No. 04-04-00505-CR
Delivered and Filed: April 27, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 8, Bexar County, Texas, Trial Court No. No. 847960, Honorable Olin B. Strauss, Judge Presiding. Affirmed.
The Honorable Karen Crouch is the presiding judge of County Court at Law No. 8, Bexar County, Texas and signed the judgment in this case. The Honorable Olin B. Strauss ruled on the motion for speedy trial that is the subject of this appeal.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
PHYLIS J. SPEEDLIN, Justice.
Gabriel Hausauer was charged in April 2003 with driving while intoxicated, second offense. Hausauer now appeals his conviction on the basis that he was denied his right to a speedy trial. We affirm the trial court's judgment.
Background
Gabriel Hausauer was arrested on April 11, 2003, and subsequently charged with driving while intoxicated, second offense. He made an initial court appearance on June 12, 2003, at which time the State did not have its file prepared. Hausauer made a subsequent appearance on July 16, 2003, and the case was set on the jury trial docket for November 3, 2003. The jury trial was subsequently re-set three times to November 19, 2003; April 5, 2004; and finally, June 21, 2004. The record contains no reason or explanation for the delays of the trial setting. Hausauer filed a motion for speedy trial on April 5, 2004, twelve months after his arrest. The record indicates that at the April 2004 setting, the judge admonished the prosecutor that if the State was not prepared to proceed by the June trial setting, the court would hear Hausauer's motion for speedy trial. When the case was called for trial on June 21, 2004, fourteen months after Hausauer's arrest, a new prosecutor advised the trial judge that he was unaware the case had been set for a jury trial and, consequently, the State was not prepared to proceed. The judge re-set the case to the afternoon and conducted a hearing on Hausauer's speedy trial motion. After denying the motion, the judge re-set the case for trial on the following Monday, June 28, 2004. On that date, Hausauer entered into a plea agreement with the State and pled nolo contendere. Hausauer's punishment was assessed at one year incarceration, probated for fourteen months, plus a $600 fine and court costs. This appeal followed. Analysis Standard of Review
In two issues on appeal, Hausauer contends that he was denied his right to a speedy trial under the United States and Texas Constitutions by the State's failure to proceed with his trial until fourteen months after his arrest. U.S. Const. amend. VI, XIV; Tex. Const. art. I, § 10. 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 factual determinations under an abuse of discretion standard, and review de novo the trial court's application of the law to the facts. Id. In determining whether a defendant's right to a speedy trial has been violated, we are required to weigh and 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. This balancing test requires a case-by-case analysis of the conduct of both the prosecution and the defendant, and no single factor is considered dispositive. Munoz, 991 S.W.2d at 821. We address the four Barker factors below. Length of the Delay The length of delay is a triggering mechanism for analysis of the other Barker factors. Id.; see also State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). Texas courts have generally found a delay beyond eight months to be presumptively prejudicial, triggering further analysis of the Barker factors. Rangel, 980 S.W.2d at 843. Here, the State concedes that the fourteen month delay between the date of Hausauer's arrest and the date of his trial is sufficient to trigger a consideration of the other factors. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App. 2003) ("In general, courts deem delay approaching one year to be `unreasonable enough to trigger the Barker [i]nquiry'") (quoting Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992)). Reasons for the Delay Upon a finding that a presumptively prejudicial delay has occurred, the State bears the initial burden of justifying the delay. Rangel, 980 S.W.2d at 843. If the record is silent regarding the reason for the delay, we can not presume either a deliberate attempt by the State to prejudice the defense or a valid reason for the delay. Dragoo, 96 S.W.3d at 314; Zamorano v. State, 84 S.W.3d 643, 649-50 (Tex.Crim.App. 2002). Hausauer's case was re-set four times before it proceeded to trial. The record in this case is silent as to the reasons for three of the four delays. Because the ultimate responsibility for bringing a defendant to a speedy trial rests on the State, even a neutral reason such as a crowded docket may be weighed against the State. Barker, 407 U.S. at 531; Rangel, 980 S.W.2d at 844. However, when there is no evidence that the State deliberately attempted to delay the trial or prejudice the defendant, this factor is weighed only slightly against the State. See Zamorano, 84 S.W.3d at 649 -50; Dragoo, 96 S.W.3d at 314. Here, the record shows the fourth delay, albeit for only one week, was due to the State's failure to be prepared for a jury trial. The record's silence as to the reasons for the other three delays gives rise to a presumption that there was no valid reason for the delays. Rangel, 980 S.W.2d at 844. Therefore this factor is weighed against the State, although not heavily. Zamorano, 84 S.W.3d at 649 -50. Assertion of the Right The third factor to be considered 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. Id. 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 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 makes it more difficult for him to prove he was denied a speedy trial. Id. Hausauer did not file his motion asserting his right to a speedy trial until April 5, 2004, one year after his arrest. On June 21, 2004, when the motion was heard, Hausauer testified that he was seeking a dismissal, rather than a speedy trial. Hausauer's motivation in asking for a dismissal, rather than a prompt trial, weighs against him. See Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983). In addition, Hausauer's acceptance of a plea bargain agreement at the next trial setting impairs his claim by further demonstrating that his motivation was not to obtain a speedy trial, but rather to avoid a trial. See Mosby v. State, No. 06-03-00014-CR, 2004 WL 177549, at *8 (Tex.App.-Texarkana Jan. 29, 2004, no pet.) (not designated for publication). Prejudice Caused by the Delay The last Barker factor is "prejudice to the defendant." Munoz, 991 S.W.2d at 826. Prejudice to the defendant is assessed in light of the interests the right to a speedy trial is designed to protect: (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 interests, the most important is protecting a defendant's ability to adequately prepare his case because compromise of this interest "skews the fairness of the entire system." Id. (quoting Barker, 407 U.S. at 532-33). The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. 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." Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973)). For purposes of showing a speedy trial violation, the prejudice suffered by the defendant must emanate from the delay. Anderson v. State, 8 S.W.3d 387, 392 (Tex.App.-Amarillo 1999, pet. ref'd). Here, Hausauer was not incarcerated during the time that he was awaiting trial as he had been released on bond. He was, however, required to have an ignition interlock device installed on his vehicle in order to have his driver's license reinstated while he was awaiting trial. Hausauer testified that having the device caused him to incur financial costs for installation and monthly fees, that it was a great inconvenience, and that it negatively affected his real estate business. The record indicates that the ignition interlock device was not ordered by the court as a condition of his bond, but rather was a requirement imposed by the State of Texas in order for Hausauer to get his driver's license reinstated. The State points out that any prejudice Hausauer may have suffered as a result of the ignition interlock device was associated with his own desire to maintain his driver's license rather than any delay in his trial setting. In order to establish a speedy trial claim, the defendant must demonstrate that the prejudice he suffered emanated from the delay. Anderson, 8 S.W.3d at 392. Here, any prejudice resulting from the interlock device was not a result of the delay in his trial, but was a result of the conditions imposed for reinstatement of his driver's license. On the second sub-issue, pretrial anxiety and concern, Hausauer testified that he suffered anxiety related to the ignition interlock device on his vehicle, and that the pending criminal charge also negatively affected his business, his family, and his relationship with his wife. As noted, the interlock device was not a condition of his pre-trial release, and therefore any anxiety created by the device did not result from the delay in his trial. The State contends that there is nothing in the record to indicate that any anxiety Hausauer suffered was associated with the delay, as opposed to the fact of his arrest and the pending criminal charge. We agree. While Hausauer testified that both he and his family were affected by his uncertain status, there is no indication that the anxiety he experienced was beyond what would ordinarily result from one's being arrested, incarcerated, and charged with driving while intoxicated. Hausauer has failed to make a prima facie showing of undue anxiety resulting from the delay. See Anderson, 8 S.W.3d at 392 (prejudice must stem from the delay). Finally, we must determine whether Hausauer has made a prima facie showing that his defense was impaired by the delay. In order to make "some showing of prejudice" on this sub-issue, Hausauer must show that certain witnesses were unavailable for trial, that their testimony would have been relevant and material to his defense, and that he used due diligence to locate and produce the witnesses for trial, or that his defense was impaired in some other way by the delay. Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973); Meyer v. State, 27 S.W.3d 644, 650 (Tex.App.-Waco 2000, pet. ref'd). Hausauer testified that he was not aware of any witnesses that were no longer available as a result of the delay. He also testified that the ignition interlock device was the only type of prejudice that he suffered. Consequently, Hausauer has failed to make a prima facie showing that his defense was impaired by the delay. In sum, Hausauer failed to make a prima facie showing that he suffered oppressive pretrial incarceration, undue anxiety, or impairment of his defense as a result of the delay in his trial. We conclude, therefore, that this factor should be weighed against Hausauer. See Munoz, 991 S.W.2d at 829 (finding "minimal" prejudice where defendant was incarcerated for seventeen months and thus showed oppressive pretrial incarceration and anxiety, but failed to show his defense was impaired by the delay); see also Meyer, 27 S.W.3d at 651. Weighing the Barker factors based on the record before us, we conclude that Hausauer's right to a speedy trial was not violated. While there was no explanation for three of the four delays and Hausauer did assert his right to a speedy trial, his claim is weakened by the fact that he sought a dismissal rather than a speedy trial. Further, Hausauer was released on bond pending trial, and was unable to make a prima facie showing of prejudice due to the delay in his trial. We therefore overrule Hausauer's issues on appeal and affirm the trial court's judgment.