No. 05-08-01539-CR
Opinion issued November 17, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 9, Dallas County, Texas, Trial Court Cause No. MB05-35472-K.
Before MOSELEY, FITZGERALD, and LANG-MIERS.
Opinion By Justice FITZGERALD.
Chris Millad Nasrallah appeals his conviction for driving while intoxicated. After finding appellant guilty, the trial court sentenced him to 180 days in jail, probated for twelve months, and a $1000 fine. In his sole issue, appellant asserts the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial. We affirm the trial court's judgment.
BACKGROUND
Appellant testified that on April 9, 2005, he had dinner with his girlfriend's parents. He then went to a bar for about an hour and a half with his girlfriend and his sister. Early in the morning of April 10, 2005, as appellant was driving home from the bar, he was stopped by an Irving police officer who arrested him for driving while intoxicated. An information charging appellant with driving while intoxicated was filed on May 20, 2005. For the next three years, nothing happened in the case. On May 16, 2008, appellant filed a motion for a speedy trial requesting that the court "set this matter for a Speedy Trial." Appellant's written motion did not request dismissal of the case for violating his right to a speedy trial. On July 25, 2008, the trial court held a hearing on appellant's motion for a speedy trial. At the hearing, appellant's counsel requested dismissal of the case for violation of appellant's right to a speedy trial. Appellant testified that during the three years the case was pending, his girlfriend's parents had moved to North Carolina and his sister had moved to Washington, D.C. and was attending American University. Appellant stated that his girlfriend's parents could testify that he consumed no alcoholic beverages while he was with them. Appellant agreed that he suffered "emotional distress per this arrest." Appellant said he had not spoken to his sister or to his girlfriend's parents in over six months, and he had not asked them if they would come to Dallas to testify on his behalf. Appellant said he had tried to contact them, but they had not yet returned his calls. He testified that his girlfriend would appear in court on his behalf "[i]f she needed to." Appellant stated he did nothing to move the case forward except contact his attorney "on a month-to-month basis" to inquire about the status of the case. Appellant's attorney told him "that we haven't heard anything back from the court." After hearing argument on the motion, the trial court denied appellant's motion to dismiss but granted his request for a speedy trial. Appellant's jury trial took place on August 13 and 14, 2008. Appellant did not testify. The only witness appellant presented in his defense was an expert witness on the administration of the standardized field sobriety tests. Appellant presented no witnesses at the punishment phase. RIGHT TO A SPEEDY TRIAL
In his sole issue on appeal, appellant asserts the trial court erred in denying his motion to dismiss for the State's violation of his right to a speedy trial. The Sixth Amendment to the United States Constitution provides in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." U.S. Const. amend VI. The Texas Constitution's Bill of Rights also provides, "In all criminal prosecutions the accused shall have a speedy public trial. . . ." Tex. Const. art. I, § 10. We review a claim of denial of the right to a speedy trial under the balancing test set out in Barker v. Wingo, 407 U.S. 514 (1972). Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). That test requires a weighing of factors including-but not necessarily limited to-the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530. No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial. Id. at 533; see also Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). We review the trial court's ruling on a motion to dismiss for want of a speedy trial in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). We must affirm the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw, 117 S.W.3d at 889. The first factor, the length of the delay, is measured from the time the defendant is arrested or formally accused; a delay approaching one year is sufficient to trigger a speedy trial inquiry. See id. The record indicates appellant was arrested on April 10, 2005, the information was filed on May 20, 2005, and his trial began on August 13, 2008. This period of approximately forty months between his arrest and trial, or thirty-nine months between the filing of the information and his trial, is sufficient to support further inquiry into appellant's complaint and circumstances. See id. (thirty-eight-month delay sufficient to trigger inquiry); Dragoo, 96 S.W.3d at 314 (three-and-a-half-year delay sufficient to trigger inquiry). Because the delay in this case stretched far beyond the minimum needed to trigger the inquiry, this factor weighs heavily in favor of finding a violation of appellant's right to a speedy trial. See Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 308. On the second factor, the reason for the delay, the record contains no explanation for the delay. In the absence of explanation for a delay, we will not presume either a deliberate attempt to prejudice the defense or a valid reason for the delay. Id. The unexplained delay weighs against the State in favor of a finding of a violation of appellant's right to a speedy trial, but it does not weigh heavily in favor of such a finding. Id.; Abraham v. State, No. 05-08-00008-CR, 2009 WL 1887125, at *5 (Tex. App.-Dallas July 2, 2009, no pet.) (citing Dragoo). Next, we consider appellant's assertion of his right to a speedy trial. Appellant asserted his right to a speedy trial, but only after more than three years after his arrest. The courts and prosecutors have the primary burden to assure that cases are brought to trial, but a defendant is responsible for asserting his right to a speedy trial. Barker, 407 U.S. at 528-29. A defendant's failure to assert his right to a speedy trial does not waive that right, but it does "make it difficult for a defendant to prove he was denied a speedy trial." Id. at 532. "[A] defendant's lack of a timely demand for a speedy trial 'indicates strongly that he did not really want a speedy trial,' and that he was not prejudiced by lack of one." Dragoo, 96 S.W.3d at 314 (quoting Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992)). In Dragoo, the defendant, charged with unlawful possession of a firearm by a felon, waited three-and-a-half years to assert his right to a speedy trial. Id. The court of criminal appeals stated, "In view of the lengthy delay here, in which appellant quietly acquiesced, this factor weighs very heavily against finding a violation of the speedy trial right." Id. Likewise, in this case, appellant's failure to assert his right to a speedy trial weighs heavily against finding a violation of his right to a speedy trial. In the final factor, prejudice to the defendant resulting from the delay, we consider the interests the speedy-trial right was intended to protect: (1) preventing oppressive pretrial incarceration, (2) minimizing the defendant's anxiety and concern, and (3) limiting the possibility that the defendant's defense will be impaired. Barker, 407 U.S. at 532; Shaw, 117 S.W.3d at 890. Appellant was not incarcerated during the pendency of this case; therefore, he did not suffer oppressive pretrial incarceration. Appellant asserts he testified that he suffered emotional distress from the delay, citing page thirteen of the reporter's record of the hearing on his motion for speedy trial. However, page thirteen of the reporter's record shows appellant answered "Yes, yes" to the question, "Have you suffered any emotional distress per this arrest or-" (emphasis added); appellant did not testify that he suffered any emotional distress due to the delay awaiting trial. This consideration does not show appellant was prejudiced. As for the third consideration of the prejudice factor, impairment of the defendant's defense, appellant asserts he testified to the unavailability of several witnesses due to the delay. On direct examination, appellant agreed with his counsel's statement that his sister and his girlfriend's parents were "unavailable at this time." However, on cross-examination, appellant testified he was "not sure at this time" if the witnesses could be available for trial. Appellant stated he had spoken to them about testifying for him, but "we have never made a certain date about it, because I haven't heard anything from the court because, you know, it's three years later." He testified he had not spoken to them for more than six months before the hearing. He stated that he had called them but that they had not returned his calls. As for the relevance of the witnesses' testimony, appellant testified that his girlfriend's parents could "vouch for the fact that [he] had nothing to drink," but his testimony also shows they did not go with him to the bar after dinner. Appellant's sister could testify to his conduct at the bar, but so could appellant's girlfriend who had agreed to testify on his behalf if needed. The trial court could conclude from this evidence that appellant suffered no prejudice or only minimal prejudice to his defense as a result of the delay. Having addressed the Barker factors, we must now balance them. Weighing in favor of finding a violation of appellant's right to a speedy trial are the facts that the delay was excessive and that the State offered no reason for the delay. Weighing against finding a violation of the right are the facts that appellant failed to demonstrate serious prejudice and that he quietly acquiesced in the delay for over three years, indicating that he really did not want a speedy trial. We hold that the weight of the four factors, balanced together, is against finding a violation of appellant's right to a speedy trial. See Barker, 407 U.S. at 533-35; Shaw, 117 S.W.3d at 891; Dragoo, 96 S.W.3d at 316; Abraham, 2009 WL 1887125, at *7. We conclude the trial court's denial of the motion to dismiss is supported by the record and is correct under applicable law. We overrule appellant's sole issue. We affirm the trial court's judgment.