Opinion
No. 14-08-00568-CR
Memorandum Opinion filed April 23, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 851820.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
Pursuant to a plea bargain, appellant, John L. Newman, pleaded no contest to the felony offense of intoxication assault. The court found him guilty and, consistent with the plea bargain, assessed punishment at two years' confinement. In two issues, appellant argues the trial court abused its discretion by failing to dismiss the case for denial of his rights to a speedy trial under the state and federal constitutions. Concluding appellant has not presented this court with a record warranting reversal, we affirm.
Because all dispositive issues of law are settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
I. BACKGROUND
On April 22, 1999, appellant drove his vehicle into one occupied by Helen Savre, causing her serious bodily injury. On May 20, 1999, in cause number 811136, a Harris County grand jury indicted appellant for the April 22 intoxication assault of Savre. After some rescheduling, the court eventually set the case for jury trial on November 5, 1999.
On October 29, 1999, the State filed a motion for a continuance on the ground that Houston Police Officer Steve Salley, a material witness in the case, was on assignment with the United Nations forces in Bosnia and would not be permitted to return until late June 2000. On November 12, 1999, the State filed a motion to dismiss, alleging a "missing witness." The trial court granted the motion and dismissed the case.
On August 1, 2000, in cause number 851820, the State filed a new complaint alleging the same offense as that previously alleged and dismissed in cause number 811136. On August 3, 2003, a warrant was issued for appellant's arrest; and, on August 4, 2000, a grand jury again indicted appellant. On April 5, 2008, the warrant was executed and appellant was delivered to the Harris County Jail. Appellant's case was set for June 5, 2008. By agreement, the case was later reset for June 26, 2008. Two handwritten notes appear on the agreed setting form. Defense counsel noted, "[Defendant] requests a speedy trial does not waive right!" The State's attorney noted the terms of the plea bargain.
On June 9, 2008, appellant filed a "Motion to Dismiss for Denial of the Accused's Constitutional Right to a Speedy Trial Pursuant to the State and Federal Constitutions." In his prayer for relief, however, appellant requested he be granted a speedy trial. Although the motion included an affidavit by which appellant could have sworn to the truth of the allegations in the motion, appellant did not execute the affidavit. The State did not file a response. On June 26, 2008, the trial court denied the speedy trial motion and accepted appellant's plea.
II. DISCUSSION
An accused has a right to a speedy trial under both the United States and the Texas Constitutions. See Zamorano v. State, 84 S.W.3d 643, 647 nn. 5-6 (Tex.Crim.App. 2002). In determining whether a defendant's federal and state rights to a speedy trial have been violated, we apply a balancing test in which we consider the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972) (creating balancing test for reviewing speedy-trial claims under federal constitution); Zamorano, 84 S.W.3d at 648 ("The Texas constitutional speedy trial right exists independently of the federal guarantee, but this Court has traditionally analyzed claims of a denial of the state speedy trial right under the factors established in Barker v. Wingo."). "In reviewing the trial court's ruling on appellant's federal constitutional speedy trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components." Zamorano, 84 S.W.3d at 648.
A speedy trial motion is not self-proving. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004) (stating same in context of deciding that unsworn motion for free record on appeal does not, itself, present evidence on which relief may be granted). "The nature of the applicable balancing test of the Barker factors requires a full development of the facts." State v. Reyes, 162 S.W.3d 267, 269 (Tex.App.-San Antonio 2005, no pet.) (citing Newcomb v. State, 547 S.W.2d 37, 38 (Tex.Crim.App. 1977)). At least three of the Barker factors — reason for the delay, the defendant's assertion of the right, and prejudice — cannot be developed for the record or properly evaluated on appeal without a hearing in the trial court. Oldham v. State, 5 S.W.3d 840, 846 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).
Some intermediate appellate courts have stated that, after the accused meets his burden of production of showing sufficient delay to require application of the Barker v. Wingo test, the burden shifts to the State to justify the delay, and then, if the State provides a reason for the delay, the burden shifts back to the accused to show diligent assertion of the right to a speedy trial and prejudice resulting from the delay. See, e.g., Moreno v. State, 987 S.W.2d 195, 198 (Tex.App.-Corpus Christi 1999, pet. ref'd). Under such an analysis, the State's failure to present evidence in response to appellant's having documented a delay of almost eight years from the second indictment to his arrest would seem, at first glance, to be fatal to the State's case. This language in Moreno and similar cases, however, is inconsistent with the analysis set forth in Dragoo v. State, in which the court analyzed all of the Barker v. Wingo factors despite the State's failure to provide a reason for the delay. 96 S.W.3d 308, 314-16 (Tex.Crim.App. 2003).
In the present case, appellant presented only his unsworn motion for dismissal on speedy-trial grounds. There is no indication he requested a hearing on his motion or that the trial court improperly denied him one. Had the trial court granted appellant's motion to dismiss on the record before this court, it would have abused its discretion in so doing. See Grimaldo v. State, 130 S.W.3d 450, 453 (Tex.App.-Corpus Christi 2004, no pet.). Accordingly, we overrule appellant's two issues.
On June 23, 2008, appellant filed a series of pre-trial motions, and in a separate motion, requested a hearing on those motions. He did not, however, request a hearing on his June 9, 2008 motion to dismiss for denial of his right to a speedy trial.
Having overruled appellant's two issues, we affirm the judgment of the trial court.