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Click here for the full text of this decision FACTS:Authorities arrested Donald Countryman on Nov. 29, 2004, for unlawful possession of a firearm by a felon. Although the grand jury did not return an indictment against him, he remained in custody. The next term of the court expired on July 5, 2005. On July 6, 2005, Countryman filed an application for writ of habeas corpus requesting dismissal of the prosecution under Texas Code of Criminal Procedure Art. 32.01. Art. 32.01 states that: “When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later.” Countryman essentially argued that because the indictment was untimely, the trial court must dismiss the charges. The trial court set the habeas hearing for July 22, 2005. On July 14, 2005, the grand jury returned an indictment. At the habeas hearing, the state did not present any witnesses or file any affidavits. The state claimed that because an indictment had been returned before the hearing, the habeas claim was moot. The trial court agreed and denied relief. On appeal, the 5th Court of Appeals, relying on the CCA’s 1999 decision Ex Parte Martin, determined that Countryman’s habeas claim was not moot. The 5th Court held that the state did not show good cause for continuing the prosecution. The 5th Court also concluded that the trial court abused its discretion by denying habeas relief to Countryman. The state filed a petition for discretionary review asking the CCA to determine whether the 5th Court erred in holding that Countryman’s speedy-indictment claim was not moot. HOLDING:Reversed and remanded. In Martin, the CCA reviewed a claim under the former Art. 32.01 and set forth factors for courts to consider in determining whether the state showed good cause in prosecuting a defendant after the last day of the term of the court in which authorities arrested the defendant. According to the CCA, Martin implies that the issue of timely prosecution is not moot when a petitioner files a habeas claim before the indictment, but then an indictment is returned before the habeas corpus hearing. The CCA in Martin adopted a totality of the circumstances test and listed factors � including the length of the delay, the reason for the delay, lack of diligence, prior grand jury action and harm to the accused � to determine whether the state in such circumstances has good cause for the delay. On remand in Martin, the court of appeals did the balancing test required by Martin, held that the state did not show good cause for the delay and granted habeas relief. The indictment was dismissed. While Martin, the CCA stated, appeared procedurally similar to Countryman’s case, the CCA noted important differences between the cases. For example, the appellant in Martin was out on bail during the delay, whereas Countryman was ineligible for release on bond pending a determination of whether to revoke his parole. More importantly, the dismissal in Martin was with prejudice. In Countryman’s case, he could be rearrested when the indictment was returned. The CCA stated that the reason it adopted a totality of the circumstances test in Martin was because the application of Art. 32.01 “is a fact-based situation which”calls for a balancing of the interests served by the rule and the interests of the parties.’” The CCA rejected the generalization that any claim that is filed before the indictment is returned is not moot. The circumstances in this case, the CCA stated, include that: 1. the dismissal would be without prejudice; 2. Countryman was not eligible for release on bond; 3. an indictment was returned immediately after the application for writ was filed; 4. and since an indictment had already been returned, Countryman could be rearrested under Art. 15.14. Therefore, the CCA stated, “there is no reason for us to say that the indictment that was returned prior to the habeas hearing should be dismissed and the State should be forced to waste resources and grand jury time by reindicting Appellant.” Based upon the facts of this case, the CCA concluded that the 5th Court improperly relied on Martin, because the remedy sought by the appellant in Martin depended on the determination of whether the state had good cause for the delay. Thus, the issue was not moot. Therefore, the CCA held that the trial court did not err in holding that Countryman’s claim was moot. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Keasler, Hervey, Holcomb and Cochran, JJ., joined. CONCURRENCE:Johnson, J., concurred in the result.

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