Ordunez v. Bean ( 1979 )

OPINION

TOM G. DAVIS, Judge.

This is an original action brought by David Castro Ordunez seeking a writ of mandamus directing the Honorable Woodrow W. Bean, II, Judge of the 243rd Judicial District Court of El Paso County, Texas, to vacate his order of November 20, 1978, in Cause No. 30,620. In this order respondent refused to set aside the indictment for felony theft currently pending against the petitioner.

On November 15, 1978, petitioner filed a motion to set aside the indictment on the grounds that the State had failed to comply with the requirements of the Speedy Trial Act. The petitioner alleged that he had not been “given a trial within 120 days from the commencement of [the] criminal action against” him. See Chapter 32A, V.A.C.C.P. On November 20, 1978, a hearing was held in the respondent’s court on petitioner’s motion. Evidence was offered as to the sequence of events in this cause and the congested condition of the criminal dockets in the district courts of El Paso County. At the conclusion of the hearing, the trial court overruled petitioner’s motion. At the specific request of the petitioner, his trial was stayed by the district court pending the disposition of this application for writ of mandamus.

The respondent made the following findings of fact:

“1. The Defendant, David Castro Ordu-nez was arrested on December 12, 1976.

“2. The Defendant was charged on December 12th, 1976 with theft over $200.00.

“3. The Defendant was indicted on January 20th, 1977, for the offense of theft over $200.00.

“4. The Defendant was arraigned on February 17, 1977.

“5. The Defendant pled not guilty.

“6. The case was set down for trial on May 2nd, 1977 but was not tried and was passed over.

“7. The Defendant David Castro Ordu-nez did not ask for nor did he receive a continuance.

“8. The case was set down for trial a second time for November 20th, 1978.

“9. The District Attorney filed announcements of ready on this case on June 30th, 1978, and again on July 3rd, 1978 as he did in all 1,200 cases which were pending in El Paso County at that time.

“10. Said notices did not go out to the Defendant or to his attorney.

“11. The District Attorney never announced ready before an assembled jury panel in this case.

“12. There are ten (10) District Courts in El Paso County, Texas.”

The respondent also made the following conclusions of law:

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“The Court finds that exception number ten (10) of Section 4 of the Speedy Trial Act is applicable in the case at Bar because the Criminal Docket in El Paso County is highly over crowded.”

Construing the amendment to Art. 5, Sec. 5, of the Texas Constitution, effective January 1,1978, this Court in Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978), found: The purpose of this amendment was to confer upon this Court additional powers to grant extraordinary writs in cases regarding criminal matters.

Article 32A.02, V.A.C.C.P. (effective July 1, 1978), provides in pertinent part:

“Sec. 1. A court shall grant a motion to set aside an indictment, ... if the state is not ready for trial within:

“(1) 120 days of the commencement of the criminal action if the defendant is accused of a felony;

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“Sec. 2. (a) . [A] criminal action commences for purposes of this article when an indictment, against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.”

In Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978), this Court held that the time limits prescribed by Art. 32A.02, V.A.C.C.P., began to run on July 1, 1978, for all criminal cases then pending on the trial court’s docket. It is clear from the record before us that at the time the petitioner filed his motion to set aside the indictment more than 120 days had elapsed since July 1, 1978, and that the petitioner had not yet been tried.

Article 32A.02, Sec. 4, V.A.C.C.P. (effective July 1,1978), provides in pertinent part as follows:

“In computing the time by which the state must be ready for trial, the following periods shall be excluded:

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“(10) Any other reasonable period of delay that is justified by exceptional circumstances.”

Under the provisions of Art. 32A.02, Sec. 4(10), supra, the respondent was required to determine if the overcrowded dockets were an “exceptional circumstance” within the contemplation of Sec. 10. Under our holding in Wade v. State, supra, the respondent would have properly considered the question of congestion only from July 1, 1978, to the date of the hearing. It was necessary for respondent to determine whether this congestion was such a temporary situation as to be an “exceptional circumstance” or whether in all probability this situation would continue and thus constitute the norm. The trial court’s finding that overcrowded dockets are an “exceptional circumstance” is necessarily a judicial determination rather than a ministerial act.

In State ex rel. Vance v. Routt, 571 S.W,2d 903 (Tex.Cr.App.1978), this Court adopted the traditional two-step test which a petitioner must meet in order to obtain relief by writ of mandamus. See 37 Tex. Jur.2d, Mandamus, Sec. 48. The petitioner must first demonstrate that no other adequate remedy at law is available. In State ex rel. Vance v. Routt, supra, we held that where the State had no right to appeal from a final judgment in a bond forfeiture proceeding, it had “no other adequate remedy to challenge the actions of the trial court.”

The second limitation on this Court’s mandamus jurisdiction set out in State ex rel. Vance v. Routt, supra, is that mandamus is not available to compel a discretionary as distinguished from a ministerial act. This Court stated:

“The writ may issue in some instances to compel the entry of a judgment, but it will not be issued to compel the entry of a specified type of judgment [unless] . . that judgment is the only proper one that can be rendered in the circumstances . . . .”

This Court concluded that:

“For the petitioner to prevail in this application for writ of mandamus he must demonstrate both that there was only one proper judgment that could be entered and that the entry of the judgment based upon the facts found by the court was in essence a mere ministerial act. See e. g., State ex rel. Pettit v. Thurmond, supra [516 S.W.2d 119 (Tex.1974)].”

In the instant case, it is clear that petitioner has failed to meet either of the tests. Appeal is available to the petitioner in the event of his conviction to test any asserted denial of his right to a speedy trial, both on a statutory and constitutional basis. See and compare Chapter 32A, V.A.C.C.P., with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), it was held that a defendant may not take an interlocutory appeal from a federal district court’s pretrial order denying a motion to dismiss because of an alleged violation of his right to a speedy trial. The Supreme Court in MacDonald stated:

“Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely those values manifested in the Speedy Trial Clause.”

Petitioner has also failed the second test of State ex rel. Vance v. Routt, supra, in that for the reasons set out above the trial court’s finding of a statutory exception necessarily involves an exercise of judicial discretion.

Petitioner’s application for writ of mandamus is denied.

ROBERTS, J., dissents.