No. 08-02-00488-CR
July 29, 2004. DO NOT PUBLISH.
Appeal from 171st District Court of El Paso County, Texas, (Tc# 20000D05061).
Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
ANN CRAWFORD McCLURE, Justice.
David Ornelas appeals his deferred adjudication for two counts of organized criminal activity. Appellant waived his right to a jury trial and entered a plea of guilty. The trial court sentenced him to two years' probation in accordance with a plea agreement. Finding no violation of his right to a speedy trial, we affirm.
FACTUAL SUMMARY
Appellant was arrested on July 25, 1995. He was indicted on two counts of organized criminal activity on October 31, 2000. On June 18, 2002, he filed a motion to dismiss, alleging the expiration of the statute of limitations. On October 22, 2002, Appellant filed a motion for speedy trial in which he referenced previous motions purportedly filed on October 21, 1998, April 26, 2002, and September 21, 1999. He ultimately waived his right to a jury trial and pled guilty on October 23, 2002. He received two years' deferred adjudication probation. RIGHT TO SPEEDY TRIAL
In his sole point of error, Appellant contends that the trial court erred in denying his speedy trial claim. The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972); Ramirez v. State, 897 S.W.2d 428, 431 (Tex.App.-El Paso 1995, no pet.). When analyzing a trial court's decision to grant or deny a speedy trial claim, we must balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his speedy trial rights; and (4) any resulting prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2191; Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). None of the four factors alone is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Barker, 407 U.S. at 533, 92 S.Ct. at 2193. We apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). This means that we independently weigh and balance the Barker factors, but we presume the trial court resolved any disputed fact issues in a manner that supports its ruling. See id.; State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). Length of Delay
The length of the delay is measured from the time the defendant is arrested or formally accused. Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003); Emery, 881 S.W.2d at 708; Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992). To trigger a speedy trial analysis, the defendant has the burden of first demonstrating a delay of sufficient length to be considered presumptively prejudicial under the circumstances of the case. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Emery, 881 S.W.2d at 708. The defendant meets his burden by showing that the interval between accusation and trial has crossed the threshold dividing ordinary delay from presumptively prejudicial delay. Doggett v. U.S., 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992). Only then does it become necessary to consider the other three factors in the Barker analysis. Emery, 881 S.W.2d at 708; Lott v. State, 951 S.W.2d 489, 493 (Tex.App.-El Paso 1997, pet. ref'd). In general, delay approaching one year is sufficient to trigger consideration of all the Barker factors. Shaw, 117 S.W.3d at 889. Here, the delay was approximately seven years and three months, which is sufficient to trigger an analysis of the remaining Barker factors. See Shaw, 117 S.W.3d at 889. This factor weighs in favor of Appellant. Reason for Delay
The State has the initial burden of justifying a lengthy delay. Emery, 881 S.W.2d at 708; Lott, 951 S.W.2d at 493. In examining the reasons for the delay, we accord different weights to various reasons. Barker, 407 U.S. at 531, 92 S.Ct. at 2192; Emery, 881 S.W.2d at 708. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Barker, 407 U.S. at 531, 92 S.Ct. at 2192; Emery, 881 S.W.2d at 708. Valid reasons are not weighed against the State at all. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. And delay that is attributable in whole or in part to the defendant may constitute a waiver of the speedy trial claim. Munoz, 991 S.W.2d at 822. When the record is silent as to the reason for the delay, we may presume neither a valid reason nor a deliberate attempt to prejudice the defense. Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App. 2003). Appellant claims that the State deliberately attempted to delay his trial by dismissing the indictments against him and later re-indicting him for the same charges under identical facts, and by requesting a continuance twice. While he has included previous indictments in the appendix to his brief, they are not included in the appellate record and we cannot consider them. See Tex.R.App.P. 34.1 ("The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record."); Robles v. State, 85 S.W.3d 211, 215 (Tex.Crim.App. 2002). We conclude the record is silent as to reasons for the delay and presume neither a valid reason nor a deliberate attempt by the State to delay Appellant's trial. This factor weighs against the State, but not heavily so. See Dragoo, 96 S.W.3d at 314. Assertion of Right to Speedy Trial
We must next consider the defendant's responsibility to assert his right to a speedy trial. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Assertion of the right is entitled to strong evidentiary weight in determining whether the defendant was deprived of the right. Id. at 531-32, 92 S.Ct. at 2192-93. This failure weighs more heavily against the defendant as the delay gets longer; the longer the delay, the more likely a defendant who really wants a speedy trial would take some action to obtain it. Dragoo, 96 S.W.3d at 314. Conversely, a defendant's failure to assert his right in a timely and persistent manner indicates strongly that he did not really want a speedy trial. Barker, 407 U.S. at 529, 532, 92 S.Ct. at 2193. Seeking a dismissal rather than a trial may attenuate the strength of a speedy trial claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983). The State suggests that this factor should weigh against Appellant because he attempted to have his case dismissed rather than seeking a speedy trial and because he did not file a motion for speedy trial until almost two years after he was indicted. Appellant counters that he did assert his speedy trial right on several occasions and that although he used the word "dismissal" in his motions, the court was put on notice. The record reveals that on June 18, 2002, Appellant filed a motion to dismiss due to the expiration of the statute of limitations. As for the motions for speedy trial, the appellate record contains only one — the October 22 motion. We cannot consider the documents included in the appendix. Appellant's motivation in requesting a dismissal rather than a prompt trial is relevant. See Phillips, 650 S.W.2d at 401. Moreover, since Appellant waited almost two years after his indictment to assert his right to speedy trial, his actions suggest that he did not really want one. See Barker, 407 U.S. at 529, 532, 92 S.Ct. at 2193; Dragoo, 96 S.W.3d at 314. This factor weighs heavily against Appellant. Prejudice Resulting from Delay
Finally, we must determine whether Appellant suffered prejudice as a result of the delay. In some cases, the delay may be so excessive so as to be presumptively prejudicial. Guajardo v. State, 999 S.W.2d 566, 570 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd), citing Doggett v. United States, 505 U.S. 647, 654-57, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Yet even in the case where the delay is presumptively prejudicial, the defendant must nevertheless show that he has been prejudiced by the delay. Id. Once the defendant has made such a showing, the burden shifts to the State to refute it. Id., citing Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973). Prejudice must be assessed in light of the interests which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Of these three, the most serious is the last because the inability of the defendant to prepare a defense skews the fairness of the entire system. Id. Affirmative proof of prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify. Doggett v. United States, 505 U.S. at 655, 112 S.Ct. 2686. Appellant admitted that he did not suffer pretrial incarceration, anxiety, or concern. Instead, he argues that his defense was greatly impaired by the death of two material witnesses, James Whitaker and James Sikes. Appellant claims that Whitaker had testified in a previous case and would have provided crucial exculpatory testimony for the defense. He also claims that Sikes had an intimate knowledge of the financial structure of Lamco, which was owned by co-defendant Albert Rodriguez. To show prejudice caused by lost testimony, a defendant must show: (1) the witness was unavailable at the time of trial; (2) the testimony that would have been offered was relevant and material to the defense; and (3) due diligence was exercised in an attempt to locate the witnesses for trial. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App. 1982); Parkerson v. State, 942 S.W.2d 789, 792 (Tex.App.-Fort Worth 1997, no pet.); Meyer v. State, 27 S.W.3d 644, 650 (Tex.App.-Waco 2000, pet. ref'd); Russell v. State, 90 S.W.3d 865, 873 (Tex.App.-San Antonio 2003, pet. ref'd). If a potential witness has died during the delay, the defendant must show that the witness's testimony would have been "exculpatory or otherwise beneficial" to him. See Deeb v. State, 815 S.W.2d 692, 706 (Tex.Crim.App. 1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992) (holding that the record failed to reflect that the unavailable witness's testimony would have been "exculpatory or otherwise beneficial to appellant"); Jackson v. State, 873 S.W.2d 110, 112 (Tex.App.-Tyler 1994, no pet.) (holding that, although potential witness died, record did not demonstrate his testimony would have benefitted appellant). In his appendix, Appellant has included cross-examination testimony of Whitaker in order to show the witness would have given exculpatory testimony. He also appended a motion to produce in which he alleged that the State prevented him from interviewing Whitaker and Sikes. Once again, the appellate record does not contain these documents and we cannot consider them. See Tex.R.App.P. 34.1 ("The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record."); Robles v. State, 85 S.W.3d 211, 215 (Tex.Crim.App. 2002). Consequently, Appellant has failed to demonstrate that the witnesses' testimony was material. A defendant must come forward with more than his own self-serving and conclusory statement that a witness who died before trial would have given testimony on a material issue. See Deeb, 815 S.W.2d at 706. Appellant's bold assertion alone is insufficient to demonstrate prejudice. Because he has failed to demonstrate that his defense was impaired because of the delay, this factor weighs against Appellant. Balancing the Barker Factors
We must now balance the four Barker factors to determine whether Appellant was denied his right to a speedy trial. The seven year, three month delay and the absence of a reason for it weigh in Appellant's favor. Weighing against a finding of a speedy trial violation are Appellant's failure to assert his claim until almost two years after his indictment, his attempt to obtain a dismissal, and his failure to make a prima facie showing of prejudice. Balancing these factors, we find no error in the trial court's denial of the motion for speedy trial. Appellant's sole point is overruled and the judgment affirmed.