Opinion
No. 13-04-400-CR
Memorandum Opinion Delivered and Filed July 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 117th District Court of Nueces County, Texas.
Before Justices RODRIGUEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.2 and 47.4.
The trial court granted appellant Arnold Henry Saavedra's motion to dismiss for pre-indictment delay. By one issue, the State asserts that the trial court abused its discretion in dismissing the indictment because Saavedra did not prove that the eight-and-one-half month delay between the arrest and indictment was prejudicial. We reverse and remand.
I. COMPLAINT OF PRE-INDICTMENT DELAY
Saavedra and Eric Sanchez were arrested on March 31, 2003, for possession of cocaine. Saavedra was released on bond. Approximately four months later, Sanchez was indicted on July 24, 2003. Approximately five months after that date, Saavedra was indicted on December 17, 2003. On January 7, 2004, Saavedra was arraigned. The trial court set the case for trial on February 17, 2004. On Saavedra's motion, the trial setting was continued. On March 25, 2004, Saavedra filed a motion to dismiss the indictment for lack of speedy trial. The trial court convened a hearing on July 12, 2004, on Saavedra's motion to dismiss. The ground asserted at the hearing for purposes of dismissal of the indictment was that the delay between the time of the arrest and the indictment, approximately eight and one-half months, violated his right to a speedy trial. At the hearing, the trial court took judicial notice of the trial court record. The parties stipulated that Diego Rivera, a crime scene technician, examined the contraband in this case and could find no usable prints. The State called the court manager, who testified that she contacted defense counsel's office about a setting for trial, apparently for a hearing on the speedy trial motion. She received notice that defense counsel was in a federal court jury trial. Eric Sanchez testified for the defense that the vehicle Saavedra and he were in when arrested was his, but registration was in his mother's name. He also testified that the vehicle was impounded on the day of the arrest and sold before Saavedra was indicted. The State's exhibit 1 established that, as of April 7, 2004, the registered owner was Saavedra. Sanchez testified he would be available as a witness to testify in the jury trial of the case but was having difficulty remembering exactly what happened because of the time that had passed. The drugs seized at the time of the arrest were introduced in his trial, but could be withdrawn for Saavedra's trial. On October 28, 2003, Sanchez entered an open plea of guilty in another district court and was placed on felony probation. In his court proceedings, Sanchez had testified and admitted the drugs were his and that Saavedra had no knowledge that Sanchez had the drugs. Defense counsel testified that, some time after Sanchez was indicted, Saavedra inquired as to why he had not been indicted. Saavedra could not understand why the State would indict only one of them. Defense counsel told Saavedra that the cocaine belonged to Sanchez and counsel assumed "the reason he had not been indicted was because the evidence was insufficient" as to Saavedra. Because that assumption was made, no motion for speedy trial was filed. On cross-examination, defense counsel testified that the State had no excuse for the length of time taken to "return the indictment." The trial court took judicial notice that (1) the trial court excused Saavedra to report to jury duty pursuant to a jury summons, and (2) Saavedra was constitutionally disqualified from doing his civic duty because of the pending indictment. The trial court made the following findings: (1) Saavedra has a constitutional duty [sic] [right] to a speedy trial; (2) the court's ruling rests solely on the delay between the date of arrest, March 31, 2003, and the date of the indictment, December 17, 2003; (3) the State failed to provide a reasonable excuse for the cause of delay; (4) the trial court was aware that DPS takes time to test drugs but the drugs were the "same drugs" relied upon in Sanchez's case and had already been tested; (5) the State indicted Sanchez in July 2003 and tried his case in December of 2003; (6) filing a pre-indictment motion was not possible because the reasonable assumption was that no indictment would be forthcoming; and (7) Saavedra was prejudiced because (a) of the anxiety and discomfort in facing a charge over a length of time, (b) he had to retain counsel, and (c) he was constitutionally disqualified from jury service because of the pending charge.II. STANDARD OF REVIEW
When reviewing a trial court's decision to grant or deny a speedy trial claim, we defer to the court's findings of fact, applying an abuse of discretion standard, but review de novo its application of the law to those facts. See Williams v. State, 90 S.W.3d 913, 919 (Tex.App.-Corpus Christi 2002, no pet.). The Court of Criminal Appeals has recently expanded on what it means to give deference to the resolution of factual issues in this context. Under this standard, 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 in evidence. Kelly v. State, No. PD-0023-04, 2005 Tex. Crim. App. LEXIS 569, at *11 (Tex.Crim.App. April 13, 2005).III. ENTITLEMENT TO SPEEDY TRIAL
Texas Code of Criminal Procedure article 32.01, as amended in 1997, requires the State to indict a defendant detained in custody or held to bail, unless good cause is shown supported by affidavit, no later than the last day of the next term of the court which is held after his commitment or admission to bail, or on or before the 180th day after the date of commitment or admission to bail, whichever date is later. Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon Supp. 2004-05). If a motion to set aside an indictment for failure to provide a speedy trial is sustained, the court shall discharge the defendant. Id. art. 28.061 (Vernon Supp. 2004-05). Saavedra was arrested March 31, 2003, and posted a $3,000.00 bond on April 1, 2003. The indictment issued December 17, 2003, more than 180 days after the arrest. Therefore, the provisions of the speedy trial act are triggered. Id. art. 32.01 (Vernon Supp. 2004-05).Analysis
In his motion for speedy trial and in argument at the hearing, Saavedra claimed a violation of his constitutional right to a speedy trial. The Sixth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, guarantees the fundamental right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). The Texas Constitution also guarantees this right. TEX. CONST. art. I, § 10. The test under both the federal and state constitutions is the same. Floyd v. State, 959 S.W.2d 706, 709 (Tex.App.-Fort Worth 1998, no pet.) (citing Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App. 1985)). The United States Supreme Court has adopted a four-part balancing test which reviews (1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972). Texas applies a Barker-like totality-of-circumstances test for determination of good cause under article 32.01, considering, "among other things, the length of the delay, the State's reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused." Ex Parte Martin, 6 S.W.3d 524, 528 (Tex.Crim.App. 1999) (en banc).A. Length of Delay
There is no dispute as to when the arrest occurred or the indictment issued. The interim period was eight and one-half months, in excess of 180 days, raising the presumption of a violation of the speedy trial act and triggering our analysis.B. Reason for Delay
Under Barker, different weight is assigned to different reasons for the delay. State v. Munoz, 991 S.W.2d 818, 822 (Tex.Crim.App. 1999) (en banc); State v. McCoy, 94 S.W.3d 296, 302 (Tex.App.-Corpus Christi 2002, no pet.). A deliberate attempt to delay the trial is weighed heavily against the government, whereas a "more neutral reason such as negligence or overcrowded courts should be weighed [against the government] less heavily." Munoz, 991 S.W.2d at 822; McCoy, 94 S.W.3d at 302. A valid reason for delay should not be weighed against the government at all, and delay attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim. McCoy, 94 S.W.3d at 303. Here, the State did not clearly articulate good cause or other rationale for the pre-indictment delay, other than to assert crowded court dockets and the absence of fingerprints on the contraband. "Good cause" has been recognized to mean "a substantial reason amounting in law to a legal excuse for failing to perform an act required by law." Ex Parte Martin, 6 S.W.3d at 526 (rejecting the "exceptional circumstances" test). With regard to the "reasons for delay" factor, we must defer to the trial court's ability to draw inference from undisputed facts. Kelley, 2005 Tex. Crim. App. LEXIS 569, at * 11. Here, undisputed facts established that Sanchez, the other individual in the vehicle who was arrested at the time Saavedra was arrested, was indicted and fully prosecuted prior to the date the indictment issued for Saavedra. Saavedra therefore contends there was no reason for delay in indicting him based upon failure to secure laboratory test results or other analysis on the evidence seized at the time of the arrest. However, no evidence confirms that the contraband seized and relied upon in the prosecution of Sanchez is the same contraband relied upon to prosecute Saavedra, and therefore we do not find support in the record for the trial court's conclusion that the matter involved the "same drugs relied upon in Sanchez's case . . . [and] had already been tested." There was no reason for delay based upon on-going plea negotiations. In fact, testimony was that the defense assumed no indictment would be forthcoming at all. There is also no suggestion of any deliberate attempt to hamper the defense. With respect to reason for the delay, the argument that court dockets are crowded can, in some circumstances, justify pre-indictment delay. See, e.g., Williams, 90 S.W.3d at 919-20. However, in Williams, that delay was coupled with evidence of the need to conduct a thorough investigation. No testimony below directly confirmed that delay resulted from an on-going investigation, but such rationale could reasonably have been inferred from two factors. First, the docket sheet admitted into evidence from Sanchez' case reflects that Sanchez was first indicted July 28, 2003, but was then reindicted two more times, the latest occurring on August 4, 2003. Secondly, the State tendered evidence that the bag containing the drugs forming the basis of the charge against Saavedra contained no useable prints, thereby hampering the investigation. Despite the fact that other inferences were possible, the trial court could reasonably infer from the facts presented that the delay may have been due to lack of diligence on the part of the State (the finding of the trial court reflects only that the State failed to provide a reasonable excuse for the delay). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts." Kelly, 2005 Tex. Crim. App. LEXIS 569, at *11 (emphasis in original). Therefore, we conclude that this factor weighs against the state, but not heavily. Munoz, 991 S.W.2d at 822 (in instances of such "more neutral reasons," the balancing should be weighed less heavily against the government).C. Assertion of the Right
The third factor evaluates a defendant's assertion of or failure to assert the right to a speedy trial. There is case law holding that a speedy-trial motion based upon article 32.01 has no effect if it is presented after indictment. TEX. CODE CRIM. PROC. ANN. art. 32.01 (Vernon Supp. 2004-05); Williams, 90 S.W.3d at 918; see also McCoy, 94 S.W.2d at 300-01 (a speedy-trial motion based upon article 32.01 has no effect if it is presented after indictment); Beltran v. State, 99 S.W.3d 807, 810 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (arising in the context of a second indictment). Saavedra's claim is not limited to a violation of article 32.01, but also references violation of his Fifth and Sixth Amendment Constitutional rights. The Due Process Clause will not invalidate criminal prosecutions simply because a reviewing court believes a prosecutor should have sought indictment earlier. McCoy, 94 S.W.3d at 301 (noting particularly the situation where delay is caused by investigation). Further, a defendant's assertion of his speedy-trial right is entitled to strong evidentiary weight in determining deprivation of that right. Id. at 303 (citing Floyd, 959 S.W2d at 710). The defendant's motivation in requesting a dismissal rather than a prompt trial is relevant, and may sometimes attenuate the strength of his claim. Williams, 90 S.W.3d at 919 (citing Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983)). In Floyd, 959 S.W.2d at 711, the court determined that the appellant's failure to assert his right to a speedy trial until six months after he was indicted and ten months after he was arrested constituted a failure to timely assert his right. However, under Barker, a defendant's failure to assert his right to speedy trial is not "forever" waived. Munoz, 991 S.W.2d at 825 (citing Barker, 407 U.S. at 528-29) (noting that Barker rejected the "demand-waiver" rule which previously held that a defendant "forever" waived his right to a speedy trial by not demanding one, and finding a defendant is still responsible for asserting that right). Here, Saavedra was arraigned on January 7, 2004, and his motion was filed, after he secured counsel, on March 25, 2004; the motion to dismiss the indictment was not filed at the "eleventh hour" just before trial. Moreover, the trial court made an express factual finding justifying Saavedra's failure to earlier assert his right:I will make an additional finding that based on the evidence in this case and the circumstances surrounding this case that no one — it is apparent to the Court that Defense counsel and Defendant was [sic] not aware that this was even going to be indicted. Since so much delay had occurred it would have been impossible to file a motion for a pre-indictment discussion of this matter before the Court when everybody was under the assumption and the facts, in effect, would have substantiated the assumption that there was no indictment coming forward.Because "each case must turn on its own facts, and the particular relief an accused seeks is but one fact to consider," Williams, 90 S.W.3d at 920, we conclude this factor weighs in favor of the trial court's ruling.