Opinion
No. 06-03-00106-CR.
Date Submitted: December 31, 2003.
Date Decided: February 18, 2004. DO NOT PUBLISH.
On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 00F0624-202.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Correctional officer Daniel Simmons was performing a search of an empty cell. When the occupant of that cell, appellant Matthew Phillips, returned unexpectedly, a fight ensued between Phillips and Simmons. For his role in the fight, the trial court convicted Phillips of assault on a public servant and sentenced him to twenty-five years' imprisonment. Court-appointed counsel for Phillips has filed with this Court a brief in support of a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738, 741-42 (1967). With appropriate citation to the record and the procedures followed in the prosecution of the case, and the application of appropriate legal authorities as necessary, counsel presents to this Court a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced on appeal. See id.; High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. 1978). Specifically, counsel examines the sufficiency of the indictment, the legal and factual sufficiency of the evidence, and the effectiveness of Phillip's trial counsel, and concludes the trial court committed no error. Counsel also considers issues related to sentencing and concludes the trial court properly sentenced Phillips. Phillips was provided with a copy of counsel's brief and advised of his right to examine the appellate record and to file a brief pro se. He has not, however, filed one. We note the long time period between indictment and trial in this case. Because of that lapse of time, we address a possible speedy trial violation. The Sixth Amendment guarantee to a speedy trial does not specify time limits, leaving the question of whether a speedy trial was denied to be decided case by case. Texas law restates this guarantee. Tex. Code Crim. Proc. Ann. art 1.05 (Vernon 1977). The right to a speedy trial attaches when an individual is arrested or when a charging instrument is filed. United States v. Marion, 404 U.S. 307, 320 (1971); Stewart v. State, 767 S.W.2d 455, 457 (Tex.App.-Dallas 1988, pet. ref'd). The constitutional balancing test calls for consideration of the length of the delay, the causes of the delay, and the extent of the defendant's assertion of the right to a speedy trial. Barker v. Wingo, 407 U.S. 514 (1972). Additionally, the trial court assesses the nature and degree of any prejudice to the defendant resulting from the delay. Id. The trial court makes its determination regarding a violation of the defendant's right to a speedy trial de novo. Clarke v. State, 928 S.W.2d 709, 713 (Tex.App.-Fort Worth 1996, pet. ref'd). The length of the delay serves as a trigger for further examination of the other factors. Here, Phillips' indictment was returned October 26, 2000. His trial was not held until January 23, 2003. So, nearly two years and three months passed between the date Phillips' right to a speedy trial attached and the date trial was held. This period of time, while it is not an automatic denial of Phillips' constitutional right, represents a time period sufficient to warrant consideration of the remaining factors. See Barker, 407 U.S. at 533-35. We weigh the length of the delay in light of the circumstances surrounding the case. See Davison v. State, 510 S.W.2d 316, 320 (Tex.Crim.App. 1974). The third factor in the balancing test, the extent of the defendant's assertion of his or her right to a speedy trial, carries a great deal of weight. See Barker, 407 U.S. at 532. Failure to assert the right to a speedy trial will work against an individual's claim of a violation and, conversely, urging the right in a timely and vigorous way will weigh in favor of the claim. See Easley v. State, 564 S.W.2d 742, 745 (Tex. Crim App. 1978); Turner v. State, 545 S.W.2d 133, 138 (Tex.Crim.App. 1976). Here, Phillips asserted his right to a speedy trial in a somewhat indirect manner in his Objection to the Placement Order of Cases for Trial on the Court's Docket and requested the trial court to call the cases chronologically. Since it appears that Phillips' contention centered around the delay in bringing the cause to trial, we consider the attempt as at least a minimal effort to assert his constitutional right to a speedy trial. The cause for the delay, however, will undermine the effect that Phillips' assertion has on the balancing test. Here, the record reveals that Phillips sought a psychological evaluation to determine his competency to stand trial and for the purpose of asserting the defense of insanity. The evaluation was substantially delayed because, it seems, there was difficulty transporting Phillips among facilities. The record further demonstrates Phillips created a great deal of the delay by filing several motions. In a related inquiry, we consider the prejudice to Phillips. The fact that he is already incarcerated does not mean Phillips would suffer no prejudice due to delay. See Turner, 545 S.W.2d at 138-39 (holding defendant who is already incarcerated under separate sentence may suffer prejudice from delay such as losing opportunity for concurrent sentencing, parole, or pardon). Here, however, the prejudice would be minimal or nonexistent since he was responsible for much of the delay and since he made no showing the delay deprived him of any rights. The defendant has the burden to make a prima facie showing of some prejudice. Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973). The burden then shifts to the State to show that the accused suffered no serious prejudice. Id. The Court has before it nothing that could be seen as a showing of some prejudice. Therefore, despite the long time between indictment and trial, an evaluation of the circumstances of Phillips' case demonstrates no violation of his right to a speedy trial. The causes of the delay, which appear to be initiated in large part by Phillips, and the one instance in which Phillips urged the State to move forward, weigh against finding a violation. Further, Phillips had the burden of proving some prejudice, which he failed to do. Having reviewed the record and looked for and found no violation of the right to a speedy trial, we agree with appellate counsel's conclusion that there are no meritorious grounds to be advanced on appeal. Accordingly, we affirm the trial court's judgment.
Assault on a public servant is a third-degree felony. Tex. Pen. Code Ann. § 22.01 (Vernon\ Supp. 2004). Enhanced by two prior felony convictions, the range of punishment for Phillip\'s\ conviction is twenty-five to ninety-nine years or life in prison. Tex. Pen. Code Ann. § 12.42(d)\ (Vernon Supp. 2004).