No. 05-03-00560-CR
Opinion issued January 7, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law Number 5, Collin County, Texas, Trial Court Cause No. 5-80037-01. Reverse.
Before Chief Justice THOMAS and Justices O'NEILL and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice, MALONEY.
Brent Van Palmer entered a plea of guilty to driving while intoxicated pursuant to a plea bargain agreement. The trial court followed the plea bargain agreement and sentenced appellant to 120 days in the Collin County jail and a fine of $400, suspended the confinement, and placed appellant on community supervision for 18 months. In a single point of error, appellant contends the trial court erred in overruling his motion to dismiss this cause because the State's delay in filing an information deprived him of a speedy trial.
BACKGROUND
The chronology of relevant events are as follows: December 29, 2000, Plano police arrested appellant for driving while intoxicated. December 30, 2000, appellant posted a bond and released from jail. February 2001 (approximate date), the Plano Police Department (the Department) did a manual sweep of its files to check if files had proper paperwork and cases were filed. May 17, 2002, the District Attorney's office (the Office) received the case report from the Department, but the report did not contain blood test results. June 4, 2002, the Office sent the case back to the Department and requested the blood test results. October 22, 2002, the Department sent appellant's blood sample to the lab. November 6, 2002, the Office asked the Department the whereabouts of the lab report. November 12, 2002, the Office filed an information without blood test results. November 19, 2002, the trial court first set the case for December 19, 2002 and notified appellant of the date. December 19, 2002, appellant appeared and requested additional time to hire a lawyer. January 8, 2003, appellant's attorney filed a Motion to Dismiss and Demand for Speedy Trial. January 23, 2003, the trial court held a hearing and denied appellant's motion. February 27, 2003, appellant entered a conditional plea of guilty-that he could appeal the trial court's denial of his motion to dismiss the information. SPEEDY TRIAL
Appellant argues that the trial court erred in not granting his motion to dismiss because the State's negligence and delay in bringing this case to trial prejudiced his defense. The State responds to appellant's sole point of error alleging that the Department's poor procedures were responsible for the "bulk of the twenty-six month delay," the State's attempt to collect evidence contributed to the "remainder of the delay," and the delay did not prejudice appellant. The State also contends that because the legislature gave it two years to file this case, they could have waited until December 29, 2002, before filing an information. 1. Standard of Review
In determining whether an appellant's right to a speedy trial has been denied, we weigh the conduct of both the State and the appellant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972). We consider (1) the length of delay, (2) the reason for the delay, (3) the asserting of a right to speedy trial, and (4) the resulting prejudice to the accused. Id. None of these factors alone is sufficient to show the State violated an appellant's speedy trial rights. Id. at 533, 92 S.Ct. at 2193. Because the four-prong test is a legal question, we conduct a de novo review. Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1979). 2. Applicable Law
A defendant has no duty to bring himself to trial, but he has some responsibility in asserting a speedy trial claim. Barker, 407 U.S. at 527-29, 92 S.Ct. at 2190-91; Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim. App.), cert. denied, 506 U.S. 942 (1992). In considering the length of delay, we measure from the arrest date. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim. App. 2003); Harris, 827 S.W.2d at 956. An unreasonable length of time triggers a speedy trial inquiry. Dragoo, 96 S.W.3d at 313-14 (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker, 407 U.S. at 530). A thirteen-month delay is prima facia unreasonable. Harris, 827 S.W.2d at 956; Steinmetz v. State, 968 S.W.2d 427, 434 (Tex.App.-Texarkana 1998, no pet.) (holding delays of eight months or longer generally considered presumptively unreasonable and prejudicial). In determining whether the State violated an appellant's speedy trial rights, we weigh three separate categories: (1) the State's deliberate attempt to hamper the defense, (2) the State's negligence or the court's overcrowding, and (3) a valid reason for the delay. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192; Santallan v. State, 922 S.W.2d 306, 308 (Tex. App.-Fort Worth 1996, pet. ref d). A deliberate delay to hamper the defense weighs heavily against the State, a valid reason for delay justifies appropriate delay, while negligence or crowded courts are neutral reasons for delay. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192. 3. Application of Law to the Facts a. Length of Delay
It is uncontested that the Office received the offense report in appellant's case 404 days after his arrest. Nineteen days later, the Office requested blood test results from the Department. The Department, however, did not send the blood test to the lab for an additional 111 days. But, the Office did not check on the blood test results until 140 days after its first inquiry. The Office finally filed its information 680 days after appellant was arrested. None of the time from arrest to the trial court's first setting (717 days) can be attributed to appellant. The lengthy delay from arrest to the filing of the case is suspect. The Office did not exercise diligence in following up on its request for the evidence. Indeed, it did not inquire about the evidence until less than two months before limitations ran. We conclude this factor weighs against the State. b. Reason for Delay
The Department did a manual sweep of all its files two months after appellant's arrest. For some reason, it waited approximately sixteen months to send the offense report to the Office. And, after the Office sent its request for the blood test in June, the Department waited until October to send the blood sample to the lab. Although the record shows little intentional delay, the State offered no justifiable reason for the delay. We attribute the Department's "at best, carelessness" to the State and it weighs against the State. c. Asserting Right to Speedy Trial
The trial court found that appellant filed his motion to dismiss at his first opportunity to do so. That counsel asked for a dismissal rather than a prompt trial sometimes attenuates the strength of a defendant's claim. See Phillips v. State, 650 S.W.2d 396,401 (Tex.Crim.App. 1983). Nothing in the record suggests that appellant moved to dismiss, rather that asked for a speedy trial, for tactical reasons. Counsel may legitimately feel that a long delay has caused a client so much prejudice "even if the State is belatedly ready to move promptly" that the delay warranted dismissal. Id. Thus, we conclude this fact does not weigh against appellant. d. Prejudice from Delay
We must assess prejudice to the defendant in the light of the interest that Congress intended to protect with the speedy trial right. It sought to (1) prevent oppressive pretrial incarceration, (2) minimize the accused's anxiety and concern, and (3) limit the possibility that delay impaired the accused's defense. See Barker, 407 U.S. at 532, 92 S.Ct. at 2193; Dragoo, 96 S.W.3rd at 315. Appellant testified that since his arrest his doctor, a major witness, had moved and it would be difficult and expensive to get him back for trial. Another major witness, his wife, became estranged after the D.W.I. arrest and had used the arrest against him in their divorce. The record shows that after appellant's arrest, he suffered sleepless nights. The State did not effectively rebut this testimony, but argues on appeal that "the trial court could have believed his sleepless nights could have been caused in part by his divorce. . . ." However, at the hearing on the motion to dismiss, the State conceded that appellant suffered some harm-sleepless nights, anxiety, and an increased financial impact because a witness moved. Additionally, appellant had no memory of the night in question. Again the State presented no evidence to rebut this testimony, but argues "his bare assertion of diminished memory, without elaboration," does not show an "impairment to his defense." Inability to recall basic facts is some indication of impairment. While this may not be evidence of "actual prejudice," it is some showing that the delay potentially prejudiced appellant. However slight, this and the State's admission at trial weighs against the State. On the record before us, we conclude that the Barker facts weigh in favor of appellant. The State provided the trial court with no supportable justification for the almost two-year delay between appellant's arrest and the filing of an information. Appellant filed his motion to dismiss at his first opportunity to do so. Appellant filed this motion after hiring an attorney who could have advised appellant of his rights once his attorney had an opportunity to investigate the charges. And even the State conceded at trial that appellant had suffered some harm. Accordingly, we reverse the trial court's judgment and grant the motion that the trial court should have granted.