Vincente FLORES, Appellant, v. The STATE of Texas, Appellee.
No. 62968.
Court of Criminal Appeals of Texas, En Banc.
June 18, 1980.
Rehearing Denied Nov. 5, 1980.
602 S.W.2d 859
The State‘s motion for rehearing is granted; the order of reversal is set aside and the judgment is affirmed.
PHILLIPS, J., concurs in the result.
ROBERTS, ODOM and DALLY, JJ., dissent.
CLINTON, Judge, concurring.
In joining the majority opinion on original submission, I was following the finding and conclusion in Guevara which, in effect, became the opinion of the Court when rehearing en banc was denied. Now the Court would overrule Guevara. As reflected by the majority and dissenting opinions in Guevara -indeed, by the opinions in this cause-there is no precedent to guide us. Thus whatever conclusion one reaches is purely a judgment call. In this minor contretemps, I am content to abide the reading of the information by the lights of the majority, but I do not understand the Court to be quietly adopting for future contests “a common sense reading and construction.”
Accordingly, I concur in the judgment of the Court.
M. Mark Lesher, Texarkana, for appellant.
Louis J. Raffaelli, Criminal Dist. Atty., and Dennis Jones, Asst. Criminal Dist. Atty., Texarkana, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for murder. Punishment was assessed by the court at thirty years.
Flores, in two grounds of error, contends that the trial court should have dismissed his indictment because the State failed to announce ready within the time limits of
“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.”
In a supplemental brief, appellant contends that, because he raised in a pretrial written motion the issue of the lack of a speedy trial and because he received the trial court‘s permission to appeal, he did not waive his rights under the Speedy Trial Act. See
The judgment is affirmed.
PHILLIPS, Judge, dissenting.
I dissent to the overruling of appellant‘s first two grounds of error for the reasons expressed by Judge Clinton in his dissents in this case and in Luna v. State, 602 S.W.2d 267 (No. 61,862, this day decided). The majority‘s reading of
I write, however, chiefly to point out that the majority opinion‘s treatment of appellant‘s supplemental contentions directly conflicts with an en banc opinion by this Court that was written scarcely six months ago. For some reason the majority does not take note of this case, although appellant expressly relied on it in his supplemental brief.
In Riggal v. State, 590 S.W.2d 460 (1979, Opinion on State‘s Motion for Rehearing), Judge Odom wrote as follows:
By motion for rehearing the State presents two arguments to affirm this conviction. First, it argues that appellant‘s guilty plea should constitute a waiver of the right to speedy trial, i.e., of the matter urged in the pre-trial motion that was denied ex parte. As appellant points out in his response to the State‘s motion,
Article 44.02, V.A.C.C.P. , expressly permits an appeal after a guilty plea from a matter raised by a pre-trial motion. In Ferguson v. State, 571 S.W.2d 908, we held that the amendment toArt. 44.02, supra , abolished the rule that a valid guilty plea waives all non-jurisdictional defects in cases where there is a plea bargain and punishment is assessed within the terms of the agreed recommendation. Appellant‘s guilty plea did not waive his pre-trial motion to dismiss for denial of a speedy trial. [emphasis added]
I fail to see how Riggal can be viewed as anything but wholly inconsistent with the present majority opinion. Only Judge Douglas, the author of the present majority opinion, registered a dissent in Riggal on the ground that a guilty plea waived the defendant‘s rights under the terms of the Speedy Trial Act. I suggest that Riggal is good law and ought to be followed. In the event that the new-found majority disagrees, however, I suggest that under the principle of stare decisis Judge Odom‘s opinion in Riggal is controlling and requires us to reach the same result in this case, unless and until it is overruled.
I dissent.
ONION, P. J., and ROBERTS, J., join.
CLINTON, Judge, dissenting.
Ramirez v. State, 590 S.W.2d 509 (Tex.Cr.App.1979), a panel opinion which did not undergo scrutiny by the full Court, was wrongly decided. The majority errs in following it, especially since neither the Ramirez panel nor the majority here appear to have made any effort whatsoever to exam-
“The failure of a defendant to move for discharge under the provisions of this article prior to trial or entry of a plea of guilty constitutes a waiver of the rights accorded by this article.”
Manifestly, the subject of this sentence is the phrase “the failure of a defendant to move for discharge;” the verb is “constitutes.” The phrase “prior to trial or the entry of a plea of guilty” is adverbial in nature; that is, it modifies the infinitive “to move” by expressing the relationship of time for the “move” to be made. Thus, if the defendant fails to move for discharge before trial or before entry of a plea of guilty, he has waived rights under the act.
The American Bar Association Project on Minimum Standards for Criminal Justice (Approved Draft, 1968), as they relate to speedy trial, provides in Part IV, § 4.1, in pertinent part:
“.... Failure of the defendant or his counsel to move for discharge prior to trial or entry of a plea of guilty should constitute waiver of the right to speedy trial.”
The Commentary explains:
“Speedy trial is a personal right of the defendant, and thus is deemed waived if not properly asserted. The requirement that the defendant move for dismissal prior to trial or plea of guilty1 apparently is the view now taken in all states. Annot., 57 A.L.R. 302, 336, 343 (1958).”2
Drawing from Approved Draft, supra, and emulating it wholesale, the Federal Speedy Trial Act,
“... Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.”
Explaining the provision, the House Report on the bill which was passed after the Senate substituted for its bill the text of the House bill, 1974 U.S. Code Cong. and Adm. News, p. 7401, stated, first at 7416:
“... A defendant must move to dismiss the case prior to trial, entry of plea of guilty or nolo contendere, or he waives the right of dismissal with prejudice on grounds that the requirements of this legislation were not met (Section 3162(b)).” (Italics in original)
and later at 7429:
“... A defendant must move to dismiss the case on grounds that his Sixth Amendment right to speedy trial has been denied under the provisions of this legislation prior to trial or entry of plea of guilty or nolo contendere, or he waives the right.” (Italics in original)
Grammatically and genealogically, therefore, the forced construction imposed by Ramirez and the majority here is wide the mark. Manifestly taken from the Approved Draft, and tracking the Federal Speedy Trial Act, the waiver provision in
To the erroneous and counterproductive interpretations suggested by the majority in reliance on Ramirez,3 I respectfully dissent.
ONION, P. J., and ROBERTS, J., join.