Opinion
NUMBER 13-15-00169-CR
02-04-2016
THE STATE OF TEXAS, Appellant, v. MICHAEL MAURER, Appellee.
On appeal from the County Court at Law No. 1 of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Garza
In this appeal, the State challenges the trial court's dismissal of driving while intoxicated ("DWI") charges brought against appellee Michael Maurer on speedy trial grounds. We affirm.
I. BACKGROUND
On April 18, 2007, Maurer was charged by information with DWI while having an open container of beer in his immediate possession, a class B misdemeanor carrying a minimum punishment of six days' confinement. See TEX. PENAL CODE ANN. § 49.04(a), (c) (West, Westlaw through 2015 R.S.). The offense was alleged to have occurred on or about March 10, 2007. The record reflects that Maurer failed to appear in court for a pre-trial setting on April 26, 2007. Maurer's bail was ordered forfeited, but the trial court later granted a motion to reinstate the bond.
The case was first set for trial on September 16, 2007 but was later reset to September 24, 2007. The record shows that Maurer's counsel sent a letter to the trial court stating that he was ready for trial on September 24, 2007. The record further shows that Maurer's counsel filed a "Motion for Preferential Setting" on January 7, 2008, which stated that Maurer's case was set for trial on January 7, 2008 but that it was only "number 7 on the trial docket" for that date, and that the assistant district attorney "was unable to determine when, or even if, this case would be reached the week of January 7, 2008." The motion stated that "[t]he defense of this case will involve the testimony of at least one witness that resides outside of this county, and considerable time and expense is involved to insure the presence [of the witness] at the time of trial of this case." The motion further noted that both Maurer and his counsel reside outside Nueces County, that counsel had another trial set in Fort Bend County for January 8, 2008, and that counsel "did no[t] anticipate when announcing ready for the January 7, 2008 trial setting that the complications set out above would occur." For all of those reasons, the motion requested a "preferential trial setting" on a later date. The record does not show that the motion was ever explicitly heard or ruled upon, but it does show that trial was reset for March 24, 2008, and later, June 9, 2008.
There was no further activity in the case until Maurer moved to dismiss the information on speedy-trial grounds on March 4, 2015. At a hearing on the motion on March 19, 2015, the prosecutor noted that the case was set for trial the following Monday, March 23, and conceded that the eight-year delay in bringing the case to trial weighed in favor of dismissal. She argued, however, that Maurer never moved for a speedy trial—instead, he only moved for dismissal. She further argued that Maurer was not prejudiced by the delay.
Maurer testified at the hearing that he did not appear at the April 26, 2007 setting because "[i]t was illegible to me, and I had the wrong date in mind," but that his bond was reinstated on May 25, 2007, and he appeared at every court setting since then. According to Maurer, he moved to continue the January 7, 2008 trial setting because of the unavailability of defense witness Charles Hardy. Maurer stated that Hardy lives in Port Mansfield and when asked if Hardy would be able to testify, Maurer replied: "Yes, but he has had some health issues, and I wasn't sure if—he says he is going—he would be available."
When asked what effect the delay was having on him, Maurer testified: "Well, it's just hanging over my head, and I—I have never had any other—any trouble before or since, and I just want to get it over with." He stated that, throughout the pendency of the case, he would call his attorney about once a month and his attorney would check the Nueces County website to see if a trial date had been set. He stated he was "anxious that [the case] wasn't progressing and didn't know why." He conceded that his counsel had twice moved for a continuance.
The trial court granted the motion and dismissed the information with prejudice. This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (West, Westlaw through 2015 R.S.) (authorizing State to appeal order dismissing information).
II. DISCUSSION
A. Applicable Law and Standard of Review
The Sixth Amendment to the United States Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. CONST. amends. VI, XIV; Barker v. Wingo, 407 U.S. 514, 515 (1972); Klopfer v. North Carolina, 386 U.S. 213, 223 (1967); Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The Texas Constitution also guarantees this right. TEX. CONST. art. 1, § 10.
We analyze constitutional speedy trial claims "on an ad hoc basis" by weighing and then balancing the four factors elucidated in Barker v. Wingo: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant. Cantu, 253 S.W.3d at 280, 280 n.16 (citing Barker, 407 U.S. at 515). While the State has the burden of justifying the length of delay, the defendant has the burden of proving the assertion of the right and showing prejudice. Id. (citing Barker, 407 U.S. at 531; Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)). The defendant's burden of proof on the latter two factors "varies inversely" with the State's degree of culpability for the delay. Doggett v. United States, 505 U.S. 647, 657 (1992). Thus, the greater the State's bad faith or official negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial. Cantu, 253 S.W.3d at 280-81.
The Barker test is triggered by a delay that is unreasonable enough to be "presumptively prejudicial." There is no set time element that triggers the analysis, but we have held that a delay of four months is not sufficient while a seventeen-month delay is. Once the Barker test is triggered, courts must analyze the speedy-trial claim by first weighing the strength of each of the Barker factors and then balancing their relative weights in light of "the conduct of both the prosecution and the defendant." No one factor is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Instead, the four factors are related and must be considered together along with any other relevant circumstances. As no factor possesses "talismanic qualities," courts must engage "in a difficult and sensitive balancing process" in each individual case.Id. at 281 (citations and footnotes omitted).
In reviewing the trial court's ruling on a constitutional speedy trial claim, 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. Id. at 282 (citing Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). Review of the individual Barker factors necessarily involves fact determinations and legal conclusions, but the balancing test as a whole is a purely legal question. Id. Under the abuse of discretion standard, we defer not only to the trial court's resolution of disputed facts, but also to its right to draw reasonable inferences from those facts. Id. (citing Kelly v. State, 163 S.W.3d 722, 726-27 (Tex. Crim. App. 2005)). The trial court may disbelieve any evidence so long as there is a reasonable and articulable basis for doing so, and all of the evidence must be viewed in the light most favorable to the trial court's ruling. Id. B. Barker Factors
As to the first Barker factor, the length of the delay in this case was extreme. Over eight years elapsed between the date of the alleged offense and the date of the most recent trial setting. The State does not dispute that this delay was presumptively prejudicial and clearly sufficient to trigger analysis of the remaining Barker factors. See id. at 281. Consideration of this factor weighs heavily in favor of dismissal.
As to the second Barker factor, the record is largely silent as to the reasons for the delay. Maurer twice moved for continuances. The first motion was based on Hardy's apparent unavailability to testify; the record does not show the asserted reason for the second continuance. The State concedes on appeal that "the bulk of the delay was unexplained." Because the State bears the burden to justify the length of the delay, id. at 280, consideration of this factor weighs in favor of dismissal.
The record does not contain a second written motion for continuance. But, as noted, Maurer conceded at the motion to dismiss hearing that his counsel twice moved for contiunances.
As to the third Barker factor, defense counsel indicated his readiness for trial as early as September 24, 2007, and Maurer indicated his desire to resolve the matter by regularly contacting his counsel. However, Maurer did not explicitly complain to the trial court about the lack of a speedy trial until he moved for dismissal nearly eight years after the initial arrest. Consideration of this factor therefore weighs against dismissal.
Maurer's motion to dismiss alleged that he filed the motion as soon as he was notified of the March 23, 2015 trial setting. --------
Finally, as to the fourth Barker factor, the evidence of prejudice to Maurer was not overwhelming. In particular, Maurer was not incarcerated, and though he testified that he suffered general anxiety, that is not alone sufficient to establish prejudice. See id. at 286 (noting that "evidence of generalized anxiety, though relevant, is not sufficient proof of prejudice under the Barker test, especially when it is no greater anxiety or concern beyond the level normally associated with a criminal charge or investigation"). But Maurer's motion to dismiss alleged in part that, "[d]ue to the great amount of time that has passed since the arrest, [Hardy's] memory of the events has been effected" and, at the motion to dismiss hearing, Maurer's testimony regarding Hardy's availability to testify at trial was unclear. See id. at 285 ("When a court analyzes the prejudice to the defendant, it must do so in light of the defendant's interests that 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.). Because the delay in this case was so long as to give rise to a presumption of prejudice, see id. at 281, consideration of this factor weighs in favor of dismissal.
C. Analysis
The State argues that the facts of this case mirror those considered by the Amarillo Court of Appeals in State v. Jolly, 446 S.W.3d 613 (Tex. App.—Amarillo 2014, no pet.). In Jolly, the defendant was initially charged in 2005 and obtained "several" continuances in 2006, but the record did not show why the cause was not set for trial until the State requested one in 2013. Id. at 615. Although the defendant did not complain about the delay until he moved to dismiss the cause in 2014, and although there was no evidence offered at the dismissal hearing, the trial court dismissed the charges. Id. at 616. The court of appeals disagreed, noting that, though the first two Barker factors favored the defendant, the circumstances "on balance" showed that the defendant's right to a speedy trial was not violated. Id. at 617.
In that case, even though the delay in bringing the defendant to trial was extremely long and was unjustified, the record did not reflect that the defendant was prejudiced beyond suffering general anxiety of "the level normally associated with a criminal charge." Id. (citing Cantu, 253 S.W.3d at 286). Crucially, the defendant made no effort to seek a speedy trial; instead, he only moved to dismiss the charges. Id. The defendant informed the trial court that "we weren't jumping up and down" and that he "didn't want to kick the sleeping dog." Id. at 616. The court of appeals found that appellant's expressed desire not to "kick the sleeping dog" "illustrates both an awareness of the delay by appellant and his acquiescence to it." Id.
Maurer contends that Jolly is distinguishable because, in that case, the defendant did not testify, whereas Maurer testified here. We agree. The defendant in Jolly did not testify at the motion to dismiss hearing, and the court of appeals noted that "a different result could arise based upon the presentation of actual evidence." See id. at 616, 618. On the other hand, Maurer's testimony established not only that he suffered anxiety but also that he regularly contacted his attorney to inquire about whether a trial date had been set. The trial court could have reasonably inferred from this testimony that Maurer sought a speedy trial rather than only dismissal, and that he did not simply acquiesce to the lengthy delay. See Cantu, 253 S.W.3d at 282 (noting that the trial court may draw reasonable inferences from disputed facts).
Maurer further argues that Jolly is distinguishable because, there, the State was "responsible for setting the case on the trial docket," whereas here, the trial court—not the State—set the matter for trial. He notes that "[t]here is no evidence in the record that the District Attorney's Office had any involvement in the case being set for trial" and he argues that "[i]t is therefore safe to assume that but for the action of the trial court, this case would remain in an inactive status indefinitely into the distant future." Maurer is correct that there is no evidence in the record showing that the State was involved in setting the trial date of March 23, 2015; but there is also no evidence in the record showing that the trial court was involved in setting the trial date. In any event, the Jolly court concluded that, even though the parties agreed that "the reasons for the delay went unexplained," the delay was nevertheless "attributable to the government's conduct." Jolly, 446 S.W.3d at 615, 617. Similarly, here, the State concedes that the bulk of the delay was unexplained. Accordingly, it failed to meet its burden to justify the length of the delay. See Cantu, 253 S.W.3d at 280.
Balancing the four Barker factors de novo, see id. at 282, we conclude that Maurer sufficiently established that his right to a speedy trial had been violated. The delay was extremely long, and therefore, Maurer's burden to establish prejudice and assertion of the right was minimal. See id. at 280-81. For the foregoing reasons, we conclude that Maurer met that minimal burden, and that the trial court therefore did not err in granting his motion to dismiss. We overrule the State's issue on appeal.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS GARZA,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 4th day of February, 2016.