From the 213th District Court of Tarrant County.
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.
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.
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, § 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, ...