Santibanez v. State

probable either cause as that term is ordi- the trial court. The narily defined or other kind of cause to holding errs in Helm and Reed had the unopened clothing bag believe that the con- right to conduct lawful a warrantless any illegal subject tained matter. unopened clothing appellant’s search of bag. Furthermore, absolutely nothing there is

in this record that would reflect or indicate respectfully holding. I dissent to such any suspicious activity by either companion or her male that related to the MILLER, J., joins. clothing bag unopened that was on the bed in the motel room. It is axiomatic that the I,

Fourth Amendment and Art. Constitution, originated

Texas either or

were motivated to be enacted into the re-

spective Rights by Bill of the framers’ ha- general con-

tred searches and seizures pursuant

ducted to colonial writs of assist- English general warrants. The

ance and appellant’s unopened warrantless search SANTIBANEZ, Appellant, Jessie Flores clothing bag infirmi- suffers from the same ty respective Rights Bill of that caused the to be the law enforce- enacted —abuses Texas, Appellee. The STATE of However, in this in- establishment. stance, judicially ap- we don’t even have No. 944-82. piece paper authorizing any kind proved Texas, Court of Criminal of search and seizure. En Banc. that, anyone It should obvious to ei- combined, singularly ther the bits of majority opinion information that the accu- probable are

mulates to establish cause probable

insufficient to cause that establish have authorized Helm and Reed con-

would

ducting appellant’s a warrantless search of

unopened clothing bag. majority actually I accom-

What find the holding approving is that it is

plishes dragnet of a motel room and in search

particular an unlawful search of an un- clothing bag in the motel

opened found However, Supreme Court of the

room. States, Court, has in

United as well as this dragnet searches of past condemned

persons on several occasions. Ybarra v.

Illinois, 100 S.Ct. U.S. (1979); Lippert v.

L.Ed.2d 238 exigent cir- probable cause nor

Neither in this established

cumstances have been that would have war-

cause and seizure Helm and

rantless search bag. unopened clothing

Reed of suppressed by

The search should have been ON PETITION

OPINION APPELLANT’S REVIEW FOR DISCRETIONARY TEAGUE, Judge. record us reflects that Jessie before Santibanez, appellant, was tried on

Flores alleged the an indictment that offense murder, jury for but was convicted a committing included the lesser offense voluntary manslaughter, after punishment years’ at ten con- jury assessed Department finement Corrections. Appeals, after The Eastland Court error, overruling appellant’s ground sole erred in his that the trial court motion to dismiss his indictment because had with failed Act, Art. see V.A.C.C.P., 32A.02, appel affirmed the State, 677 lant’s conviction. Santibanez 1982). (Tex.App. — Eastland dis- petition for granted appellant’s cretionary to make determina- review appeals correctly whether the court of tion we ground his of error. Because overruled not, will find that it did reverse judgment. correctly points out appeals

The court opinion appellant was arrested in its of- committing April on For murder of Jessie Portillo. fense of be- purposes com- the date the action came against appellant. See menced 2(a), supra. Thereafter, com- April a on at- before the district was sworn to plaint Taylor County by of her torney of one appel- investigators, alleging therein that Portillo’s death stab- lant had caused him with a bing knife. 8,1981, it indicted on

Appellant was appellant caused being alleged therein that with by shooting him death Portillo stated therein about Nothing was gun. Abilene, Paynter, appellant. Ed by stab- causing Portillo’s death Dale, Solis, Atty. Randy bing him Jorge Dist. knife. Huttash, Abilene, Atty., Asst. Dist. Robert case also reflects The record Austin, Atty., for the State. State’s August week of for trial for the set was however, 11th, dis August 17th. On continu a motion for filed

trict anee, giving as might reasons therefor that the that he have had the Speedy under trial docket of the Trial Act. appel court to which the assigned lant’s indictment had been was When preparing for crowded; overly that at least 20 other de 13th,- set to on commence October the dis- awaiting fendants were trial the week trict attorney then realized indict- 17th; August be in she would incorrectly alleged descriptive 17th; August another case on that she by averment as to the used means the spent had “the of her time the death, appellant causing Portillo’s that past trying pre a half two and weeks alleged appellant the indictment that paring for trial on other felony three by shooting caused Portillo’s death him cases”; actively that she “had also been when, instead, gun, with a should have it engaged in interviewing prospective appli alleged he by that caused Portillo’s death positions cants fill two to in the office of stabbing him with a knife. Attorney Taylor Criminal District Coun why The record does reflect the State ty vacant”; which are now that vacan originally alleged in the that indictment the cies had “also burden increased the on the wound, death by gunshot was caused rath- remaining to point staff the the State wound, er than a why stab or district ready Texas on all cannot answer cases attorney staff, or some member of her set present at the time.” investigator, such as her who swore to the complaint against appellant, to did not catch addition what she stated in her before, during, this error or after continuance, either motion for the district attor- against appellant indictment was returned ney hearing also testified at the that she May on 8th. secretaries; was absent services of two attorney that her duties as district caused The appellant record reflects that was her to appear to have before Commis- 9, 1981, with reindicted on October the sec Court, represent county employees sioner’s alleging ond caused Por indictment he court, perform Federal duties as “by tillo’s stabbing death him with a Taylor County chairman of the Bail Bond 9, 1981, day, knife.” On the same October Board. attorney, on motion of the district trial original court dismissed the indictment. August 17, The on reflects that record by An made attor effort was district had five assist- ney get appellant to and his counsel to ants, qualified try three of whom were to right days waive their to ten which to appellant’s. case such as trial, prepare they for but See refused. any- The district not state did 26.04(b), V.A.C.C.P. The cause was thing in her motion for continuance or in January trial set for testimony her about the indictment not cor- reflects the first record rectly alleging what intended the State by the State on announcement readiness prove against appellant, namely, that he did not until Octo- reindictment occur caused death of shooting Portillo days after the ber which was 168 gun. previously pointed him with a As appellant’s how- arrest. Under out, on appellant was indicted 8th ever, days from the the State had 120 causing Portillo’s shooting death action, April of the commencement gun, by causing him with a rather than ready for unless the to be Portillo’s death him with a stabbing bring excep- itself within some State could knife. period of time. tion or some excludable judge The trial the State’s mo- Thus, days more than 120 had because case was tion for continuance and the reset expired the criminal action from the date for trial October more, obligato- commenced, it was without grant appellant’s pause point ry judge at all on the out that times trial failure appellant give up any rights motion to dismiss because refused to (Tex. comply provisions In Kalish v. the State to with the follow this Court stated Cr.App.1983), Act. Legislature chose to treat ing: “When on Decem- The record also reflects that of ‘a criminal commencement an arrest as motion to 15th filed his first ber ‘the it to embrace and fashioned action’ the reindictment dismiss because arising or other offense same offense had failed transaction,’ it dictated the same out of held hearing Act. A ready for trial within the State be after January motion on on the prescribed period of time was whichever motion. judge the trial denied the charging instrument suffer dismissal motion During hearing 2(a); 28.- Article ... Article reindictment, at- dismiss the (601). V.A.C.C.P.” to, torney following made the statements decisions The Act this Court’s ready for the court: State is “[T]he statutory period if make it clear ready and has been for trial —was the ac time, here, days, expired, and has and has for trial on December Act, the the must cused invokes then State ready for trial times since this been at all ready then both that it was demonstrate reindicted 1981.” case was on October ready for trial for trial and had fact been judge Did the the err peri statutory time at all times within the appellant’s motion the reindict- to dismiss od, or the State must demonstrate or else com- the had failed to because State periods of time are that sufficient establish ply provisions Speedy the the with of bring in order to excludable under af- question Act? answer the in the We of within the announcement readiness its firmative. See, example, period of time. statutory (Tex. State, Smith v. agree with the of the State that Cr.App.1983). charged in original fense indictment is charged the same as that in the reindict appeal, court and on In the trial ment because the difference between an announcement sought to excuse earlier change descriptive the two is a in the aver grounds ready on the that because of ment as to the means used delay period Act excludes reasonable killing Portillo. indictments Since both granted at resulting from a continuance offense, involve the same the motion for State, time request of the for additional continuance, good, case, if from carries forward of the and because prepare indict case, the first indictment to the exceptional circumstances of the second (Tex. State, August ment. Perez v. 678 S.W.2d when period of time State, 620 Cr.App.1984); Durrough motion for continuance the State’s Cf., how when the granted, until October ever, State, Richardson v. 629 S.W.2d its first declaration made formal State (Tex.App. 1982). reasons be excluded. For ready, should — Dallas stated, agree we are unable to be about Act Speedy Because the addresses the State. than to prosecutorial delay, rather itself 32A.02, 4(6), supra, provides whole, Sec. process as a and because resulting period prepar reasonable question prosecution’s of the that a request court continuance encompass the trial from a edness does excluded, if the contin- docket, shall be concern our of the State we need not or its una- “(A) of the granted, because have uance problems with whatever selves material vailability of evidence that judicially Philen v. existed. case, exercised if state has state’s (Tex.Cr.App.1984); Lee 683 S.W.2d the evidence (Tex.Cr.App.1982); diligence obtain due 641 S.W.2d 533 to believe (Tex.Cr. grounds reasonable there are reason- will be available within evidence App.1979). time; (B) sage able to allow the state addi- Trial Act in the follow- prepare ing language: time to its ease tional and the notion that criminal “[T]he prosecution justified speedily pub- additional time is be tried is in because of the interest, lic being exceptional prompt rationale circumstances the case.” disposition pending pun- cases and swift Because the record reflects that ishment imposed guilty on the serve to requested district attorney never a con- protect citizenry.” any tinuance for reason set forth in Art. sum, In very purpose of the Act is to 4(6), supra, Sec. justice, make sure wheels of that the once 4(6), supra, period Section do not toll the they turning, kept commence are turning. provided time Trial Act. instance, find “excep- that the However, we must decide whether tional attorney circumstance” the district 4(10), supra, applies to this cause. ‘urges person- concerned a lack of sufficient 4(10), supra, provides: computing “In nel needed to run an office the size of the time which the must be Office, Taylor County Attorney’s District period following shall ex i.e., could not carry period cluded: other reasonable of de legal out her statutory functions of that is lay circum that office had an because she insufficient stances.” permanent qualified number of and substi- grace” Was the “coup de this instance personnel; tute she secretarial had an in- the fact that found qualified investiga- sufficient number office, suffering with an herself from dev- tors; she had an insufficient number astating attrition? qualified attorneys. assistant district We might Notwithstanding personal- that we course, recognize, that rectify such sympathize many ly prob- with the internal Taylor would County cost the State and appears to have lems what been an many additional dollars cents. had, attorney ques- overworked district Although implied been it has tion before us is she was an not whether appellant’s cause that case was not the attorney, ques- overworked district but the case, criminal type “run-of-the-mill” tion, instead, whether, Speedy is Trial find from the before us that there record is purposes, problems Act internal above nothing which reflect that it was would district had constitute an unduly complex, or other than a “run-of- that would toll circumstance type the-mill” case. criminal running provided by of the time In regard, we observe that Bark- Act. 514, 538, Wingo, er v. 92 S.Ct. 407 U.S. just excep As to what an will constitute (1972), 2182, 2196, 33 L.Ed.2d 101 Justice 4(10), su tional circumstance under displayed Supreme White of the Court sa- such, course, decided pra, must be on a gacious reasoning he stated the fol- when basis, Lloyd case v. 665 case cf. lowing: in run-of- “[Unreasonable (Tex.Cr.App.1984),also see the-mill criminal cases cannot be (Tex.Cr. Hamilton v. public by simply asserting that re- “exceptional phrase App.1981),because provided by sources State’s criminal Speedy is circumstance” not defined justice system and that such are limited Therefore, apply we must [Tjhis Trial Act. approach ... case must wait its turn according phrase context and construed goals own seek- ... subverts the State’s grammar the rules of and common us ing to enforce criminal laws.” 3.01, V.A.C.C.P.; 5429b-2, age. Art. right to a speedy The of the accused (the Act). Code Construction V.A.C.S. interests of so- serves substantial Bean, ciety the accused as well. In v. but those of Ordunez Therefore, upon not be sacrificed this Court iden- (Tex.Cr.App.1979), public and reduced practicality the alter of Legislative pas- motivation tified instance, States v. it was the tional circumstance. Cf. United In this treasuries. (2nd Cir.1974); Bowman, 493 F.2d its subdivi- responsibility of Bonterre, Misc.2d sion, necessary People to assure to do what (New City York Criminal speedy N.Y.S.2d 351 appellant would receive a 1976); People 77 Mise.2d Sturgis, by the Court provided Speedy Act— (Monroe County pro- 766, 354 N.Y.S.2d 968 sufficient funds and appropriating 1974). at- viding adequate to the district Criminal facilities responsibility torney. It was Therefore, under the time qualified employ attorney’s motion for continuance operation personnel to assure the efficient computation of from the not excludable Ganci, People 27 N.Y.2d of her office. The ap- Trial Act. time under 318 N.Y.S.2d effectively the State’s an- pellant rebutted (New Ct.App.1971). N.E.2d 263 York on October nouncement point public if the The trial court erred in pause to out that accused to dismiss the indictment. “Speedy Justice” for those motion wants in turn committing wrongs, criminal appeals judgment of the court protection increasing from the hosts is remanded to the reversed and cause willing it predators, must be to dismiss the trial court with instructions system jus- pay an efficient of criminal in this for failure of the indictment cause otherwise, tice; willing it to sacri- must be with the continuing distressing cynicism, fice its Act. Speedy Trial encouraging the the same time while at bulging persons ranks of of com- accused MeCORMICK,J., dissents. mitting remaining crimes in our untried CLINTON, Judge, concurring. short, public jails. have it cannot Though reaches correct instance, Legisla- ways. In this both result, signifi- important it an obscures Act, in an ture enacted the in this question presented of law cause cant up of crimi- speed prosecution effort to squarely and needs to be addressed part of it is our judiciary, nal cases. As clearly again. answered — is carried duty to see that mandate mandate, and, out, carrying in out that Act, 1977, Acts Speedy The Texas lack of fund- cannot be deterred because of 1,1978, July eff. Leg., p. ch. 65th whatever, staffing, prose- ing or of 1979, 3, Leg. ch. Acts 66th as amended cuting attorney’s office. 1,1979 (Act), 4, September largely is p. eff. A, Chapter Thirtytwo in Y.A.C. codified Furthermore, for that such us to hold State to be requires 32A.02 C.P. Article exceptional an circumstance constitutes period prescribed of ready for trial within a society’s myriad would exacerbate time, permits of 4 exclusion certain but § crime, problems and criminal criminals by which it computing the time periods delay. justice, delay only more breeds 4(10), ready. viz: must One is be § approval seal of on the excuses put To our period “(10) any reasonable other cause, gave as in this justified by exceptional cir- delay that is be should why cause cumstances.” continued, only to would amount not Legislature in intent thwarting the of the In the instant cause the Eastland Act, Speedy its enactment of the found: of the the effectiveness would undermine docket “The crowded condition of ensure purpose of which is to circumstance was an thwart not prosecutorial will from Au excluding period cases. prompt trial of criminal 1981, gust to October citing 120-day period that the time hold in instance [footnote find and 4(10) The excep- paraphrasing an omitted]. do constitute excuses not § State’s 332 and the trial judge ing by the trial court is correct as a matter

presented showing evidence the over law, merely application but is an of the crowded condition the court’s docket rule that mandamus is not available to com- at the granted time the court the State’s pel a discretionary distinguished from a motion for continuance. Ordunez v. ministerial act. Ibid. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979); State, Ostoja (Tex.Cr. Concurring Bean, S.W.2d 165 Ordunez v. I tried

App.1982).” explain that under the Act “a crowded court docket is simply not a circumstance State, Santibanez v. that conditions readiness for trial on the (Tex.App. 1982). That is the — Eastland part State,” id., of the at finding 918-919.3 There on which we review.2 the matter rested until Judge Odom re- problem misreading here lies in again viewed it opinion of Barfield Bean, the Court in Ordunez v. S.W.2d Going over 579 S.W.2d 911 (Tex.Cr.App.1979). The much ground the same he concluded: Court did not hold as a matter of law that a condition light “In “overcrowded dockets” of these several considera- courts is an “exceptional tions, circumstance” we construe and hold that within the meaning intendment and threshold standard for dismissal under 4(10). In original an proceed- mandamus § i.e., Article supra, ‘the ing it is the quality nature and of the trial,’ is state refers to the judicial act under attack rather than the preparedness prosecution correctness of the determination encompass does not the trial court made that is at issue. realistically So and its docket.” speaking, all the Court deny did was to Id., example at 541. means for extraordinary relief, part mandamus be- judge that a a fact district court finding cause the of the trial court “that embracing apportion three counties must ‘exceptional overcrowded dockets are an circumstance’ his time to both civil and criminal necessarily judicial dockets deter- act,” mination id., rather than a will not avail the State. Lee v. ministerial 914. (Tex.Cr.App.1982); Denial of mandamus for that Scott v. reason is (Tex.Cr.App. not determination that the find- emphasis throughout 1. All is mine familiarity unless other- with the fact of overcrowded wise indicated. throughout dockets in the trial courts [footnote omitted] awareness is re- —actual majority opinion 2. The buries its treatment of vealed Article 32A.01 Trial Act finding paragraph beginning "Be- whereby given itself trial of a criminal action is cause the page Trial Act ...” on preference over a civil case and trial of an jail given always kept prefer- accused who is detained in “It must in mind that what we addressing are is the condition of ence over trial of other readiness of criminal actions. prosecuting attorney try particular the to the But, significantly, more a crowded court case at issue rather than that of the trial court. simply is docket not a circumstance that condi- follows, therefore, ‘exceptional It that circum- part tions readiness for trial the of the State. stances’ that are found sufficient to exclude a exceptional pertains circumstance exclusion period delay computing reasonable in the trial, being ready just to State for as it does be-ready time within which the State must for Attorney to the United States under a federal necessarily something trial arise from about the plan containing substantially provi- the same case rather than the business of the trial court sion, Rollins, (2 Cir.1973). US. v. 475 F.2d 1108 or, indeed, the state of affairs in the office of the ** * Thus, so far as the State was concerned prosecuting attorney. Thus it has been held highly overcrowded dockets in the district qualify 'exceptional' that to as within the mean- County courts of El Paso no moment ing plan may of the federal the circumstances being ready, prepared whatsoever. The State something ‘not be with which the Plan’s drafters otherwise, letter, to dismiss the case intent familiar,' Rodriguez, were United States v. purpose and of the act were satisfied in this case 1976) (2 Cir. [footnote F.2d omitted]. [footnote omitted].” Plainly, being general it a matter of common knowledge, Legislature we to the attribute 1982); Lyles see also “Did the trial court err in (Tex.Cr.App.1983).4 motion to dismiss the indict- because State had failed to misunderstanding Despite spotty of Or with the however, and Barfield, dunez v. Bean p.329. At Act?” delay Court “focuses on within still deference, is ques- With too broad a considering prosecutor” in control of the tion to be in answered this case. The East- to determine whether exclusions § it, land Court of did not consider timely Lloyd trial. ready State is for much less make it the for reason its deci- (Tex.Cr.App. Furthermore, sion. it has not been raised 1984).5 finding In that the condi crowded by appellant petition in his for discretion- is an tion the court docket ary simply review. The issue is not before Ap circumstance Eastland Court of this Court in this cause. peals fell into error. Since that was single sole basis on which it overruled the in the given I concur the reasons For ground by appellant, of error advanced Court. judgment required are not address other reasons assigned being ready for not for State ONION, P.J., joins. trial. dissenting. DAVIS, Judge, W.C. This is authorized to review “deci- 32A.02, 4(10) Article states: § appeals court own sions of the its [on review,” computing the time upon motion which petition for and] for ready the State must be 44.45, V.A.C.C.P., say Article which is following period shall be excluded ... decision,” “the 44.- reason Article Nevertheless, (10) 24(c), period other reasonable of de- majori- V.A.C.C.P. lay justified by exceptional is cir- ty plows right find an ahead to answer cumstances. question poses, it viz: in holding to the conclusion that instances exclusions 4. That has misun- been Barfield See, ready determining must when be Ostoja e.g., derstood cannot denied. contemplate prosecuting "plainly attor- (Tex.Cr.App. 167-168 just 1982), ney the idea and as exclude v. Bean Ordunez Barfield trial court is embraced within the term ‘the support are cited to the statement that the Court trial," finding being ready 4(10) ibid. After state’ "has also reasoned that Sec. of the Act ... evidence, reinforcing the Court held still further applies trial to overcrowded dockets of our Necessarily, quoted it in the text above. entirety reading courts.” But in its Barfield rejected charging the contention that the instru- should convince one that such is unten- claim off, been dismissed when the trial ment should have able. considera- First contention under ready try court was the case within the not "the trial tion was that word ‘state’ includes the prescribed period of time. complaint court that the and information Thus, sum, should have been dismissed when the court was what teaches that the id., ready try days,” not at case within docket court which condition of the of a trial Noting delay concern pending utterly universal over irrelevant to a deter- a case n cases, timely trials the Court reviewed the State is mination of whether Therefore, condition, "speedy least three trial schemes” at work trial. whatever that it system similarity Happily with one "exceptional federal is not an circumstance." type recognizes Ostoja, supra, Act “is of the of them concluded that the now the author of pros- speedy scheme addresses itself to need concern ourselves with whatever "we process problems may judicially rather At ecutorial than have then existed.” whole,” pointing draftsmen as a out its p. 329. easily the courts in “could have included Alas, by misconceptions perpetuating earlier terms, instead to declare that dismis- but chose Lloyd renais- opinion well contribute to ready for ensue if state’ was not sal would ‘the 4(10) applicability over trial," § sance of confusion id., further at 541. Then the Court found id., opposed delays." delays to "court as Legisla- indicating that evidence in the Act "the absolutely Court must declare at 475. This addressing prosecutorial ture was itself "exceptional again within circumstances” delay resulting from the rather than 4(10) encompass contemplation of "does not itself," ibid; § length quotes process opinion docket," Barfield, supra. and its the trial court concurring my opinion in v. Bean Ordunez pointed Even though, in Lloyd out 472 (Tex.Cr.App.1984), 4(10)

most dealing cases have fallen § i.e., category delays,

into the of court over- dockets,

crowded absence of a material wit- etc.,

ness due to hospitalization, surely prosecutorial delays

some will constitute exceptional circumstances. Article 32A.02

. prosecutorial addresses itself to de-

lays rather than those occasioned

judicial process as whole. 586 S.W.2d 4(10)

The language in does not indicate § limitation,

such a seems to general but be a designed prevent

catch-all dismissals like given today. one during

The record reflects the week originally case set for

trial there other were 47 criminal cases

pending Further, in two district courts. prosecutor’s office had two vacancies

facing trying prepare her while for crim-

inal trials. Based these circumstances

the State’s motion for continuance was

granted. majority has determined “exceptional” not circumstances are

under the statute. Prosecutors If beware!

the circumstances evidenced the instant case are “exceptional,” it will be the Denison, Dupree, appel- William D. they rare case indeed where are held to be. lant. For this reason I dissent from the Davidchik, Atty. Stephen Co. and James opinion. Holt, Atty., Sherman, H. Asst. Co. Robert Huttash, Austin, Atty., State’s for State.

WHITE, J., joins this dissent.

OPINION ON PETITION FOR STATE’S DISCRETIONARY REVIEW TOLLEY, Roy Appellant, Dean WHITE, Judge. Appellant guilty by jury was found Texas, burglary of a habitation in Appellee. the offense of The STATE of V.T.C.A., Grayson County. Penal See 119-85. No. jury punish- assessed Code Sec. 30.02. The Appeals Texas,

Court of Criminal in the Texas thirty years ment of five De- En Banc. $10,- and a fine of partment of Corrections 000.00.

Appellant appealed his conviction to the alleging five Dallas Court of grounds Appeals, Court of of error. The

Case Details

Case Name: Santibanez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 14, 1986

Citation: 717 S.W.2d 326

Docket Number: 944-82

Court Abbreviation: Tex. Crim. App.