Ex Parte: Gerald Glen Roberts--Appeal from 207th District Court of Hays County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00500-CR
Ex Parte: Gerald Glen Roberts, Appellant
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 0960766, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
By application for writ of habeas corpus, appellant sought the dismissal of a prosecution for possession of controlled substances on the ground that he had not been timely indicted. See Tex. Code Crim. Proc. Ann. art. 32.01 (West 1989). The writ issued, a hearing was held, and relief was denied. Article 32.01 provides:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.

 

With an exception not applicable here, a discharge under this article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction. Tex. Code Crim. Proc. Ann. art. 28.061 (West 1989).

Appellant was arrested on April 11, 1996, for possession of a controlled substance, and subsequently released on bail. The terms of the 207th Judicial District Court begin in Hays County on the first Mondays of February, May, August, and November. Tex. Gov't Code Ann. 24.123(c)(3) (West 1988). (1) The grand juries organized for the February term, during which appellant was arrested, and the May term, the next to be held after the appellant's arrest, did not return an indictment against appellant. Appellant filed his writ application on August 5, 1996, and the hearing on the application was held on August 14. On the day of the hearing, the State filed its sworn answer explaining that appellant had not been indicted because:

 

The Defendant was arrested on April 11, 1996 for the offense of possession of a controlled substance to-wit: psilocin prior to any indictment being presented, it was necessary for the suspected contraband to be submitted to the Texas Department of Public Safety crime lab for substance identification and weighing. The submission was made on June 21, 1996. The results of this analysis were prepared by the crime lab on August 8, 1996. The July Grand Jury last convened on July 4th 1996. At this point in time the results of the drug analysis were not known or in the possession of the Criminal District Attorney's office. The case is prepared for presentation to the August term of the Grand Jury.

 

At the hearing, the prosecutor testified that the last meeting of the February term of the grand jury was on April 10, a day before the offense occurred. The May term grand jury met in May, June, and July. As of the time of the hearing, the prosecutor had not received the result of D.P.S.'s analysis. However, a call by the prosecutor to D.P.S. revealed that its results were "published" on August 8 showing that the substance was psilocin. On June 13, the prosecutor made inquiry of the Hays County Sheriff's office and requested that it obtain a drug analysis as soon as possible. On July 25, the prosecutor called the D.P.S. lab. At the end of the hearing, the trial court agreed that the order should show that there was good cause shown for the delay.

In his sole point of error, appellant contends the trial court erred in finding good cause for the State's failure to not obtain an indictment within the time constraints of article 32.01. We find our opinion in Ex parte Brian Mallares, No. 03-96-00529-CR (Tex. App.--Austin May 1, 1997), (2) is dispositive of appellant's complaint. With the slightest variance in of key dates that are not material to the issue before us, the instant cause is a mirror image of Mallares.

Without a word-for-word repetition of Mallares, we find the instant cause to fall squarely within its holding. The disparity of term lengths within Hays County with the district court in the present cause having a relatively short term, the prosecutor not seeking an indictment until he obtained an analysis of the contraband, and a lack of a showing that the State deliberately sought to delay the prosecution are all factors that dictate that the trial court's ruling under the unique facts of the instant cause was within the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (opinion on rehearing). Accordingly, we cannot hold that the trial court's ruling that good cause was shown as contemplated by article 32.01 was an abuse of discretion. Appellant's point of error is overruled.

The order denying habeas corpus relief is affirmed.

 

Tom G. Davis, Justice

Before Justices Aboussie, Jones and Davis*

Affirmed

Filed: May 8, 1997

Do Not Publish

 

* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).

1. Two other district courts have jurisdiction in Hays County. The 207th Judicial District Court's terms coincide with those of the 22nd Judicial District Court. Tex. Gov't Code Ann. 24.386(d)(1) (West 1988). The 247th Judicial District Court has six-month terms beginning the second Tuesdays in June and December. Tex. Gov't Code Ann. 24.451(b) (West 1988).

2. Mallares also held that article 32.01 does not violate the separation of powers clause of the Texas Constitution.

st, did not return an indictment against appellant. Appellant filed his writ application on August 5, 1996, and the hearing on the application was held on August 14. On the day of the hearing, the State filed its sworn answer explaining that appellant had not been indicted because:

The Defendant was arrested on April 11, 1996 for the offense of possession of a controlled substance to-wit: psilocin prior to any indictment being presented, it was necessary for the suspected contraband to be submitted to the Texas Department of Public Safety crime lab for substance identification and weighing. The submission was made on June 21, 1996. The results of this analysis were prepared by the crime lab on August 8, 1996. The July Grand Jury last convened on July 4th 1996. At this point in time the results of the drug analysis were not known or in the possession of the Criminal District Attorney's office. The case is prepared for presentation to the August term of the Grand Jury.

 

At the hearing, the prosecutor testified that the last meeting of the February term of the grand jury was on April 10, a day before the offense occurred. The May term grand jury met in May, June, and July. As of the time of the hearing, the prosecutor had not received the result of D.P.S.'s analysis. However, a call by the prosecutor to D.P.S. revealed that its results were "published" on August 8 showing that the substance was psilocin. On June 13, the prosecutor made inquiry of the Hays County Sheriff's office and requested that it obtain a drug analysis as soon as possible. On July 25, the prosecutor called the D.P.S. lab. At the end of the hearing, the trial court agreed that the order should show that there was good cause shown for the delay.

In his sole point of error, appellant contends the trial court erred in finding good cause for the State's failure to not obtain an indictment within the time constraints of article 32.01. We find our opinion