Opinion
No. 04-04-00432-CR
Delivered and Filed: June 22, 2005. DO NOT PUBLISH.
Appeal from the County Court, Atascosa County, Texas, Trial Court No. 24083, Honorable Olin B. Strauss, Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Lonnie Eugene Traylor appeals his conviction for driving while intoxicated, arguing that he was denied his constitutional right to a speedy trial. We affirm the judgment of the trial court.
Background
On September 8, 2002, Lonnie Eugene Traylor was arrested for driving while intoxicated and released on bond the next day. According to Traylor, a week after his arrest, he contacted an attorney. After not having been contacted about the case for some time, Traylor testified that he thought the case had been dropped. Four or five months after his arrest, Traylor contacted someone at either the court, the county attorney's office or the court's chambers and was told that "they were waiting on a signature." Because he had been "passed around to about five or six different offices before [he] finally got the one that gave [him] the answer," he did not remember with which office he was speaking. He did not hear anything further about his case until he received a letter dated November 12, 2003, some fourteen months after his arrest. The letter informed Traylor of a court appearance on December 18, 2003. Traylor then spoke with two potential witnesses, asking them if they remembered details about the arrest. Traylor testified that he believed the passage of time had affected his memory and the memory of these potential witnesses. Traylor, however, did not identify who these witnesses were. Traylor filed a motion to set aside the information based upon failure to afford and violation of his constitutional right to a speedy trial. At the pre-trial hearing on the motion, Traylor testified to his knowledge of the sequence of events. The State did not put on any evidence in response. The State did argue, however, that Traylor had failed to timely assert his right to a speedy trial and that he had not suffered prejudice as a result. The trial court denied the motion. The case was then set for trial. However, on the trial date, Traylor entered a plea of no contest to the charge, was found guilty, and was sentenced to 180 days in jail, probated for twelve months.Discussion
The Sixth Amendment to the Constitution of the United States provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI. This right was made applicable to state criminal prosecutions by the Due Process Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV; Klopfer v. North Carolina, 386 U.S. 213, 223 (1967); Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). If a violation of the speedy trial right 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. 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); see Dragoo, 96 S.W.3d at 313. 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. In reviewing a trial court's determination of these factors, we review legal issues de novo but give deference to a trial court's resolution of factual issues. Kelly v. State, No. PD-0023-04, 2005 WL 858027, at *3 (Tex.Crim.App. Apr. 13, 2005). A. Length of the Delay 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); Dragoo, 96 S.W.3d at 313-14. "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; see Dragoo, 96 S.W.3d at 314. In general, courts deem delay approaching one year to be "unreasonable enough to trigger the Barker enquiry." Doggett, 505 U.S. at 652 n. 1; see Dragoo, 96 S.W.3d at 314; Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992). Here, Traylor was arrested on September 8, 2002, but was not formally charged by information until November 7, 2003, some fourteen months later. After the hearing on Traylor's speedy trial motion, however, trial was set five months later. The State concedes that the length of delay is presumptively unreasonable. It notes, however, that less than seven months passed from the filing of the information to the trial date. This factor must weigh in favor of Traylor. B. Reason for the Delay "When a court assesses the second Barker factor, the reason the government assigns to justify the delay, different weights should be assigned to different reasons." Dragoo, 96 S.W.3d at 314 (citing Barker, 407 U.S. at 531) (internal quotes omitted). Here, the State offered the trial court no reason to justify the delay between Traylor's arrest and trial. As such, this factor must also weigh in favor of finding a violation of the speedy trial right. This factor, however, does not weigh heavily in favor of such a finding. Dragoo, 96 S.W.3d at 314. "In the absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay." Id. C. Defendant's Assertion of the Right Although a defendant's failure to assert his speedy trial right does not amount to a waiver of that right, "failure to assert the right . . . make[s] it difficult for a defendant to prove he was denied a speedy trial." Barker, 407 U.S. at 532; Dragoo, 96 S.W.3d at 314. "This is so because a defendant's lack of a timely demand for a speedy trial indicates strongly that he did not really want a speedy trial, and that he was not prejudiced by lack of one." Dragoo, 96 S.W.3d at 314 (citation omitted). Furthermore, the "longer delay becomes, the more likely a defendant who wished a speedy trial would be to take some action to obtain it." Id. (citation omitted). Therefore, inaction weighs more heavily against a violation the longer the delay becomes. Id. (citation omitted). Here, Traylor filed his motion two months after the information was filed. However, when the motion was heard, Traylor sought dismissal, rather than a speedy trial. His motivation in asking for a dismissal, rather than a prompt trial, weighs against him. Hausauer v. State, No. 04-04-00505-CR, 2005 WL 954376, at *3 (Tex.App.-San Antonio, Apr. 27, 2005, no pet. h.) (not designated for publication) (citing Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983)). Likewise, at the hearing on his motion, he was ambivalent towards the State's offer of moving the case to the first on the jury trial docket, showing that his primary motivation for the speedy trial motion was for dismissal. See Phillips, 650 S.W.2d at 401; Hausauer, 2005 WL 954376, at *3. In addition, his acceptance of a plea-bargain agreement at the next trial setting impairs his claim by further demonstrating that his motivation was not to obtain a speedy trial, but rather to avoid a trial. Hausauer, 2005 WL 954376, at *3; Mosby v. State, No. 06-03-00014-CR, 2004 WL 177549, at *8 (Tex.App.-Texarkana Jan. 29, 2004, no pet.) (not designated for publication). Therefore, the balance falls for the State, as Traylor's claim likely comes from the desire to dismiss the case rather than enforce his rights. D. Prejudice to the Defendant When a court assesses the final Barker factor, prejudice to the defendant, it 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. Dragoo, 96 S.W.3d at 315 (citing Barker, 407 U.S. at 532). "Of these forms of prejudice, `the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Id. (quoting Barker, 407 U.S. at 532). 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, for that matter, identify." Id. (quotations omitted). On the other hand, this "presumption of prejudice" is extenuated by the defendant's acquiescence in the delay. Id. In looking at the first factor, preventing oppressive pre-trial incarceration, Traylor experienced what is probably the least oppressive type of incarceration for commission of an offense. He was held for one day and released on bond. Thus, this factor weighs in favor of his not suffering prejudice. In looking to the second factor, minimizing anxiety and concern, Traylor testified to the following:Q: Now after some time in November of 2003, all of a sudden you find out that the case hasn't gone away. Now you have a DWI case that you have to address, is that correct?
A: That's correct.
Q: Were you anxious about that? Did it cause you some concern?
A: Yes, it did.
Q: Some anxiety?
A: Yes.Thus, Traylor did not testify that he had anxiety and concern because of the delay in being charged. Indeed, he testified to the opposite — he had thought that the case had been dropped by the State. Instead, he testified that he experienced anxiety and concern once it became clear that the State was going to proceed with its case. This factor weighs against Traylor suffering prejudice. Finally, we must consider the most important factor, the possibility of a delay impairing a defense. The burden of making a prima facie showing of prejudice from the delay falls upon the defendant. State v. Munoz, 991 S.W.2d 818, 826 (Tex.Crim.App. 1999). Once this is proved, the burden shifts to the State to demonstrate that the defendant suffered no serious prejudice beyond that which ensued from ordinary and inevitable delay. Id. At the hearing, Traylor testified that he believes that his ability to recall events of his arrest has been impaired by the passage of time. Barker, however, requires a defendant to show that "lapses of memory" are in some way "significant to the outcome" of the case. See Barker, 407 U.S. at 534. Here, Traylor has not made such a showing. See Munoz, 991 at 829 (holding loss in memory was minimal and did not shift burden to State); State v. Guerrero, 110 S.W.3d 155, 162 (Tex.App.-San Antonio 2003, no pet.) (holding that a bare assertion of dimming memories does not constitute some showing of an impairment to a defense). Moreover, the delay in this case is not presumptively prejudicial. The Supreme Court has recognized that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony can rarely be shown. Doggett v. United States, 505 U.S. 647, 655 (1992). Thus, the Court has generally recognized that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. Id. "While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay." Id. at 655-56 (citations omitted). Thus, the Supreme Court has held that a delay of eight and one-half years was presumptively prejudicial to a defense. Id. at 654-57. Some Texas courts have held that delays of five and eight years, respectively, were presumptively prejudicial to a defense. See Guajardo v. State, 999 S.W.2d 566, 570-71 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (holding delay of five years to be presumptively prejudicial to the defense); Thompson v. State, 983 S.W.2d 780, 786 (Tex.App.-El Paso 1998, pet. ref'd) (holding eight years was presumptively prejudicial to the defense). We refuse to hold that a delay of fourteen months is presumptively prejudicial. E. Balancing the Four Factors When balancing the four factors, no one factor controls, and they must be considered together. Barker, 407 U.S. at 533. While the length of delay triggered the speedy trial analysis, neither the reason for the delay, the assertion of the right, or prejudice from the delay weigh in Traylor's favor. We, therefore, hold that the trial court did not err in denying Traylor's motion.