State v. Kizzie, Pernell ( 2003 )

Reversed and Remanded and Memorandum Opinion filed November 4, 2003

Reversed and Remanded and Memorandum Opinion filed November 4, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00381-CR

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THE STATE OF TEXAS, Appellant

V.

PERNELL KIZZEE, Appellee

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On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 20,909-C

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M E M O R A N D U M   O P I N I O N

            The State appeals an order granting appellee Pernell Kizzee’s motion to dismiss for violation of the Texas Speedy Trial Act, specifically article 32A.02 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 32A.02 (Vernon 1989).  In a single issue, the State contends the trial court erred by granting the motion based on an unconstitutional statute.  We reverse.

I.  Procedural and Factual Background

            A grand jury charged appellee by indictment with the offense of assault against a public servant on February 21, 2001, for an incident that occurred on or about October 4, 1999.  See Tex. Penal Code § 22.01 (Vernon Supp. 2002).  A jury trial began on August 7, 2001.  The trial court declared a mistrial the following day because the jury was unable to reach a verdict.  The trial court’s docket entries indicate the “defendant decided to go to trial” by an order dated October 18, 2002.  The next entry notes that on January 17, 2003, the case was reset for February 3, 2003.^[1]  The State sought to amend the indictment by motion on January 17, 2003.  On the same day, appellee filed a motion to dismiss for violation of Code of Criminal Procedure article 32A.02, the Texas Speedy Trial Act.  The court held a hearing in its chambers to consider appellee’s motion on February 18, 2003.  At the hearing, the trial court acknowledged the unconstitutionality of article 32A.02. The parties then began discussing the factors courts balance in determining a federal or state constitutional claim to a speedy trial.  During this discussion, the trial court inquired whether the State was ready to proceed with trial that day.  When the State announced it was not ready to begin trial, the court granted appellee’s motion.  The court’s order, captioned “Order on Motion to Dismiss for Violation of Art. 32A.02 CCP (Texas Speedy Trial Act),” references only a violation of the Texas Speedy Trial Act as the reason for the court’s dismissal of the indictment; the order does not mention the federal or state constitutional guarantees to a speedy trial as a basis for the trial court’s decision.   

II.  Issue Presented

            In its sole issue for appellate review, the State contends the trial court erred in granting the motion to dismiss for violation of article 32A.02 because the statute was declared unconstitutional by the Texas Court of Criminal Appeals in 1987.

III.  Analysis and Discussion

            The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, guarantees the right to a speedy trial.  U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).  The Texas Constitution also guarantees the accused the right to a speedy public trial in all criminal prosecutions.  Tex. Const. art. I, § 10; Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002).  An alleged violation of article 32A.02 of the Code of Criminal Procedure is an independent statutory claim distinct from claims based on the federal and state constitutional guarantees of a speedy trial.  See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (treating Texas Speedy Trial Act and constitutional guarantees as supporting two separate claims); Meshell v. State, 739 S.W.2d 246, 258 (Tex. Crim. App. 1987) (addressing appellant’s constitutional speedy-trial claims separately from his statutory article 32A.02 claim).

            On appeal, the State challenges the trial court’s ruling on only one ground. The State asserts that the trial court erred in setting aside the indictment based on article 32A.02 of the Texas Speedy Trial Act.  The Texas Court of Criminal Appeals declared article 32A.02 of the Texas Code of Criminal Procedure unconstitutional in 1987.  See Meshell, 739 S.W.2d at 257–58.  In Meshell, the court fouond article 32A.02 and its enforcement mechanism — article 28.061 — unconstitutional because the legislature had violated the separation of powers doctrine.  See id. at 257.  In doing so, the court held article 32A.02 void in its entirety. See id. at 258.  Because the Act is invalid, it cannot provide the basis for relief.  Harris, 827 S.W.2d at 956; Robinson v. State, 739 S.W.2d 795, 797 (Tex. Crim. App. 1987).  Appellee’s motion to dismiss raised only a violation of article 32A.02 as grounds for setting aside the indictment.  Likewise, the trial court’s order in this case makes reference to a violation of article 32A.02 as the only basis for dismissing the indictment, despite the fact that at the hearing^[2] the trial court acknowledged the article was unconstitutional and the parties engaged in a brief discussion of the federal constitutional speedy-trial rights.  Because the Act cannot be the basis for relief, the trial court erred in granting the motion to set aside the indictment on this ground.  Accordingly, we sustain the State’s sole point on appeal.

IV.  Conclusion

            Because article 32A.02 has been declared unconstitutional by the Texas Court of Criminal Appeals, the trial court erred in granting the motion to dismiss based on this statute.  Accordingly, we reverse the trial court’s order granting appellee’s motion to dismiss, setting aside the indictment, and discharging appellee, and we remand this case for further proceedings consistent with this opinion.  

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed November 4, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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            ^[1]  Appellee states in his brief that his case was actually called to trial on February 18, 2003, and he includes a “Notice of Docket Call” listing dates for the trial court’s February session. The notice does not state specifically when appellee’s case was to go to trial. 

            ^[2]  The trial court’s order, in pertinent part, states:

            Be it remembered that on this date came to be considered motion by Defendant PERNELL KIZZEE to DISMISS the indictment in that case for violation of the Texas Speedy Trial Act Art. (32A.02 Code Crim. Proc.).

            At the hearing, the trial court stated: “And the question is you’re basing this on 32(a)02 [sic], which I thought had been declared unconstitutional . . . .  It says in my book it was declared unconstitutional in the case of Meshell, M-e-s-h-e-l-l, versus State in 1987.”