Opinion
NO. 05-13-01569-CR
05-28-2014
STATE OF TEXAS, Appellant v. JOHN M. CHERRY, Appellee
Attorney for Appellant: Rebecca D. Ott Assistant District Attorney Dallas County District Attorney's Office Attorney for Appellee: Jeff P. Buchwald
Oral Argument is Not Requested
ON APPEAL IN CAUSE NO. F10-72386-L FROM CRIMINAL DISTRICT
COURT NO. 5 OF DALLAS COUNTY, TEXAS
APPELLEE'S BRIEF
JEFF P. BUCHWALD
ATTORNEY FOR APPELEE
NAMES OF ALL PARTIES
Since this case is an appeal from a criminal conviction, the only parties are The State of Texas by and through the Criminal District Attorney of Dallas, County Texas and the Appellee. Appellant:The State of Texas Attorney for Appellant:
Rebecca D. Ott
Assistant District Attorney
Dallas County District Attorney's Office
Appellee: State of Texas Attorney for Appellee: Jeff P. Buchwald
TABLE OF CONTENTS
NAMES OF ALL PARTIES......................................................................................................i LIST OF AUTHORITIES..............................................................................................iii - iv STATEMENT OF THE CASE.................................................................................................2 STATEMENT OF FACTS.......................................................................................................2 SUMMARY OF THE ARGUMENT.......................................................................................3 REPLY TO STATE'S POINT OF ERROR................................................................................4 THE TRIAL COURT DID NOT ERR IN CONCLUDING THAT THE APPELLEE'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED BASED UPON THE TOTALITY OF THE FACTORS AND CIRCUMSTANCES CONCLUSION AND PRAYER..........................................................................................21 CERTIFICATE OF COMPLIANCE.......................................................................................21 CERTIFICATE OF SERVICE................................................................................................22
LIST OF AUTHORITIES
Barker v. Wingo, 407 U.S. 514 (1972)........................................................3, 8, 9, 10, 11 Cantu v. State, 253 S.W.3d 273 (Tex. Crim. App. 2008).......................................12, 20 Doggett v. United States, 505 U.S. 647 (1992)..................................................9, 11, 19 Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003)...........8, 9, 10, 11, 13, 17, 19 Emery v. State, 881 S.W.2d 702 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1192 (1995).......................................................................................................................10 Johnson v. State, 954 S.W.2d 770 (Tex. Crim. App 1997)...........................................16 Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005).....................................7, 8 Marquez v. State, 165 S.W.3d 741 (Tex. App. - San Antonio 2005 pet ref'd).........16 Orand v. State, 254 S.W.3d 560 (Tex. App. Fort Worth 2008, pet. ref'd), reh'g overruled.................................................................................................................17 Shaw v. State, 117 S.W.3d 883 (Tex. Crim. App. 2003).........................8, 9, 10, 11, 19 State v. Guerro, 110 S.W.3d 155 (Tex. App. - San Antonio 2003)............................19 State v.Booker, 04-11-00638-CR; 04-11-00639-CR (Tex. App. - San Antonio March 14, 2012) (omem. p. not designated for publication)..............................17, 18 State v. Jones, 168 S.W.3d 339 (Tex. App. - Dallas 2005, pet. ref'd)..7, 8, 10, 11, 13 State v. Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999)..............................................7 Strunk v. United States, 412 U.S. 434 (1973)..................................................................8 Wells v. State, 319 S.W.3d 82 (Tex. App. - San Antonio 2010, pet. ref'd)...............16 Whitfield v. State, 137 S.W.3d 687 (Tex. App. - Waco 2004)....................................20 Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002).....................10, 12, 17, 20 RULES & STATUTES: Tex. Health & Safety Code Sec. 481.121.........................................................................2 Tex. Code of Crim. Proc. Art. 44.01(a)(1).......................................................................2 CONSTITUTIONS: Tex. Const. art. 1, Sec. 10..................................................................................................8 U.S. Const. amend. VI.........................................................................................................8
STATE OF TEXAS,
Appellant
V.
JOHN M. CHERRY,
Appellee
ON APPEAL IN CAUSE NO. F10-72386-L FROM CRIMINAL DISTRICT
COURT NO. 5 OF DALLAS COUNTY, TEXAS
APPELLEE'S BRIEF
TO THE HONORABLE COURT OF APPEALS:
Appellee, John M. Cherry, respectfully submits this brief in the above styled and numbered cause. This brief is in reply to the State's Opening Brief filed in regards to the trial court's granting of Appellee's motion for speedy trial (CR) is the Clerk's Record; (CR Supp) is the Supplemental Clerk's Record and (RR) refers to the Reporter's Record from the motion for speedy trial dismissal hearing. dismissal of the State's case in Cause No. F10-72386-L.
STATEMENT OF THE CASE
The Appellee, John Cherry, was indicted in Cause No. F10-72386-L for the offense of possession of marijuana in an amount of five pounds or less but more than four ounces. (CR: 13). Tex. Health & Safety Code Sec. 481.121. On October 3, 2013 the Appellee filed his Motion for Speedy Trial Dismissal. (CR: 19-23). On October 3, 2013 the trial court held a hearing on Appellee's motion. (RR: 1-14). After the hearing the trial court granted the Appellee's motion. (RR: 14). On October 31, 2013 the trial court signed an order granting the motion and dismissing the case. (CR: 26). Pursuant to Tex. Code of Crim. Proc. Art. 44.01(a)(1) the State timely filed its Notice of Appeal on November 11, 2013. (CR: 27-28).
STATEMENT OF FACTS
The Appellee testified that he was detained back on June 4, 2010 a few blocks from his residence on Donnybrook Lane in Dallas County for the instant marijuana case. (RR: 5). The police took him back to his home. The police then informed him that he was going to jail for tickets. (RR: 5). The police also told him that he was going to be charged with the instant marijuana case. (RR: 6). The Appellee knew that he was going to be charged with the marijuana offense which caused him major stress and concern. (RR: 6-7). He knew that the case would be pending over his head and subject him to arrest at any time. (RR: 6). The Appellee was not arrested until January 16, 2013 for the offense. (RR: 6). His first court date was March 5, 2013. (RR: 7). The case against the Appellee for the offense of possession of marijuana over four ounces was not filed until January 31, 2013 - over two and half years after the Appellee's original detention. (RR: 4). The Appellee was constantly checking to see if he had a warrant for his arrest. (RR: 7-8). He would check on the phone and on the internet. (RR: 8). He did not see the warrant until about a week before he was arrested. (RR: 8). If he had seen the warrant before then he would have turned himself in because the "ATF" man that arrested him, told him that he was going to contact the Appellee and would come pick him up. The officer never contacted the Appellee. (RR: 8)
Appellee was living with his uncle in Arlington between 2010 and the date of his arrest. (RR: 7). After his detention he moved from the house he was at to live with his uncle in Pleasant Grove and then later they moved to Arlington. (RR: 8). The Appellee gave the officer the address for his uncle's house. (RR: 9). The Appellee did not move from that address to Arlington until later. (RR: 9). The Appellee was not provided with a phone number or even a name for the officer. (RR: 9).
SUMMARY OF ARGUMENT
The trial court did not err in granting the Appellee's motion for speedy trial dismissal. Based upon all the speedy trial factors set out in Barker v. Wingo along with other relevant factors or considerations such as the unexplained length of delay in arresting the Appellee; filing the case with the District Attorney's office; and obtaining an indictment the trial court's ruling should be affirmed.
REPLY TO STATE'S POINT OF ERROR
THE TRIAL COURT DID NOT ERR IN CONCLUDING THAT THE APPELLEE'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED BASED UPON THE TOTALITY OF THE FACTORS AND CIRCUMSTANCES
Appellee acknowledges that the case law concerning a speedy trial complaint attaches when a defendant is arrested or formally charged. However, Appellee would argue that the trial court could still consider the Appellee's motion concerning the delay from the time of his arrest until the time of the speedy trial dismissal hearing. In fact, the trial court could and did also consider the pre-arrest/indictment delay attributable to the State as a factor or circumstance in evaluating the Appellee's motion for speedy trial dismissal. These additional factors or circumstances could and were used by the trial court in determining whether the motion should be granted.
Consequently, the trial court did not erroneously conclude that the Appellee's right to a speedy trial had been violated. The trial court correctly concluded that the delay from July 15, 2010 (issuance of warrant) after the original detention on June 4, 2010 was unreasonable and that an arrest not being made until January 16, 2013 was unexplained by the State and was further evidence of the unreasonableness of the delay.
More specifically, the State conceded that the warrant was issued on July 15, 2010 for the Appellee. (RR: 12). And while the State noted that the address the Appellee gave the officers was not the address where the Appellee was living at in 2010, there was no evidence presented by the State that any officer ever tried to find and arrest the Appellee. To the contrary, the Appellee testified that he gave the officers his uncle's address which is where he went to stay after his arrest on the tickets. (RR: 9). The Appellee further testified that he constantly checked for a warrant because he was stressed and worried about the case and about being arrested. (RR: 6, 8). Again, no evidence was provided by the State that the police ever tried to locate the Appellee nor is there any evidence that they could not find the Appellee before his actual arrest on January 16, 2013.
The State also argued that it was the policy of the agency [officers] that they had to take "steps" to get an arrest warrant for the marijuana case. (RR: 12). However, there was no evidence presented at the hearing that the officers had to go through "steps" to obtain an arrest warrant. In fact, the officers could have arrested the Appellee at the time of the alleged offense. According to the arrest warrant affidavit, the marijuana was tested by the Southwestern Institute of Forensic Sciences at Dallas with positive results and was also weighed. (CR: 14). This was done the same day before the search warrant was signed. The Appellee also admitted to ownership of the marijuana and signed a statement. (CR: 14). The trial court noted that the case against the Appellee was a marijuana case and there was no need for drug testing to make an arrest. In fact, the court was at a lost for an explanation for the failure to arrest the Appellee since "There's no direct testing necessary in a case like that." and the "facts of possession are pretty simple." Thus, the failure to arrest the Appellee that day was unexplained by the State. (RR: 13). In addition, there was no evidence or explanation, other than claiming the Appellee moved, about the delay of the officers obtaining a warrant or in executing the warrant. There was no evidence presented that the Appellee was trying to run or avoid the police. There was no evidence that the officers told the Appellee to keep in touch with them or even provided him with any contact information. In fact, the Appellee testified that he did not have a name or number for the officer. (RR: 9).
Consequently, it was proven at the hearing that the delay was unreasonable.
More particularly, the Appellee would argue as follows:
TIMELINE OF EVENTS
1. June 4, 2010: date of alleged offense, Appellee was told by the officers that he would be arrested but not that day. Reasoning by police unexplained. (CR: 13; RR: 5)
2. July 15, 2010: arrest warrant issued, No evidence presented by State concerning officers trying to execute the warrant on said date or any time in the future other than January 16, 2013.
3. January 16, 2013: Appellee arrested and granted personal recognizance bond. (CR: 8-12). No evidence presented by State why it took until January 16, 2013 to execute the warrant.
4. January 31, 2013: Charge filed by Dallas Police Department with the District Attorney's Office. (CR: 13). No evidence presented by State as to the delay by the police in filing the case with the District Attorney's Office. However, this does potentially explain why the Appellee could never find a warrant issued against him.
5. February 15, 2013: Indictment filed. (CR: 13). No evidence presented by State why Appellee was not indicted or his case presented to a grand jury until February of 2013.
6. March 5, 2013: first setting for case. (CR: 5).
7. October 3, 2013: Appellee filed his motion for speedy trial dismissal. Hearing held on the same day with motion being granted by the trial court. (CR: 5, RR: 14).
8. October 31, 2013: Trial Court entered written order granting the speedy trial motion and dismissing the case. (CR: 26).
STANDARD OF REVIEW
When reviewing a trial court's decision on a speedy trial claim, an appellate court applies a bifurcated standard of review. State v. Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App. - Dallas 2005, pet. ref'd). When conducting a speedy trial analysis, an appellate court reviews the legal issues de novo, but gives deference to the trial court's resolution of factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz, 991 S.W.2d at 821; Jones, 168 S.W.3d at 345. An appellate court's review of a speedy trial claim must be done in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345. Under this standard of review, deference must be given not only to a trial court's resolution of disputed facts, but also to the drawing of reasonable inferences from the facts. Kelly, 163 S.W.3d at 726. Deference must be given to a trial court's findings, even when those findings do not turn on the assessment of credibility and demeanor. Kelly, 163 S.W.3d at 726.
An appellate court must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw, 117 S.W.3d at 889; Munoz, 991 S.W.2d at 821; Jones 168 S.W.3d at 345. If a violation of the defendant's right to a speedy trial is established, the only possible remedy is dismissal of the prosecution. Strunk v. United States, 412 U.S. 434, 440 (1973); Dragoo, 96 S.W.3d at 313; Jones, 168 S.W.3d at 346.
APPLICABLE LAW
The Sixth Amendment to the United States Constitution and article 1 Sec. 10 of the Texas Constitution provide that the accused shall enjoy the right to a speedy trial. U.S. Const. amend. VI; Tex. Const. art. 1, Sec. 10. A balancing test is used to determine whether a defendant has been denied his right to a speedy trial. Both the conduct of the State and Defense are weighed. Barker v. Wingo, 407 U.S. 514, 530 (1972); Shaw v. State, 117 S.W.3d at 888; Dragoo v. State, 96 S.W.3d at 313. The factors to be weighed include, but are not limited to: (1) the length or the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) the prejudice to the defendant resulting from the delay. Doggett v. United States, 505 U.S. 647, 651 (1992). Barker, 407 U.S.at 53032; Shaw, 117 S.W.3d at 889; 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 533, Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 313. These factors are "related" and "must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533.
The first factor, length of delay, is a two part inquiry. Doggett, 505 U.S. at 651. First, to trigger a speedy trial analysis, the defendant must allege the interval between accusation and trial has crossed the threshold from ordinary to a presumptively prejudicial delay. Doggett, 505 U.S. at 651; Barker, 407 U.S. at 530; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 313. The length of delay is measured from the time of the defendant's arrest or when formal charges are filed. Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 313. Generally, "a delay approaching one year" is sufficient to trigger a speedy trial inquiry. Doggett, 505 U.S. at 652 n.1; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314. The presumption that the pretrial delay has prejudiced the defendant grows stronger over time. Doggett, 505 S.W.3d at 652; Jones, 168 S.W.3d at 347.
The second factor is the State's reason for the delay. When the defendant establishes a presumptively prejudicial delay, the State has the burden of justifying the delay. Some reasons may justify the delay while others do not. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). Different weights must be assigned to the different reasons the State offers to justify the delay. See Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 889, Dragoo, 96 S.W.3d at 314. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Barker, 407 U.S. at 531. In addition, an overcrowded court docket is not a valid reason for delay and should be weighed against the State, although not heavily. Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 890. A missing witness is an example of a valid reason for delay and serves to justify an appropriate delay. Barker, 407 U.S. at 531.
The Third factor is the defendant's assertion of his speedy trial right. The more serious the deprivation of the defendant's right to a speedy trial, the more likely he is to complain. Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 890. A defendant's assertion of his speedy trial right is entitled to strong evidentiary weight when determining if the defendant is being deprived of that right. Barker, 407 U.S. at 531, 32; Jones, 168 S.W.3d at 348. A defendant's motion to dismiss for a denial of a speedy trial rather than a motion requesting a speedy trial weakens his claim for speedy trial because it shows a desire to have no trial instead of a speedy trial. Jones, 168 S.W. 3d at 348 (citing Zamorano v. State, 84 S.W.3d 643, 651 n. 40 (Tex. Crim. App. 2002).
The fourth factor is the prejudice to the defendant caused by the delay. This prejudice is assessed in light of the interests that the right to a speedy trial was designed to protect. Barker, 407 U.S. at 532; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315. These interests include: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532; Doggett, 505 U.S. at 654; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315. Of these interests, the third is the most important because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. Barker, 407 U.S. at 532; Doggett, 505 U.S. at 654; Shaw, 117 S.W.3d at 890, Dragoo, 96 S.W.3d at 315. The defendant has the burden to make "some showing" of prejudice. Jones, 168 S.W.3d at 349. Once the defendant shows some prejudice, the burden shifts to the State to show that no prejudice resulted. Jones, 168 S.W.3d at 349. Affirmative proof of prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways neither party can prove or identify. Doggett, 505 U.S. at 655; Shaw, 117 S.W.3d at 890, Dragoo, 96 S.W.3d at 315. If witnesses die or disappear during a delay, the prejudice is obvious. Barker, 407 U.S. at 532. However, the presumption of prejudice is diminished by the defendant's acquiescence in the delay. Barker, 407 U.S. at 534-36; Doggett, 505 U.S. at 658; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315.
APPLICATION OF THE LAW TO THE FACTS
LENGTH OF DELAY
The length of delay from January 16, 2013 to the hearing on October 3, 2013 was presumptively prejudicial in itself but especially prejudicial in light of other factors and circumstances concerning the prejudicial and unexplained pre-arrest/indictment delay by the State. Therefore, it was within the trial courts discretion to inquire into or examine all of the speedy trial factors along with any other relevant considerations. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). Texas courts have generally held that a delay of eight months or more is presumptively prejudicial and will trigger a speedy trial analysis. See Zamorano v. State, 84 S.W.3d at 648-49 n. 26.
Consequently, this delay is sufficient to trigger a speedy trial analysis under Barker and this factor should weigh against the State based not only on the presumptively prejudicial delay from arrest until the hearing but also based upon the other circumstances of the pre-arrest/indictment delay that was caused solely by the State.
STATE'S REASON FOR DELAY
STATE'S ARGUMENT AT HEARING
As Set forth above, the State provided no evidence to rebut the presumption. At the hearing the prosecutor argued that the delay was due to the Appellee moving but there was no evidence provided by the State about why the Appellee was not arrested at the time of the offense. Nor was there any evidence about any other attempt being made by law enforcement to arrest the Appellee before January 16, 2013. In fact, the Judge was at a lost as to why it took the police so long to arrest the Appellee and file the case. (RR: 13).
In addition, the prosecutor did not produce any evidence about the delay from the Appellee's arrest (January 16, 2013) until the hearing on his speedy trial dismissal motion (October 3, 2013).
In the absence of an assigned reason for the delay, a court in deciding a speedy trial claim may not presume neither a deliberate attempt on the part of the state to prejudice the defense nor a valid reason for the delay. Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003).
However, an unexplained delay, even if it is by law enforcement, is attributable to the State. See Jones, 168 S.W.3d at 348.
STATE'S ARGUMENT ON APPEAL
Delay from arrest
The State argues in its brief that numerous pass slips are proof that any post arrest/indictment delay should weigh against the Appellee. (State's brief at pg. 19).
The fact that the Appellee was trying to retain counsel should not be weighed against him. In fact, the Appellee declined a court appointed lawyer at his arraignment because he was bonding out of jail and wanted to try and retain his own attorney. (CR: 9-11). Appellee's first setting after bonding out was not until March 9, 2013. (CR: 5). It is not uncommon for the trial courts to reset a case to determine if a defendant can hire an attorney once the defendant has bonded out of jail. Nevertheless, the Appellee was unable to retain an attorney and was found to be indigent by the court on April 30, 2013. (CR: 17-18)(CR Supp: 7). A plea recommendation was not made by the State until June 12, 2013. (CR Supp: 9). On the same date that the plea offer was made a pass slip was signed indicating a speedy trial demand by the Appellee. It is noted on the pass slip "Speedy Trial" in the checked box for "Other." (CR Supp: 9). Thus, the delay from March 9, 2013 to June 12, 2013 did not deal with any plea bargaining but instead indicates the Appellee's request for a speedy trial.
Next, it appears from the pass slips that the State made two different offers but these offers were rejected by the Appellee. (CR Supp: 9-11). In fact, the pass slip dated July 10, 2013 indicates that the offer was rejected by the Appellee who wanted to set his case for a motion to suppress. This was in addition to the prior pass slip showing a speedy trial request. (CR Supp: 9, 11). Consequently, Appellee would argue that the time period from June 12, 2103 to August 16, 2013 did not deal with plea bargaining but instead appears to be the State's attempt to make a plea offer so that the Appellee would waive his right to a speedy trial or his motion to suppress. This is evidenced by the State's revoking the plea offer when the Appellee refused it and wanted to pursue his motion to suppress as well as his speedy trial motion. (CR Supp: 11). At the least, the pass slips are subject to many different interpretations by the trial court.
Furthermore, the State did not offer any evidence to substantiate its argument that the pass dates were requested or acquiesced by the Appellee. In fact, the State did not offer any testimony and failed to cross examine the Appellee about why the case was passed. Consequently, the State's reliance on the pass slips without providing any other evidence as to the reasons behind each pass or any evidence concerning the reasons why the hearing dates were reset until October 3, 2013 is unfounded and based on pure speculation. The resets for the hearing dates could have just as easily been attributed to the State or the trial court. Nevertheless, the trial court obviously found that the delay coupled with the unexplained two and a half year delay in arresting, charging and indicting the Appellee weighed against the State.
Pre-arrest/indictment delay
In addition to the post arrest delay, the Appellee would argue that the unexplained time period up to the time that the right attached (January 16, 2013) is a factor or relevant circumstance that the trial court could consider in making Its ruling that the Appellee was denied a speedy trial.
More specifically, the Appellee established that the interval between the arrest and trial was presumptively prejudicial in that it was established that the arrest warrant for the Appellee was obtained on July 15, 2010 within a month and half of the date of the offense on June 4, 2010. However, an arrest was not made until January 16, 2013. This delay in itself was over two and a half years. There was no valid explanation about why the police did not arrest the Appellee on the offense date; why they waited to issue the warrant; or why the case was not filed by the police with the Dallas District Attorney's Office until January 31, 2013.
Furthermore, there was no evidence presented by the State as to why the police took so long to arrest the Appellee after a warrant was later obtained. The prosecutor argued that the Appellee moved sometime after the warrant was issued but there was no evidence presented about the delay in arresting the Appellee or any evidence that the Appellee was not living at the address that the police did have back when the warrant was issued. To the contrary, the Appellee testified that he gave the police (ATF) his uncle's address. (RR: 9). This is the same address that the Appellee moved to after his arrest on the tickets. (RR: 8).
Finally, there was no evidence presented that the police ever tried to execute the warrant except on the day of the Appellee's actual arrest. Thus, the first factor was established by the Appellee.
The Barker factors should be evaluated in conjunction with any other relevant considerations. Wells v. State, 319 S.W.3d 82 (Tex. App. - San Antonio 2010, pet. ref'd). Other factors than those enumerated may be considered depending on the circumstances of the case. Johnson v. State, 954 S.W.2d 770 (Tex. Crim. App 1997); Marquez v. State, 165 S.W.3d 741 (Tex. App. - San Antonio 2005 pet ref'd).
This factor weighs in favor of the Appellee.
DEFENDANT'S ASSERTION OF HIS SPEEDY TRIAL RIGHT
The indictment in the Appellee's case was finally filed on February 15, 2013. (CR: 15) The evidence showed that the first setting in Appellee' case was for March 5, 2013. (CR: 5). There is evidence that the Appellee was requesting a speedy trial back on June 12, 2013 - "Speedy Trial" is written out in the checked box marked "Other". (CR Supp: 9). Then, on October 3, 2013 the Appellee filed his motion for speedy trial dismissal and the hearing was held that same day. (CR: 5, RR: 14). While the filing of the motion to dismiss may weaken a defendant's claim for speedy trial it does not preclude the granting of the motion.
A defendant's failure to assert a speedy trial claim during the earlier periods leading up to a trial does not waive the right to a speedy trial and at most would only potentially weigh against the defendant's position on the speedy trial issue. Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003).
The speedy trial guarantee applies to all criminal accusations regardless of the grade of the crime charged or the vigilance or knowledge of the defendant. Orand v. State, 254 S.W.3d 560 (Tex. App. Fort Worth 2008, pet refused), reh'g overruled.
See Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002) (Defendant's repeated assertion of his right to speedy trial weighed in his favor for the purposes of determining whether his right had been violated, even though the defendant did not file his first motion for speedy trial until 2 ½ years from the date of his arrest; defendant's second attempt came less than two months after the court denied his initial request).
However, even if this factor weighs against the Appellee it does not preclude the granting of Appellee's motion for speedy trial dismissal. See State v.Booker, 04-11-00638-CR; 04-11-00639-CR (Tex. App. - San Antonio March 14, 2012) (mem. op. not designated for publication) (The presumptively prejudicial delay due to the State's own negligence and no acceptable reason for the delay between indictment and arrest weigh against the State. Although, appellee did not affirmatively request a speedy trial, she presented evidence sufficient to constitute a prima facie showing of prejudice. Balancing these factors, we must conclude the trial court did not abuse its discretion in granting appellee's motions to dismiss).
Consequently, this factor should not weigh heavily against the Appellee whose request for a speedy trial was indicated as soon as June 12, 2013 and whose motion for speedy trial dismissal was filed less than 7 months after the first setting of Appellee's case.
PREJUDICE TO THE DEFENDANT
The Appellee was granted a personal recognizance bond after his arrest so there was no extended pretrial incarceration. However, there was oppressive anxiety and stress caused by the pre-arrest/indictment delay in that the Appellee was constantly worrying and wondering when a warrant would be issued and when he would be arrested. (RR: 6-7). Thus, there was no minimizing the anxiety and concern that the accused had with this case hanging over his head for over two and half years. This delay coupled with the almost nine month delay from Appellee's arrest to his hearing established some prejudice to the Appellee.
The possibility that the Appellee's defense would be impaired weighs extremely heavy in granting the motion to dismiss for denying him his right to a speedy trial. As set forth above, the State never presented evidence explaining the long delay in arresting, filing and indicting the Appellee. Nor did the State provide any evidence or argument at the hearing about the lengthy subsequent delay (almost 9 months) from Appellee's actual arrest to his hearing. This should weigh heavily against the State which delayed the Appellee's case for no explainable reason. In addition, the delay was just as harmful to the Appellee as if he had actually been arrested for the offense back on June 4, 2010. The prejudicial effect is the same.
Consequently, once the Appellee showed "some prejudice" the burden shifted to the State to show that no prejudice resulted. The State did not provide any proof as to why the Appellee was not prejudiced. Furthermore, Affirmative proof of prejudice is not essential to every speedy trial claim. In fact, the appellate courts have recognized that the excessive delay presumptively compromises the reliability of a trial in ways neither party can prove or identify. Doggett, 505 U. S. at 655; Shaw, 117 S.W.3d at 890, Dragoo, 96 S.W.3d at 315.
A showing of actual prejudice is not required just that some prejudice resulted from the delay. State v. Guerro, 110 S.W.3d 155 (Tex. App. - San Antonio 2003). The greater the State's bad faith or negligence and the longer the State's actions delayed a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial. The length of the delay is to be considered on a case by case basis. Cantu v. State, 253 S.W.3d 273 (Tex. Crim. App. 2006). In other words, the length of the delay while not being presumptively prejudicial may still result in a denial of a defendant's right to a speedy trial based upon other factors as in the instant case.
Thus, only some evidence of prejudice to the accused is required. As in the instant case the prejudice can be anxiety and concern on the part of the defendant. Thus, a defendant's testimony concerning the anxiety he experienced as a result the delay constitutes some evidence of prejudice and has been found to be sufficient for purposes of a speedy trial claim. See Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002). Furthermore, the Appellee did not acquiesce in the delay.
The trial court obviously believed that, based upon all the facts in the instant case, the delay caused by the State was unreasonable and established prejudice. (CR: 26)(RR: 13-14). See Whitfield v. State, 137 S.W.3d 687 (Tex. App. - Waco 2004) (delay of 311 days between defendant's arrest and his trial for Class B misdemeanor theft was presumptively unreasonable triggering application of other factors used to determine if defendant's right to a speedy trial was violated.
Appellee would argue that the trial court was justified in granting Appellee's motion based upon the totality of the circumstances and "other factors" including the unexplained and unconscionable delay in arresting, filing and indicting the Appellee which contributed to and resulted in the prejudicial delay. More specifically, the unexplained 2 and ½ year delay in arresting and formally filing the charge as well as the almost nine month delay from Appellee's actual arrest for the charge on January 16, 2013 until the hearing on October 3, 2013.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, this court should affirm the trial court's order granting the appellee's motion for speedy trial dismissal.
Respectfully submitted,
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Jeff P. Buchwald
ATTORNEY FOR APPELLEE
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief, inclusive of all contents, is 5,924 words in length, according to Microsoft Word, which was used to prepare the brief, and that the foregoing brief complies with the word-count limit and typeface conventions required by the Texas Rules of Appellate Procedure.
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Jeff P. Buchwald
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellee's brief has been hand delivered to Mr. Craig Watkins, District Attorney of Dallas County, Texas at Frank Crowley Courts Building 133 N. Industrial Blvd., LB 19 Dallas, Texas 75207-4399 on this the 27th day of May 2014.
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Jeff P. Buchwald