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OWEN JAMES YARBOROUGH v. STATE TEXAS (06/01/83)

June 1, 1983

OWEN JAMES YARBOROUGH APPELLANT
v.
THE STATE OF TEXAS APPELLEE



From the 213th District Court of Tarrant County.

COUNSEL

Jack V. Strickland, Fort Worth, Texas, for Appellant.

Tim Curry, D.A., Chris Marshall, Asst. D.A., Fort Worth, Texas, for Appellee.

Clyde R. Ashworth, Justice.

Author: Ashworth

CLYDE R. ASHWORTH, JUSTICE

Appellant, Owen James Yarborough, was found guilty of murder, found to be a habitual criminal by virtue of two prior felony convictions, and sentenced to confinement for life in the Texas Department of Corrections.

Judgment affirmed.

Appellant presents five grounds of error. His first ground of error alleges the trial court erred by refusing to grant appellant's motion to dismiss the indictment under the sixth and fourteenth amendments to the United States Constitution, Article 1, ยง 10, of the Texas Constitution, and the Speedy Trial Act of the State of Texas, in that more than 120 days had elapsed between appellant's arrest and his trial.

Appellant was arrested on October 18, 1980, and on December 23, 1980, was indicted for the murder of Robbie Ray Venable. On January 9, 1981, the State filed a written announcement of ready. At pretrial dockets, the State announced ready on January 29, 1981, March 12, 1981, April 30, 1981, and July 16, 1981. The record does not show why the case was not tried at the time of these settings. On July 27, 1981, the State filed its first motion for continuance and appellant filed a motion for speedy trial, a motion to dismiss under denial of constitutional right to speedy trial, and a motion to dismiss under the Speedy Trial Act of the State of Texas.

The State's motion for continuance was based on its inability to locate Ronnie Anderton, an eyewitness. The State's motion for continuance was granted, a writ of attachment issued for the witness and the case was reset for September 14, 1981. The appellant's motions were all denied. On July 29, 1981, the court announced that Anderton was in custody under the writ of attachment and offered appellant the option of proceeding to trial on July 30, 1981, or proceeding to trial on September 14, 1981. Appellant chose the September 14, 1981, setting stating that it was without waiver of error in the court's prior rulings.

On September 3, 1981, appellant filed a second motion to dismiss under the Speedy Trial Act and under denial of constitutional right to a speedy trial. This second motion was presented to the court on September 3, 1981; no evidence was presented and the motion was denied. The case went to trial on September 14, 1981.

Once the State has announced ready within the statutory time limits, as was done here, the burden is on the appellant to rebut by evidence that in fact the State was not ready. Walters v. State, 628 S.W.2d 526 (Tex.App.--Fort Worth 1982). There is nothing in the record to indicate that the State was not ready to go to trial at the times of the settings prior to July 27, 1981. The State was not ready for trial on July 27, 1981, because of the absence of the eyewitness, Anderton. Since the time of the murder, Anderton had moved to Graham and was employed there. He had suffered a broken arm in the course of his employment and could not be immediately located by the officers who went to Graham to secure his attendance at the trial. There was also some indication that Anderton was afraid of the appellant and had been warned by appellant's relatives not to testify. Anderton was located and brought to court shortly after the issuance of the writ of attachment. Appellant was given the opportunity to go to trial on July 30, 1981, and chose not to do so.

Appellant's attorney has vigorously pursued his asserted first ground of error; however we hold that it was incumbent on appellant to rebut by evidence that the State was in fact not ready, and such burden was not met. Walters v. ...


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