State v. Condran
977 S.W.2d 144
Tex. Crim. App.
1998
Check Treatment

*1 receipt negative sepa- answer.1 I write instances,

rately to make clear that inquiry issue could here result in valid Udashen, Dallas, appellant. Robert N. challenges for cause. Oldner, Attorney, Chris Assistant District McKinney, Paul, Attorney, Matthew State’s I. Austin, for State. precedents pro qualified “Our teach that spective jurors must able be to consider the punishment

full range applicable to the OPINION ON APPELLEE’S PETITIONS offense submitted their consideration.” FOR DISCRETIONARY REVIEW State, Fuller v. PER CURIAM. State, Pyles (Tex.Cr.App.1992)(citing v. application Appellee filed an for writ of (Tex.Cr.App.1988); Nethery corpus contending habeas he was entitled to v. (Tex.Cr.App. 691-92 he was indicted outside 1985); Barrow v. “next term of court” as out in Art. (Tex.Cr.App.1985)). chal Jurors can be hearing, V.A.C.C.P. After a the trial cause, if, case, lenged proper judge ordered the indictment dismissed with juror is unable to assess minimum appealed The State and the court crime, punishment.2 If maximum as de reversed trial court’s order law, fined specifically includes the element dismissing against appellee the indictment child, types the victim is a then in those and remanded the causes for trial. State v. inquiry, juror subject would Condran, 951 S.W.2d 178 pun for cause if full range — Dallas granted review to determine the ishment could not be considered.3 correctness of that decision. comments, With these concur carefully considering judgment of the court. questions us, for review and briefs before grant appellee’s

find our decision to petitions discretionary review was im- provident. Accordingly, petitions for dis- cretionary review are dismissed. Texas, Appellant, STATE of HOLLAND, J., participating. CONDRAN, Appellee. Franklin Charles KELLER, Judge, dissenting. 1152-97, Nos. 1153-97. I would address whether former Article 28.061,1 applies as it Court Criminal of Texas , violates the En Banc. I believe Constitution. Because 7,Oct. question violate does Clause,

Separation of affirm. Former Article 32.01 states: 590, (Tex.Cr. years indecency age); See Maddux individual under six child, 21.11; App.1993), why concerning ag- § discussion Code Tex. Penal Ann. child, inquiry question. proper gravated instant was a of a Tex. sexual assault Penal child, 22.021(a)(1)(B); injury § Code Ann. goes beyond 2. When a to the venire 22.04; abandoning § Penal Tex. Code Ann. statute, elements but not an child, endangering a Tex. Penal Code Ann. verdict, jurors commit the to a certain those 22.041; alia, § inter contain a child victim as an questions proper type are are element offense. determining peremptory assist counsel their challenges. references are to the Texas Code All to articles as, murder, example capital indicat- 3. For crimes of Criminal Procedure unless otherwise 19.03(a)(8)(murder § Tex. Penal Code Ann. of an ed. *2 discretion, explained we prosecutor’s in When a detained with defendant has been custody appearance to bail legiti- or held for his was not a Act any criminal accusation to answer before provide procedural guide- mate court, the prosecution, the district unless enforcing a constitution- lines for defendant’s court, good otherwise ordered right it al trial because affidavit, shown, supported by cause shall incorporate the traditional factors considered discharged, if be dismissed and bail inquiry. Id. at 256- in that constitutional indictment or information be not 257.5 against defendant next term of such at the Meshell, we addressed the con- Since court which is held his commitment after involving stitutionality of two other statutes to bail.2 or admission In time Jones limits in 28.061 rele- Former Article states 712 (Tex.Crim.App.1991), ... part: vant “A under Article any upheld Article as constitutional code is a further we 17.151 this bar prosecution discharged offense and unduly against the statute a that arising other offense out of same Ar- with discretion. interfered _” inserted).3 (ellipses transaction required a ticle 17.151 that required Article a dis- if bond was not released on prosecution with if missal ready specified time limits. for trial within indict the State failed accused within Jones, at a dis- 803 S.W.2d 716. We drew specified time in Article 32.01. release of tinction the mere a defen- between require- present in the that case whether setting from aside of the dant on bond separation powers. ment violates prosecution that occurred Meshell. Constitution, the Unlike the United States at 716. we noted that 803 S.W.2d explicit Sepa Texas Constitution contains an Speedy Trial Act dictated that dismissals ration of Powers Clause. See Texas Consti prejudice.” Id. at n. 2. occurred “with tution, §II 1. Article This clause is violated unduly one “when branch interferes an Williams, a In we addressed whether other branch so that the branch cannot other Inter- trial contained effectively its exercise as (IADA) Act Agreement state Detainers Williams, powers.” signed State v. imposes was The IADA unconstitutional. (Tex.Crim.App.1997)(quoting commencing trial after deadlines for receiv- Armadillo Bonds v. Bail prisoner. an out-of-state Article (Tex.Crim.App.1990)).4 IV(c). met, If those are not deadlines (Tex. In Meshell v. is instructed to dismiss the trial court Crim.App.1987), we held that prosecution 32A.02, unduly in V(c). prosecutor, We held terfered with the Judicial Branch circum IADA, by obtaining prisoner through attorney’s scribing county district dis contract, in which he relin- submitted to result, prosecute cretion to As a cases. quished power exchange of his found the Act to be void on the custody obtaining of the out-of- the benefit of ground it violated that prisoner. 460. fur- state at of the Texas Clause finding ther that 258. undue interference through improper Legislature an to the 4. can also occur 2. added end of day (or "... or delegation) power by before the 180th after assumption one the date commitment admission belongs properly to another. branch change applies is later.” whichever date This S.W.2d at 458. only prosecution of defendants arrested for date an offense on or the effective factors, Wingo, are: 5. Those out Barker Leg., law. 4 of 75th ch. new Section Acts trial, (2) length before delay, the defendant's assertion reason for subsequently I note any preju- of his by deleting any reference revised Article 28.061 to Article resulting from that dice a defendant only change applies This 32.01. trial. 739 S.W.2d at 256. prosecution of defendants arrested offense new on or effective date of the law. after the Leg., Section of Acts 75th ch. prevent did not contractual enforcement mechanism for- relinquishment authority. Id. at 460-462. mer unnecessary. would be Meshell, Jones, The lesson drawn from argu- that is *3 is legislatively imposed Williams that a ably remedy implicated which a of dis- —to deadline action violates the prejudice missal with would attach —is the (1) Separation of Powers Clause if the reme- guarantee against prej- Due Process Clause’s dy failing seriously to meet the deadline delay. preindictment udicial United See disrupts prosecutor’s ability perform the to Marion, 324, 307, States v. 404 92 U.S. S.Ct. duties, justified his the deadline cannot be (1971). 455, L.Ed.2d 468 To determine necessary superior as to effectuate consti- the Due whether Process has been interest, tutional the did violated, a court must the actual consider contractually not submit deadline. prejudice by to the defendant caused the condition was not true because the Id; delay. and the reasons for see also remedy releasing prisoner the on bail did Lovasco, 783, United 789- States U.S. seriously disrupt prosecutor’s ability not 790, 2044, (1977).6 S.Ct. L.Ed.2d 752 perform to his duties. condi- Speedy Act, Like indict- tion was prosecuting not true because the provision require showing ment does not authorities had submitted to the deadline provision Nor does the call for requesting prisoner under the IADA. But considering delay. the reasons for as Meshell, all three of these conditions were provision in question does not remedy The true. incorporate relevant fac- Speedy preju- Trial Act was dismissal tors.. remedy necessarily dice—a causes disruption prosecutor’s ability serious The above discussion Meshell shows that perform by conclusively his duties terminat- on controls here. ing provision The enforcement in for- involved, arguably interest to a mer Article 28.061 for violations of was not effectuated 32.01 is unconstitutional because it violates Act because Barker factors of Powers Clause of the Texas And, not prosecuting were included. au- That is therefore contractually thorities submit to the void no effect. and of deadlines established. only remaining question whether remedy To extent that it attaches appellant would be entitled dismissal prejudice of dismissal with failure to prejudice without under Article 32.01. Our meet the deadline established prior precedent indicates that an 32.01, former Article is like objection indict becomes moot after an respects. Trial Act in all relevant ment issued. Tatum v. carry remedy Both dismissal (Tex.Crim.App.1974). Some prejudice and neither involves contractual disputed courts of continu prosecut- submission the deadline viability ing of that precedent because authorities. as with the Legislature subsequently “with added the former Article 28.061 is not shown prejudice” enforcement necessary superior to be effectuate a con- prece Essentially, establishing after the cases stitutional interest. decided. 32.01 creates a dent were See Norton v. indictment. (Tex.App. extent [14th To the was con- S.W.2d —Houston person pet. improvidently that a might Dist.] cerned dism’d. as inordinately long jail time in Arti- Ex granted); Knight, Parte concern; satisfy cle 32.01 alone would Dist.] [1st — Houston _ denied, U.S. __ banc), majority require 6. A S.Ct. 736 federal circuits cert. (1997). minority to show that the reasons balance circuits Crouch, delay against to bad amount faith. See United States v. suffered. reasons for Cir.1996) (en (5th 84 F.3d 1511 n. 13 I would hold the relevant portion of Article 28.061 to be unconstitution-

al, of those courts would no the concerns

longer be of moment. affirm the portion of former Article 28.061

hold applies to former Article 32.01 is an

unconstitutional violation of the Texas Constitution.

Powers Clause appel- majority’s dismissal of

dissent *4 petition.

lee’s McCORMICK, P.J., MANSFIELD, (cid:127)

J., join.

In the Matter of S.J.

No. 04-97-00697-CV. Texas,

San Antonio.

June