Smith v. Gohmert

962 S.W.2d 590, 1998 Tex. Crim. App. LEXIS 19, 1998 WL 52276

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 1998
• Docket: 72845
• Status: Published

Opinions

OPINION

MANSFIELD, Judge,

delivered the opinion of the Court, in which

MeCORMICK, Presiding Judge, and KELLER, PRICE and HOLLAND, Judges, joined.

This is an original proceeding. Relator-Applicant Clinton Wayne Smith seeks mandamus and/or habeas corpus relief from this Court¹ to vindicate his federal and state constitutional rights to a speedy trial.² More specifically, Smith asks this Court to order the Honorable Louis B. Gohmert, Jr., Judge of the Seventh District Court of Smith County, to dismiss a capital murder indictment pending against Smith. We will deny the relief requested.

The Relevant Facts

On September 8,1988, Smith pled guilty to aggravated robbery in cause number 1-85-127 in the 241st District Court of Smith County. On November 22,1988, that district court sentenced him to imprisonment for 99 years. Smith began serving his sentence on that date, and he is still serving that sentence today.³

On March 10, 1989, the Smith County grand jury returned an indictment in the Seventh District Court of Smith County charging Smith with capital murder in cause number 7-89-155.

On October 23, 1996, Smith filed a pro se motion in this Court for leave to file an original petition for mandamus and/or habeas corpus relief. In his motion, Smith argued inter alia that his federal and state constitutional rights to a speedy trial had been violated in cause number 7-89-155 because of the failure of the Seventh District Court to set the case for trial. In particular, he argued (a) that the seven and one-half year delay had prejudiced his defense because of the loss of an alibi witness; (b) that, because of the indictment, a detainer had been lodged against him, hampering his educational and employment opportunities in prison; and (c) that he had asserted his speedy trial right in the district court on August 5, 1993, in a pro se motion to dismiss for lack of prosecution. For relief, Smith asked this Court to order the district court to dismiss the capital murder indictment.

On December 4,1996, after concluding that Smith had made a colorable speedy trial claim,⁴ we ordered the Seventh District Court to file a response.⁵ In its response, the district court confirmed that the capital murder indictment against Smith was still pending, but it denied that a detainer had ever been lodged against him. The district court also explained that, at least since January 1, 1993, “there ha[d] been defendants incarcerated [in Smith County] each week who were not also being held on some ... prior conviction, who [had] seemed to require more immediate attention than someone [like Smith] currently [serving] a 99-year sentence.” Finally, the district court insisted that “[t]he delay in trying [Smith’s] case ha[d] not been for the convenience of the State.”

On April 2, 1997, we ordered the district court “to conduct an evidentiary hearing in order to give [Smith] an opportunity to prove his claim that he ha[d] been denied his right to a speedy trial.” In particular, we ordered the district court to “make findings of fact as to (a) when [Smith] asserted his right to a speedy trial, (b) what witnesses and evidence [were] no longer available due to the delay in bringing [him] to trial, and (c) what the testimony of any unavailable witnesses would have been.”

On May 27-28, 1997, the district court conducted an evidentiary hearing as directed. On May 30, 1997, the district court found (a) that Smith’s pro se motion to dismiss for lack of prosecution had not been filed in the district court in August or September 1993; (b) that Smith had asserted his speedy trial right sometime before December 2, 1996; and (c) that Smith had presented “no sworn testimony or credible evidence of witnesses or evidence that [was] no longer available.”

Finally, on August 11, 1997, we granted Smith’s motion for leave to file, but only with respect to his speedy trial claim.

Analysis

We consider first the propriety of mandamus relief in this case.

Mandamus is an extraordinary writ, and its issuance is never a matter of right but rests in the sound discretion of the Court. Dickens v. Second Court of Appeals, 727 S.W.2d 542, 549 (Tex.Crim.App.1987). A relator is eligible for mandamus relief only when he can establish two prerequisites: first, that he has no other adequate remedy at law; and second, that under the relevant law and facts, the act he seeks to compel is “ministerial.” Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex.Crim.App.1995).

In Pope v. Ferguson, 445 S.W.2d 950, 955-956 (Tex.1969), the Texas Supreme Court held that a defendant seeking a dismissal of an indictment on speedy trial grounds was not eligible for mandamus relief, because such a defendant had an adequate remedy at law, to wit: the defendant could file a motion to set aside the indictment in the trial court, pursuant to Article 27.03 of the Texas Code of Criminal Procedure, and if the trial court erroneously denied the motion, the defendant could appeal from any conviction that resulted from the continued prosecution.

In Thomas v. Stevenson, 561 S.W.2d 845, 847 n. 1 (Tex.Crim.App.1978), we “concur [red] ... with the rationale of Pope.” Furthermore, we reiterated that position in later cases. See Hazen v. Pickett, 581 5.W.2d 694, 695 (Tex.Crim.App.1979); Ordunez v. Bean, 579 S.W.2d 911, 913-914 (Tex.Crim.App.1979). As a matter of stare deci-sis, therefore, we adhere to that position today.⁶

In any event, we continue to believe that a defendant seeking to compel a dismissal of an indictment on speedy trial grounds has an adequate remedy at law and, therefore, has no need for the drastic remedy of mandamus. As the United States Supreme Court observed in United States v. MacDonald, 435 U.S. 850, 860-861, 98 S.Ct. 1547, 1552-1553, 56 L.Ed.2d 18 (1978):

... There perhaps is some superficial attraction in the argument that the right to a speedy trial ... must be vindicated before trial in order to insure that no non-speedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends the constitutional guarantee of a speedy trial. If ... an accused [is deprived] of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.

In summary, we hold that Smith has an adequate remedy at law; therefore, he is not eligible for mandamus relief.⁷

We consider next the propriety of habeas corpus relief in this case.

Like mandamus, “[hjabeas corpus is an extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of our .original or appellate jurisdiction, should entertain an application for writ of habeas corpus where there is an adequate remedy at law.” Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978). See 39 C.J.S. Habeas Corpus § 11 (1976). We have already held that Smith has an adequate remedy at law; therefore, he is not entitled to habeas corpus relief. See Ex parte Delbert, 582 S.W.2d 145, 146 (Tex.Crim.App.1979); Ex parte Trillo, 540 S.W.2d 728, 733 n. 8 (Tex.Crim.App.1976); Williams v. State, 464 S.W.2d 842, 844 (Tex.Crim.App.1971); Ex parte Jones, 449 S.W.2d 59, 60 (Tex.Crim.App.1970).

The relief for which Smith prays is DENIED.

1 . This Court is empowered by Article V, § 5, of the Texas Constitution to issue writs of habeas corpus and, in criminal law matters, writs of mandamus.

2 . The Sixth Amendment to the United States Constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” This right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 993-994, 18 L.Ed.2d 1 (1967). Article I, § 10, of the Texas Constitution provides in relevant part that "[i]n all criminal prosecutions the accused shall have a speedy public trial."

3 .Smith’s conviction and sentence were affirmed on appeal.

4 . See Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); Harris v. State, 827 S.W.2d 949, 956-957 (Tex.Crim.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992); G. Dix & R. Dawson, Texas Criminal Practice and Procedure §§ 23.34 & 23.42 (1995).

5 . The State has filed no response to Smith's motion for leave to file.

6 . Very weighty considerations underlie the doctrine of stare decisis. See McGlothlin v. State, 896 S.W.2d 183, 188-189 (Tex.Crim.App.), cert. denied, 516 U.S. 882, 116 S.Ct. 219, 133 L.Ed.2d 150 (1995); Wheatfall v. State, 882 S.W.2d 829, 843 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 644 (1995); Garrett v. State, 851 S.W.2d 853, 862-863 (Tex.Crim.App.1993) (Campbell, J., dissenting).

7 . The case sub judice should be distinguished from Chapman v. Evans, 744 S.W.2d 133 (Tex.Crim.App.1988). In Chapman, the relator sought the issuance of a writ of mandamus to compel the trial court either to set his case for trial or dismiss the indictment pending against him. We held that the relator was eligible for a writ of mandamus to compel the trial court to set the case for trial. We reasoned that the relator had no adequate remedy at law and, under the particular facts of that case, he had a clear legal right to have his case set for trial, as he had requested. See Buntion v. Harmon, 827 S.W.2d 945, 947 n. 2 (Tex.Crim.App.1992).