to be marihuana. Under the facts there was only one case: a single offense was committed and a single offense was alleged, although at first erroneously pleaded. Had appellant possessed both substances a different issue would be presented. On these facts, however, we find Richardson distinguishable, and hold appellant’s waiver of his rights under the Speedy Trial Act applied to the case, which included the third indictment.

The judgment of the Court of Appeals is affirmed.

McCORMICK and MILLER, JJ., concur in the result. TEAGUE, J., not participating.