Opinion
No. 04-03-00102-CR.
Delivered and Filed: February 4, 2004. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 747875, Honorable Michael E. Mery, Judge Presiding. Affirmed.
Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
MEMORANDUM OPINION
Joseph F. Bradberry was charged with driving while intoxicated. He pled nolo contendere and was sentenced to four months in jail. In his sole issue on appeal, Bradberry argues that he was denied his constitutional right to a speedy trial. We affirm the judgment of the trial court.
Standard of Review
When reviewing a trial court's decision on a speedy trial claim, we apply a bifurcated standard of review. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). We review the trial court's determination of the historical facts under an abuse of discretion standard, while we review the trial court's application of law to the facts de novo. Id. When, as here, the defendant does not prevail on a speedy trial claim, we presume the trial court resolved any disputed fact issues in favor of the State, and we defer to these implied findings of fact that the record supports. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002).Speedy Trial
The Sixth Amendment to the United States Constitution, as extended to the states through the Fourteenth Amendment, guarantees the criminally accused the right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). Similarly, the Texas Constitution guarantees the right to a speedy trial. Tex. Const. art. I, § 10; Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App. 1985). The inquiry as to whether the accused's right to a speedy trial has been violated is the same under both the United States and the Texas constitutions. Floyd v. State, 959 S.W.2d 706, 709 (Tex.App.-Fort Worth 1998, no pet.). In determining whether a defendant's right to a speedy trial has been violated, we balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Munoz, 991 S.W.2d at 821. The conduct of both the prosecutor and the defendant must be weighed in balancing the four factors, and no single factor is a necessary or sufficient condition to the finding of a speedy trial violation. Barker, 407 U.S. at 530, 533; Munoz, 991 S.W.2d at 821. 1. Length of the Delay The length of delay is a triggering mechanism for analysis of the other Barker factors. Munoz, 991 S.W.2d at 821. Further analysis is required if the length of the delay is "presumptively prejudicial." State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). The length of the delay is measured from the time the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). Generally, a delay of eight months or longer is considered "presumptively prejudicial" and triggers speedy trial analysis. Rangel, 980 S.W.2d at 843. Here, Bradberry was arrested on February 10, 2000. The date of his trial setting was February 2, 2003. We hold that this delay of almost three years triggers consideration of the remaining three Barker factors. 2. Reasons for the Delay The State has the burden of justifying a lengthy delay. Id. Different weights are assigned to different reasons for a delay. Munoz, 991 S.W.2d at 822. A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are weighed less heavily. Id. If the record is silent regarding the reason for the delay, we presume neither a deliberate attempt by the State to prejudice the defense nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314. Bradberry's trial date was reset many times. For most of these instances, we have no evidence showing why the trial date was reset. The trial court's docket sheet, however, does indicate the reason for several of the resets. In the first such instance, the trial date was reset for a date three weeks later because the defendant was out of town. Next, the case was reset for a date three weeks later by the court. Then, at the defendant's request, the case was reset for a date almost three months later. Before that trial date arrived, the case was reset for a date over a month later, again by the court. After that, the case was reset for a date a week later, this time at the defendant's request. Next, the case was reset for a date almost three months later because the defendant hired a new attorney. Then, the case was reset for a date five months later because the file was lost. Later, the case was transferred because the presiding judge recused herself. After that, the case was reset for a date two days later because the defendant failed to appear for his trial date. This evidence shows that five of the resets are attributable to the defendant and four to the court. The State argues that the court's resets, specifically the time when the case had to be reset because the file was lost for several months, should not be held against the State. We disagree. "[T]he ultimate responsibility for [neutral reasons such as negligence or overcrowded courts] must rest with the government rather than with the defendant." Barker, 407 U.S. at 531. Thus, we hold that the court's resets, including the time when the file was lost, weigh against the State, though not heavily. Additionally, for the parts of the record that are silent as to the cause for delay, we must presume that no valid reason for delay exists. Dragoo, 96 S.W.3d at 314. Accordingly, we hold that the court's resets as well as the unexplained resets weigh against the State, though not heavily. Although we hold the State responsible for some of the delay, Bradberry himself was responsible for five of the delays. This evidence indicates Bradberry did not want a speedy trial. Thus, we hold that the delay attributable to the State weighs less heavily than the delay caused by Bradberry himself. Barker, 407 U.S. at 536 ("[B]arring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates . . . that the defendant did not want a speedy trial."). 3. Assertion of the Right The third factor that a trial court must consider is the defendant's assertion of his right to a speedy trial. Munoz, 991 S.W.2d at 825. A defendant is responsible for asserting or demanding his right to a speedy trial. Barker, 407 U.S. at 528-29. A lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Russell v. State, 90 S.W.3d 865, 873 (Tex.App.-San Antonio 2002, pet. ref'd). However, a defendant's failure to assert his right to a speedy trial is not necessarily dispositive of his speedy trial claim. Munoz, 991 S.W.2d at 825. Instead, a defendant's failure to do so is weighed and balanced with the other Barker factors. Id. A defendant's failure to assert his right simply makes it more difficult for him to prove he was denied a speedy trial. Id. Here, Bradberry waited until January 7, 2003, almost three years after he was arrested, to assert his right to a speedy trial. This lengthy delay weighs against him. Additionally, instead of requesting a speedy trial, he requested that the charges against him be dismissed. See Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983) ("Although a motion to dismiss notifies the State and the court of a speedy trial claim, a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim."); McCarty v. State, 498 S.W.2d 212, 215-16 (Tex.Crim.App. 1973) (holding that a defendant's speedy trial claim is weakened where his prime object is not to gain a speedy trial but to have the charges against him dismissed). For these reasons, we hold that this factor weighs heavily against Bradberry. 4. Prejudice Caused by the Delay The prejudice to the defendant is assessed in light of the interests the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. Of these subfactors, the most serious is the last, because a defendant's inability to adequately prepare his case skews the fairness of the entire system. See id. at 828. The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. at 826. When a defendant makes a prima facie showing of prejudice, the State carries the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Cr.App. 1973). At the hearing on the motion to dismiss, neither Bradberry nor the State called witnesses, offered sworn testimony, or attempted to introduce evidence into the record. Nor did the trial court make explicit findings of fact. Defense counsel did argue, however, that Bradberry was prejudiced by anxiety and concern he experienced as a result of the delay:And then the fourth prong is prejudice to this — to my client, Your Honor. He's lost 105 pounds, which is a great thing over time, but, you know, due to the anxiety of the fact that he is chairman of the Coliseum Advisory Board, is, you know, well connected in politics, does a lot of good for the community, the city, and the county, this has weighed heavily on him. . . . And so all of those factors weighed heavy on him, the humiliation of being arrested, the embarrassment to his colleagues, to himself, the fact that he had to live with this over his head.
Defense counsel did not argue that Bradberry was subject to oppressive pretrial incarceration, as Bradberry was not incarcerated while awaiting trial. Nor did he argue that the delay impaired Bradberry's ability to present an adequate defense.