No. 05-04-00696-CR
Opinion issued January 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 11 Dallas County, Texas, Trial Court Cause No. MB03-05747-N. Reversed and Remanded.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Opinion by Justice WHITTINGTON.
The State of Texas appeals the trial court's order granting Susan Cornwell's motion to dismiss for failure to provide a speedy trial and dismissing this case. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2004-05). In a single issue, the State contends the trial judge erred in granting Cornwell's motion to dismiss because she contributed to the delay, did not timely assert her right to a speedy trial, and failed to establish actual prejudice resulting from the delay. For the reasons that follow, we agree that the trial judge erred. We reverse the trial court's order and remand this case for further proceedings consistent with this opinion.
Background
Cornwell was charged on May 30, 2002 with driving while intoxicated. The case was set for trial November 12, 2002, but was reset pursuant to Cornwell's motion for continuance. The second trial setting, January 7, 2003, was similarly reset when the trial judge granted Cornwell's second motion for continuance. Four later trial settings were passed, two when the trial judge granted the State's motions for continuance and two by the court. The case was set "Try or Dismiss" by the judge for December 2, 2003. The day before trial, the State moved to dismiss, stating the testifying police officer was "unavailable," "possibly because of cancer issues." The trial judge dismissed the case. The following day, the State discovered the testifying officer had recovered sufficiently to testify and was, in fact, prepared to testify. On December 9, 2003, the State refiled the case against Cornwell. On February 2, 2004, Cornwell's counsel filed a motion to dismiss the case for failure to provide a speedy trial. Although the trial judge set the motion for hearing on March 16, 2004, she denied the motion at that time because Cornwell "could not be located by her attorneys and her whereabouts were unknown." A second hearing was set for May 7, 2004. During that hearing, defense counsel asked the judge to take judicial notice of the file in the previous DWI case and its December 1 dismissal. Cornwell then testified she had to been to court ten or eleven times on this case and that she had announced ready three times. She testified she had moved to North Carolina and had to fly back to Texas in December when the State dismissed the case. When asked by counsel if she had suffered anxiety over the case, she responded, "Yes." Counsel then asked if they had lost "witnesses and evidence in this case" because of the delay, and Cornwell responded, "Yes, that is correct." She further testified that after the last time she was in court, she believed the case to have been dismissed and thought the case had "ended." On cross-examination, she testified she had not been incarcerated at all because of the charges. She also testified, contrary to her previous testimony, that there were no witnesses that she would have called on her behalf that were now missing and that she had no knowledge of any missing evidence. She conceded that her counsel had requested and been granted two motions for continuance and that she had not invoked her right to a speedy trial during the first case. Following the hearing, the trial judge granted the motion, concluding [T]he State's disregard for the judicial process by sua sponte, dismissing a case one day prior to trial on the grounds that a witness was unavailable and its failure to verify this information, the anxiety suffered by the Defendant and the lengthy trial delay in the first case prior to the State's dismissal established that Defendant's right to a speedy trial were violated.
(Emphasis in original.) This State's appeal followed. Speedy Trial Analysis
We review a trial judge's decision on a defendant's federal and state constitutional speedy trial claims under "an abuse of discretion standard for the factual components" and a "de novo" standard for the legal components of the trial judge's decision. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). When a defendant prevails on her motion for speedy trial, we show almost total deference to the trial judge's findings of fact, "especially when those findings are based on an evaluation of credibility and demeanor." See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). In this case, virtually all facts relevant to Cornwell's speedy trial claim are undisputed; thus, the primary issue in this case is the legal significance of the facts to her claim. Zamorano, 84 S.W.3d at 648. The right to a speedy trial is guaranteed by the United States and Texas constitutions. U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 10. In determining whether a defendant was denied her right to a speedy trial, we use a balancing test in which the conduct of both the State and the defendant are weighed. Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App. 2003). We consider (i) the length of the delay; (ii) the State's reasons for the delay; (iii) the defendant's effort to obtain a speedy trial; and (iv) the prejudice to the defendant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972); Shaw, 117 S.W.3d at 889; Zamorano, 84 S.W.3d at 648. No single factor is necessary or sufficient to establish a violation of an accused's right to a speedy trial. Barker, 407 U.S. at 533. The length of the delay is referred to as a "triggering mechanism" for a speedy trial analysis; absent a "presumptively prejudicial" delay, the other Barker factors need not be considered. Munoz, 991 S.W.2d at 820. In this case, the State concedes the twenty-three month delay between filing the information and the hearing on Cornwell's motion to dismiss for failure to provide a speedy trial is enough to trigger examination of Cornwell's claim. Therefore, we address the other Barker factors. See Munoz, 991 S.W.2d at 820. State's reasons for the delay
The State has the initial burden of justifying a lengthy delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994); Thompson v. State, 983 S.W.2d 780, 783 (Tex.App.-El Paso 1998, pet. ref'd). In examining the reasons for the delay, we assign different weights to different reasons. Emery, 881 S.W.2d at 708. Deliberate attempts to delay the trial to hamper the defense are weighed heavily against the State. Barker, 407 U.S. at 532. On the other hand, more neutral reasons for delay, such as the trial court's docket, are weighed against the State, but not as heavily. Here, the reasons for the initial delay were Cornwell's motions for continuance, the State's motions for continuance, and the trial judge's resetting of the case for docket management reasons. During the second case, the delay was caused when Cornwell's motion was set for hearing, but Cornwell "could not be located by her attorneys and her whereabouts were unknown." Because both sides were responsible for the delay in the initial case and Cornwell was responsible for the delay in the subsequent case, we conclude this factor is neutral. See Barker, 407 U.S. at 531. Assertion of her right to a speedy trial
A defendant has no duty to bring himself to trial. Melendez v. State, 929 S.W.2d 595, 599 (Tex.App.-Corpus Christi 1996, no pet.) (citing Barker, 407 U.S. at 527). The primary burden is on the courts and prosecutors to assure that cases are brought to trial. Melendez, 929 S.W.2d at 599. Nevertheless, a defendant does have some responsibility to assert his right to a speedy trial, and his failure to do so indicates strongly that he did not really want one. Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App. 1992). Here, Cornwell never requested a speedy trial. Instead, she filed a motion to dismiss for failure to provide a speedy trial on February 2, 2004, some twenty months after the first information was filed. The March 16, 2004 hearing on the motion was reset due to Cornwell's absence. This suggests Cornwell did not really want a speedy trial. See Harris, 827 S.W.2d at 957. We conclude this factor weighs strongly against Cornwell. Prejudice
The final factor focuses on the prejudice, if any, the defendant has suffered as a result of the delay. Barker, 407 U.S. at 530. Although the defendant need not show actual prejudice, she must make a prima facie showing of prejudice. Munoz, 991 S.W.2d at 826; Harris, 827 S.W.2d at 308. The burden then shifts to the State to show that prejudice did not exceed that which occurs from the ordinary and inevitable delay. Munoz, 991 S.W.2d at 826 (citing Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973)). Prejudice should be assessed in light of the interests a speedy trial is designed to protect, including (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the accused, and (iii) limiting the possibility that her defense will be impaired. See Barker, 407 U.S. at 532. The most serious form of prejudice is the limitation or impairment of a defendant's defense. Shaw, 117 S.W.3d at 890. Cornwell testified at the hearing that she was never incarcerated; therefore, she did not experience any oppressive pretrial incarceration. Although she testified she had "suffered from anxiety from having this case over [her] head," she did not elaborate nor did she testify how this anxiety affected her. In fact, Cornwell testified she believed the case had "ended." Thus, it appears Cornwell suffered minimal anxiety. Despite her initial testimony that the delay had caused her to lose witnesses and evidence, when asked, Cornwell was unable to identify any witness or evidence that was no longer available due to the delay. Because Cornwell did not establish she was prejudiced or that her defense would be impaired, we weigh this factor against her. State v. Kuri, 846 S.W.2d 459, 467 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (no evidence produced to show prejudice to defense for speedy trial purposes). After examining the record and balancing the four Barker factors, we conclude Cornwell's right to a speedy trial was not violated. Accordingly, the trial judge erred in granting her motion to dismiss for failure to provide a speedy trial. We grant the State's sole issue on appeal. We reverse the trial court's judgment and remand this cause for further proceedings consistent with this opinion.