Turner v. State

662 S.W.2d 357, 1984 Tex. Crim. App. LEXIS 574

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

This is an appeal from a conviction of tampering with a witness. Art. 36.05, V.A. C.C.P. The First Court of Appeals, 646 S.W.2d 485, in Houston, holding that the state had failed to comply with the requirements of the Speedy Trial Act, Art. 32A.02, V.A.C.C.P., reversed the conviction and ordered the cause dismissed. We granted the State’s Petition for Discretionary Review on January 5,1983, to determine whether or not the Court of Appeals erred in its decision. We find that it did and reverse.

Upon careful review of the record we find that the appellant failed to adequately raise his right to a speedy trial as afforded by Art. 32A.02, V.A.C.C.P.¹ Although a written motion was filed asserting appellant’s right to a speedy trial, the provisions of 32A.02 were never invoked.² The statute clearly requires that the motion for discharge be made “under the provisions of this Article” to avoid a waiver of the statutory rights.³ Having failed to expressly invoke Art. 32A.02, supra, the appellant has waived his statutory right to a speedy trial. Because the Court of Appeals erroneously reversed the conviction on the basis of a violation of Art. 32A.02, we reverse the judgment and remand the case to the Court of Appeals for action not inconsistent with this opinion.⁴

1 . Art. 32A.02, Sec. 3, reads in part:

“The failure of a defendant to move for discharge under the provisions of this article prior to trial or the entry of a plea of guilty constitutes a waiver of the rights accorded by this article.” (Emphasis added.)

2 . The motion to set aside the indictment reads:

“Comes now, Bobbie Gene Turner, Defendant in the above entitled and numbered cause by and through his attorney of record, A. Burney, and moves this Court to set aside the indictment in the above entitled and numbered cause for the reason that the Defendant has been deprived of his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution.”

Thus, presumably, appellant’s contention concerning the alleged deprivation of his right to a speedy trial under the United States Constitution is ripe for consideration by the Court of Appeals.

3 . We further note that Art. 32A.02, supra, is not cited in the appellant’s brief on appeal in support of his speedy trial contention.

4 . We note that apparently, because of its reversal, the Court of Appeals did not address appellant’s second ground of error on direct appeal from the trial court, which it shall now do.