Opinion
No. 05-04-01823-CR
Opinion issued March 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-80307-03. Affirmed.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
Blair D. Hogue appeals his conviction for driving while intoxicated. After the trial court found appellant guilty, it assessed punishment at ninety day's confinement, probated for two years, and a $500 fine. In three points of error, appellant contends (1) the evidence is legally and factually insufficient to support his conviction, and (2) his right to a speedy trial was violated. We overrule appellant's points of error and affirm the trial court's judgment. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We apply well-known standards when reviewing such challenges. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency). In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The fact finder, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In contrast, when reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the contrary evidence is so strong that the standard of proof could not have been met. Zuniga, 144 S.W.3d at 484-85. We must determine whether, considering all the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. As in a legal sufficiency review, we defer to the fact finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). In this case, the State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances or any other substance into the body. See id. § 49.01(2)(A). Among other things, evidence of intoxication may include: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person; (4) unsteady balance; and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 142 n. 3 (Tex.Crim.App. 1985). And, refusal to submit to a blood alcohol test is further evidence of intoxication. See Thomas v. State, 990 S.W.2d 858, 860 (Tex.App.-Dallas 1999, no pet.) (citing Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex.Crim.App. 1988) (intoxication is legitimate deduction from defendant's refusal to take breath test)). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex.App.-Dallas 1987, pet. ref'd). Appellant first asserts the evidence is legally insufficient to show he was intoxicated. In particular, appellant contends that "the evidence of intoxication at the time appellant operated a motor vehicle is based exclusively on a retrograde extrapolation which was not presented at trial but was inferred throughout argument" and the "evidence at trial established only that the appellant had been involved in an automobile accident and had sustained a head injury." After reviewing the record, we cannot agree. Viewed in the light most favorable to the verdict, the evidence shows Officer Chris Kurd was called to an accident scene about 5:00 a.m. When he arrived, he saw a light pole knocked over into the street. A witness directed Kurd into a nearby parking lot where he found appellant driving slowly through the parking lot. The front end of appellant's car was heavily damaged and smoking. Kurd approached the car and "yelled at [appellant] to turn his car off and stop his car." After repeatedly commanding appellant to stop his car, Kurd finally reached inside and turned the car off. He then helped appellant from the car. Appellant was unsteady on his feet and Kurd had to assist him to keep him from falling down. Appellant's speech was slurred, his eyes were bloodshot, and he smelled "fairly strong[ly]" of alcohol. When Kurd asked appellant if he had been drinking, appellant responded he had "way too much to drink." After appellant was transported to the hospital, Kurd read him his statutory warnings and asked appellant for a blood sample. Appellant refused, so Kurd gave him a notice of suspension and seized his driver's license. Based on the above observations, Kurd believed appellant had lost the normal use of his mental or physical faculties by reason of the introduction of alcohol. Further, appellant's hospital records indicate appellant told hospital personnel he had seven beers to drink and his blood alcohol level was 0.078 two hours after the accident. This evidence is legally sufficient to show appellant was intoxicated because he did not have the normal use of mental or physical faculties by reason of the introduction of alcohol into his body. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction for driving while intoxicated. Appellant relies on evidence his behavior at the scene could have been caused by a head injury sustained in the accident. However, after reviewing this evidence in conjunction with the above evidence showing appellant was intoxicated, we cannot conclude the trial court's finding that appellant was intoxicated is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Likewise, we cannot conclude the evidence is so weak that the trial court's determination that appellant was intoxicated is clearly wrong and unjust. We overrule appellant's second point of error. In his third point of error, appellant contends the trial court erred by denying his motion to dismiss because, according to appellant, more than three years elapsed between the time he was arrested and the time for trial, violating his right to a speedy trial. Again, we cannot agree. The Sixth Amendment of the United States Constitution guarantees every person the right to a speedy trial. U.S. Const. amend. VI. This constitutional right is made applicable to the States through the Fourteenth Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). We determine whether a defendant's right to a speedy trial has been violated using the balancing test set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Id. at 530-33. The factors we consider include, but are not limited to: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) the prejudice to the defendant resulting from the delay. Id. None of the four factors alone is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Id. at 533. The factors are all related and must be considered together with such other circumstances as may be relevant. Id. We review the trial court's decision using a bifurcated standard of review: reviewing factual components of the trial court's decision for an abuse of discretion, and conducting Barker's balancing test de novo. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002); State v. Jones, 168 S.W.3d 339, 345 (Tex.App.-Dallas 2005, pet. ref'd). In this case, the offense was alleged to have occurred on October 19, 2001. On that date, Kurd read appellant the statutory blood refusal warnings, which include the phrase "you are under arrest." However, after completing his investigation, Kurd left the hospital and appellant was not transported to jail. Later that day, Kurd requested a grand jury subpoena for appellant's medical records. The hospital received the subpoena on May 20, 2002 and the hospital sent the records on May 28, 2002. The information was issued on January 13, 2003. A warrant was issued for appellant on January 28, 2003 and a letter sent to appellant shortly thereafter informing him a warrant had been issued for his arrest. The warrant was executed on March 24, 2004 and appellant was released on bond the same day. The case was originally set for trial on July 2, 2004 and was reset for trial on August 19, 2004, September 2, 2004, and November 4, 2004. Appellant did not object to the case being reset the first two times and he requested a continuance for the September 2, 2004 setting. The case went to trial on November 4, 2004. After Kurd testified he believed he arrested appellant at the hospital, appellant raised the speedy trial issue for the first time, claiming he had not done so earlier because he was unaware that he had been arrested at the hospital until Kurd testified. The trial court continued with the trial on the merits subject to a later hearing on the speedy trial issue. Appellant filed his motion to dismiss on November 8, 2004 and the trial court conducted a hearing on November 18th. Following the hearing, the trial court denied appellant's motion to dismiss. With these facts in mind, we turn to the balancing test set out in Barker. The first of the Barker factors, the length of the delay, is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313 (1971). Unless the delay is "presumptively prejudicial," courts need not inquire into the other factors. See Barker, 407 U.S. at 530. Appellant contends the delay was thirty-seven months, measured from October 19, 2001 when he was "arrested" in the hospital. The State maintains appellant was not arrested until March 24, 2004 and thus, the time for calculating the delay should begin on January 13, 2003, the date the information was issued. We agree with the State. "An arrest of a person carries with it an element of detention, custody or control of the accused. The mere fact that an officer makes the statement to an accused that he is under arrest does not complete that arrest. There must be custody or detention and submission to such arrest." Medford v. State, 13 S.W.3d 769, 772 (Tex.Crim.App. 2000) (citing Smith v. State, 153 Tex.Crim. 230, 219 S.W.2d 454, 456 (1949)). Further, "it is not the actual, physical taking into custody that will constitute an arrest. An arrest is complete whenever a person's liberty of movement is restricted or restrained." Medford, 13 S.W.3d at 772 (citing Hardinge v. State, 500 S.W.2d 870, 873 (Tex.Crim.App. 1973)). Here, other than reading the statutory warning to appellant, nothing indicates appellant was placed under arrest. He was not handcuffed, transported to jail, or otherwise taken into custody. He was free to leave the hospital and he did not post bond until March 24, 2004. Thus, we conclude appellant was not "arrested" at the hospital. Consequently, the length of the delay in this case is measured from the time appellant was formally accused. Because the delay in this case was twenty-two months, it is sufficient to trigger a speedy trial analysis. See Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003) (Generally, delay approaching one year is sufficient to trigger a speedy trial inquiry.); Jones, 168 S.W.3d at 345 (same). We conclude this factor weighs against the State. In assessing the second of the Barker factors, we are mindful that the primary burden is on the prosecutor and the courts to insure that a defendant is speedily brought to trial. Thus, the State has the initial burden of justifying a lengthy delay. Barker, 407 U.S. at 530. And, different weights are assigned to different reasons for the delay. For example, a deliberate attempt to delay trial in order to hamper the defense weighs heavily against the State. Id. at 531. However, a more neutral reason such as negligence or overcrowded courts is weighted less heavily. Id. Our review of the record shows that after the arrest warrant was issued, the only effort to arrest appellant was to send a letter telling him a warrant had been issued. Appellant testified he did not receive any such letter. Once arrested, appellant did not assert his speedy trial right until after trial had started, and he agreed to or requested continuances for the trial date. When, as here, a defendant's location is known, the State must exert due diligence in obtaining his presence for trial. See Jones, 168 S.W.3d at 345. Thus, the period of delay from January 13, 2003 until March 24, 2004 weighs against the State. However, nothing in the record indicates that the State intentionally delayed the case. After appellant was arrested, he did not assert his speedy trial right until after trial had begun, and he agreed to or requested continuances which delayed the trial until November 2004. Thus, appellant contributed to a portion of the delay. Because part of the delay was attributable to appellant and the remainder of the delay was the result of the State's negligence, we conclude this factor weighs against the State, but not heavily. Whether and how a defendant asserts his speedy trial right is closely related to the other three factors because the strength of his efforts will be shaped by them. Barker, 407 U.S. at 531; Jones, 168 S.W.3d at 345. Therefore, the defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Barker, 407 U.S. at 531. Although a defendant's failure to seek a speedy trial does not amount to a waiver of his right, failure to seek a speedy trial makes it difficult for a defendant to prevail on a speedy trial claim. See id. The longer the delay, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one. Id. Thus, a defendant's inaction weighs more heavily against a speedy trial violation the longer the delay becomes. Id. And, seeking a dismissal instead of a speedy trial weakens a speedy trial claim because it shows a desire to have no trial rather than a speedy trial. See Zamorano, 84 S.W.3d at 651 n. 40. Here, appellant did not file a motion affirmatively requesting a speedy trial. Instead, nine months after he was arrested and after trial had commenced, he filed a motion to dismiss in which the only relief sought was dismissal of the indictment. Considering appellant's inaction and that his first request was for a dismissal rather than for a speedy trial, we conclude this factor weighs heavily against appellant. We assess the final factor of "prejudice" in light of the interests the speedy trial right was intended to protect. Barker, 407 U.S. at 532. Those interests are: (1) to prevent oppressive pretrial incarceration, (2) to minimize the accused's anxiety and concern, and (3) to limit the possibility the defense will be impaired. Id. Appellant claims he was prejudiced because of the possibility his defense was impaired by the delay. Affirmative evidence of particularized prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify. Doggett v. United States, 505 U.S. 647, 655 (1992). However, the presumption of prejudice to a defendant's ability to defend himself is extenuated by the defendant's acquiescence in the delay. Id. at 658. According to appellant, the delay caused appellant to be unable to call several witnesses for his defense. However, appellant did not show that particular witnesses were unavailable, that their testimony would have been material, or that he exercised due diligence in locating the witnesses. See Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973) (defendant could not show that his defense was impaired where defendant failed to offer any evidence on his attempts to find the potential witnesses or evidence that they were material or relevant). Moreover, appellant's acquiescence in at least part of the delay and his failure to demand a speedy trial prior to trial attenuated any presumption of prejudice which may have arisen. Thus, we conclude this factor weighs heavily against appellant. We conclude the first two of the four factors weigh in favor of appellant, but the last two of the four factors weigh heavily against appellant. Thus, we agree with the trial court that appellant was not deprived of his right to a speedy trial, and we conclude the trial court properly denied appellant's motion to dismiss. We overrule appellant's third point of error. Accordingly, we affirm the trial court's judgment.