No. 08-03-00301-CR
November 30, 2004. DO NOT PUBLISH.
Appeal from the 409th District Court of El Paso County, Texas, (Tc# 20030D01485).
Before Panel No. 2, BARAJAS, C.J., McCLURE, and CHEW, JJ.
DAVID WELLINGTON CHEW, Justice.
Appellant James Donald Smith was charged by indictment with one count of aggravated sexual assault of a child and three counts of indecency with a child. Appellant plead guilty to count four, indecency with a child, and true to the enhancement paragraphs and the remaining counts were dismissed. Pursuant to a plea agreement, the trial court sentenced Appellant to 25 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed a notice of appeal. The trial court certified that this is a plea bargain case, but Appellant has the right of appeal as to matters that were raised by written motion filed and ruled on before trial. On appeal, Appellant challenges the trial court's denial of his pretrial motion to dismiss for lack of speedy trial. Finding no violation of Appellant's right to a speedy trial, we affirm. Appellant was arrested on June 6, 2002. On July 24, 2002, Appellant filed a motion requesting an examining trial. Appellant was indicted under the original cause number 20020D03468 on July 25, 2002 and arraigned on August 21, 2002. The case was set for a jury trial on November 22, 2002. Appellant filed a motion for speedy trial on January 23, 2003. On February 4, 2003, the case was re-indicted under cause number 20030D00518 with an enhancement paragraph. Appellant was arraigned under the new cause number on February 26, 2003. Appellant filed a motion for speedy trial on March 19, 2003. The case was then set for 28.01 motions on April 11, 2003 and set for a jury trial on May 30, 2003. On March 20, 2003, the case was re-indicted as cause number 20030D01485 and the State added the aggravated sexual assault count. On April 25, 2003, Appellant filed a motion to dismiss for failure to provide a constitutional speedy trial. After conducting a hearing on June 5, 2003, the trial court denied Appellant's speedy trial claim, but set the matter to proceed on the following morning. On June 6, 2003, Appellant waived his right to a jury trial and plead guilty to count four, indecency with a child, enhanced by two prior convictions. In accordance with the plea agreement, Appellant was sentenced to twenty-five years' imprisonment.
RIGHT TO SPEEDY TRIAL
In his sole issue, Appellant argues the trial court erred by denying his motion to dismiss for lack of constitutional speedy trial. The right to a speedy trial is guaranteed by the federal and Texas constitutions. See U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10; Klopfer v. North Carolina, 386 U.S. 213, 223-24, 87 S.Ct. 988, 993-94, 18 L.Ed.2d 1 (1967); Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App. 1985). On review, we must balance four factors when analyzing the trial court's decision to grant or deny a speedy trial claim: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) any resulting prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). No single factor is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Barker, 407 U.S. at 533, 92 S.Ct. at 2193. Rather, the factors are related and must be considered together along with other circumstances as may be relevant. Id. 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, 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 first Barker factor, the length of delay, is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459-60, 30 L.Ed.2d 468 (1971); Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003); Emery, 881 S.W.2d at 708. The length of delay acts as a triggering mechanism and unless the delay is presumptively prejudicial, courts need not consider the other three factors. Zamorano, 84 S.W.3d at 648; Dragoo v. State, 96 S.W.3d 308, 313-14 (Tex.Crim.App. 2003). "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." Dragoo, 96 S.W.3d at 314, quoting Doggett v. United State, 505 U.S. 647, 652, 112 S.Ct. 2686, 2686, 120 L.Ed.2d 520 (1992). The presumption that pretrial delay has prejudiced the accused intensifies over time, thus the longer the delay beyond that which is ordinary, the more prejudicial that delay is to the defendant. Zamorano, 84 S.W.3d at 649. In general, courts have deemed delay approaching one year to be unreasonable enough to trigger consideration of all the Barker factors. Dragoo, 96 S.W.3d at 314. Appellant was arrested on June 6, 2002, and plead guilty on June 6, 2003, exactly one year after his arrest. This delay is sufficient to trigger the Barker inquiry. 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. Reasons for the delay are weighted differently. Munoz, 991 S.W.2d at 822. A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are weighed less heavily. Id. If the record is silent regarding the reason for the delay, we may presume neither a valid reason nor a deliberate attempt to prejudice the defense. Dragoo, 96 S.W.3d at 314. Here, the record is silent as to the reason for the one-year delay in this case. The State offered no evidence at the motion hearing. At the hearing, Appellant's counsel and the trial judge agreed that the case files did not contain any motions for continuance from the State. Appellant's counsel argued that the delay was primarily because of the State re-indicting the case. The record does not indicate any objection to the dismissals and re-indictments. 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
Next, we 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. Failure to assert the right in a timely and persistent manner will make it difficult for a defendant to prove that he was denied a speedy trial. Id. at 532, 92 S.Ct. at 2193; see also Thompson v. State, 983 S.W.2d 780, 785 (Tex.App.-El Paso 1998, pet. ref'd). 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. A defendant's lack of a timely demand for a speedy trial strongly indicates that he did not really want a speedy trial. Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App. 1992); Thompson, 983 S.W.2d at 785. Further, seeking a dismissal rather than a prompt trial, is clearly relevant and may attenuate the strength of a speedy trial claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983). Here, Appellant filed several motions for speedy trial and a motion to dismiss for lack of speedy trial. Appellant also testified at the hearing that at various times he wrote to the trial judge, asking for the court to give him a speedy trial. At the hearing, Appellant requested that the case be dismissed for lack of speedy trial. Appellant acknowledged that the case was set for the following day, but asserted that the delay had already caused "interminable harm." We observe that Appellant sought and obtained a hearing on his motion to dismiss, but did not seek or obtain hearings on his speedy trial motions. This suggests that Appellant wanted a dismissal, not a speedy trial, and weakens his speedy-trial claim. Under these circumstances, we find that this factor weighs at least slightly against Appellant. Prejudice Resulting from Delay
The final Barker factor focuses on the prejudice, if any, the defendant has suffered as a result of the delay. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The defendant has the initial burden to make a showing of prejudice. Emery, 881 S.W.2d at 709. Prejudice should be assessed in light of the interests a speedy trial is designed to protect. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. 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. At the hearing, Appellant testified that he was arrested on June 6, 2002 on the initial charge of indecency with a child, never made bond on this case, and has been incarcerated since the date of arrest. Appellant did not ask for a continuance in this case and wanted to try the case as soon as possible. While incarcerated, Appellant obtained psychiatric care at the jail and was currently taking antidepressants and insomnia medication. Specifically, Appellant stated that "since this allegation has gone on, I've had to get psychiatric care with the Medical Department at the jail, and at this time I'm taking antidepressants as well as insomnia medication." His testimony suggests that he may have suffered anxiety due to the delay or may have sought treatment for a pre-existing condition. Appellant also testified that his brother, Alton Anderson, would have been available to testify as a witness at trial on November 22, 2002, but was no longer available. To show his defense was prejudiced by a missing witness, the defendant must demonstrate that the witness was unavailable at the time of trial, that the witness's testimony may be relevant and material to his defense, and that he exercised due diligence in an attempt to locate the missing witness at the time of trial. See Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App. 1982); Johnson v. State, 975 S.W.2d 644, 652 (Tex.App.-El Paso 1998, pet. ref'd). Appellant told the court that he had spoken to Mr. Anderson at the time and had told him that he would need him to testify because he was the only other adult at the house. Appellant stated that Mr. Anderson's testimony was relevant to the child witness's credibility because "[t]hese kids lacked a lot of discipline, so he was definitely a witness to the atmosphere that was going on in the house, as well as to the behavior of the kids at the time." Appellant no longer knew Mr. Anderson's whereabouts. He had asked another brother to try and find him, but Mr. Anderson was "accustomed to going off and not being available for some time." The court asked Appellant if Mr. Anderson was subpoenaed for the November 22 trial date. Appellant's counsel informed the court that no subpoenas were issued, but Mr. Anderson was aware of the court date. Mr. Anderson was last seen by family members around Christmas of 2002. In this case, Appellant testified that Mr. Anderson was a missing credibility witness at the time of trial. However, there is nothing in the record on the child witness's anticipated testimony. Further, Appellant failed to establish that Mr. Anderson's testimony would have been material to his defense. We conclude that the fourth Barker factor weighs against Appellant. Balancing the Factors
We now balance the four Barker factors to determine whether Appellant's right to a speedy trial was violated. The one-year delay and absence of a reason for the delay weigh in Appellant's favor. Weighing against a finding of a speedy trial violation are Appellant's attempt to obtain a dismissal, but only slightly, and Appellant's failure to make a prima facie showing of prejudice, which weighs heavily against finding a violation. Balancing these factors, we conclude Appellant's right to a speedy trial was not violated in this case. Accordingly, the trial court did not err in denying Appellant's motion to dismiss for lack of a speedy trial. We overrule Appellant's sole issue for review. The trial court's judgment is affirmed.