Opinion
No. 05-14-01246-CR
04-14-2015
THE STATE OF TEXAS, Appellant v. MARK CLAYTON TATOM, Appellee
On Appeal from the County Criminal Court No. 4 Dallas County, Texas
Trial Court Cause No. MA13-05080
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Whitehill
This State's appeal involves the dismissal of a misdemeanor DWI charge against Mark Clayton Tatom for violation of Tatom's Sixth Amendment right to a speedy trial. We conclude that the delay was, (i) sufficient to trigger a speedy trial analysis, (ii) not so excessive as to create a presumption of prejudice, and (iii) the weight of the Barker factors, balanced together, does not support a speedy trial violation. We therefore reverse the trial court's order and remand the case to the trial court.
The State may appeal an order of a court in a criminal case if the order "dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint." See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(l) (West Supp. 2014).
I. BACKGROUND
On May 5, 2013, Tatom was involved in an car accident where he hit a parked car. He and his passenger were taken to the hospital, and Irving police officer Craig Martin was dispatched to the hospital to investigate.
Martin observed Tatom had red, bloodshot, and glassy eyes and the faint odor of alcohol on his breath. Martin performed an HGN test, and concluded that Tatom was intoxicated. Martin then advised Tatom, orally and in writing, that he was under arrest for intoxication assault. Martin's decision to charge Tatom with intoxication assault was based on his perception of the passenger's injuries. Martin read Tatom his statutory warnings advising Tatom that he was under arrest, and left a copy of the form with Tatom. Martin also requested a blood sample, and Tatom consented. Although Tatom was told that he was under arrest, he was not taken into custody. A few hours later, at approximately 5-6 a.m. the next morning, Tatom was released from the hospital. He signed out and left the hospital with full knowledge of hospital personnel.
Tatom asserts his passenger subsequently filed an affidavit showing Martin was mistaken about her suffering serious bodily injury, but the affidavit was not included in our record.
On May 14, 2013, a warrant was issued for the arrest Tatom for intoxication assault. Although the warrant included accurate information about Tatom and the location of his residence, the warrant was not executed.
In mid-August, 2013 Tatom heard a knock at his door. When he opened the door, no one was present but he observed two police cars leaving the parking lot of his apartment complex. Consequently, Tatom contacted his lawyer.
On August 23, 2013, Tatom's counsel filed a writ of habeas corpus seeking to have bond set. A district court judge set bond at $1,500, and Tatom went to the Dallas sheriff's office to post it. While at the sheriff's office, Tatom was also fingerprinted and photographed.
On November 4, 2013, a grand jury declined to indict Tatom for intoxication assault, but indicted him for operating a motor vehicle in a public place with an alcohol concentration of 0.15 or more. The case was thus transferred from district court to the county court at law. Tatom's counsel subsequently notified the county court at law that he was representing Tatom. The Court set the case for February 26, 2014.
On February 10, 2014, two weeks before trial, Tatom filed a motion to dismiss for violation of speedy trial rights. Tatom appeared on February 26, passed on the case, and set a hearing on the motion to dismiss for April 4, 2014. Although Tatom and the State appeared and announced ready on April 4, the court rescheduled the hearing to April 24 and, subsequently, to May 23, 2014.
The court heard evidence at the May 23 hearing and denied Tatom's motion. Tatom filed a motion for reconsideration. In the interim, the court of criminal appeals issued a decision in Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014). As a result, Tatom filed a supplemental motion for reconsideration based on Gonzales. Tatom argued, inter alia, that Gonzales clarified application of the prejudice prong in a speedy trial analysis and that the court's ruling was inconsistent with this new application. After hearing the motions for reconsideration, the trial judge withdrew her prior ruling and granted Tatom's motion to dismiss.
Although the court did not make findings of fact and conclusions of law, the trial judge stated that she was not convinced the case law set a twelve month standard for triggering a speedy trial analysis. The judge further opined that Gonzales requires the prejudice prong "to be looked at differently." The State then timely perfected this appeal.
II. STANDARD OF REVIEW AND ISSUES ON APPEAL
In a single issue on appeal, the State contends that the trial court erred in granting the motion to dismiss for violation of Tatom's Sixth Amendment right to a speedy trial. According to the State, the delay was not sufficient to trigger a speedy trial analysis. Alternatively, the State asserts the court misapplied the analysis, particularly regarding to the presumption of prejudice resulting from delay.
We review the trial court's ruling on a speedy trial claim under a bifurcated standard of review, which involves application of an abuse of discretion standard to the trial court's factual findings and a de novo standard to the trial court's legal conclusions. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008).
III. ANALYSIS
Was the Delay Sufficient to Trigger A Speedy Trial Analysis?
The Sixth Amendment to the United States Constitution and article one, section ten, of the Texas Constitution guarantee an accused the right to a speedy trial. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; Cantu, 253 S.W.3d at 280 & n. 16. Whether raised under the federal or state constitution, we analyze speedy trial claims on an ad hoc basis by weighing and then balancing four factors: (1) length of the delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530 (1972); Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). The first factor, length of delay, involves a double inquiry. First, the length of delay is measured to determine if it triggers a speedy trial analysis. See Barker, 407 U.S. at 530-31. If the accused makes this showing, the court then considers this factor as one among several to determine the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Id. at 533-34.
If an accused's speedy trial right is violated, the proper remedy is dismissal of the prosecution with prejudice. Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003) (citing Strunk v. United States, 412 U.S. 434, 440, (1973) and Hull v. State, 699 S.W.2d 220, 224 (Tex. Crim. App. 1985)).
To trigger a speedy trial analysis, the accused must allege that the interval between the accusation and the trial has crossed the threshold dividing ordinary and presumptively prejudicial delay. Doggett v. United States, 505 U.S. 647, 651-52 (1992). "Presumptive prejudice" marks the point at which courts deem the delay sufficiently unreasonable to trigger further inquiry. See State v. Munoz, 991 S.W.2d 818, 821-22 (Tex. Crim. App. 1999). Unless the delay is long enough to be presumptively prejudicial, no further inquiry is required. Barker, 407 U.S. at 530.
The parties disagree on two aspects of the length of delay prong: (i) how much delay is necessary to trigger the Barker analysis and (ii) when Tatom became "accused" for purposes of counting that delay.
Regarding the length of time necessary to trigger a Barker analysis, the State argues that a period of one year or more from when the defendant is first accused is presumptively unreasonable. See Doggett, 505 U.S. at 652 n.1; see also Shaw, 117 S.W.3d at 889. On the other hand, Tatom argues that a delay of eight months or more is the general Texas standard. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992); Russell v. State, 90 S.W.3d 865, 872 (Tex. App.—San Antonio 2002, pet. ref'd); State v. Rice, No. 05-01-01753-CR, 2002 WL 31111274, at *1 (Tex. App.—Dallas Sept. 24, 2002, no pet.) (not designated for publication); Kelly v. State, 122 S.W.3d 227, 237 (Tex. App.—Corpus Christi 2003, no pet.). But the cases the parties cite do not reflect an absolute standard. They instead demonstrate that the speedy trial clock does not measure the length of delay with uniform precision.
There is no "set time element" that triggers the Barker analysis. Cantu, 253 S.W.3d at 281. The length of delay necessary to provoke further inquiry depends on the facts of each case. Barker, 407 U.S. at 530. It is well-established that tolerable delay for minor crimes is considerably less than for serious, complex charges. Id. at 531.
As to when Tatom became "accused," Tatom argues that he was accused when he was told he was placed under arrest at the hospital on May 5, 2013. The State argues that Tatom was not formally accused until at least August 23, 2013 when he was admitted to bail. According to the State, the interval between May and August 2013 is simply pre-arrest delay that is not considered in determining the length of delay.
But we need not determine whether Tatom was formally charged or accused on May 5 or August 23. Because it does not alter the outcome, we assume without deciding that Tatom was accused on May 5. Under these circumstances, in this misdemeanor DWI case, we conclude the delay was sufficient to trigger a Barker analysis. We therefore undertake a full Barker analysis. See Barker, 407 U.S. at 530. Does the Weight of the Barker Factors Support A Speedy Trial Violation?
On the facts of this case, the August 23 date would also trigger a Barker analysis.
Length of Delay
Affording Tatom the benefit of the doubt, we have assumed Tatom was accused on May 5. But even when we use this longer time frame for the analysis, the delay from May 5, 2013 to May 23, 2014 is only slightly longer than a year (and the delay to the initial trial setting which Tatom passed was only slightly more than nine months). While sufficient to trigger a Barker analysis, the delay cannot be characterized as excessive or extraordinary. See e.g., Doggett, 505 U.S. at 653 (delay exceeding eight years); Gonzalez, 435 S.W.3d at 809 (six-year delay).
Reason for Delay
Once it is determined that unreasonable delay has occurred, the State bears the burden of justifying the delay. See Cantu, 253 S.W.3d at 280-81. When assigning weight to the reasons for delay given by the State, different reasons deserve different weights. Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 889. Intentional prosecutorial delay is weighed heavily against the State, while more "neutral" reasons, such as negligence or overcrowded dockets, are weighed less heavily against it. Zamorano, 84 S.W.3d at 649 (quoting Barker, 407 U.S. at 531). "In the absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay." Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).
The State maintains that some delay resulted from the case being investigated as a felony that had to be presented to a grand jury. There is no evidence in the record to support this assertion. But the record does reflect that the August to November delay resulted from the case being transferred to misdemeanor court. The record also shows that on February 24, 2014, Tatom appeared and signed a "pass slip" requesting the continuance of the case until the April 4, 2014 hearing. Then on April 4 and April 24, both sides appeared, but the pass slips reflect that the "judge was not in." The hearing was reset to May 23 at the court's instruction.
Thus, some of the delay is attributable to Tatom and some to the State. The delay from February to April is attributable to Tatom. He requested dismissal of the case before the first setting, but there is no indication that he attempted to have the motion heard at that setting. Instead, he requested a hearing on his motion in April. Because there is no evidence that Tatom tried, but was unable to get an earlier setting, this period of delay weighs against Tatom.
Some of the delay resulted from the administrative transfer of the case from the district court to the county court at law. The delay from April to May 2014 resulted from the court's need to conduct other business. Because neither of these delays were intentionally caused by the State, they weigh only slightly against the State. See Zamorano, 84 S.W.3d at 649.
Assertion of the Right
Tatom argues that he asserted his right to a speedy trial within weeks of his notice of the first setting. Significantly, however, Tatom never requested a speedy trial or took any other steps to expedite the case and thereby show a desire for a quick trial. Instead, he requested that the case be dismissed. This fact potentially weakens Tatom's case because a request for a dismissal rather than for a speedy trial "shows a desire to have no trial at all instead of a speedy trial." Cantu, 253 S.W.3d at 283; Goff v. State, No. 05-13-0076-CR, 2014 WL 259668, at *3 (Tex. App.—Dallas Jan. 22, 2014, no pet.); Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.—Fort Worth 1997, no pet.). While no defendant has a duty to bring himself to trial, all defendants who want a speedy trial have a duty to assert their desire for a speedy trial. Cantu, 253 S.W.3d at 282-83. This factor weighs against Tatom.
Prejudice
We assess prejudice in light of the interests that the speedy trial right was designed to protect: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the accused, and (iii) limiting the possibility that the defense will be impaired. Zamorano, 84 S.W.3d at 652. Of these types of prejudice, the last is the most serious because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. Cantu, 253 S.W.3d at 283.
Ordinarily, the defendant must make some showing of prejudice, although a showing of actual prejudice is not required. Munoz, 991 S.W.2d at 826; State v. Smith, 76 S.W.3d 541, 551 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). When the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show that the defendant suffered "no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Munoz, 991 S.W.2d at 826; Smith, 76 S.W.3d at 551; Whitfield v. State, 137 S.W.3d 687, 691 (Tex. App.—Waco 2004, no pet.).
Here, Tatom was not subjected to pretrial incarceration at all. Nonetheless, he claims to have established prejudice through his testimony that he suffered anxiety and concern about the case. Specifically, Tatom testified that he was embarrassed when he had to discuss the situation during the job interview process. He was also anxious about the case, but did not require medical treatment for this anxiety.
Courts generally recognize that a defendant suffers anxiety when accused of a crime. See Abraham v. State, 330 S.W.3d 326, 333 (Tex. App.—Dallas 2009, pet dism'd). Yet general anxiety alone is not sufficient proof of prejudice when it is no greater than the level normally associated with a criminal charge. Cantu, 253 S.W.3d at 285-86; State v. Jolly III, 446 S.W.3d 613, 617 (Tex. App.—Amarillo 2014, no pet.); Smith v. State, 436 S.W.3d 353, 367-68 (Tex. App.—Houston [14th Dist.] 2014, pet ref'd). For example, in Schenekl v. State, 996 S.W.2d 305, 314 (Tex. App.—Fort Worth 1999), aff'd, 30 S.W.3d 412 (Tex. Crim. App. 2000), the defendant testified that the delay in bringing him to trial put him "on pins and needles the whole time." That court, however, concluded that, although the State failed to rebut the anxiety element, the defendant's testimony was not enough to cause the prejudice prong to weigh in his favor. Id.
Courts considering proof of prejudice usually require something more than testimony about general anxiety. For example, in Zamorano, the court found that the appellant's unchallenged testimony was "some evidence" of the type of anxiety considered under the prejudice prong. Zamorano, 84 S.W.3d at 654. But the court also noted that the four year length of delay supported an inference of prejudice, as did appellant's testimony concerning direct economic costs, four years of job disruptions, and the weekly requirement to report to his bonding company. Id.; see also State v. Burckhardt, 952 S.W.2d 100, 104 (Tex. App.— San Antonio 1997, no pet.) (concluding prejudice established, in part, where appellant showed disruptions in his work and income stream).
In this case, Tatom testified that he was recruited for a new, higher paying job while the case was pending. He began this new job fourteen days after the grand jury indicted him for the charged offense. Thus, the record shows that Tatom did not suffer any adverse economic impact or disruption of his employment because of the case. Moreover, Tatom presented only a general complaint about anxiety. Nothing suggests that his anxiety was greater than the level normally associated with a criminal investigation.
Next we examine whether the delay impaired Tatom's ability to present a defense. This is the most serious manifestation of prejudice because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. Dragoo, 96 S.W.3d at 315.
This was not a complex case. See Zamorano, 845 S.W.3d at 650 (driving while intoxicated not a complex case). And there is no evidence that Tatom's ability to defend it was impaired in any way. Therefore, we conclude that Tatom failed to make a prima facie showing of prejudice. We weigh the prejudice prong against him.
The State references an affidavit of Tatom's female passenger that was introduced at the hearing as evincing Tatom's ability to locate his witness. This affidavit is not part of our record.
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Ordinarily, our inquiry would end here. But Tatom relied on the Gonzales decision to persuade the trial court that the Barker prejudice analysis has changed. Tatom's interpretation of Gonzales is misplaced.
In Gonzalez, the Texas Court of Criminal Appeals considered whether a defendant's right to a speedy trial was violated after a six-year delay caused by the State's negligence in failing to pursue the defendant. Gonzales, 435 S.W.3d at 809. When considering the prejudice prong, the court observed that there may be some delay that is so excessive that prejudice is presumed. Id.
Gonzales does not purport to establish new law. See id. It merely applies the law to cases of excessive delay. Id. We conclude that, based on the undisputed facts in this case, there was no excessive delay under any measure of delay. There was thus no basis for the court to presume prejudice. On the facts of this case, Tatom's burden to demonstrate some prejudice was unchanged. Therefore, we balance the Barker factors to determine if there was a speedy trial violation.
Does the Balance of the Barker Factors Support a Speedy Trial Violation?
Balanced together, we conclude that the Barker factors do not weigh in favor of dismissal. The delay was not excessive. The reason for delay weighs slightly against both parties and is therefore of little consequence. That Tatom requested dismissal rather than a speedy trial attenuates his claim that a speedy trial was denied. And Tatom failed to demonstrate prejudice from the delay. Accordingly, we conclude that Tatom's right to a speedy trial was not violated, and the trial court erred in granting the motion to dismiss. We reverse the trial court's order and remand the case for further proceedings. Do Not Publish
TEX. R. APP. P. 47
141246F.U05
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
JUDGMENT
On Appeal from the County Criminal Court No. 4, Dallas County, Texas
Trial Court Cause No. MA13-05080.
Opinion delivered by Justice Whitehill. Justices Francis and Lang-Miers participating.
Based on the Court's opinion of this date, the trial court's order is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.