Massey v. State

Full title: Ross MASSEY, Appellant, v. The STATE of Texas, Appellee

Court: Court of Criminal Appeals of Texas, En Banc

Date published: May 25, 1988

751 S.W.2d 505 (Tex. Crim. App. 1988)

Opinion

No. 1111-86.

May 25, 1988.

Appeal from 299th Judicial District Court, Travis County; Jon N. Wisser, J.

Patrick R. Ganne, Austin, for appellant.

Ronald Earle, Dist. Atty., and Philip A. Nelson, Jr., Asst. Dist. Atty., Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

A jury found appellant guilty of aggravated robbery and assessed punishment at confinement for forty years. The Third Court of Appeals reversed appellant's conviction and held that appellant's right to a speedy trial under Article 32A.02, V.A.A.C.P., was violated. 717 S.W.2d 768. We granted the State's petition for discretionary review to address the State's contention that the Speedy Trial Act, Article 32A.02, supra, is unconstitutional.

A majority of this Court recently declared Article 32A.02, supra, unconstitutional and void in its entirety. Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App. 1987). The holding in Meshell, supra, announced that by enacting the Speedy Trial Act the Legislature had violated the separation of powers doctrine under Article II, § 1 of the Texas Constitution. Meshell's motion for leave to file a motion for rehearing was denied November 4, 1987. We recently held that an unconstitutional statute is void from its inception and cannot provide a basis for any right or relief. Jefferson v. State, 751 S.W.2d 502 (Tex.Cr.App. 1988). See also 12 Tex.Jur.3d, Constitutional Law, § 41, at 548 (and cases in n. 33 thereof).

Therefore, in accord with Meshell, supra, we reverse the Court of Appeals' judgment which reversed appellant's conviction on the basis of a violation of the Speedy Trial Act. Since the contention under Article 32A.02, supra, was appellant's only point of error in the Court of Appeals, we uphold appellant's conviction for aggravated robbery and affirm the judgment of the trial court.

MILLER, J., concurs for reasons stated in his concurring opinion in Stevenson v. State, 751 S.W.2d 508 (Tex.Cr.App. 1988).

CLINTON, J., dissents for reasons stated in his dissenting opinion in Stevenson, supra, this day decided.

DUNCAN, Judge, dissenting.

Based on my opinion in Stevenson v. State, 751 S.W.2d 508 (Tex.Cr.App. 1988), I dissent.

TEAGUE and CAMPBELL, JJ., join this opinion.