*1 like the situation in which the estab- the fact of
lishes a defendant’s admissible conviction,
prior appellant here was free to
develop the details of the deceased’s con-
duct which rise to of the convic- each
tions, and if it could be shown or all any
them involved acts of aggression, such evi-
dence would have been appropriate for the
jury’s consideration on the aggressor
whether he was the here. But no
showing of the underlying circumstances Accordingly, made here.
failed to establish the prior convictions in-
volved explain acts of violence which would ambiguously aggressive deceased’s
duct toward her at the time of the offense. sum, we hold the evidence was correct-
ly excluded trial court.
The judgment of the court of
affirmed.
ONION, P.J., TEAGUE, J., concur in
result. Beene, Houston,
Roy appellant. Holmes, Jr., Atty., John B. James C. Dist. ROSEBURY, Appellant, Richard C. McDonald, Asst. Dist. Brough Randy Houston, Huttash, Robert Attys., State’s Austin, Atty., for the State. Texas, Appellee. The STATE of No. 806-82. Texas, Appeals
Court of Criminal En Banc. OPINION ON APPELLANT’S PETITION REVIEW FOR DISCRETIONARY Nov. ODOM, Judge.
Appellant jury was convicted quanti- of marihuana a usable ty punish- of more than four ounces and years assessed at five ment was $5,000 affirmed Appeals fine. The Court of granted appel- and this the conviction Court for review to consider wheth- petition lant’s disposed properly er the Court Act, asserted Art. 32A.02, V.A.C.C.P. violation.
656 11, procedural chronological list of “December 1980: An trial agreed 1981, 19, filed. setting events summarized of for was January the Court adequately reflects the problem. 19, motion “January Appellant’s 1981: for Speedy dismiss violation of the 6, “February Appellant 1979: ar- was pre- was with Trial Act overruled other delivering approximately
rested after motions, trial trial commenced.” pounds compressed five and one-half of marihuana undercover officers. complain delays does Appellant not of 20, on Au- return third indictment “February 1979: Indictment was 18,1980. In he clear 291,916, gust his brief makes it returned in Cause No. complains of the time he delivery ‘a possession of controlled 18, arguing before substance, namely Tetrahydrocannabi- could trial possibly have been for nols.’ had not before that date because 11,1979: “April filed waiv- Appellant him for steps prosecute possession taken 291,916. er in No. speedy of Cause re- though laboratory of even marihuana “July pleaded 1979: Appellant port six months earlier showed over guilty, sentenced eight years was marihuana, not possessed substance was appeal. finement and notice of tetrahydrocannabinol, as had been Appellant “December 1979: was in two the first indictments. granted new trial to Few v. pursuant In of this of the issue light formulation State, (Tex.Cr.App.1979). 578 588 S.W.2d of consideration by appellant, focus 7, 1980: was “January Appellant rein- speedy must on whether his waivers of a 306,916 dicted in No. Cause two trial filed under the first of ‘Tetrahydrocannabinol other than mar- purposes waivers for of constituted ihuana.’ prosecution. Recognizing the marihuana “January Appellant 1980: filed a in pivotal resolving role of this question 306,- speedy waiver of trial in Cause No. error, Rich- ground argues of (Tex.App.— 629 164 ardson v. S.W.2d “August 1980: The announced In that case the 1982), Dallas controls. 306,916. No. as- ready in Cause While court held that announcement trial, prosecu- witnesses sembling did not constitute announce- one case tor learned from chemist that State’s for a on a second indictment ment of was controlled substance out of the different marihuana. given The reason transaction. 18,1980: was, “August was both have Appellant holding “Although [cases] witness, are dif- 319,011 complaining they pos- reindicted in Cause No. the same proof, quantity session of ‘marihuana in a usable ferent offenses even ‘same case’ are not the more and therefore than four ounces.’ No waiver are the same transaction. they from though speedy trial was filed. the announcements Consequently, “September through Novem- case.” to the other apply will not one case setting, ber 1980: At a non-trial agreement case Novem- yet was reset is different case issue this 3,1980. 3, it was reset ber On November of effective- scope similar. Instead 10,1980, on November as in for November ness announcement of an effec- Richardson, scope was reset for trial December we consider In relevant resettings all waiver. Testimony appellant’s showed tiveness of recite: form waivers by agreement. part were the two voluntarily waive knowingly “I do filed his Appellant 1980: “December Crimi- Texas Code of my rights motion violation of to dismiss for within to a nal Procedure Act, brought which case the commencement 19,1981. from days the court’s attention on CLINTON, right Judge, concurring. ... and further waiver for dis- my discharge missal or if the is not prescribed is that time limitations Settled ready for trial within 120 days to when the must pertain the Act ” commencement of this case.... for trial —not when trial must be held. Barfield v. The waiver clearly applies (Tex.Cr.App.1979) Ordunez issue, therefore, the transaction. The re- *3 (Clinton, con- (Tex.Cr.App.1979) S.W.2d 911 duces itself to whether the indictments con- curring). specifically, But when does “a prosecutions stitute for a case or for single within the criminal action” commence separate cases arising out of the same 32A.02, Article meaning of V.A.C.C.P.? transaction. special sit- Putting aside for moment Richardson, supra, the two offenses retrials, 2(b) such and dis- uations § burglary. were theft and These were cor- missals, 2(c), an ac- usually by initiated § rectly found to be although distinct cases cused, 2(a) that a criminal action provides § arising out of a Here single transaction. indictment, commences when an informa- the first alleged possession tion or is “filed in court” unless complaint tetrahydrocannabinol while the final indict- the accused has been held to answer for the ment alleged possession of marihuana. As or any “arising same offense other offense Richardson, transaction,” out of the same and in that statute these are “dif- case the criminal action commenced when ferent offenses proof.” he was first arrested. Richardson, Nevertheless, supra, at 165.
the facts of this only single case reveal a objec legislative Thus it is clear that the only offense: a single pos- substance was tive is to cause the to sort promptly sessed, a substance originally alleged offenses, to be charg out its obtain one or more for trial tetrahydrocannabinol ing get ready instruments subsequently prescribed period within the of time from found to be and correctly alleged to be commencement of the criminal action. See marihuana. Under the facts there was only (Tex.Cr. Buford v. S.W.2d one case: a single offense was committed Pate App.1983) and and a single offense was alleged, although (Tex.Cr.App.1980), imply both which at first erroneously pleaded. Had appellant must appropriate charging an instrument possessed both substances a issue different for an proper be on file in court in order would presented. facts, be On these how- of ready meaningful announcement to be ever, we find distinguishable, Richardson and effective.1 appellant’s hold waiver rights of his Pate, implied The rationale of Buford and under the Speedy Trial Act applied to with the Act. It contem- supra, comports case, which included the third indictment. that a arrest —before an instru- plates prior The judgment of the is Court charging ment an accused with an offense affirmed. in court” —will commence a crimi- is “filed action, the being
nal notion duty will not be allowed to avoid its to be MILLER, JJ., McCORMICK and concur by simply delaying for trial ready timely in the result. instrument, charging while an ac- filing TEAGUE, J., subject to constraints of cus- participating. cused remains 541; State, supra, understanding phrase 1. Our Barfield v. at Ordunez v. “when indictment, information, complaint supra, govern or ... is at and in it the charging upon filed in is a court” instrument trial within six months ment must be may arrest, which an accused be tried summons or or whichever came first: filed, upon which a which it is rather than one (All emphasis is added instrument. may by magis- warrant arrest be issued opinion unless otherwise the writer plan is trate. The Second Circuit indicated.) drawn, pattern from which our Act was Barfield, tody or bail.2 with notion perfunctory gesture,” Consistent such fact periods that of the ten of time every But not to say only be excluded may one mentions is so announcement of sterile. “charge upon after the is dismissed to the State’s announc allusion motion or ... disposed in the ing ready quickly trial one finds judgment” final and the subse- accused is procedure code criminal is in connection quently “charged with the same offense or being by jury. with a case called for trial another 35.01, Still, cus general Article V.A.C.C.P. transaction,” then, 4(7). Clearly, practice is that as the trial docket tom statutory mandate is is sounded announcement of or also later is to made in each in the extant file of a court in which case is called particular offense is to be tried. 23 Tex.Jur.3rd jury. court or See part Under Act readiness on the of 126-127, *4 And 2529-2531. an announce § prosecution challenged the must be timely only the latter is not ready ment at time by the accused a motion to set aside the by the meaningful binding throughout but also charging on the only ground instrument an unfore except trial that follows such ready available—that the State development that a fair extraordinary seen 32A.02, trial. Articles 28.061and and §§ 29.13, Y.A.C. trial cannot had. Article 3; State, supra, Barfield v. at 542. Once However, is no suggestion there C.P. is done its the State “must declare that an plan the federal or our own act readiness for then at the times an in ready announcement of Act,” required by the ibid.—a declaration response call of the stant indictment to may by the accused rebut evidence charging well to court attaches as another the “dur- State was not for trial offense aris alleging any instrument other limits,” Act’s ing Obviously, the time ibid. Indeed, in out of the same transaction. ing a motion to set instrument aside (Tex. State, Richardson v. 629 S.W.2d in, the by will be filed heard decided 1982, held ref.) rev. the court App. — Dallas having try jurisdiction” court “threshold 28, ato November respect otherwise with the offense.3 out arising for an offense 1979 indictment Act was Though Speedy Texas for which he had of the same transaction drawn from federal promulgat- scheme 3, 1978.5 July been arrested Circuit, ed the Second in which and, like on Richardson Appellant relies government required communicate majority Appeals, Dallas Court of speci- its readiness the court within the “same in terms of Barfield, problem examines the supra, six at period,4 fied month case,” cases.” 541; 917, 919, case,” “single “separate Ordunez v. deference, of termi- using kind upon prosecution have not With imposed we misunderstood, for as risks nology being “a “a thing,” meaningless such useless Cohen, July 1978 indictment] Senate Bill 1043 and the ‘reindictment’ of [a 2. Accord: Texas, arising Right (3rd degree) Trial in Vol. No. theft for the offense of (March Law American Journal Criminal instant case the same transaction 1979) therefore, 28. vehicle,” and, burglary an- of a mat- in the earlier theft nouncements of is that have at What is meant here to the instant ter “should be carried forward “jurisdiction” to entertain least ” Because because it is a ‘reindictment.’ case instrument, the instrument be valid not that “they are different offenses jurisdictional Ward v. ultimate sense. See they proof,” the ‘same found “are not court (Tex.Cr.App.1983). they though are from the case’ even and, consequently, announce- 4. See note ante. transaction” apply in one case “will not ments of argu- Appeals rejected an 5. The Dallas Court other,” supra, at 165. Richardson “the instant case ment element 1979 removes from further demonstrated ante the central cember Act all any purpose identified in the Act “a under the criminal action.” sideration Id., Legislature grant mentions “case” in the Act of new trial. preceded 2(b): one time: a to allow the addi- § “case,” 4(6)(B).
tional time to prepare its § follow- is to be retried “If a defendant Legislature When the choose to treat an trial, a new granting ... an order ing arrest as commencement of “a criminal ac- action commences ... on ... a criminal tion” and it fashioned to embrace “the same granting a new the date of the order any offense or other arising offense out of trial....” transaction,” the same that the dictated again Decem- day period began The 120 for trial within the pre- it, ber 1979. As I understand period scribed of time or suffer dismissal of did file a waiver of instrument, the charging and it meant such pe- 1980—well within the time any prosecution dismissal to “bar further new in- though riod—but also trial on the discharged any for the offense or for other August dictment was set for out of the same transac- announced tion,” 28.061, Article supra. As used August appellant says 1980—when majority and the court of the con- nev- ready appellant announced not — of “case” is alien to the man- cept Act—the either trial discharge prior er moved for date is to be for trial in a criminal see setting, action on a charging event, on 18 or the any either prescribed offense. The of time for *5 day prosecution next the obtained still a doing may so elongated by stringing not be arising third indictment out successive “reindictments” far beyond 6,1979 4(7) February transaction. While § the imposed, limitations when ex- except the period of the Act excludes a of if by excluding period Legisla- tended the charge is dismissed on motion of the State Cohen, ture itself declared justified, op. is “from the date of dismissal ... to the date cit., unless, course, of the 35-36— limitation would commence run- the time accused validly rights waives his in the had there ning subsequent charge on the premises. previous charge,” been no is best The resorts to literal majority language appellant And since and the day. but one of the two form by appel- waivers executed agreed resettings to of the trial from State cause, lant in this and discerns that each through November September “clearly applies to the not the transac- of time is excluded period I agree analysis, tion.” do not with that 4(3); appellant complaint makes no being of the view theory presented that the ready following that the was not re- State by appellant may through be resolved the instant indictment is under- turn of different approach. standable. When the situation involves successive Therefore, from our concern is instruments, ought our to analysis 13, 1979, August to 18 or December start with the indictment to which a motion motion to hearing Because on Where, here, to dismiss is directed. as ar- in prosecutor indictment set aside indictment, the to be preceded question rest that be- charge of the matter conceded ready asked is whether the was for August 1979 and February tween challenged trial on the indictment within to prepared go was “never 1980the State If, here, days after arrest. as the State [appel- against trial the offense involved on for we must exam- ready was not trial then marijuana [sic],” possession for the of lant] ine the Act. light situation have the trial court should asserts appellant is that his motion. His contention
Though July appellant plead- granted on not was guilty, ed was sentenced and notice he demonstrated that 4, 1980, did August De- in that not until appeal, being granted his a new trial the only sub- to be for trial on become aware prosecutor his was indictment, stance seized at the time of arrest has re effectively he pending than, earlier obligation fact marihuana rather as statutory lieved the of its (THC). alleged, tetrahydrocannabinol alleged offense. try to be consequence is that from Here the that the crimi- Notwithstanding fact 18, 1980, the waiver was executed nal action commenced with arrest 19, 1980, until or appellant delivery quantity of a of mari- ready August was though announcing on huana, proceeded it grant of new trial for trial on required legally possession anew under an indictment for Durrough indictment. See obligation pending is to the statutory THC. The State’s (Tex.Cr. in a 139-1406 alleged filed, as timely App.1981). When, was. as surely second indictment reasons, agree I result For these no here, is one there is there but indictment is correct. reached of readiness for occasion test a condition I in the Accordingly, join judgment trial yet alleged on offense not Court. be, need charging instrument. Nor there on the if the State is indictment, and it dismissed pending reason, for that all other offenses fall with the
out of the same transaction Concomitantly,
dismissed indictment.
when, here, files written an accused his failure right
waiver of dismissal for majority permitted THC lead second indictment has itself to be The resolving the substance have known that can- when it should into a false issue. specious. actually speedy Whether marihuana of a not be whether waivers prove is a what it has will two also waived a first demonstrated, indictment, ap- prosecutorial risk. As I have marihuana trial under the quite enough delays, relieved complaint pellant makes about no *6 prove obligation agreed, State of its return of the which he most of allege, jury grand argument offense it caused the indictment. His third put to the test. charged never of time under with the