Turner v. State

357 above, As noted this is not what the enacted

version supra, Section and we says, TURNER, Appellant, Bobbie Gene not hold intended drafters v. objective such an test to be used. Texas, Appellee. The STATE Court, en banc majority of this al- 927-82. No. issue, never though directly to this speaking its acts previously denounced the objective test for entrapment which the En Banc. Langford v. majority now espouses. State, 571 11, Jan. (Tex.Cr.App.1978), S.W.2d 326 panel, concurring with one judge one judge dissenting, objective applied entrapment

test for and held

facts the case a prima facie case of However,

entrapment was established.

rehearing, the en banc held that Langford not en- was as a

trapped matter of law and fact or

overruled the entire panel How- opinion.

ever, because the motion rehearing filed, timely left reversing

order Langford’s revocation of State, intact. Langford v.

probation 578 737

S.W.2d (Tex.Cr.App.1979). State,

In Bush v. (Tex.Cr. 611 S.W.2d 428

App.1980), panel Court, with one

judge dissenting once again, applied

objective test for entrapment and found

evidence sufficient to raise of en the issue

trapment and reversed Bush’s conviction. rehearing,

On banc af majority en conviction,

firmed Bush’s that re

gardless of the standard used the evidence clearly insufficient to issue of raise the

entrapment. I

Because believe the the cur- drafters of

rent Penal rejected Code test objective entrapment presented proposed prior

revision law because case enactment of the Penal used Code subjective test,2 concur reached. result Houston, Burney, appel- Zinetta A.

lant. III, Bryan, Atty. Dist.

Travis B. Kuboviak, Atty., Asst. Dist. James M. Huttash, Aus- Atty., Robert Bryan, tin, for the State. op See, example: (Tex.Cr.App.1973); Redman 551 v. 533 490 S.W.2d Co (Tex.Cr.App.1976); 29 Poe v. S.W.2d Tex.Cr.R. 288 S.W.2d 762 er 1974); (Tex.Cr.App.1956). Kilburn (Tex.Cr.App.

CLINTON, Judge, dissenting. In a of published opinion appeals a court OPINION ON STATE’S PETITION FOR of important point has decided law DISCRETIONARY REVIEW Yet the ma- begging resolution. the CAMPBELL, jority judgment of the Judge. would reverse on in the court its determination that below This is an a appeal from conviction of trial did not appellant “adequately court tampering with a witness. Art. V.A. of Ergo, appeals raise” the issue. the court The of Appeals, C.C.P. First Court “erroneously judgment reversed” the of 485, Houston, the that kind of “review” conviction. Because comply require- state had failed to with the longer proper be a function of no Act, 32A.02, Speedy ments of the Trial Art. role, I this Court its new constitutional V.A.C.C.P., reversed the and or- conviction so, protest today. must is done Even what dered the cause dismissed. We the the wrong the comes to conclusion. for Discretionary Petition Review 5,1983, on to January determine whether or hearing presented At pretrial appellant a Appeals not the Court of erred in its deci- to Aside inter alia his Motion Indict- Set sion. We find that did and reverse. Trial. Speedy ment for Failure to Grant Upon judge careful the concluded: review of record we that the to appellant find failed adequately “I as it’s long read the rule and think right raise his a speedy to as afforded it’s alright. 32A.02, Although Art. V.A.C.C.P.1 a record, deny the the So for Court appel- written motion was asserting your Motion for [sic].”1 trial, right lant’s the speedy provisions to a the position, Alert his assist- protecting to of 32A.02 were never invoked.2 The statute immediately attorney ant stated: district clearly requires that the motion for dis- also, record, Honor, “And, Your for the provisions be made “under of and the Defendant Burney with Ms. of this Article” to avoid waiver the statu- this undisputed present, its rights.3 Having failed to tory expressly ease, reindicted 32A.02, supra, invoke Art. the appellant has transaction,_” of this waived his to a trial. statutory right speedy added “retalia- interruption After erroneously Because the of Appeals Burney, Ms. Appellant’s attorney, tion.” of reversed conviction on the basis to “go get leave on the record had asked to 32A.02, violation of we Art. reverse “Sure.” judge responded, to this clear” and the judgment and remand the case the Court dialogue that lengthy with There then followed Appeals for action not inconsistent chronology of events in opinion.4 developed appellant’s part: Thus, presumably, contention 1. Art. Sec. reads in right deprivation concerning alleged of his “The of a move for failure defendant speedy States Con- to a trial under United discharge provisions of this article ripe the Court stitution is for consideration entry plea guilty prior to trial or Appeals. rights constitutes waiver of the accorded added.) (Emphasis this article.” 32A.02, supra, 3. We further note that Art. appeal appellant’s brief on not cited in the 2. reads: The motion to set aside the indictment support speedy trial contention. of his now, Turner, Defend- “Comes Bobbie Gene and numbered cause ant above entitled apparently, its rever- We note record, attorney through his A. appel- sal, did not address the Court Burney, and moves this set aside the appeal ground direct of error on lant’s second num- the above entitled court, shall now do. which it from the trial the Defend- bered cause reason right speedy deprived his ant has been supplied throughout emphasis All trial under Sixth and Fourteenth Amend- opinion indi- otherwise writer of this unless ments to United States Constitution.” cated. criminal action from arrest Presumably the cause was submitted to through occasions when the an- State argument, on oral nounced ready reindictment, concluding illuminated, issue further with a stipulation that the latter added paragraph opinion second of its that court allegation of tampering “arose from the wrote: same transaction”—to all of which the controlling question appeal “The in this court indicated its approval for the record.2 Act, the Speedy whether, While it is certainly true that the motion an announcement of ready on one offense did not invoke Article 32A.02, Y.A.C.C.P. arising out of a transaction constitutes an (the Act) and that during course of the ready announcement of on an unindicted pretrial hearing no one Act, mentioned the offense arising out of the same transac- just it is as true that there is a docket sheet tion.” entry of that date which reads: “Motion to I am prepared agree to that judges of Dismiss—Speedy Trial Act Denied.” Obvi- the court of appeals argu- listened to oral ously, the court parties and the knew what ment, briefs, record, read the examined the they were about. researched the law and then wrote an opin- It is also true that the Act is not cited ion to decide a “controlling question” that appellant in his brief to the court of ap- had not been properly presented to that peals, but he did cite and discuss several court. Accordingly, we ought address decisions of this Court construing require- the merits of the issue decided the court ments of the Act. In response, the State below, and to that I now turn.4 supported denial of his motion “because both counts of the the Act treats offenses arising True ... arose out of the transaction,” and added the same transaction together, but it supportive discussion of decisions under the announcements does not treat to- I have set forth in the margin.3 gether.5 support To an assertion that an- hey try colloquy 2. stated that he Most of the set out verbatim in try the brief then and had been the case since the State in the court of appeals complaint says filing to demonstrate of the and information and what it is the case: “Accordingly, Appellant’s the Court denied no evidence was elicited to rebut the statement Mo- tion because both counts of unchallenged, the indictment un- of readiness and it remained 13,236 der Cause No. arose out of the same complaint and information should be dis Brief, p. transaction.” State’s 6. missed. See Barfield v. 586 S.W.2d 538 (Tex. 1979). Cr.App., “Further, the Texas Ap Discretionary 4. The State’s Petition for Review peals has held in several instances that when Prosecuting Attorney, is filed who the State the State indicates its readiness for trial within urged granted “in order that this days felony commencement of a might question an unsettled action, resolve Appellant burden shifts to any suggest, State law.” He did not nor has to refute the State’s claim of readiness. See now, suggested just party person Pate until (Tex.Cr.App., 592 S.W.2d 620 1980), properly (Tex. Fraire v. the issue was not before this Court for 588 S.W.2d 789 Cr.App., 1979). sponte. In the instant the record resolution. The acts sua prima shows that the State made a facre [sic] showing through filing readiness of its Discretionary granted review was written announcement of as well as oral the court of held that an announcement testimony prosecutor indicating from the on one offense does not constitute an Hence, had talked to various witnesses. it was announcement of on a later indicted of Appellant incumbent on to rebut the State’s arising of the same transaction and fense readiness, Appellant claim of failed to (Tex. conflicts with Denson v. State distinguish do. These facts the case at hand 7, 1982). 63,428, July Cr.App., No. delivered State, Supra. from Pate v. Rehearing been in Denson. State, Supra, case of Fraire v. went further to pretermits analysis radically state that Denson challenge where there is no to the Denson, misapplies announcement cused, to show Trial Act. otherwise the ac person Jimmy Texas Court of Criminal and another robbed presume ready. and, that the Ray State was As is and Sherman Priest in the same trans- hand, prosecuting case at action, later, where the attor- some three months he was indict- with intent ready carry knowingly nouncements of over to another influence transaction, arising prospective witness coerced a provisions some cited have concern an- proceeding falsely to testify an official of ready only nouncements insofar as when and information testimony and withhold State must be for trial. Article from an official and to absent herself 32A.02, 2(a) outlines when we mark the legally proceeding to which she commencement criminal action for the ...” summoned purpose computing time limits. Article doubt, though arising out of any Without 37A.02, 2(c) concerns the situation where alleged offense of the same an indictment is on the dismissed motion of tam alleged retaliation and the pro- defendant. Article 28.061concerns are not the same— pering with witness cedures to follow after defendant receives “offense,” “case,” “single case” or call it a speedy discharge and he faces other Rosebury indictments out of the same transac- whatever. See tion. provision No in the Act mentions and Richard (Tex.Cr.App.1983) 5.W.2d 655 over of carrying ready announcements from State, (Tex.App.— 164 son 629 v. S.W.2d an superceded indictment on State’s Nevertheless, 1982, ref’d.). pet. Dallas motion, alleging an indictment differ- aris have us hold that offenses State would ent offense. to be the same transaction are ing out of the Act together purposes the instant arrested treated for the 1980, 20, of November on a retalia- of for trial ready so an announcement that Code, tion. 36.06(a). V.T.C.A.Penal The § with to one offense respect the State 12, 1981 February alleges indictment will to another. apply primary of offense retaliation terms of and the Act into account While takes threatening complainant to kill a “in named all of- together least “treats arguably at retaliation for and on account of ser- [her] the same transac- during fenses committed vice as an The informant.” second tion,” not that an announce- it does follow indictment, 16, returned 1981 April did as offense also consti- ment of to one offense, alter of allegations that but cor- readiness for all tutes an indication of allegations rected para- enhancement In- transaction. offenses from the same 14, graphs. third of May The indictment State, deed, supra, in Richardson 1981 count of alleging added a offense respect otherwise with held id., with a 36.- tampering § for an 28, to a 1979 indictment November 05(a)(1),(2) (4), and viz: the same transaction of “... the 18th of day that on about 3, July accused had been arrested which [appellant] November 1980 ... did then Rosebury supra. and intentionally there 1978.6 See unlawfully, rejected argu- robbery. Appellant aggravated ed for moved 6. The Dallas of speedy grounds is to dismiss on “the instant case trial ment State days elapsed July more 120 between his than 1978 indictment] ‘reindictment’ [a ready. degree) arising arrest and the State’s announcement of (3rd offense of theft Denson held that the State’s announcement ready case of the instant as of the same transaction together on the murder indictment and, therefore, vehicle,” an- burglary aggravated not on the continuances mat- in the earlier theft nouncements case, robbery but on the murder will instant to the be carried forward ter “should ” operate of the to sustain trial court’s denial Because is it a ‘reindictment.’ case because motion to dismiss. subject “they to different different offenses are authority There is no other effect they proof,” ‘same “are not the the court found motions defendant’s for continuances on an though they same are from the case’ even carry for one over to a indictment and, consequently, announce- transaction” later more, for another offense. Further apply “will not one case ments of completely the Denson overlooks other,” supra, at 165. Richardson v. (Tex.Cr.App. Barfield v. deference, using kind of terminolo- With 1979), regarded by majority of this which is misunderstanding, gy as demonstrated risks speedy trial Court as a landmark case ante, process is in the Act identified the central area. However, the true why period reasons an an- get ready within that nouncement of the try prescribed an accused on time from commencement one charging instrument legislative is not treated as The mandate action. an announcement to try pre- the same accused that within time Act is on another offense from the transac- must for trial in scribed the be State tion are in prominent found every features of the a criminal instru- charging action foremost, Act. First and must be re- ment an offense it has caused to be alleging membered that the legislative imperative period prescribed filed in court. The be State trial.” It “ready for time for with that mandate complying may this Court that allows an announcement of not be out succes- elongated stringing prima to constitute showing facie sively one instrument after anoth- readiness may beyond rebutted evi- er particular imposed, limitation dence demonstrating that except “the state was by showing when extended some not ready for trial during recognized the Act’s time justification by one or more ex- limits,” Barfield v. supra, at periods provided by Legisla- cludable id., Cohen, ture under Bill 1043 Senate § How the Act takes into account all of- and the Right fenses arising out same transaction is Vol. No. 1 American Journal of Criminal 'in its concept when a criminal action (March 1979) 23, Law at 35-36. commences. Article 2. Putting § aside for the moment special situations to the announc- allusion retrials, id., 2(b) dismissals, 2(c), ing one quickly finds usually accused, by initiated an 2(a) pro- procedure code of criminal is connection § in vides that a criminal action a being by jury. commences with called for trial indictment, when an 35.01, information or com- Still, Article general V.A.C.C.P. cus- plaint is “filed court” unless the practice accused tom and is that as trial docket the has been held answer for the same of- is sounded an announcement of or not fense or any other offense “arising out of is to be in each also later made and transaction,” the same and in that case the when called again particular case is for criminal action commenced when he by jury. was court or See 23 Tex.Jur.3rd first Thus, arrested. when 126-127, an accused is 2529-2531. And an announce- § arrested an indictment, before information the is not ment of at latter time or complaint court,”7 is “filed in meaningful throughout cer- but also the binding tain exceptional aside, situations except criminal trial that an unfore- follows such action commences for every offense that a arising extraordinary development seen fair out of the 29.13, same transaction for which trial cannot had. Article V.A.C. be 32A.02, was arrested. Article However, 2. The C.P. there is no suggestion § time within the State must be the code or Act that an our announcement trial depends upon what accusation is on an made instant against accused. Article response to call the court attaches as Therefore, a objective is to charging alleg- cause well to another instrument legislative the State promptly^ offenses, to sort its ing out any arising other offense obtain one more or charging instruments same transaction. action;” by choosing “a to treat an V.A.C.C.P.—whether the State is arrest as commencement of “a criminal action” or of “case” is not. that context notion by fashioning it to “the embrace same alien to the Act. any arising offense other or out of the indictment, information, transaction,” 7. The clause an “when Legislature same dictated that complaint against is defendant pre-

the State be for trial within the court’ contemplates charging instrument period scribed of time or suffer dismissal of the upon may accused tried in the charging instrument, which an be and it meant such a dis- filed, upon court in one any prosecution which it rather than missal to “bar may which issued discharged any a warrant arrest be or for other offense magistrate. arising transaction,” Article From that period excludable allowed the The occa- question properly presented. 4(7)—when State by now charg- dismisses a sion for the determination making ing it, instrument and alleg- later files another made if are to make majority, we ing an offense out of re- arising petition discretionary the same was when the transaction—this Court has found: view To a waste of was considered. time, resources, and effort of the criminal implies continuing relationship be- “[I]t justice must dissent. system periods

tween time covered previous subsequent indictment and the MILLER, JJ., join. ODOM designed pre- one. This exclusion is vent abuse and it provide

construed to defendant

is entitled to add on the time [to

subsequent charge] time ex-

pired previous while the was

pending.”

Durrough v. 620 S.W.2d (Tex.Cr.App.1981). KELLER, Appellant, James Dale Patently, to that an announcement say instrument on one Texas, Appellee. STATE offenses indication of readiness on all other No. 095-83. would transaction the State that permit very abuse Appeals of no It is of prevent. designed En Banc. witnesses, facts and evidence moment Jan. offense—indeed, may to each be common evidence, the according to elements retaliation, with a witness

tampering cause, not the in this are

respectively shown just contemplates

same.8 all of bundling together

happenstances by arising out of the same

fenses requiring the State to

within for each offense specified that time instrument, here

reduced to a an accused. See

commencing with arrest of (Tex.Cr.

Kalish

App.1983).

Therefore, judgment of

appeals is correct and should be affirmed.

Instead the Court reverses from record its examination believes that the court below decided proceeding. (g)to Applicable from the Penal absent herself elements under V.T.C.A. Code, id., are: Applicable 36.06 36.05 are: elements (a) person (a) person knowingly (b) (b) intentionally intent influence witness (c) prospective by killing (c) coerces a harm threatens (d) proceeding in an official (d) another (e) falsely, testify (e) or on account in retaliation for (f) testimony to withhold and information (f) an informant. her service as

Case Details

Case Name: Turner v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 11, 1984

Citation: 662 S.W.2d 357

Docket Number: 927-82

Court Abbreviation: Tex. Crim. App.