McCormick, P.J., filed dissenting opinion in which Mansfield, Keller and Keasler, JJ., joined

I respectfully dissent. The Court vacates the judgment of the Court of Appeals and remands this case there to reconsider the "good cause" issue without addressing the State's primary argument that former Articles 28.061 and 32.01, V.A.C.C.P., are unconstitutional.

Although it does not appear the prosecution raised the constitutionality of these Articles in either the trial court or the Court of Appeals, the Court should nevertheless address the constitutional issue given the unusual history of past cases which have raised this issue and which we have dismissed as improvidently granted. See Ex parte Norton, 969 S.W.2d 3, 3-4 (Tex.Cr.App. 1998) (Keller, J., dissenting to dismissal of State's discretionary review petition as improvidently granted). The constitutionality of these provisions is an important issue which this Court should settle. See State v. Condran, 977 S.W.2d 144, 144-47 (Tex.Cr.App. 1998) (Keller, J., dissenting to dismissal of defendant's discretionary review petition as improvidently granted) ("portion of former Article 28.061 that applies to former Article 32.01 is an unconstitutional violation of the Separation of Powers Clause of the Texas Constitution); Norton, 969 S.W.2d at 3 (McCormick, P.J., dissenting to dismissal of State's discretionary review petition as improvidently granted). Having decided not to address the constitutional issue, the Court should for the sake of consistency dismiss this discretionary review petition as improvidently granted.

As to the merits of the "good cause" issue, I would decide "good cause" is shown when the evidence shows an absence of bad faith delay by the prosecution. See Condran, 977 S.W.2d at 146 (Keller, J., dissenting). I would decline to engraft onto our state law in Article 32.01 a slightly modified federal constitutional preindictment delay analysis which Article 32.01 clearly does not contain. See Condran, 977 S.W.2d at 146 (Keller, J., dissenting). Article 32.01 requires only a showing of "good cause," and it clearly does not contain the Court's "totality of the circumstances test" calling for an evaluation of "the length of the delay, the State's reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused." Ex parte Martin, S.W.2d Slip op. at 6 (Tex.Cr.App. No. 073-98, handed down this date) (adopting "totality of circumstances test" calling for an evaluation of these factors in assessing "good cause" under Article 32.01); but see Condran, 977 S.W.2d at 146 (Keller, J., dissenting) (Article 32.01 does not incorporate "constitutionally relevant factors").

I respectfully dissent.

McCormick, Presiding Judge

(Delivered November 24, 1999)

En Banc

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