Opinion
No. 05-07-00729-CR
Opinion issued June 30, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 336th District Court, Grayson County, Texas, Trial Court Cause No. 053339-336.
Before Justices WRIGHT, BRIDGES, and MAZZANT.
OPINION
James Henry Rhone appeals the trial court's denial of his motion to dismiss for failure to afford a speedy trial. Following the denial of his motion, appellant pled guilty to the offense of sexual assault of a child and elected to have a jury assess his punishment. The jury assessed punishment at ten years' confinement and a $10,000 fine. In a single issue, appellant complains a trial court erred in denying his motion. We affirm the trial court's judgment. Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. On August 24, 2005, appellant was indicted on a charge of sexual assault of a child. The charged offense was alleged to have occurred on March 26, 2005. On September 6, 2005 a capias was issued for appellant's arrest. Appellant turned himself in on September 12, 2005, posted a $10,000 bond, and was released from custody. Appellant was ordered to comply with a number of bond conditions including reporting two times per month to the Grayson County Community Supervision Department, submitting to a daily curfew, and having no contact with children under seventeen. Trial was scheduled for March 20, 2006. On March 10, 2006 the State filed a motion for continuance asserting that evidence collected from the complainant during a sexual assault exam had never been sent for testing and that the State had never sought a search warrant for biological samples from appellant for comparison with the evidence obtained from the complainant. The State asked for a three to four month continuance to obtain biological samples from appellant and submit them for DNA comparison to the samples obtained from the complainant. Appellant filed an objection to the State's motion for continuance and a demand for a speedy trial. The trial court granted the State's motion for continuance and ordered trial reset to August 21, 2006. On July 12, 2006 the State filed a second motion for continuance because the DNA analysis requested by the state in March of 2006 was not complete. Once again, appellant objected to the State's request and demanded a speedy trial. However, the trial court again granted the State's motion for continuance and reset trial on January 15, 2007 The State received the results of the DNA analysis in December 2006. On January 2, 2007 appellant filed a motion to dismiss for failure to afford a speedy trial. Appellant also filed a conditional motion for continuance in which he asked for time to have his own expert review the testing done by the State's expert. The trial court granted appellant's motion for continuance and rescheduled trial for May 21, 2007. On February 22, 2007, the trial court held a hearing on appellant's motion to dismiss. Appellant testified that he was arrested in September 2005, was prepared to go to trial on March 20, 2006, and opposed the State's subsequent motions for continuance. Appellant testified that, as a result of the delay, he was voted out of his dental practice by his partners and removed from his office. Thereafter, appellant was unable to find another job and was forced to sell his house. Appellant complained that, if his case had gone to trial on either the first or second trial setting, the State would not have had DNA evidence to use against him, and the delay of the trial allowed the State to strengthen its case against appellant. The prosecutor acknowledged that she did not learn until March 2006 the DNA samples taken from the complainant had not been sent off for analysis and that six months passed between the time the offense was first reported and the discovery of the lack of DNA analysis. The trial court denied appellant's motion to dismiss for failure to afford a speedy trial. This appeal followed. In his sole issue, appellant argues he was denied his constitutional right to a speedy trial because the State delayed his trial between the original March 20, 2006 setting and the time he was actually brought to trial in May 2007. In determining whether an accused has been denied his right to a speedy trial, a court must use a balancing test "in which the conduct of both the prosecution and the defendant are weighed." Barker v. Wingo, 407 U.S. 514, 530 (1972); Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and the prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530; Dragoo, 96 S.W.3d at 313. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Barker, 407 U.S. at 530; Dragoo, 96 S.W.3d at 313. The first Barker factor, the length of the delay, is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313 (1971); Dragoo, 96 S.W.3d at 313. The length of the delay is, to some extent, a triggering mechanism, so that a speedy trial claim will not even be heard until passage of a period of time that is, on its face, unreasonable in the circumstances. Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker, 407 U.S. at 530. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Doggett, 505 U.S. at 652; Dragoo, 96 S.W.3d at 314. In general, courts deem delay approaching one year to be unreasonable enough to trigger the Barker inquiry. Doggett, 505 U.S. at 652 n. 1; Dragoo, 96 S.W.3d at 314. Here, appellant was indicted on August 24, 2005 but was not brought to trial until May 21, 2007, an interval of approximately twenty months. This delay was sufficient to trigger the Barker inquiry. See Dragoo, 96 S.W.3d at 314. As to the reason for the delay, the record indicates the State acknowledged six months passed between the time the underlying offense was first reported and the State discovered DNA samples taken from the complainant had not been sent off for analysis. However, the record shows the Department of Public Safety crime lab processed the samples sent to them in early March 2006 but did not return any results for eight months. The record shows that, out of the fifty-two weeks in 2006 the trial court conducted thirty-seven jury trials, twenty-one in Grayson County and sixteen in Fannin County. Of the twenty-one cases tried in Grayson County, eighteen or nineteen of those cases were inmate cases receiving priority over bonded cases. Thus, the record shows that much of the delay was attributable to the crime lab taking eight months to return DNA results, a crowded trial docket, and appellant's case receiving a lower priority because appellant was out on bond. To the extent a crowded court docket contributed to the delay, this factor counts against the State. Shaw v. State, 117 S.W.3d 883, 890 (Tex.Crim.App. 2003). However, we note that, after the DNA testing was complete, appellant sought a continuance to review the results. Based on the foregoing, we conclude this factor weighs slightly against finding a violation of the speedy trial right. As to whether appellant ever asserted his right to a speedy trial, the record is clear that appellant asserted his right each time the State sought a continuance beyond the original March 20, 2006 trial setting. The record shows appellant repeatedly asserted his right but only filed a motion to dismiss for failure to afford a speedy trial after incriminating DNA test results were finally delivered by the crime lab. Nevertheless, this factor weighs in favor of finding a violation of the speedy trial right. As to the prejudice appellant may have suffered as a result of the delay, when we assess this factor we must do so in light of the interests of defendants which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and (3) to limit the possibility that the accused's defense will be impaired. See Dragoo, 96 S.W.3d at 315. Of these forms of prejudice, the most serious is the last because the inability of the defendant adequately to prepare his case skews the fairness of the entire system. Id. Furthermore, with respect to the third interest, affirmative proof of particularized 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 identify. Id. Here, appellant turned himself in on September 12, 2005, posted a $10,000 bond, and was released from custody. Thus, appellant did not suffer oppressive pretrial incarceration. As to the anxiety and concern appellant may have suffered, he contends he suffered substantial anxiety because he lost his home and employment. However, the record shows that, during the time the indictment was pending, appellant entered into a settlement with victims in this case, which could have been seen as an admission of guilt by his dental partners. Only appellant's testimony indicates his termination was solely because an indictment was pending. This financial settlement also may account for appellant's financial difficulties. As to whether appellant's defense was impaired by the delay, appellant is essentially arguing that the delay allowed the State to obtain incriminating DNA evidence it would not have had if trial had proceeded as originally scheduled. This is not the kind of impairment, such as loss of exculpatory evidence and dimming memories, discussed in Barker. In fact, the DNA evidence obtained as a result of the delay in this case might have exonerated appellant. Appellant does not argue that he was prevented from obtaining other exculpatory evidence as a result of the delay or that his defense was otherwise impaired. Under these circumstances, we conclude appellant failed to demonstrate prejudice. This factor weighs against finding a violation of his speedy trial right. Finally, having reviewed the four Barker factors, the fact that trial was delayed for approximately twenty months and appellant repeatedly asserted his right to a speedy trial weigh in favor of finding a violation of appellant's speedy trial right. However, weighing against finding a violation is the fact that appellant failed to demonstrate prejudice. Further, although delay as a result of a crowded trial docket weighs against the State, though not heavily, much of the delay is attributable to the crime lab's delay in obtaining DNA results, and not intentional delay by the State. Appellant himself sought a continuance to review the DNA evidence, and this further delayed his trial. We conclude that the weight of the four factors, balanced together, is against finding a violation of appellant's speedy trial right. See Barker, 407 U.S. at 534; Dragoo, 96 S.W.3d at 316. We overrule appellant's sole issue. We affirm the trial court's judgment.