Taylor v. State

745 S.W.2d 321, 1988 Tex. Crim. App. LEXIS 34, 1987 WL 432

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 1988
• Docket: 127-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Article 32A.02, § 3 provides that an accused waives rights under the Texas Speedy Trial Act (Act) by failing “to move for discharge under the provisions of this article prior to trial ...” In an opinion delivered soon after the Act became effective and followed consistently since (see Shepard’s Texas Citations), the Court found the provision in § 3 means that “the first move [must] be made by the accused rather than the state," and then set out the order of further movements, viz:

“Once the defendant files his motion to dismiss for failure to adhere to the provisions of the Act, the state must declare its readiness for trial then and at the times required by the Act. This declaration is a prima facie showing of conformity to the Act, [footnote omitted) but can be rebutted by evidence submitted by the defendant demonstrating that the state was not ready for trial during the Act’s time limits.”

Barfield v. State, 586 S.W.2d 538, at 542 (Tex.Cr.App.1979).¹

In the instant cause the court of appeals placed a burden on an accused “to develop a record substantiating his claim,” and ultimately held that “failure [on the part of an accused] to show noncompliance by the State with the provisions of [the Act] precludes him from complaining of a violation of that act.” Taylor v. State (Tex.App.—Dallas No. 05-83-00431-CR, delivered November 28, 1984), Slip Opinion, at 4. We granted appellant’s sole ground for review to determine validity of the theory applied by the court of appeals to find that appellant failed to make an adequate record to preserve for review his motion to dismiss under the Act. The judgment of the court of appeals will be reversed and the cause remanded with directions.

From a premise that a motion to set aside, Article 32A.02, § 1, is not selfprov-ing, the Court of Appeals reasoned that at the outset and in support of his motion to set aside (dismiss) a charging instrument, an accused must present evidence that the State was not timely ready for trial. While it may be found in opinions of other courts of appeals cited by the Dallas Court, that notion is at odds with Barfield and all its many followings.² And, curiously enough, Barfield is never mentioned in its opinion or by the parties in their papers.

The purpose and effect of a motion to dismiss for lack of compliance with the Act is to tender the issue, not to establish it. There is no need to disprove that which the State has not yet asserted in the cause at hand. The motion serves as a basis for the trial court to call on the State to declare, if it can, that it is now and was at all relevant times ready for trial. Pate v. State, 592 S.W.2d 620, at 621 (Tex.Cr.App.1980). Only then is a burden of rebuttal by way of evidence placed on the accused.

This Court has never construed the Act to require a showing that an accused “offered testimonial proof in support of his motion, requested an evidentiary hearing, or perfected a bill of exception” before the State declares its readiness, as the opinion below finds was not done. Just recently we reaffirmed its consistent adherence to the delineation in Barfield of the proper order of things. See Satterwhite v. State, 726 S.W.2d 81 (Tex.Cr.App.1986) (pending in Supreme Court on petition for writ of certiorari filed February 5, 1987); see also Rodriquez v. State, 689 S.W.2d 227, at 229 (Tex.Cr.App.1985); Ex parte Hilliard, 687 S.W.2d 316, at 318 (Tex.Cr.App.1985).

The real problem in this cause is lack of a record sufficient to inform any appellate court of just what transpired during the pretrial hearing that led the judge of the trial court to execute an order denying appellant’s motion.³ The order recites that it was heard and “after considering the facts and allegations contained therein,” the court denies the motion. Of critical importance is whether the State declared its readiness for trial or, as it contends, relied on its earlier announcements in the first case, thereby putting the burden on appellant to rebut that declaration. Barfield, supra.

In fairness to both parties, and to the end of a just resolution of the issues under the Act, a Barfield hearing on appellant’s motion to dismiss the indictment should be held in the trial court. Smith v. State, 659 S.W.2d 828 (Tex.Cr.App.1983) (Dissenting Opinion, at 831).

The judgment of the Dallas Court of Appeals is reversed and the cause is remanded to that court with directions to abate the appeal and remand the cause to the trial court for further proceedings consistent with this opinion.

1 . All emphasis is added throughout unless otherwise noted.

2 . The authorities from this Court which the reader is directed by the Court of Appeals to “See also” are decisions in an entirely different scenario, viz: claimed error in denying a motion for discharge in one cause after a charging instrument has been set aside in another, under Article 28.061, V.A.C.C.P. Of course the movant must produce evidence de hors the record in the former to demonstrate the offense charged arose out of the same transaction as the offense in the cause in which a charging instrument was set aside. But readiness of the State is irrelevant, the issue having already been decided against it in the latter cause.

3 .In the instant cause appellant asserts that during the course of a pretrial hearing his motion to dismiss "was considered by the trial court and summarily denied,” and that he "failed to offer evidence in support of this motion." Brief for Appellant, at 3. He contends, however, that "admissions made by the State and matters known to the trial court, the Court of Appeals (and now this Court), establish all facts necessary to entitle Appellant to relief afforded by said act.” Id., at 5. The matters alluded to mainly make the point that indecency with a minor alleged in a prior indictment arose out of the same transaction as aggravated rape charged in the subsequent indictment to which his motion to dismiss is directed, so he relies on Richardson v. State, 629 S.W.2d 164 (Tex.App.—Dallas 1982).

For its part, the State "suggests that the only ‘matters' which may have been relevant were those known to the trial court [when] it ruled on the [motion]." It tells us, "Plainly stated, Appellant never demanded a hearing on his second Motion. The trial court, therefore, pro forma denied the Motion.” State’s Brief, at 5. The State contends that in any event its announcement of ready to the first indictment carried over to the second. But see Behrend v. State, 729 S.W.2d 717 (Tex.Cr.App.1987).

Except for an order denying the motion to dismiss, the record before us is barren of any statement of facts covering the pretrial hearing in question and any other indicia of what occurred with respect to the motion.