667 S.W.2d 163 | Tex. App. | 1983
Lead Opinion
Following appellant’s conviction on a plea of nolo contendere for possession of cocaine where punishment of two years was assessed in accordance with a plea negotiation, the trial court at first denied and then granted appellant the right to appeal. We affirm.
In his first two grounds of error, appellant contends there was no evidence or insufficient evidence of guilt. He argues that since “the Statement of Facts does not show that [the signed stipulation of evidence] was ever offered in evidence” nor is it “shown as an exhibit to the Statement of Facts” there is no evidence to support the plea. We disagree. After the court carefully admonished appellant as of the consequences of his plea of nolo con-tendere, the following occurred:
THE COURT: I will accept the plea and hear the evidence.
MR. VALLEJO (the prosecutor): At this time the state will offer what is before the court in the form of stipulation of evidence, which has been freely and voluntarily signed by the defendant on advice and consent of his counsel; if there’s no objection, the state rests.
MR. GAY (defense counsel): No objection.
*165 THE COURT: Do you agree to the facts stated in the stipulation?
THE DEFENDANT: Yes, sir.
THE COURT: Is there evidence in defense?
MR. GAY: None, Your Honor.
Included within the clerk’s transcript is the form document “WAIVER OF CONSTITUTIONAL RIGHTS, AGREEMENT TO STIPULATE, AND JUDICIAL CONFESSION,” signed by appellant, his counsel, and the prosecutor by which appellant waived trial by jury, appearance of witnesses, and self-incrimination. It also included his sworn stipulation of facts in support of the allegations of the indictment. The form further contains the prosecutor’s consent to waiver of jury trial and his approval of the stipulated evidence. The last entry on the form, which is signed by the trial judge, reads:
This document was executed by the defendant, his attorney, and the attorney representing the state, and then filed with the papers of the case. The defendant then came before me and I approved the above and the defendant entered a plea of nolo contendere. After I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney. It appears that the defendant is mentally competent and the plea is free and voluntary. I find that defendant’s attorney is competent and has effectively represented the defendant in this case. I informed the defendant that I would not exceed the agreed recommendation as to punishment.
The above procedure used to introduce a stipulation of evidence and the attack on the sufficiency of the evidence are identical to that which was before this court in James v. State, 643 S.W.2d 439 (Tex.App.—Houston [14th Dist.] 1982) pet. ref'd, 640 S.W.2d 910 (Tex.Cr.App.1982). There, it was held that the evidence was sufficient to support the plea. Appellant’s first two grounds of error are overruled.
In his third and fourth grounds of error, appellant complains of a lack of speedy trial—the third asserting rights under TEX.CODE CRIM.PROC.ANN. arts. 32A.01, et seq. (Vernon Supp. 1982-1983) (Texas Speedy Trial Act) and the fourth asserting rights under both the federal and state constitutions. The state, relying upon cases where the plea was guilty, asserts these issues were waived when appellant entered a plea. On the other hand, appellant argues that, unlike entering a plea of guilty, an accused may enter a plea of nolo contendere and thereby preserve his contention of lack of a speedy trial. The Court of Criminal Appeals has already decided the issue adversely to appellant’s contention in Fleet v. State, 607 S.W.2d 257 (Tex.Cr.App.1979). We also hold that a plea of nolo contendere, just as a plea of guilty, knowingly made waives all non-jurisdictional defects, including a claimed deprivation of the constitutional right to a speedy trial. Chapman v. State, 525 S.W.2d 8 (Tex.Cr.App.1975). Appellant’s third and fourth grounds of error are overruled.
In his fifth ground of error, appellant contests the constitutionality of the Texas Controlled Substance Act because it does not “set out any standards as to what constitutes the contents of cocaine and the Act does not define the contents of cocaine.” In supporting argument, appellant states that without a statutory definition a person must speculate “whether a particular substance or compound would constitute cocaine.” We are unimpressed with this argument. The term “cocaine” is commonly understood to be a narcotic drug. The American Heritage Dictionary of the English Language 256 (New College ed. 1976) defines “cocaine”as “[A] colorless or white crystalline narcotic alkaloid, C17H21No4 entracted from coca leaves and used as a surface anesthetic.” It could hardly be argued that had the statute contained this or any other similar definition it would reduce the ordinary person’s speculation that the substance was cocaine. The bottom line is the statute must be sufficiently definite so that a per
The judgment is affirmed.
CANNON, J., not participating.
Rehearing
OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING
Our prior opinion in which we wrote on appellant’s first motion for rehearing is withdrawn and the following is substituted therefor.
On the day before our original opinion in this case was issued, the Court of Criminal Appeals handed down its opinion in Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983). Since such decision overruled its previous line of cases holding an accused waived his right to appellate review of his rights under the Texas Speedy Trial Act by pleading guilty, it now becomes necessary to address the merits of appellant’s third ground of error.
Appellant was arrested on February 19, 1982, and charged by complaint with the felony offense of possession of the controlled substances methamphetamine, hy-dromorphone, and marijuana. He appeared in the 177th Judicial District Court on February 22, 1982 for a probable cause hearing. The following chronology is what occurred thereafter:
DATE
ACTION
02-22-82
Agreed setting signed by counsel for state and defense setting matter for examining trial on 2-26
02-26-82
Agreed setting for presentation to grand jury on 3-5 and arraignment on 3-10
03-10-82
Agreed setting for arraignment on 3-24
03-25-82
Agreed setting for arraignment on 4-13
DATE
ACTION
04-07-82
Appellant indicted in Cause No. 350,662
04-13-82
Agreed setting for pre-trial hearing on 4-22
04r-22-82
Seven pre-trial motions filed, two of which were motions to dismiss on grounds other than lack of a speedy trial
04-22-82
Agreed setting for hearing on motion for 5-25 and trial on 6-28
06-28-82
Three motions to dismiss filed, one of which was based upon lack of a speedy trial
06-28-82
Agreed trial setting for 7-12
07-08-82
Appellant reindicted for same transaction under Cause No. 359,431 except that first paragraph alleged possession of cocaine instead of methamphetamine
07-12-82
Agreed setting for hearing motions on 8-9 and for trial on 8-16
07-14-82
Six more pre-trial motions filed by appellant, including a motion to dismiss on the basis of lack of a speedy trial
07-21-82
A notice of intent to introduce copy of letters if original not produced filed by appellant
07-23-82
Another motion to dismiss (not on basis of speedy trial) filed by appellant
07-27-82
Three additional motions filed by appellant
08-09-82
Hearing on apparently all motions including his motion to dismiss for failure to provide a speedy trial
08-16-82
Motion to dismiss indictment (not on basis of speedy trial) filed by appellant
08-16-82
Plea of nolo contendere entered by appellant and punishment assessed in accordance with plea negotiations
At the hearing on appellant’s speedy trial motion on August 9, 1982, he proved through the clerk’s records that neither an oral nor written notice of ready for
Appellant contends we were in error in holding that by entering a plea of nolo contendere he waived his claim of a denial of a constitutional right to a speedy trial. We agree, as the Court of Criminal Appeals has held otherwise. Riggall v. State, 590 S.W.2d 460 (Tex.Cr.App.1979). We will address the merits of appellant’s fourth ground of error dealing with his constitutional claim of denial of a speedy trial and apply the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors to be weighed in determining whether an accused has been denied his right to a speedy trial are: (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. Id. According to the teaching of Barker, the four factors are to be considered together and each case is to be judged on an ad hoc basis.
Looking to the facts of this case, appellant was brought to trial in just under six months from the date of the offense. The record does not show the reason for the delay, but from the above chronological history of the case we find the case was active on the court’s docket at all times. As to appellant’s assertion of the right to a speedy trial, we find he never requested a speedy trial but only objected to the lack thereof on June 28, 1982, when the 120-day limit provided by the Speedy Trial Act had expired. Appellant attempts to show he was prejudiced by the delay by the following novel reasoning. At the hearing on his motion to dismiss for failure to provide a speedy trial, appellant called the court clerk as a witness and proved the indictment under which the proceedings were had was returned July 8, 1982; it alleged the offense to have occurred on February 19, 1982, which was more than 120 days; and appellant had been continuously in custody since commission of the offense. On cross-examination by the prosecutor, the following occurred:
Q. Do you have present with you Cause No. 350662, the old reindictment [sic]?
A. [Clerk] Yes.
Q. For the record, you have not been able to locate the docket sheet in Cause No. 350662; is that correct?
A. That is correct.
Q. Also for the record, 359431 is a rein-dictment of 350662; is that correct?
A. Yes, sir.
MR. MAGIDSON (The prosecutor):
At this time we offer into evidence official records of 350662; more specifically, for the court’s attention, all of the agreed reset forms in this case and also the docket sheets, also that. That is all we have.
When the court reporter filed her transcript of the proceedings on September 20, 1982, she included the “reset” forms as an exhibit. Appellant’s counsel then presented a motion for a supplemental statement
With this factual background, appellant argues, “[W]hen the state introduced the Defendant’s Motion to Set Aside the Indictment Because the State has not Complied with Article 32A.02 of the Texas Code of Criminal Procedure in Cause No. 350,-662, the first case, the state admitted every fact, statement, and conclusion in that motion, and the contents of that motion are conclusive against the state.” We do not agree with appellant’s contention that the prosecutor introduced appellant’s motion into evidence because the record simply belies this. As we construe that portion of the record quoted above, the prosecutor introduced the agreed reset forms and the docket sheet and appellant’s counsel has attempted to expand the prosecutor’s offer to include evidence not offered. Because of our holding that the prosecutor did not introduce into evidence the motion to dismiss, we therefore do not address appellant’s contention that the state was bound by the assertion made by appellant’s counsel in the motion. We hold (1) the length of delay was not unreasonable; (2) in the absence of any showing to the contrary, the reason for the delay is of little consequence because the case was shown to be active at all times on the trial court’s docket; (3) appellant failed to show that he ever asserted his right to a speedy trial but, to the contrary, agreed to the continuances causing the delay; and (4) appellant failed to show he was in anyway prejudiced by the delay. Accordingly, we overrule his fourth ground of error asserting a denial of a speedy trial under the Constitution.
The motion for rehearing is overruled.
