Searls v. State

Full title: STEVEN ANTRIM SEARLS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 27, 2006

Nos. 05-05-01320-CR, 05-05-01321-CR (Tex. App. Jun. 27, 2006)

Opinion

Nos. 05-05-01320-CR, 05-05-01321-CR

Opinion issued June 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 199-80485-02 and 199-80486-02. Affirmed.

Before Chief Justice THOMAS and Justices MOSELEY and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

Steven A. Searls pleaded guilty before a jury to two charges of delivery of cocaine in an amount of four grams or more but less than 200 grams. See Tex. Health Safety Code § 481.112(a), (d) (Vernon 2003). The jury found appellant guilty and assessed punishment at five years' imprisonment in each case. In his sole issue, appellant contends the trial court erred in denying his motion to set aside the informations for failure to afford him a speedy trial.² For reasons that follow, we affirm.

2 Appellant was actually charged by indictment in each case and the motion was entitled "Motion to Set Aside Indictment for Failure to Afford Constitutional Right to Speedy Trial."

Background

A confidential informant (CI) working with the Texas Department of Public Safety (DPS) gave appellant certain contact information for DPS undercover sergeant Sharalyn Fichtl for a possible drug buy. On April 29, 2001, appellant contacted Fichtl about the sale of cocaine. On May 2, 2001, Fichtl, working undercover, met with appellant and bought two ounces (55 grams) of cocaine. A second sale of one-eighth of a kilogram (125 grams) was arranged for May 9, 2001. Fichtl was fitted with a "body bug" to be worn during the May 9 buy. After the buy, Fichtl gave a prearranged signal for uniformed officers to arrest appellant. When appellant saw the DPS officers, he tried to run, but was apprehended. After appellant was arrested, he was interviewed by Fichtl. Appellant offered to work as a CI and provide information about other drug dealers in order to avoid having one of the two cases filed. Fichtl obtained the requisite approval for such an arrangement, and a written agreement, containing certain terms and conditions, was executed. The CI agreement was for a period of six months, and expressly stated that if appellant "made" three first-degree felony cases, DPS would not file the May 2, 2001 charge. The agreement also expressly stated that the May 9, 2001 case would be filed no later than December 1, 2001. It further provided that if appellant "made" any felony narcotics cases beyond the required three, those facts would be brought to the attention of the District Attorney in mitigation of appellant's punishment at his sentencing for the May 9, 2001 case. Appellant gave Fichtl the name of the person from whom he bought the cocaine he sold Fichtl, and later showed an officer the location of some drug houses. Appellant did not, however, meet the terms of the agreement. In fact, appellant later admitted that he presented himself to be a "bigger fish" than he actually was. In any event, communications ceased at some point, and DPS filed the two drug cases against appellant with the DA. DPS did not notify appellant when the cases were filed. The indictments were returned on March 26, 2002. The clerk's records reflect that appellant posted an appearance bond on January 2, 2004, and between that date and September 30, 2004, appellant signed eleven pass slips. Additionally, appellant's trial attorney withdrew from representing appellant during that period and new counsel came on the case. On March 1, 2005, appellant filed a pretrial motion to set aside the indictment in each case due to a failure to afford him his constitutional right to a speedy trial. See U.S. Const. amend. VI; Tex. Const. art. 1 § 10. Following a hearing, the trial court denied appellant's motion, and the case ultimately proceeded to trial before the jury on appellant's guilty pleas. On appeal, appellant contends the trial court erred in denying his motion to set aside the indictments for violation of his speedy trial rights. The State responds the trial court acted within its discretion when it denied appellant's motion to set aside the indictment because the nearly four-year delay between arrest and trial was mostly attributable to appellant for failing to report his change of address, failing to report to court, and requesting numerous continuances of the cases and, thus, appellant was not denied a speedy trial. Further, the State contends, appellant did not assert his speedy trial right for more than a year after his first appearance, and he did not show prejudice.

Standard of Review

An appellate court is required to apply a bifurcated standard of review: an "abuse of discretion" standard to the trial court's factual findings and a de novo standard of review to the trial court's legal conclusions. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)) (appellate courts should afford almost total deference to a trial court's determination of the historical facts that are supported by the record); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997) (appellate courts conduct de novo review by independently weighing and balancing the four Barker³ factors)). Our review must be done 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 uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. See Munoz, 991 S.W.2d at 821. We must defer to the trial judge's fact findings that are supported by the record. See id. We, therefore, review de novo and independently weigh and balance the Barker factors to determine the legal significance of the relevant facts to appellant's claim his speedy trial right was violated.

Right to a Speedy Trial

The Sixth Amendment to the United States Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972). This right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV; see Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The Texas Constitution likewise provides that "[i]n all criminal prosecutions the accused shall have a speedy . . . trial." Tex. Const. art. 1, § 10. The Texas Court of Criminal Appeals has traditionally analyzed state constitutional claims of the denial of a speedy trial under the factors established in Barker. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). The primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial. See Chapman v. Evans, 744 S.W.2d 133, 136-37 (Tex.Crim.App. 1988) (orig. proceeding) (citing Turner v. State, 504 S.W.2d 843, 845 (Tex.Crim.App. 1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex.Crim.App. 1973)). In determining whether one has been denied his federal or state right to a speedy trial, a court must use a balancing test to weigh the conduct of both the State and the defendant. See Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App. 2003) (citing Barker, 407 U.S. at 530). The relevant factors to be weighed include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and any prejudice to the defendant resulting from the delay. Id. at 888-89. We turn now to our de novo review and independent weighing and balancing of the relevant Barker factors.

A. Length of the Delay

We measure the length of the delay from the time the defendant is arrested or formally accused. See United States v. Marion, 404 U.S. 307, 313 (1971). Unless the length of the delay is "presumptively prejudicial," courts need not inquire into the other factors. See Barker, 407 U.S. at 530. The presumption that pretrial delay has prejudiced the accused intensifies over time. Doggett v. United States, 505 U.S. 647, 652 (1992); Zamorano, 84 S.W.3d at 649. In this case, there was a delay of approximately three years and ten months from the date of appellant's initial arrest until the hearing on his motion to set aside the indictment. The State concedes such delay was "presumptively prejudicial" and triggers an analysis of the remaining factors. We agree.

B. Reasons for Delay

The State has the initial burden for justifying a lengthy delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). In assessing the "reason for the delay" factor, different weights must be assigned to different reasons. See Barker, 407 U.S. at 531. Some reasons are valid and serve to justify the delay, while other reasons are not valid and do not serve to justify the delay. See id. Intentional or deliberate attempts by the State to delay trial weigh heavily against the State; more neutral reasons such as overcrowded dockets or negligence weigh only lightly against the State. See id. In the absence of a stated reason for delay, a court may presume neither an attempt to delay nor a valid reason. Dragoo, 96 S.W.3d at 314. Delay attributable, in whole or in part, to a defendant may constitute a waiver of his speedy trial claim. Munoz, 991 S.W.2d at 822. Here, the delay from appellant's initial arrest until the hearing on his motion to set aside the indictment was almost four years. Broken down into groups, the record reflects that: (1) eleven months were between appellant's initial arrest and the date a capias was issued for his arrest; (2) twenty months were between the date of the capias and appellant's second arrest pursuant to the capias; and (3) fourteen months were between appellant's second arrest and the hearing on his speedy trial motion. After his initial arrest in May 2001, appellant immediately made bond. Appellant certified that the Park Lane address on that bond was his correct mailing address for the receipt of mail. By voluntarily entering into a CI agreement, which, if honored, would inure to his benefit, appellant delayed any disposition of his cases for six months to give him a chance to work as a CI and provide information. Appellant testified he did not comply with the terms of the agreement to make three felony drug cases; thus appellant should have known that the drug cases would be filed. Moreover, appellant was put on notice by the express terms of the CI agreement that, no later than December 1, 2001, the May 9, 2001 drug charge would be filed. Nevertheless, appellant did nothing to stay in touch with DPS about whether the cases had, in fact, been filed. Within four months of the end of the six-month period, indictments were returned in both cases. They were set for a first appearance less than one month later. Any voluntary delay by appellant to work as a CI should not be held against the State. See Pinnock v. State, 105 S.W.3d 130, 135 (Tex.App.-Corpus Christi 2003, no pet.) (delay partially caused by appellant's agreement to work as a CI not held against State). When appellant did not appear for the first setting in April 2002, a capias was issued for his arrest. Upon issuing the capias, the State had a duty to use due diligence to locate appellant. State v. Jones, 168 S.W.3d 339, 348 (Tex.App.-Dallas 2005, pet. ref'd). At the time of his initial arrest, appellant was living at 1508 Park Lane in Lewisville, Texas. Although appellant's testimony about where he moved and when he moved was inconsistent, he did acknowledge he moved from the Park Lane address within a few months after his initial arrest. Appellant stated he notified the post office. He did not, however, notify either DPS or his bondsman. Appellant's position was that at the initial meeting with DPS, at which someone from the DA's office was present, he provided sufficient contact information to have allowed them to reach him and inform him when the cases were filed. The CI agreement was in evidence and showed only the Park Lane address listed on appellant's bond. The trial court was the exclusive trier of the facts and could have chosen to disbelieve part or all of appellant's testimony. See Kelly v. State, 163 S.W.3d 722, 727 (Tex.Crim.App. 2005). Because appellant voluntarily entered into the CI agreement to avoid having one of the cases filed, did not provide updated information on his mailing address, and acknowledged he did not fulfill the terms and conditions of the CI agreement, we conclude the reason for the delay between appellant's initial arrest and his second arrest is attributable to appellant. After the capias was executed on December 13, 2003, appellant first appeared in court on January 20, 2004. The cases were reset numerous times for various reasons. Many of the continuances were attributable to appellant. The trial court and both the prosecutor and defense counsel deemed the pass slips dated January 20, 2004 and March 1, 2004 and bearing appellant's signature on the upper half of the page to be express waivers of his right to a speedy trial.⁴ The trial court took judicial notice of the pass slips. With regards to the pass slips, the following took place:

[The Court]: Could I interrupt a second?

[Prosecutor]: Sure.

[The Court]: Ms. Harrison [defense counsel], what is your position about the fact that your client twice signed a waiver of speedy trial in 2004?

[Defense counsel]: Your Honor, I believe that, um, the speedy trial even comes before that. It comes from the time of the original indictment when the arrest went out in — in March of 2002, I believe.

* * * *

[Defense counsel]: On the-on the pass slips, your Honor?

[The Court]: Yeah. There are two places to sign.

[Defense counsel]: I understand.

[The Court]: And he signed the upper one twice, waiving a speedy trial.

[Defense counsel]: I understand, your Honor.

[The Court]: Okay.

Appellant's original defense attorney, who later withdrew from the case, conceded he passed the cases repeatedly because appellant "was never able to work out the financial obligation he would have to hire me to try the case." Appellant second defense counsel passed the case four more times before filing a motion to set aside the indictment. Appellant concedes this portion of the delay should be attributed to him. We agree. For all the reasons stated above, we conclude the majority of the delay is attributable to appellant. This factor, therefore, weighs against appellant.

C. Appellant's Assertion of His Speedy Trial Right

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. Zamorano, 84 S.W.3d at 651 (citing Barker, 407 U.S. at 531). 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 that right. Id. 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 Barker, 407 U.S. at 531-32. 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. See id. at 531. Thus, a defendant's inaction weighs more heavily against a speedy trial violation the longer the delay becomes. See id. at 532. Here, appellant filed a motion to set aside the indictment on March 1, 2005, nearly four years after his initial arrest. Appellant argues he should not be held accountable for asserting his right sooner because he was not aware the cases had been indicted. Appellant, however, gives no reason for the one year, two month, and fifteen day delay in filing his motion after his December 13, 2003 arrest. Within a month of his second arrest, appellant appeared in court and passed his case, signing what all parties in the trial court deem to be a speedy trial waiver. Appellant later signed a second "speedy trial waiver." Appellant never affirmatively sought a speedy trial. The trial court was within its discretion in concluding appellant never really wanted a speedy trial. See Barker, 407 U.S. at 536 (expressing reluctance to rule that a defendant was denied his speedy trial right on a record that strongly indicates the defendant did not want a speedy trial). This factor weighs against appellant. D. Prejudice to Appellant Resulting from the Delay The final factor of "prejudice" must be assessed in light of the interests the speedy trial right was intended to protect. See Barker, 407 U.S. at 532. Those interests are to: (1) prevent oppressive pretrial incarceration; (2) minimize the accused's anxiety and concern; and (3) limit the possibility the defense will be impaired. Id. The third interest of limiting the impairment of the defense has been said to be the most serious. See id. Although a showing of actual prejudice is not required in Texas, the accused has the burden to make some showing of prejudice that was caused by the delay of his trial. See Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex.Crim.App. 1971)). Once the accused makes some showing of prejudice, the burden shifts to the State to show that no prejudice resulted. Harlan v. State, 975 S.W.2d 387, 390 (Tex.App.-Tyler 1998, pet. ref'd). Appellant made bond immediately upon his initial arrest, thus there is no consideration of oppressive pretrial incarceration. See Shaw, 117 S.W.3d at 890. Appellant's only argument of prejudice is that the delay "eliminat[ed] the opportunity for the cases not to be filed." But appellant admitted he did not comply with his part of the CI agreement. Appellant's failure should not be weighed against the State. Appellant has not shown any prejudice resulting from the delay, thus the burden never shifted to the State. We conclude this factor weighs against appellant.

Conclusion

Having considered all the factors individually, we now balance them. Most of the delay was attributable to appellant, and appellant failed to show any actual prejudice resulting from the delay. Even if we considered there was inherent prejudice in the length of the delay itself, because appellant actively participated in that extended delay, any presumed prejudice is extenuated by appellant's actions. See id. (quoting Doggett, 505 U.S. at 655). The record reveals strong evidence appellant did not want a speedy trial. Balancing all these factors, we conclude the trial court did not abuse its discretion in denying appellant's motion to dismiss for violation of his speedy trial rights. We resolve appellant's sole issue against him. We affirm the trial court's judgments.