*1 3 thе 32.01 of former Article is whether Court parte Ex Carl Daniel NORTON. Procedure, prior to its 1997 of Code Criminal No. 205-96. amendment, is unconstitutional. be apparently majority of this Court Texas, A Appeals of of Criminal Court reviewing longer worth is no lieves this issue En Banc. to legislative amendments the 1997 light in of 13, May 1998. of the Texas Article 28.061 and Article 32.01 If disagree. I Procedure.1 of Criminal Code separation viоlates the Article 32.01 former II, 1 of of Article Section powers provision of Constitution, Article then current Texas the McGee, Appellant. Stanley Angleton, for G. constitutional defect. the same 32.01 suffers Aldrich, Attorney, David District Jerome whether the indict no It makes difference Bosserman, Attorney, An- Assistant District one prejudice” under “with ment is dismissed Paul, Attorney, Aus- gleton, Matthew State’s the рrejudice” under provision or “without tin, for State. And, serious I have some provision. other former and cur whether about reservations mus passes cоnstitutional Article 32.01 rent in Me decision pursuant to this Court’s ter PETITION FOB OPINION ON STATE’S State, (Tex.Cr.App. v. 246 shеll 739 S.W.2d REVIEW DISCRETIONARY 1987). the the merits of I address would in this case. presented issue PER CURIAM. I dissent.
Applicаnt application an for writ of filed corpus alleging habeas that he was entitled KELLER, dissenting. Judge, pursuant Crim. discharge to to Tex.Code Ann. art. 32.01 becausе he was indicted Proe. filed history is in order. The State A little as out in “the next term of court” set outside in this discretionary review petition for its judge art. 32.01. The trial dеnied relief and 5, over two February 1996—well case on appeals аpplicant appealed. The court of over held here fоr years ago. The case was habeas the trial court’s denial of reversed months, days after art. until nine fifteen State, (Tex. relief. Norton v. 25 918 S.W.2d Procеdure of Criminal 28.061 of the Code 1996). App. granted We [14th Dist.] delay If was occasioned the —Hous. was amended. of that to determine the correctness review granting of the prevent the by the intent to decision. that strategy not succeed at the did petition, persis- granted petition was time —the —but However, considering carefully the after majority of pay Today, off. a to tеnce seems briefs before question two for review and the petition аs the decides to dismiss the Court us, grant to the find that our decision we appropriate It is not improvidently granted. discretionary review was petition fоr State’s to do so. petition for improvident. Accordingly, the discretionary is dismissed. review amendment, statutory the dis- the Prior to pursuant to art. 32.01 of an indictmеnt
missal MANSFIELD, J., pursuant dissents. to art. 28.061. prejudice was with 26,1997, inapplicable May art. 28.061is As of McCORMICK, Judge, Presiding an 32.01, of so that the dismissal to art. dissenting. without art. 32.01 is now under indictment Thus, the might seem that prejudice. it petition dismissing the State’s I dissent to by judicial wasting resourсes would be discretionary improvidently as Court for review arise. longer no a claim that will addressing this presented before granted. The issue it law, as to make Article 28.061 so amended former an indictment current dismissal of 1. Under prеju- longer "with inapplicable 32.01 is no 32.01. under Article to Article Legislature 1997 the That is because in dice.” *2 4 prior
But art. 28.061 in granted pending was effect for ten been rеview and are deci- years. A any conviction at time sion in this obtained Court. is,
during years arguably, subject that ten to
challenge if timely the indictment was not
presented under art. 32.01.
And, fact, in a number of eases with issues
concerning interplay the of the two statutes currently
are before the Court and continue presented petitions.
to be
in
In State v.
Condran,
(Tex.App.
which is no in in effect is constitutionality
this ease the of a current challenged.
statute —art. 32.01—is Yet Con- improvidently granted.
dran has not been
Furthermore, ago, less than one month on 15, 1998,
April granted review in we Barnes State,
v. Nos. The in issues 400/401/402-98. pending
Barnes are the same issues in Con-
dran. finally, recently granted
And we have re- 32.01, concerning
view in two other cases art.
although aspects the issues relate to of the
statute from in the different those cases dis- State, 73-98, above. In v.
cussed Martin No. month,
granted eighth on the of last the issue “good
is what is cause” under art. 32.01. In State, 329/330-98, granted
Dobbs v. Nos. the month,
twenty-second granted of last we re- pend-
view to decide in what court a ease is So,
ing under art. 32.01 before indictment. grant
the Court continues to review of vari- relating
ous issues to art. 32.01.
Presumably, grants to the Court review thus, legal presented;
examine the issue it is appellant’s
irrelevant whether it is an or a petition presenting
State’s the issue. Never-
theless, appellants’ and Barnes are Condran
petitions, and Norton and Ybarra are State’s improvident-
petitions. It makes no sense to
ly grant have cases when the identical issues