No. 05-06-00478-CR
Opinion Filed November 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 6, Collin County, Texas, Trial Court Cause No. 003-83160-04.
Before Justices WRIGHT, O'NEILL, and LANG-MEIRS.
Opinion By Justice WRIGHT.
Shelly Dowdy-Caolo appeals her conviction for driving while intoxicated. After appellant pleaded guilty, the trial court assessed punishment at ninety days' confinement, probated for a year. In a single issue, appellant contends her right to a speedy trial was violated. We overrule appellant's issue and affirm the trial court's judgment.
Background
Appellant was arrested for driving while intoxicated on February 26, 2004. On March 8, 2004, the trial court ordered appellant to place an interlock device on her car as a condition of her bond. Appellant was charged by information on May 12, 2004. Twenty months later, on January 11, 2006, a notice for appellant to appear on January 31, 2006 was issued by the trial court. On January 20, 2006, appellant filed a motion for speedy trial, and, in a separate motion, asked for the information to be set aside due to a speedy trial violation. After a hearing, the trial court denied appellant's request to set aside the information. Thereafter, appellant pleaded guilty pursuant to a plea bargain agreement. This appeal followed. Discussion
We begin our discussion by considering the State's assertion that this Court lacks jurisdiction because the trial court ruled on appellant's request for a speedy trial, but did not rule on appellant's motion seeking to set aside the information for a speedy trial violation. The record shows appellant filed two motions on January 20, 2006. The trial court held a hearing on the motions, and at the conclusion of the hearing, requested additional information before ruling. The trial court also declined to rule on appellant's motion to modify the bond restrictions because it was "on the cusp of making a decision that might make that moot." In response to the trial court's request, appellant filed a document entitled "Defendant's Brief on Speedy Trial Violation" and stated the brief "was in support of Defendant's previously filed "Motion to Set Aside Information for Failure to Afford Constitutional Right to Speedy Trial." The State filed additional cases on "Speedy Trial Violation." Thereafter, the trial court signed an order denying appellant's motion for speedy trial and proceeded with the case. Under these circumstances, we conclude the trial court denied appellant's motion to set aside the information for a speed trial violation, but did not, as alleged by the State, deny appellant's request that the case be set for trial. Having so concluded, we turn to the merits of appellant's complaint. The Sixth Amendment of the United States Constitution guarantees every person the right to a speedy trial. U.S. Const. amend. VI. This constitutional right is made applicable to the States through the Fourteenth Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court outlined a four-factor balancing test to determine whether an accused has been denied the right to a speedy trial. Id. at 530-33. The factors we consider include, but are not limited to: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) the prejudice to the defendant resulting from the delay. Id. None of the four factors alone is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Id. at 533. The factors are all related and must be considered together with such other circumstances as may be relevant. Id. We review the trial court's decision using a bifurcated standard of review: we review factual components of the trial court's decision for an abuse of discretion; however, we conduct Barker's balancing test de novo. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002); State v. Jones, 168 S.W.3d 339, 345 (Tex.App.-Dallas 2005, pet. ref'd). With these standards in mind, we will evaluate each of the Barker factors. The length of the delay is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313 (1971). To trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from "presumptively prejudicial" delay. Doggett v. United States, 505 U.S. 647, 652 (1992). If the accused makes this showing, we must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Id. This latter inquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time. Id. Further, the delay that can be tolerated for an ordinary street crime is considerably less than for a more complex charge. Barker, 407 U.S. at 531. Although no specific length of time is a per se violation of the right to a speedy trial, generally any delay of eight months or longer is presumptively unreasonable and triggers a speedy trial analysis. See Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992). Here, appellant was arrested on February 26, 2004. She pleaded guilty on March 20, 2006, a delay of twenty-five months. Thus, the delay in this case is presumptively prejudicial and further analysis under the Barker test is necessary. In assessing the second of the Barker factors, we are mindful that the primary burden is on the prosecutor and the courts to insure that a defendant is speedily brought to trial. Thus, the State has the initial burden of justifying a lengthy delay. Barker, 407 U.S. at 530. When weighing this factor, different weights are assigned to different reasons for the delay. Id. at 531. For example, a deliberate attempt to delay trial in order to hamper the defense weighs heavily against the State. Id. However, a more neutral reason such as negligence or overcrowded courts is weighted less heavily. Id. Although delay due to negligence is weighed more lightly than a deliberate intent to harm the accused's defense, delay due to negligence must nevertheless be considered because the ultimate responsibility for such circumstances rest with the State. Id. Our review of the record shows that after appellant was arrested, there was a delay of twenty-five months until she pleaded guilty. A small portion of that delay, from January 21, 2006 until March 3, 2006 was for the purpose of the pending speedy trial motion. Although this is not a complex case, the State had no explanation for the remainder of the delay. The record suggests that the case was not set for trial due to an oversight in the court. While no evidence indicates that the State deliberately attempted to delay the trial, a delay of two years for a straightforward case to be set for trial constitutes official negligence. See Zamorano, 84 S.W.3d at 651. Although negligence is to be weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. Id. We conclude this factor weighs against the State. See id. We next consider appellant's assertion of her right to a speedy trial. Although the defendant has no duty to bring herself to trial, the defendant does have a responsibility to assert her right to a speedy trial. Zamorano, 84 S.W.3d at 651. Whether and how a defendant asserts her speedy trial right is closely related to the other three factors because the strength of her efforts will be shaped by them. Id. Therefore, the defendant's assertion of her speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Id. In this case, the record shows appellant filed a motion seeking a speedy trial on the same day she filed a motion seeking to set aside the information. Appellant, who had an interlock device on her car for two years and an attorney represent her at the administrative proceedings related to this case, explained that she did not hire an attorney or file any motions seeking to proceed with the case because she did not think she needed to do anything until the case was set for trial. Denise Bigham, an employee from pretrial services who supervised appellant while she had the interlock device on her car, testified she told appellant on more than one occasion that the case had not been set for trial and if two years elapsed, the statute of limitations would expire. Thus, although appellant may have been anxious and wanted the case to be resolved, it appears appellant hoped to take advantage of the delay and obtain a dismissal of the charges. We conclude this factor weighs heavily against appellant. Finally, we must determine whether appellant suffered prejudice as a result of the delay. See Barker, 407 U.S. at 532. Prejudice should be assessed in light of the interests a speedy trial is designed to protect, i.e., (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) guarding against impairing the accused's defense by loss of exculpatory evidence and dimming memories. Id. The most serious form of prejudice is the last, impairment of defense. See id. Here, appellant testified that she lost a significant amount of income and was demoted at work because of the interlock device. She also testified that had been prescribed medication for depression and had developed migraine headaches since the time she was arrested. However, appellant did not produce any evidence of oppressive pretrial incarceration. Nor did appellant produce any evidence concerning the most serious form of prejudice, impairment of her defense. Although affirmative evidence of particularized prejudice to a defense is not essential to every speedy trial claim, appellant's acquiescence in the delay attenuated any presumptive prejudice to her defense which may have arisen. Id. Thus, we conclude this factor weighs only slightly in favor of appellant. Having carefully reviewed and balanced the relevant speedy trial factors, we conclude appellant's right to a speedy trial was not violated. The delay was not caused by any deliberate attempts to hamper appellant's defense, but rather was due to the State's negligence. Moreover, appellant's actions suggest she did not really want a speedy trial but instead hoped to take advantage of the delay and obtain a dismissal of the charges. Finally, although there is evidence of appellant's anxiety and that her bond conditions resulted in a loss of income, there is no evidence that appellant's defense suffered because of the delay. Consequently, we cannot conclude the trial court erred by denying appellant's request to have the information in this case set aside. We overrule appellant's sole issue. Accordingly, we affirm the trial court's judgment.