No. 05-05-01638-CR
Opinion issued April 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 8, Dallas County, Texas, Trial Court Cause No. MB04-16562-J. Affirmed.
Before Chief Justice THOMAS and Justices RICHTER and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Carl Travis Traylor pleaded nolo contendere to driving while intoxicated (DWI). Pursuant to a plea agreement, the trial judge assessed punishment at 150 days' confinement in jail, probated for two years, and a $1,000 fine. In one issue, appellant contends the trial court reversibly erred in denying his motion to dismiss for failure to provide him a constitutional speedy trial under both the federal and state constitutions. We affirm the trial court's judgment.
Background
On August 13, 2004, appellant was arrested for DWI. Appellant refused a breath test. On September 2, 2004, he was formally charged with DWI. On September 3, 2004, the State filed a conditional written sentence recommendation of sixty days' confinement and restitution or 150 days' confinement, probated for twenty-four months, and a $l,000 fine. Appellant retained counsel shortly after the case was filed. By letter dated September 24, 2004, defense counsel notified the trial court he had been so retained and requested certain documents be provided to him. The first setting of the case was May 19, 2005, over eight months after appellant's arrest. It is this initial delay in setting the case appellant claims violates his right to a speedy trial. At the May 19 setting, appellant set the case for a jury trial on August 8, 2005. On May 31, 2005, appellant filed multiple pretrial motions consisting of twenty-two pages. On June 10, 2005, at 10:53 a.m., appellant filed a motion for speedy trial, and at 10:54 a.m., appellant filed a motion to dismiss for failure to provide him a speedy trial. On August 8, 2005, at appellant's request, the case was passed to September 12, 2005, for a jury trial. Defense counsel was in trial in another court. When the case was called on September 12, 2005, the State announced ready for trial. Defense counsel, however, was prepared only for a hearing on the speedy trial motion. The judge conducted a hearing on the motion on September 12. At that hearing, defense counsel asked the trial court to take judicial notice of the trial court's file, the date of the offense, the date the information was filed, and the settings of the case. Appellant also testified at the hearing. Appellant testified that on August 13, 2004, after a company event, he was arrested for DWI. Two witnesses, Lalicia Lustey and Michael Brandus, attended the same event. Shortly after the case was filed, appellant retained defense counsel and indicated to him he was going to try the case. Appellant understood he needed to get witnesses. The case was not set for trial until August. At that time, defense counsel told appellant he needed to contact his witnesses. By the date of the speedy trial hearing, Lustey no longer worked for the company and appellant had lost contact with her. Brandus had moved to Oklahoma and was not available to come to court. Both witnesses were drinking on the night of the offense. However, appellant "thought" they could have told the court about how much appellant drank at the party. Moreover, in the thirteen months since the offense, appellant had left the company. His job involved driving and, as a result of the DWI, appellant could no longer work with the company. Appellant felt anxiety and worried about the outcome of the case "very, very much so." During arguments, defense counsel argued he did not know what happened between August 2004 and May 2005. However, he was unable to locate the file until May, at which time he immediately set the case for trial. And, almost contemporaneously therewith, he filed a written request for speedy trial and a demand for dismissal for want of a speedy trial. Defense counsel argued appellant had been prejudiced by the delay because he had lost his job and his two witnesses had left the company and were not available. Counsel conceded the time from August 8, 2005 until September 12, 2005, was not attributable to the State. Counsel also conceded that perhaps he did not locate the file because he was looking for it under a different name. The trial court took judicial notice of the contents of the file and noted that a bond was posted on August 14, 2004. The trial court also took judicial notice that the handwriting "5/19/05, first" was her coordinator's handwriting. The trial court also concluded that "this Court has a duty to set these cases for a first setting. We have that duty." The question for the trial court was whether a failure of trial court or county clerk personnel was attributable to the State; the trial court clearly recognized there was a failure there. After discussing presenting briefs on the issue, the trial court took the motion under advisement until September 16, 2005. The record reflects no explicit ruling by the trial court on the motion. However, on December 2, 2005, appellant entered a negotiated nolo contendere plea before the trial court. Pursuant to the plea agreement, the judge assessed punishment at 150 days' confinement in the Dallas County Jail, the imposition of which was suspended, and a fine of $1,000. Appellant appeals from the trial court's denial of his motion to dismiss for failure to provide a speedy trial. Standard of Appellate Review
An appellate court is required to apply a bifurcated standard of review: an "abuse of discretion" standard to the trial court's factual findings and a de novo standard of review to the trial court's legal conclusions. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)) (appellate courts should afford almost total deference to a trial court's determination of the historical facts that are supported by the record); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997) (appellate courts conduct de novo review by independently weighing and balancing the four Barker factors). Our review must be done in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). We must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. See Munoz, 991 S.W.2d at 821. We must defer to the trial judge's fact findings that are supported by the record. See id. We, therefore, review de novo and independently weigh and balance the Barker factors to determine the legal significance of the relevant facts to appellant's claim his speedy trial right was violated. Right to a Speedy Trial
The Sixth Amendment to the United States Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972). This right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV; see Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The Texas Constitution likewise provides that "[i]n all criminal prosecutions the accused shall have a speedy . . . trial." Tex. Const. art. 1, § 10. The Texas Court of Criminal Appeals has traditionally analyzed state constitutional claims of the denial of a speedy trial under the factors established in Barker. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). The primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial. See Chapman v. Evans, 744 S.W.2d 133, 136-37 (Tex.Crim.App. 1988) (orig. proceeding) (citing Turner v. State, 504 S.W.2d 843, 845 (Tex.Crim.App. 1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex.Crim.App. 1973)). In determining whether one has been denied his federal or state right to a speedy trial, a court must use a balancing test to weigh the conduct of both the State and the defendant. See Shaw v. State, 117 S.W.3d 883, 887 (Tex.Crim.App. 2003) (citing Barker, 407 U.S. at 530). The relevant factors to be weighed 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 any prejudice to the defendant resulting from the delay. Id. at 888-89. We turn now to our de novo review and independent weighing and balancing of the relevant Barker factors. A. Length of the Delay We measure the length of the delay from the time the defendant is arrested or formally accused. See United States v. Marion, 404 U.S. 307, 313 (1971). Unless the length of the delay is "presumptively prejudicial," courts need not inquire into the other factors. See Barker, 407 U.S. at 530. The presumption that pretrial delay has prejudiced the accused intensifies over time. Doggett v. United States, 505 U.S. 647, 652 (1992); Zamorano, 84 S.W.3d at 649. Here, there was slightly less than a year between the date of appellant's August 13, 2004 arrest until the August 8, 2005 trial date, and approximately thirteen months between the arrest and the September 12, 2005 hearing on the speedy trial motion. The real delay about which appellant complains is the approximately eight-month delay in first setting the case. The State concedes the delay was "presumptively prejudicial" so as to trigger a speedy trial inquiry. We conclude, therefore, this factor weighs against the State. B. Reasons for Delay In assessing the "reason for the delay" factor, different weights must be assigned to different reasons. See Barker, 407 U.S. at 531. Some reasons are valid and serve to justify the delay, while other reasons are not valid and do not serve to justify the delay. See id. Here, the trial court clearly recognized there was a failure of court personnel in not scheduling the first case setting earlier, and a fair reading of the record supports the conclusion that such delay was attributable to trial court personnel, either the court coordinator or the deputy county clerk assigned to that trial court. Appellant concedes he is responsible for the period between August 8, 2005 and September 12, 2005. There is no evidence that such delay was attributable to the State. We conclude, therefore, this factor is neutral. C. Appellant's Assertion of His Speedy Trial Right Whether and how a defendant asserts his speedy trial right is closely related to the other three factors because the strength of his efforts will be shaped by them. Zamorano, 84 S.W.3d at 651 (citing Barker, 407 U.S. at 531). Therefore, the defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of that right. Id. Although a defendant's failure to seek a speedy trial does not amount to a waiver of his right, failure to seek a speedy trial makes it difficult for a defendant to prevail on a speedy trial claim. See Barker, 407 U.S. at 531-32. The longer the delay, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one. See id. at 531. Thus, a defendant's inaction weighs more heavily against a speedy trial violation the longer the delay becomes. See id. at 532. Here, appellant did not file a motion affirmatively requesting a speedy trial until June 10, 2005, and, one minute later, he filed a motion to dismiss the information. Appellant argues he filed the motion as soon as practical in light of the fact he could not locate the file. However, as the State pointed out, as early as September 24, 2004, appellant's counsel knew his client had been formally charged, as well as the case number and the court in which the case was filed. Appellant does not identify any other information he would have needed to file a speedy trial motion. Moreover, the fact that appellant contemporaneously filed his speedy trial and dismissal motions potentially weakens his case. "[A] dismissal instead of a speedy trial weakens [a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial." See Zamorano, 84 S.W.3d at 651 n. 40 (citing Parkerson v. State, 942 S.W.2d 789, 791 (Tex.App.-Fort Worth 1997, no pet.)). We conclude this factor weighs against appellant. D. Prejudice to the Appellant Resulting from the Delay The final factor of "prejudice" must be assessed in light of the interests the speedy trial right was intended to protect. See Barker, 407 U.S. at 532. Those interests are to: (1) prevent oppressive pretrial incarceration; (2) minimize the accused's anxiety and concern; and (3) limit the possibility the defense will be impaired. Id. The third interest of limiting the impairment of the defense has been said to be the most serious. See id. Although a showing of actual prejudice is not required in Texas, the accused has the burden to make some showing of prejudice that was caused by the delay of his trial. See Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex.Crim.App. 1971)). Once the accused makes some showing of prejudice, the burden shifts to the State to show that no prejudice resulted. Harlan v. State, 975 S.W.2d 387, 390 (Tex.App.-Tyler 1998, pet. ref'd). Appellant was arrested on August 13, 2004. The trial court took judicial notice that appellant posted a bond on August 14, 2004. Consequently, the first interest is of no concern in our analysis. As for the second interest, appellant answered, "Very, very much so," in response to defense counsel's question of whether he had felt anxiety or worry about the outcome of the case. The third interest is defense impairment. Affirmative evidence 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 even identify. See Doggett, 505 U.S. at 655. However, the presumption of prejudice to a defendant's ability to defend himself can be "extenuated . . . by the defendant's acquiescence" in the delay. See id at 658. Appellant claims the delay prevented him from presenting a defense due to his lack of memory and the inability to locate the two witnesses who had been drinking with him on the date of the offense. Where the basis for prejudice is witness unavailability, a defendant must demonstrate that the: (1) witness was unavailable at the time of trial; (2) witness's testimony may be relevant and material to the defense; and (3) defendant exercised due diligence in attempting to locate the witness at the time of trial. See Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App. [Panel Op.] 1982). Appellant presented no evidence of his efforts to obtain the two witnesses or what their testimony would have been. He only testified that he "thought" they could testify about how much he had to drink on the date of the offense. A defendant's self-serving testimony alone does not amount to "some showing of prejudice." See State v. Smith, 76 S.W.3d 541, 552 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). We conclude appellant has not presented evidence sufficient to constitute "some showing of prejudice." Therefore, this factor weighs against appellant. Conclusion
Giving deference to the trial court's implied findings on the relevant facts and balancing the Barker factors, we conclude the record supports the trial court's denial of appellant's motion to dismiss for failure to provide a speedy trial. We resolve appellant's issue against him. We affirm the trial court's judgment.