Stewart v. State

699 S.W.2d 695, 1985 Tex. App. LEXIS 12470

Opinions

HALL, Justice.

Pleading not guilty, appellant Louis Anthony Stewart was found by a jury to be guilty of the offense of murder. The jury assessed punishment at confinement in the Texas Department of Corrections for a term of ninety-nine years and a $10,000.00 fine. Evidence showed that after being forcibly removed from the Waco AMVETS Post by the security guard on the evening of January 22, 1984, appellant returned to the Post and fatally shot the guard with a hand gun.

In three grounds of error, appellant asserts that the trial court erred in: (1) overruling appellant’s motion for discharge under the Speedy Trial Act; (2) failing to sustain a challenge for cause to a prospective juror; and (3) failing to grant a mistrial after the State improperly questioned appellant concerning his prior criminal record. We affirm the conviction, holding among other rulings that the Speedy Trial Act is unconstitutional.

In his first ground of error, appellant contends that he was denied his right to a speedy trial in violation of Vernon’s Ann.C. C.P. art. 32A.02. The relevant chronology of events is as follows:

Arrested and Charged with January 27, 1984

Offense

Indictment Filed March 22,1984

Arraigned April 11,1984

State announced ready Postponement of April 23rd trial date due to pre-trial hearings (Trial reset for May 21st)

State's First Motion for Continuance May 21,1984

Based on absence of witness (Trial reset for July 9th)

State’s Second Motion for Continuance June 27, 1984

State announced ready, but moved for continuance based on absence of one of the prosecutors (Trial reset for July 30th)

Defendant’s Motion for Speedy Trial July 10, 1984

(Trial reset for August 13th based on Judge’s vacation)

Defendant’s Motion to Dismiss for Violation of Speedy Trial Act August 7,1984

Hearing on Motion; Trial Began August 13,1984

Appellant contends that the State has not shown that it was ready for trial within the 120-day limit prescribed by the Speedy Trial Act for felony cases. We believe the proof shows the State was ready within the time limit.

The State’s announcement of ready on April 11, 1984, was uncontroverted by appellant. Thus, the announcement effectively tolled the running of the Act until the presumption of readiness was sufficiently rebutted by appellant. Canada v. State, 660 S.W.2d 528, 529 (Tex.Cr.App.1983). Appellant claims, however, that the announcement of ready was rendered ineffective by the State’s first motion for a continuance based on the absence of a material witness, filed on May 21, 1984. He argues that the witness was not material because she never testified at trial. Furthermore, appellant maintains that the State made an insufficient showing under article 32A.02, section 4(6)(A) to justify exclusion of the time period based on the unavailability of a witness because there was no evidence that the witness’ testimony was material, that the witness would become available in the near future, or that due diligence was used to procure the testimony.

In pertinent part, section 4 of article 32A.02 provides:

Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded:

(6) a reasonable period of delay resulting from a continuance granted at the request of the state if the continuance is granted:

(A) because of the unavailability of evidence that is material to the state’s case, if the state has exercised due diligence to obtain the evidence and there are reasonable grounds to believe the evidence will be available within a reasonable time.

However, unlike section 4(6)(A), section 4(6)(B) and section 4(10) do not necessitate a showing of materiality, availability, or due diligence. Those sections provide that the State may justifiably exclude a reasonable period of time upon a showing of “exceptional circumstances.” McCartin v. State, 662 S.W.2d 794, 798 (Tex.App.—[13th Dist.] 1983, pet. ref’d). The absence or illness of a principal witness will constitute such an exceptional circumstance. Lloyd v. State, 665 S.W.2d 472, 475 (Tex.Cr.App.1984); Canada, 660 S.W.2d at 530; McCartin, 662 S.W.2d at 797-98. In the case before us, the State’s proof established that the witness in question was unable to testify because she was required to take her child to the hospital and that her testimony was considered material by the State at the time. Thus, even if the State made an insufficient showing under section 4(6), we hold that the State properly invoked the exclusionary provisions of the Act relating to exceptional circumstances. Canada, 660 S.W.2d at 530. Therefore the Act was tolled from the date of the State’s first announcement of ready on April 11th until the date of the second motion for a continuance on June 27th.

The State’s second motion for a continuance presents a different question. The motion was orally made, without the presence of appellant. The lead prosecutor later explained at the hearing on appellant’s speedy trial motion:

Mr. Crawford Long [assistant district attorney] had worked intensely with me in preparing for this case. In our opinion it is a case that requires two prosecutors to present properly. Mr. Long had been selected to go to ... a two week prosecutor’s program.... [H]e was ordered to go by the elected District Attorney.... [Because] he had helped me prepare for the case and was fully aware of all the facts involved, and intended to present a considerable amount of the evidence himself, I moved that the case be continued to allow me to have him present to try the case. At that time I had not yet made my decision to resign from the District Attorney’s Office, and felt his assistance in presenting the case would be very important.

A last minute change in plans prevented Mr. Long from attending the conference. The case was ultimately tried by Mr. Long and another prosecutor because the lead prosecutor resigned from the District Attorney’s office prior to trial.

The Speedy Trial Act addresses itself to prosecutorial delay. Barfield v. State, 586 S.W.2d 538, 541 (Tex.Cr.App.1979). In assessing speedy trial questions, focus is placed on delay that is within the control of the prosecutor. Lloyd, 665 S.W.2d at 475. In our case, there was no requirement that two prosecutors participate in the trial. Furthermore, apparently the District Attorney controlled whether Mr. Long attended the seminar. We hold that this does not constitute an exceptional circumstance under section 4(10), and that the period of time accorded the State for this delay should be deducted from the 120 days allowed.

The final period of delay, from July 30th to August 13th, was attributable under the record to the trial judge’s vacation and inability to secure a replacement. Thus, this period cannot be taxed against the State. Ostoja v. State, 631 S.W.2d 165, (Tex.Cr.App.1982); Barfield, 586 S.W.2d at 541.

Therefore, we believe the following are the maximum deductions that may be made for appellant from the State’s 120 days for readiness:

January 27th (arrest) to April 11th (un-controverted announcement of ready) = 75 days

June 27th (second motion for continuance) to July 30th (date of reset) = 34 days

The 109 days deducted from the 120 days allowed shows that the State was ready for trial within the time limitation required by the Speédy Trial Act. Accordingly, we hold that appellant’s speedy trial claim is factually without merit.

In any event, even if the State did not meet the time limit, there is another reason why appellant’s claim under the Speedy Trial Act must be overruled. The State contested appellant’s motion to dismiss under the Act on the ground that the legislation creating the Act violated Article III, Section 35 of the Texas Constitution. Following a pretrial hearing on the motion, the trial court denied both appellant’s motion and the State’s claim of constitutional defect. However, we believe that the Act is unconstitutional because its caption violated Article III, Section 35 of the Texas Constitution as asserted by the State.

Article III, Section 35 of the Texas Constitution provides:

No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.

The Speedy Trial Act was added by Acts 1977, 65th Leg., p. 1970, ch. 787, § 1. The caption to this Act provided as follows:

An Act relating to a speedy trial of criminal cases; amending the Code of Criminal Procedure, 1965, as amended, by adding Chapter 32A, by adding Articles 17.151 and 28.061, and by amending Articles 29.02 and 29.03; providing for an effective date; and declaring an emergency.

In Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), an act amending the Texas Controlled Substances Act was declared unconstitutional because the caption of the amendatory bill violated Article III, Section 35 of the Texas Constitution. The caption there provided: “An Act relating to offenses and criminal penalties under the Texas Controlled Substances Act.” On rehearing in the Crisp case, a majority of the Court of Criminal Appeals held that this caption “is utterly defective for the reasons stated in the concurring opinion on original submission.” 661 S.W.2d at 957. On original submission in that case the concurring opinion stated:

As the majority reads it, that phrase [An Act relating to offenses and criminal penalties] “refers to changes in penalties and offenses ...,” P. 947. On the other hand, the dissent says the caption “puts a reader on notice of the treatment of one subject and alerts him to [ascertain] the details of that subject,” characterizing it as a “signal.” P. 953. In my view “relating to” does not mean “changes in” nor is it enough under the first sentence of § 35 that a caption gives a signal.

Plainly, the caption to the Speedy Trial Act suffers the same fatal defect as that found by the Court of Criminal Appeals in the caption to the amendment to the Texas Controlled Substances Act. A reading of the Act that created the Speedy Trial Act discloses that it makes many substantive changes and additions in the law, but the caption contains no hint of the content and extent of those changes other than by and through the phrase “relating to.” The caption tells its reader that the Act has something to do with a speedy trial in a criminal case, but it never states what the Act actually does in that relation. For example, the caption does not suggest that the Act will accomplish substantial changes in our criminal laws including mandatory discharge of an accused for a slight and inadvertent violation of the Act by the prosecution, regardless of the heinousness of the offense or its commission. Furthermore, the caption gives no hint that the Act will effect a major change in the bail provisions of the Code of Criminal Procedure, contained in new article 17.151 created by the Act, even though the accused might actually receive a speedy trial required under other new provisions of the Act.

Our concurring opinion’s disagreement on the caption issue rests largely on the belief that the caption heads up an “amend-atory Act,” but of course this is not true as to the Speedy Trial Act which is newly created in the Act other than in the sense that this new legislation amends the Code of Criminal Procedure. The caption does not alert a reasonable reader or even a cautious reader to this fact of new legislation, stating simply that the Act “relates” to a speedy trial. Nevertheless, our concurring opinion states that the Act “did precisely what its caption notified the reader that it would do; it amended the Code of Criminal Procedure by adding Chapter 32A (Speedy Trial Act)....” This argument was rejected by the final majority in Crisp, as follows:

We hold the caption is utterly defective for the reasons stated in the concurring opinion on original submission, and overrule the state’s motion for rehearing. It requires little imagination to see how the requirements of Art. Ill, Sec. 35, supra, would be rendered totally useless if the caption in this case were sufficient. In the future it would be sufficient to use one of the few standard form captions, such as “An Act relating to the Penal Code,” “An Act relating to the Code of Criminal Procedure,” “An Act relating to the Family Code,” etc. We reject arguments that require such an unacceptable conclusion.

661 S.W.2d at 597. Our concurring opinion also recommends by footnote the “fair notice to a reasonable reader” test suggested by three members of the Court of Criminal Appeals in the Crisp case on original submission, but this test and the three-member opinion raising it were abandoned by the final majority opinion on the State’s motion for rehearing. This final majority opinion made clear that a caption stating merely that its Act “relates” to a named subject says nothing about the subject of the Act itself, presents nothing for testing by any standard for sufficiency under Article III, Section 35 of our state constitution, and accordingly is constitutionally invalid.

For these reasons we believe that the Speedy Trial Act is unconstitutional and that the Court of Criminal Appeals will hold it is unconstitutional. See Noel v. State (Tex.Cr.App.1984), pending on State’s motion for rehearing granted, May 30,1984. In Noel, the Court has given a strong signal that the Act will probably be ruled unconstitutional: Four of the judges declared that it is unconstitutional because of the inadequate caption under the ruling in Crisp, one declared the Act was constitutional, and four refused to rule on the question of constitutionality because it was not raised in the trial court.

We have also reviewed appellant’s claim under the standard established in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101, 117 (1972), and we hold that appellant’s constitutional right to a speedy trial was not violated. Appellant’s first ground of error is overruled.

In his second ground of error, appellant complains that the trial court erred in failing to grant his challenge for cause to a prospective juror because the juror never stated unequivocally that he would follow the presumption of innocence. During voir dire, the juror expressed the view that “there is got to be something here or we wouldn’t be here,” and that “where there is smoke, there is fire.” Upon further questioning, the juror stated that he guessed he could follow the presumption of innocence; he did not know whether or not appellant had done anything; he did not have a tendency to side with either party; and that if he was not convinced by the evidence of appellant’s guilt, he would vote accordingly. After his challenge for cause was overruled, appellant requested an additional peremptory strike. Appellant’s counsel stated to the court:

The Court's failure to exclude him forced us to take on the jury a juror which is unacceptable to us. We would request an additional peremptory challenge or strike.

This request was denied.

The Court of Criminal Appeals in Moreno v. State, 587 S.W.2d 405, 408 (Tex.Cr.App.1979), held that a “blanket statement” that fails to designate a named juror is insufficient in and of itself to show that any objectionable juror served on the jury. Because there is no showing in our record that appellant was forced to take a particular named juror who was objectionable to him, no error is shown. Doggett v. State, 530 S.W.2d 552, 557 (Tex.Cr.App.1975); Pentycuff v. State, 680 S.W.2d 527, 529 (Tex.App.—[10th Dist.] 1984, pet. ref’d). Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in failing to grant his motion for mistrial made on the ground that the State had improperly questioned him before the jury about his prior criminal record.

The record reflects that appellant filed a Motion in Limine requesting that evidence of any prior arrests, convictions, or pending charges against him be prohibited from being placed before the jury by the State without first obtaining a ruling on such from the court. Appellant’s motion was granted. Appellant’s attorney subsequently questioned appellant before the jury as follows:

Q. All right. Let me ask you this, have you ever been convicted of a felony in this state or any other state, something you could have [to] go to the penitentiary for?

A. No. I was convicted of a misdemeanor, Possession of Stolen Property.

Q. Okay. And that was where? Louisiana?

A. Yes.

Q. All right. Did you do your time on that?

A. Yes, sir. I was given a year.

Q. Okay. Other than that, you have never been convicted of any other type of offense?

A. No.

The State then cross-examined appellant:

Q. Okay. Now, just so we don’t mislead the jury at all, I want to be real clear about this. You said that you have never been convicted of a felony?

Before the question was answered, appellant objected and the jury was excused. Appellant argued that the State had placed undue emphasis on the word “convicted.” He maintained that in light of the State’s previous voir dire comments that some people may have committed numerous crimes before they were ever convicted, the State’s present emphasis on the word “convicted” would lead the jury to believe that appellant may have been arrested for prior felonies, but was never convicted. Appellant’s objection was sustained, and the jury was instructed to disregard the question. Appellant’s motion for mistrial was denied.

In light of appellant’s prior testimony on direct examination, and the fact that the question was never answered, we hold that any error in the prosecutor’s inflection was cured by the instruction to disregard. Gonzales v. State, 685 S.W.2d 47, 48-51 (Tex.Cr.App.1985); Carey v. State, 537 S.W.2d 757, 759 (Tex.Cr.App.1976); Clark v. State, 500 S.W.2d 469, 470-71 (Tex.Cr.App.1973). Appellant’s third ground of error is overruled.

The judgment is affirmed.