Opinion
03-24-00028-CR
08-21-2024
Joseph Pulido, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 51ST DISTRICT COURT OF TOM GREEN COUNTY NO. A-16-1084-SA, THE HONORABLE CARMEN DUSEK, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Kelly.
MEMORANDUM OPINION
DARLENE BYRNE, CHIEF JUSTICE.
Appellant Joseph Pulido challenges the trial court's denial of his motion to dismiss the State's motion to revoke his deferred adjudication community supervision and adjudicate guilt. In his sole issue, he contends that an approximately three-and-a-half-years gap between the State filing its motion to revoke and his arrest was a violation of his constitutional rights to a speedy trial and due process. We affirm the trial court's judgment.
Although Pulido mentions "due process" along with his speedy trial issue, he has not briefed a stand-alone due process issue. See Tex. R. App. P. 38.1(i) (requiring brief to contain appropriate citations to authorities). Thus, we will address his issue as he did in his briefing-as a part of his speedy trial issue rather than a stand-alone issue. See Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (determining that claim was "inadequately briefed and present[ed] nothing for review").
BACKGROUND
On November 2, 2016, Pulido pleaded guilty to the state jail felony of possession of less than one gram of cocaine. See Tex. Health & Safety Code § 481.115(b). The trial court deferred the adjudication of guilt and placed him on community supervision for two years and assessed a fine in the amount of $1,000 and restitution in the amount of $180. In October 2018, the State and Pulido jointly signed a request for the trial court to extend his community supervision for one year and to amend the conditions of his community supervision. It requested that the amendments be made in lieu of a violation report for failing to pay ordered fees, failing to report by mail to the community supervision office, failing to complete community service work, and failing to complete the Drug Offender Program. On November 9, 2018, the trial court granted the request.
On November 14, 2019, a community supervision administrative hearing was held. On December 10, 2019, the State filed a motion to revoke Pulido's community supervision and to adjudicate guilt. The motion alleged that Pulido had violated multiple conditions of his community supervision, including failure to pay fees or submit a statement of inability to pay and failure to report by mail to the supervision office. The next day, the trial court ordered the issuance of an arrest warrant for Pulido.
Transcripts from this hearing are not included in the record.
Pulido was arrested on July 1, 2023, over three-years-and-six-months after the State's motion to revoke. He was appointed counsel on August 15, 2023. Pulido filed a motion for a speedy trial on September 19, 2023, and the trial court heard the motion on the same day. After hearing the motion, the trial court set a final hearing for October 12, 2023. Before that hearing and on October 6, 2023, Pulido filed a motion to dismiss for failure to provide a speedy trial and violation of due process. On October 12th, and immediately prior to the scheduled revocation hearing, the trial court heard the motion to dismiss, in which it took judicial notice of the contents of the Court's file and heard witness testimony and then denied the motion.
At the speedy trial hearing, Cristina Ramirez, who worked for the community supervision office managing Pulido's supervision, testified regarding the unsuccessful attempts made to notify him of the motion to revoke and the outstanding warrant for his arrest. She testified that she was familiar with his file which included notes from Pulido's former supervising officer. She explained that his file was transferred to her "fugitive caseload" after his supervising officer was unsuccessful in contacting him.
On March 23, 2020, Pulido's supervising officer attempted to contact Pulido by attempting to reach him by phone but did not make contact. She then called his "associate contacts." This included his father who told the officer that he did not have contact with Pulido. The officer left a message for Pulido with his father. The officer then called Pulido's brother but did not make contact. The officer then sent Pulido an e-mail and mailed him a warrant notification letter. No response was received. Ramirez testified that Pulido's contact information that was used was provided to them by Pulido when he started his community supervision. Ramirez explained that after these unsuccessful attempts to contact Pulido, he was then reassigned to her on March 25, 2020.
Ramirez mailed four "fugitive notification letters" to Pulido at his address on file on June 16, 2020; December 21, 2020; December 30, 2021; and December 29, 2022. She testified that none of the letters were returned to her as being sent to the wrong address. She admitted that to her knowledge the supervising officer did not attempt to visit Pulido at his address and explained that he was residing in a different county and that to her knowledge an attempt to visit would have been futile because his last known address was his parents' address and his father had informed the office that he was not in contact with Pulido. She also admitted that although an employer was listed in the file, no one from the office attempted to contact Pulido's employer.
Ramirez also testified regarding a written summary of the November 2019 administrative hearing, but the document from the supervision file was not entered into evidence. She testified that at that hearing, which was held approximately two months prior to the State filing the motion to revoke, Pulido was informed that if he paid his fees in full that his supervisor would speak to the district attorney about the possibility of allowing his community supervision to expire and that Pulido was directed to call his supervisor four days later, but that there was no record of that phone call.
Officer Brent Vermeulen, who arrested Pulido on the outstanding warrant in July 2023, testified that according to the database he uses to check if an individual has outstanding warrants and to verify an address, Pulido's address at the time of his arrest was the same address to which the community supervision office had mailed the notices.
After hearing the evidence on the motion to dismiss, the trial court denied the motion. After hearing all the evidence on the motion to revoke, the trial court found that Pulido had violated terms of his community supervision, adjudicated guilt, and sentenced him to 365 days confinement. See Tex. Penal Code § 12.35(a) (establishing that "an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days"). Pulido appealed.
LEGAL STANDARD
The right to a speedy trial, guaranteed by the Constitutions of the United States and Texas, is applicable to revocation proceedings. Carney v. State, 573 S.W.2d 24, 26 (Tex. Crim. App. 1978). To determine whether a defendant was denied a speedy trial, we conduct the Barker v. Wingo balancing test, in which we balance a non-exhaustive list of four factors: (1) the length of the delay, (2) the reason for the delay, (3) assertion of the right, and (4) prejudice to the accused. Shaw v. State, 117 S.W.3d 883, 888-89 (Tex. Crim. App. 2003) (quoting Barker v. Wingo, 407 U.S. 514, 530-32 (1972)). This balancing test requires that we weigh the conduct of the State and the defendant based on the arguments, information, and evidence before the trial court at the time it made its ruling, and no single factor is necessary or sufficient to find that a speedy-trial violation has occurred. Id. The State has the burden of justifying the length of the delay, and the accused has the burden of proving that he asserted the right and that he suffered prejudice because of the delay. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).
"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." State v. Lopez, 631 S.W.3d 107, 113-14 (Tex. Crim. App. 2021). Thus, we review all evidence in the light most favorable to the trial court's ultimate ruling, and we conduct the balancing test, which is a legal question, de novo. See Cantu, 253 S.W.3d at 282.
DISCUSSION
Length of Delay
The first factor, the length of delay, acts as a "triggering mechanism," in which we only consider the other three Barker factors if the delay "has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." State v. Lopez, 631 S.W.3d 107, 114 (Tex. Crim. App. 2021) (quoting Doggett v. U.S., 505 U.S. 647 (1992)). Although what constitutes a presumptively prejudicial delay depends on the circumstances of each case, generally, "a delay of eight months to a year, or longer, is presumptively prejudicial and triggers a speedy trial analysis." Id.
Pulido calculates the length of delay from the date the State filed its motion to revoke to the day he was arrested. The State calculates the delay from its motion to revoke to the final hearing adjudicating guilt. Both calculations result in delays that are over three-and-a-half years long, and thus, trigger a full speedy trial analysis. See Shaw, 117 S.W.3d at 889 (explaining that "delay approaching one year is sufficient to trigger a speedy trial inquiry").
In his appellate briefing, Pulido interchangeably uses the State's motion to revoke and the issuance of the arrest warrant as the starting date for the delay. Because these occurred only one day apart, our analysis is not affected by the difference and for consistency we will refer to the State's motion to revoke as the triggering event.
Reason for Delay
We next evaluate the State's justification for the delay. See Cantu, 253 S.W.3d at 280. A deliberate delay by the State weighs heavily against it. State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). A neutral reason for the delay-"such as negligence or overcrowded courts"-weighs less heavily against the State. Id. A valid reason for delay does not weigh against the State. Id. Finally, the defendant may waive his speedy trial claim if he is responsible for the delay in whole or in part. Id.
The State contends that Pulido caused the delay by "absconding" from supervision for three years, and thus, contends that he waived his speedy trial claim. See Munoz, 991 S.W.2d at 822. The State relies on the summary of the administrative hearing held prior to the motion to revoke, at which Pulido was informed that if he paid his fees in full then his community supervision may be allowed to expire to support its contention that Pulido "absconded" and was knowingly avoiding arrest. Pulido contends here, and presented the theory to the trial court, that the administrative hearing summary supports an inference that Pulido may have misunderstood the State's directions at the administrative hearing regarding his supervision and erroneously believed that his supervision would discharge without any additional action by him. Pulido correctly points out that there was no evidence presented that showed that Pulido received any of the notifications sent by the supervision office. See Barker, 407 U.S. at 527 (explaining that "defendant has no duty to bring himself to trial"). However, according to the terms of his community supervision, Pulido was required to "report any change of address or employment to the Community Supervision and Corrections Department within 7 working days." Even assuming that Pulido did not waive his constitutional right to a speedy trial, we could not grant relief because of the outcome of the analysis of the remaining factors.
The State's reason for the delay was its inability to locate Pulido. At the hearing on the motion to dismiss, the State presented a witness that testified that according to Pulido's supervision records, multiple unsuccessful attempts to contact him were made throughout the three-and-a-half-year period. Pulido contends that the reason for the delay was the State's "lack of adequate attempt to bring Mr. Pulido to trial." He supports his contention by pointing out possible contact attempts that could have been, but were not, made by the State-including sending someone to his last known address or attempting to contact his last known employer. He also points to gaps in the witness's testimony as additional support-such as, the absence of testimony regarding the phone number that was used to call Pulido, the "source of that phone number," whether a voicemail was left, and whether any email from Pulido had been previously received from the email address that was used.
Reviewing the evidence in the light most favorable to the trial court's ruling, see Cantu, 253 S.W.3d at 282, we conclude that this factor does not weigh against the State because it presented a valid reason for the delay-that despite efforts to locate Pulido, he was not reachable by phone, email, or mail or through close family members, and was not located until he was arrested while committing a subsequent offense. See Barker, 407 U.S. at 531 (explaining that "a valid reason, such as a missing witness, should serve to justify appropriate delay").
Assertion of the Right
While the defendant has the responsibility to assert his right to a speedy trial, there is not a set requirement for when the defendant must do so. Cantu, 253 S.W.3d at 282. Rather, "[t]he more serious the deprivation, the more likely a defendant is to complain." Barker, 407 U.S. at 531. "Therefore, the defendant's assertion of his speedy-trial right (or his failure to assert it) is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Cantu, 253 S.W.3d at 283. Thus, "repeated requests for a speedy trial weigh heavily in favor of the defendant." Id. "If a defendant fails to first seek a speedy trial before seeking dismissal of the charges, he should provide cogent reasons for this failure." Id.
Here, Pulido was arrested on July 1, 2023, was appointed counsel on August 15, and filed his speedy trial motion on September 19. The trial court held a hearing the same day he filed his speedy trial motion and then set a final hearing for October 12. On October 6, in between the two hearings, Pulido filed his motion to dismiss. Pulido explained that the motion to dismiss was filed because the prejudice had already occurred before he knew about the motion to revoke and was incurable except through a dismissal.
The State contends that based on the witness testimony regarding the written summary from Pulido's administrative hearing, he should have known that when he failed to check in with the supervising office that a motion to revoke would be filed and that there would be a warrant for his arrest. Thus, the State contends that he knowingly did not assert his speedy trial right for the three-and-a-half years before his arrest. If Pulido knew of the warrant against him prior to his arrest, his delay in asserting his rights could weigh heavily against him, however, if he did not, then he "is not to be taxed for invoking his speedy trial right only after his arrest." See Doggett v. United States, 505 U.S. 647, 653-54 (1992). The summary included reference to Pulido being told that allowing his supervision to expire was a discretionary decision to be made by the district attorney and there was no reference to Pulido being told what the consequences would be if he did not contact them in four days, including whether revocation and an arrest warrant would be a certainty.
Because Pulido filed his speedy trial motion prior to filing his motion to dismiss this factor weighs in his favor, but not heavily, because he did not make repeated requests and because the trial court timely set hearings in response to his motion asking the trial court to do so. See Cantu, 253 S.W.3d at 283.
Prejudice
We analyze prejudice to the defendant in light of the following interests: (1) to prevent oppressive pre-trial incarceration, (2) to minimize the accused's anxiety and concern, and (3) to limit the possibility that the accused's defense will be impaired. Barker, 407 U.S. at 532. 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." Id. (identifying death and memory loss of witnesses as examples of potential prejudice against defendant that may be caused by delay).
The first two interests do not apply. It is uncontroverted that Pulido was not incarcerated during the complained-of period and Pulido contends that he did not know about the warrant until his arrest, and thus, his interest in reducing anxiety during that period is also not applicable.
However, Pulido contends that he suffered employment disruptions, financial costs, and anxiety as a result of his eventual arrest. Notably, his arrest marks the end of the period of delay on which his speedy trial challenge is based. He further contends that he would not have been arrested and have additional criminal charges against him if not for the outstanding warrant associated with the motion to revoke because the arresting officer would not have discovered that he was in possession of illegal drugs if not for discovering the warrant and arresting him. This was not an argument made to the trial court and no evidence of any causal link between the pending warrant and Pulido's arrest was presented at the hearing on the motion to dismiss. Rather, Pulido relies on testimony presented at the hearing to revoke community supervision, which occurred after the trial court denied the motion to dismiss, to support his contention that the delay prejudiced him by causing his arrest and additional criminal charges. Because the balancing test requires that we weigh the Barker v. Wingo factors based on the arguments, information, and evidence that was before the trial court at the time it made its ruling, we will not consider his arrest or the resulting consequences of the arrest in our prejudice analysis. See Shaw, 117 S.W.3d at 888-89.
Regarding the third interest-impairment to his defense-Pulido contends that his defense was prejudiced because of a switch of supervision procedures between mail and online reporting for out-of-county individuals that occurred during the delay. Again, this was not an argument made to the trial court and the witness testimony regarding the switch occurred at the revocation hearing. For the same reason as above, we will not consider this in our prejudice analysis.
Rather, Pulido's contentions of prejudice that were also argued to the trial court are: (1) that the passage of time generally makes it more difficult to challenge supervision violations; and (2) that he was deprived of the option to have his community supervision extended instead of revoked because that option expired during the delay. See Tex. Code Crim. Proc. art. 42A.753(c)(2) (allowing courts to extend community supervision after violation if done within one year of supervision period ending when motion for revocation has been filed prior to expiration of supervision). Notably, Pulido does not identify any specific evidence or witness memory that was affected by the delay. Further, the option to extend rather than revoke community supervision is discretionary. Id.
Viewing the evidence in the light most favorable to the trial court's ruling, we conclude that this factor does not weigh in Pulido's favor. See Cantu, 253 S.W.3d at 286 (concluding that evidence supported trial court's denial of speedy trial claim when evidence did not show types of prejudice that implicate "major evils protected against by the speedy trial guarantee," such as: "numerous fruitless and costly trips to court;" multiple denied or ignored speedy trial requests; loss of potentially exculpatory evidence; lengthy pretrial incarceration; or burdensome economic costs).
Balancing the Factors
In applying the Barker v. Wingo balancing test, we must "use common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed." Id. at 281. "The constitutional right is that of a speedy trial, not dismissal of the charges." Id. Upon considering the record before the trial court, applying the relevant standard of review, and utilizing a common-sense approach in balancing the Barker v. Wingo factors, we conclude that the trial court did not err in denying Pulido's motion to dismiss. Specifically, the balance weighs in favor of denial of the motion to dismiss because the State presented a valid reason for the delay, and Pulido filed his motion to dismiss shortly after filing his motion for speedy trial, which was immediately acted on by the trial court, and although Pulido explained that his motion to dismiss was filed because of the inability to otherwise cure the prejudice already caused, we have concluded that the prejudice factor did not weigh in his favor. We overrule his sole issue.
CONCLUSION
Having overruled Pulido's sole issue on appeal, we affirm the trial court's judgment adjudicating guilt.
Affirmed