No. 05-02-01543-CR.
Opinion Issued May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-86731-01. AFFIRM.
Before Justices JAMES, BRIDGES, and RICHTER.
Opinion By MARTIN RICHTER, Justice.
Patrick Luke appeals his conviction of misdemeanor assault. The trial court assessed punishment at sixty days confinement, but suspended imposition of sentence and placed appellant on community supervision for nine months. The trial court also imposed a $250 fine. Appellant's sole issue on appeal is whether the trial court erred in denying his motion to dismiss because the State violated his constitutional right to a speedy trial. We affirm.
Background
On April 30, 2000, police responded to a 9-1-1 call about a family argument at the address appellant shared with his wife. Police Officers Helen Jackson and Erin Thornton interviewed the couple about what events transpired during their argument. The officers arrested appellant, and he was out on bond that same day. During the following few months, the officers and investigator assigned to the appellant's case became confused as to who would complete the processing of appellant's case. It was not until June 18, 2001, that the police department conducted a manual check and realized appellant's case had not been completed and sent to the district attorney's office for prosecution. Jason Webber, the investigator for the district attorney's office, received the case on July 2, 2001. On July 18, 2001, when his work on other cases had subsided, Webber began investigating appellant's case. Webber contacted appellant's spouse, and, as a result of that contact, she signed an affidavit of non-prosecution. After one more review of the file, Webber placed appellant's case file in the district attorney's drawer for that office's review. The district attorney's office could not provide a reason why it took from July 2001, when the office received appellant's case, until December 2001, for the case to be filed. On December 17, 2001, almost twenty months after appellant's arrest, the State alleged by way of information that on April 30, 2000, appellant committed the offense of assault by intentionally, knowingly, and recklessly causing bodily injury to his spouse by striking her in the face, grabbing and twisting her arm, and pushing her. On February 18, 2002, appellant's wife signed another affidavit of non-prosecution, stating he did not hit her or twist her arm: he merely pushed her away in self-defense, because she hit him during an argument that was caused by her menopausal condition. Two days later, appellant filed a motion for speedy trial and a motion to dismiss for a speedy trial violation. In his motions, appellant argued the State did not exercise due diligence in prosecuting the case based on the delay from the date of arrest to the date the information was filed. On March 6, 2002, the trial court conducted a hearing on the speedy trial motions and determined the length of delay between the date of arrest and the date the case was filed was "presumptively small." The reason for the delay was either "poor procedure or negligence on the part of the Plano Police Department." The trial court also stated the length of delay was not unreasonable, considering the existence of Mrs. Luke's affidavit of non-prosecution. Moreover, the harm to appellant was "rather slight or vague at best," and appellant had not filed his motion for speedy trial until after the case had already been filed. The trial court then denied appellant's motion for speedy trial and set the matter for trial. Appellant pleaded not guilty and waived a jury trial. The trial court heard evidence, found appellant guilty of assault of a family member, and assessed the punishment stated above. This appeal ensued. Speedy Trial
Appellant contends the trial court erred in denying his motion to dismiss on the ground the State violated his right to a speedy trial. When analyzing a trial court's decision to grant or deny a speedy trial claim, we balance four factors: (1) length of delay; (2) reason for the delay; (3) defendant's assertion of the right to speedy trial; and (4) prejudice to the defendant resulting from the delay. See Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997). None of the four factors are either a necessary or sufficient condition to the finding of a deprivation of a right to speedy trial. Id. (citing Barker v. Wingo, 407 U.S. 514, 533 (1972)). Instead, they are related factors that must be considered together with such other circumstances that may be relevant. Id. (citing Barker, 407 U.S. at 533). This balancing test requires weighing case-by-case "the conduct of both the prosecution and the defendant." State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999) (quoting Barker, 407 U.S. at 530). Length of Delay
The length of delay is a "triggering mechanism" for analysis of the other Barker factors. Id. We measure the delay from the time the defendant is formally accused or arrested to the time of trial. See United States v. Marion, 404 U.S. 307, 322 (1971). An eight-month delay is presumptively unreasonable, prejudicial, and triggers a speedy trial analysis. Knox v. State, 934 S.W.2d 678, 680 (Tex.Crim.App. 1996); Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992). Here, almost twenty months had lapsed from the date appellant was arrested to the date he was indicted. As the State concedes, the delay in the present case triggers our consideration of the remaining Barker factors. Reason for Delay
Under Barker, "different weights should be assigned to different reasons" for the delay. Munoz, 991 S.W.2d at 822 (citing Barker, 407 U.S. at 531). While a "deliberate attempt to delay the trial" weighs heavily against the State, a "more neutral reason such as negligence or overcrowded courts should be weighed [against the government] less heavily." Id. A valid reason for the delay should not be weighed against the government at all. Id. Delay that is attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim. Id. Here, evidence showed that the delay in processing appellant's file while it was still pending with the police department (from April 2000 to June 2001) was the result of confusion between the police officer and the police investigator and which one of the two was in charge of completing appellant's case. Once the police department conducted a manual file check, the department discovered the case was pending, they completed it, and they sent it to the district attorney's office. Once there, the district attorney's investigator could not get to the file for a couple of weeks. As soon as he was able to get to the file, however, he contacted the complainant, secured an affidavit of non-prosecution, and gave the file to the prosecutor. The district attorney's chief prosecutor in intake testified their office was busy with cases that were older than appellant's case, and they were not able to get to appellant's case until December 2001. These facts reveal the reason for delay was neutral and was at most, as the trial court determined, either "poor procedure or negligence on the part of the Plano Police Department." This factor weighs slightly against the State. Assertion of Speedy Trial Right
Under Barker, a defendant is responsible for asserting or demanding his right to a speedy trial. See Barker, 407 U.S. at 528-29; Munoz, 991 S.W.2d at 825. Here, in balancing the Barker factors, the trial court stated "[t]here was no assertion by the Defendant as to [his] right to speedy trial until the case was filed, and [this] factor weighs against the Defendant." However, as the State notes, this factor should not be weighed against appellant because no information was filed against him during the period of the delay. In other words, for the duration of the delay, there was no case pending in which appellant could file his speedy trial motion. Once the case was filed, appellant filed his motion for speedy trial. This factor does not weigh against appellant. Prejudice
We assess the last Barker factor, prejudice to the defendant, in light of the following interests that the speedy trial right is designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. See Munoz, 991 S.W.2d at 826. The third interest is the most serious because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. See id. Although a showing of actual prejudice is not required, the defendant has the burden to make some showing of prejudice. Id. When a defendant makes a prima facie showing of prejudice, the State then has the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. Id. 1. Oppressive Pretrial Incarceration
In this case, the record shows appellant was released on bond the same day he was arrested. Thus, as appellant concedes, he suffered no oppressive pretrial incarceration. 2. Anxiety and Concern
Appellant and his wife testified the family suffered anxiety and concern caused by the delay in prosecution. Specifically, he argues he and his family were anxious because of the possibility he would be incarcerated and deported, as he was the sole breadwinner for the household. However, we have great difficulty in accepting appellant's argument, because neither he nor his family could have suffered anxiety and concern over the possibilities of incarceration and deportation for most of the duration of the delay since there was no case pending against appellant. The anxiety and concern can arguably be attributed to his arrest, but it cannot be attributed to a delay in prosecution of which they had no knowledge. Appellant's wife received a call from police approximately one month after his arrest, informing her that the case would not be prosecuted. The family heard nothing more about the matter until well over a year later, when Webber contacted appellant's wife and procured her affidavit of non-prosecution. With no case pending against him from April 2000, to December 2001, the family would have had no reason to be anxious about appellant's possible incarceration or deportation. 3. Impairment of Defense
Appellant contends his defense was impaired, because he was unable to present defense testimony from his son, who witnessed the incident in question, but was unable to provide defense testimony at the hearing due to of the delay in prosecution. At the hearing, appellant testified his son observed facts that contradicted the police officer's report and supported his mother's affidavit of non-prosecution, and the State's delay in prosecuting him caused his son to forget what he had seen, thereby rendering him unavailable to testify at the hearing. Appellant's wife also testified their son could not remember the incident. However, the record also shows appellant never talked to his son about the incident after it happened. He only knew that his son did not want to talk about it. The State's line of questioning implied appellant had no knowledge of whether his son forgot the incident or merely did not want to talk about an event that he remembered, but wanted to forget. As for appellant's wife, she testified she spoke with their son about the incident almost every day immediately following the incident to assure him nothing bad was going to happen to appellant. Importantly, however, she contradicted her own testimony by stating her son remembers the event; specifically, he remembers that appellant did not hit his mother. Thus, there is conflicting evidence that the son recalls what happened on the day in question. There is no evidence appellant's son would have testified to anything not cumulative of his mother's testimony. While defendant might have made a prima facie showing of prejudice caused by the delay, the State sustained its burden in proving appellant suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. Based on our determinations that appellant suffered no oppressive incarceration, he suffered no anxiety as a result of the delay and no serious prejudice beyond that which ensued from the ordinary and inevitable delay, we hold the fourth Barker factor weighs favorably for the State. Conclusion
In sum, the record shows a delay of almost twenty months. The bulk of that delay was caused by the police department's mere negligence or poor procedure. During the delay, appellant was not incarcerated, and the family believed there was no case pending against appellant, thereby erasing any feelings of anxiety that could be attributed to the delay. Appellant asserted his right to a speedy trial soon after the case was filed. At the hearing, the trial court heard conflicting evidence about whether a certain defense witness was unable to testify about the incident, and there was no evidence the unavailable witness would not have provided testimony not cumulative of an available defense witness who did testify. When weighing and applying the Barker factors to the present record, we hold the trial court did not err in overruling appellant's motion for speedy trial. Accordingly, we overrule appellant's sole point. We affirm the judgment of the trial court.