Meshell v. State

CLINTON, Judge,

dissenting.

When this Court was granted constitutional jurisdiction, power and authority to exercise discretionary review of “a decision of a Court of Appeals in a criminal case as provided by law,” Article V, § 5; Articles 4.04(b), 44.01, 44.45(a), (b) and (c), V.A.C. C.P., we promptly promulgated rules of post trial and appellate procedure in criminal cases to govern the work of the Court as much as to guide practitioners seeking review. 1 Yet today, a majority of the Court demonstrates a will and determination to cast aside carefully drawn rules for orderly procedure to reach a result that law and procedural circumstances have heretofore put beyond its reach.

The posture of this cause must be understood. In the trial court appellant invoked the Texas Speedy Trial Act (Act); the State responded that on several grounds the Act is unconstitutional. The trial court agreed with appellant that the case should be dismissed, but concluded that the Act is unconstitutional and denied appellant’s motion to dismiss. Appellant pleaded guilty, *259 and upon being convicted appealed to the Waco Court of Appeals.

In an unpublished opinion a majority of the Waco Court of Appeals found the Act unconstitutional on account of a defective caption under Article III, § 35. It then wrote:

“The other grounds urged by the State for declaring the Speedy Trial Act unconstitutional are without merit, and they are overruled.”

As losing party Appellant filed his petition for discretionary review. He presented three questions for review, the pivotal one here being “Whether the Texas Speedy Trial Act ... is unconstitutional.” In relation to that ground, however, he stated as his first reason for review that the decision of the Waco Court “is in conflict with” a cited opinion of another court of appeals, holding that the caption to the Act does meet constitutional muster, thereby invoking reason (c)(1) of former rule 302; his three other reasons implicate former rule 302(c)(2), (4) and (5), and are obviously based on the fact that the Waco Court held the Act invalid in the only particular it did, viz: an unconstitutional caption. 2 Naturally conditioned, in part, upon the answer to his first question, his third question is whether the indictment should have been dismissed because of failure of the State to comply with the Act (or failure to comply with constitutional requirements).

Although having also “lost” on its other claims that the Act is unconstitutional, the State did not file its own PDR pursuant to former rule 304(e); while entitled to under former rule 304(h), the State did not reply to the petition.

With only appellant seeking review, this Court granted review of his questions one and three. Notwithstanding its apparent recognition that appellant actually presents extremely narrow questions arising from the decision of the Waco Court of Appeals, a majority of the Court announces that “we have not restricted our review only to the Court of Appeal’s application of Article III, § 35, supra,” on the utterly fatuous notion that since “Appellant’s ground of review [sic] was phrased broadly,” this Court has granted review “of the entire decision of the Court of Appeals.” Maj. op. at p. 248, n. 3.

Thereafter the State filed its brief. By what it calls “points of reply,” the State first supports the caption ruling by the Waco Court of Appeals; secondly, asserting that district and county attorneys are “within the realm of the judicial department” by virtue of Article V, § 21, it contends that in passing the Act the Legislature “impermissibly infringed upon the powers of the judicial branch” contrary to Article II, § 1, in that the Act “deprives prosecutors of their right to exercise judgment and discretion in performing their exclusive prosecutorial functions,” and “in this case the mandated dismissal of this cause pursuant to the [Act] is an unconstitutional infringement upon the powers conferred to prosecutors in exercise of their exclusive judgment and discretion by the Texas Constitution;” third, that the Act is “so vague and unenforceable” that is must survive on the support of ‘judicial legislating’; and fourth, that the judiciary has violated Article II, § 1, in that by undertaking to enforce “a vague and unenforceable” legislative enactment courts “have encroached on the legislative branch and engaged in judicial legislating.”

Having bypassed its right to file a PDR, Article 44.01, V.A.C.C.P. and former rule 304(c), that the State “now argues that the Court of Appeals incorrectly overruled its claim that the Act violates Article II, § 1,” Maj. op., p. 252, will not properly present the question. Therefore, contrary to the view expressed by the majority — “that very issue is now before this Court,” Maj. op., p. 252 — it is not here according to the rules of this Court. It is here only because a majority wills it to be, in order to declare the Act unconstitutional.

In Parts II and III, respectively, the majority concludes that the Waco Court of *260 Appeals correctly held the State did not comply with a requirement of the Act (meaning, of course, that the trial court erred in denying appellant’s motion to dismiss the action), and the State’s claim as well as the holding below that a defective caption renders the Act unconstitutional is “moot” under Baggett v. State, 722 S.W.2d 700 (Tex.Cr.App.1987) and Coronado v. State, 725 S.W.2d 253 (Tex.Cr.App.1987) (ordinarily meaning, of course, that appellant gains a dismissal of the prosecution). Thus far appellant is winning, but ultimately he will lose because the majority feels it “must further review [the decision of the Waco Court of Appeals].” 3

Let us not torture the rules for the sake of expediency. 4

To reach Part IV the impatient majority will have to stretch and strain without me. 5 Quo vadis?

For the reasons stated, I dissent.

. See former rules 3, 302, 303, and 304, effective September 1, 1981. They have, of course, been supplanted by Texas Rides of Appellate Procedure, effective September 1, 1986, and are now Rules 1(a), 200, 201, 202. The rules contemplate that a losing party in the court of appeals may petition for review and indicate "the character of reasons that will be considered" by the Court in determining whether to grant or deny discretionary review. Recognizing there will situations in which the nominal "winning” party may nevertheless be aggrieved by some reason for decision of the court of appeals adverse to contentions made to it by that party, we provided the latter may file a petition within ten days after timely filing of the first petition. Rule 202(c).

. His second question was whether he had been given a speedy trial according to constitutional requirements.

. To attribute such a mandate to the fact that "Appellant’s ground of [sic]' review was phrased broadly,” Maj. op., p. 248, n. 3, is, well, a masterly bit of disingenuousness.

His first reason for review is that the opinion below "is in conflict with the opinion in Wright v. State, 696 S.W.2d 288 ,” in which, the majority acknowledges as it truly must, the Fort Worth Court of Appeals held the caption to the Act is not constitutionally defective. His second reason is that justices of the Waco Court "disagreed upon a material question of law necessary to its decision;” that can be only the caption question for the justices agreed that “other grounds urged by the State for declaring the Speedy Trial Act unconstitutional are without merit.” His third reason is that the Waco Court of Appeals "has declared unconstitutional a statute,” being the Act and solely on the caption issue. His last reason is that the Waco Court decided "an important question of state law which had not been, but should be, settled by [this Court], and indeed we have not decided the caption issue— and now are forever barred from doing so by recently adopted amendment to Article III, § 35.”

Incredible as it is, the majority would have it that appellant actually petitioned this Court to overturn conclusions of law requiring his discharge from further prosecution.

. The ultimate irony is that, although the Waco Court of Appeals exercised its own jurisdiction, power and authority to address and decide adversely appellant's claims that his constitutional rights to a speedy trial had been denied, although his third question for review raises propriety of that decision, although this Court granted review of his third question and although the State has not complained of that grant nor briefed the issue, in Part V sua sponte the majority now informs appellant (and the Waco Court of Appeals) that he "failed to preserve for appellate review any constitutional claim under the federal or state speedy trial clauses.” Maj. op., p. 258.

.Since my position is that the “separation of powers” issue under Article II, § 1, is not properly before the Court, while I may now agree with much of their essence I do not join either dissenting opinion. I must observe, however, that by reason of other constitutional and statutory provisions pertaining to a speedy trial, i.e. Article I, § 10 and Article 1.05, V.A.C.C.P., “both the court and the prosecution are under a positive duty to prevent unreasonable delay." Wilson v. Bowman, 381 S.W.2d 320, 321 (Tex.1964). That the Legislature has what Judge Miller correctly calls "plenary” power to enact such laws as it finds necessary to effectuate constitutional rights and duties is so elementary that in 1969 the people repealed, inter alia, Article III, § 42, as being "obsolete, superfluous and unnecessary.” H.J.R. No. 3, 61st Leg. p. 3230. In those lights the conclusion reached by the majority has awesome implications for survival of other legislative enactments deemed to be touching the duty of prosecuting attorneys to represent the State — when a majority of this Court is unaware of "any other constitutional provision expressly granting the Legislature the power [to pass them].” Tomorrow, for want of an express grant of power, it may be any other arguably offensive provision in the Code of Criminal Procedure.