IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
Cochran, J., delivered the opinion of the Court in which Meyers, Price, Johnson, and Holcomb, J.J., joined. Keller, P.J., filed a dissenting opinion in which Womack and Keasler, J.J., joined. Womack, J., filed a dissenting opinion in which Keller, P.J., joined. Hervey, J., is not participating.
O P I N I O N
Appellant was charged with Driving While Intoxicated (“DWI”) in October 1995, but his
case was repeatedly reset and lingered on the docket for almost four years. Appellant twice filed
speedy trial motions, which the trial court heard and denied. The court of appeals affirmed the
trial court’s ruling.
We granted review in this case to determine whether the court of appeals
correctly applied the federal constitutional speedy trial factors set out in Barker v. Wingo.
We
conclude that, under the applicable United States Supreme Court precedent, appellant was denied
his right to a speedy trial. Therefore, we reverse the trial court’s judgment of conviction.
I.
On October 20, 1995, appellant was charged with DWI– Open Container. He posted bail that same day and made his first court appearance on November 13, 1995. His case was reset to December 13. He appeared on that date. And on December 14, and again on January 16, 1996, when his case was reset for a jury trial. On June 3, 1998, after his case was reset six more times over the subsequent two and one-half years, appellant finally moved to set aside the indictment, arguing that he had been denied his right to a speedy trial. At an August 21, 1998 hearing–in which appellant’s counsel listed each of the prior appearances, appellant testified to how he had been prejudiced, and the State stood silent–the trial judge denied the motion. Appellant continued to appear in court for additional resets. After two more resettings in two months, appellant filed a motion to reconsider his original speedy trial motion.
Despite the filing of appellant’s motion to reconsider on October 19, 1998, the trial court did not hear it until August 6, 1999. By then, appellant had appeared in court some fifteen times. Almost four years had passed since he was originally charged with DWI. After the trial judge again denied appellant’s speedy trial motion, appellant then pleaded no contest.
Appellant appealed the denial of his speedy trial motion. The court of appeals affirmed
and held that the trial court did not err in denying appellant’s motion for speedy trial and his
motion to reconsider.
The court of appeals reasoned that “[a]lthough the State failed to
introduce any reason for the delay, [appellant] failed to assert his right for over two and one-half
years, and he failed to show that he was prejudiced by the delay.”
II.
The Sixth Amendment to the United States Constitution guarantees the accused’s right to
a speedy trial.
In addition, Article I, § 10 of the Texas Constitution guarantees the accused in all
criminal prosecutions the right to a speedy and public trial.
The Supreme Court has stated that,
“On its face, the Speedy Trial Clause is written with such breadth that, taken literally, it would
forbid the government to delay the trial of an ‘accused’ for any reason at all.”
Thus, in Barker
v. Wingo, the Court “qualified the literal sweep of the provision” by analyzing the constitutional
question in terms of four specific factors:
1) “whether delay before trial was uncommonly long”;
2) “ whether the government or the criminal defendant is more to blame for that
delay”;
3) “whether, in due course, the defendant asserted his right to a speedy trial”;
and
4) “whether he suffered prejudice as the delay’s result.”
The Texas constitutional speedy trial right exists independently of the federal guarantee, but this
Court has traditionally analyzed claims of a denial of the state speedy trial right under the factors
established in Barker v. Wingo.
Under Barker v. Wingo, courts must analyze federal constitutional speedy trial claims by
first weighing the strength of each of the above factors and then balancing their relative weights
in light of “the conduct of both the prosecution and the defendant.”
None of the four factors is
“either a necessary or sufficient condition to the finding of a deprivation of the right of speedy
trial.”
Instead, they are related factors, which must be considered together along with any other
relevant circumstances.
No one factor possesses “talismanic qualities,” thus courts must
“engage in a difficult and sensitive balancing process” in each individual case.
In reviewing the trial court’s ruling on appellant’s federal 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.
Because appellant lost in the
trial court on his speedy trial claim, we must presume the trial court resolved any disputed fact
issues in the State’s favor, and we must also defer to the implied findings of fact that the record
supports.
Because most of the facts are undisputed, the primary issue in this case involves the
legal significance of these facts to appellant’s claim.
III.
A. Length of the Delay
The length of the delay between an initial charge and trial (or the defendant’s demand for
a speedy trial) acts as a “triggering mechanism.”
Unless the delay is presumptively prejudicial,
courts need not inquire into examine the other three factors.
Given the “imprecision of the right
to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent
upon the peculiar circumstances of the case.”
However, the Supreme Court has explained that
“the delay that can be tolerated for an ordinary street crime is considerably less than for a serious,
complex conspiracy charge.”
If the accused shows that the interval between accusation and
trial has crossed the threshold dividing “ordinary” from “presumptively prejudicial” delay, a
court must then consider the extent to which that delay stretches beyond the bare minimum
needed to trigger judicial examination of the claim.
This second inquiry is significant to the
speedy trial analysis because “the presumption that pretrial delay has prejudiced the accused
intensifies over time.”
Thus, any speedy trial analysis depends first upon whether the delay is
more than “ordinary”; if so, the longer the delay beyond that which is ordinary, the more
prejudicial that delay is to the defendant.
In this case, the State conceded (and the court of appeals agreed) that the delay between
appellant’s arrest and the hearing on his speedy trial motion in this plain-vanilla DWI case, a
delay of two years and ten months, was sufficiently lengthy to trigger the court of appeals’
analysis of the other Barker factors. We agree.
Furthermore, the nearly four-year delay
between appellant’s October 20, 1995, arrest and his August 6, 1999, plea hearing clearly triggers
analysis of the other Barker factors. Because the length of the delay stretched well beyond the
bare minimum needed to trigger judicial examination of the claim, this factor–in and of itself--weighs heavily against the State.
B. Reasons for the Delay
“[R]elated to length of delay is the reason the government assigns to justify the delay.”
We assign different weights to different reasons. For example,
[a] deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government ... [while a] more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.
Although a finding of “bad-faith delay” renders relief almost automatic, a finding of mere
negligence will not become “automatically tolerable simply because the accused cannot
demonstrate exactly how it has prejudiced him.”
The court of appeals found that this factor weighed against the State “[b]ecause the record
is silent regarding the reason for the delay,” but the court of appeals did not weigh it heavily
because “no evidence exists that the State deliberately attempted to delay the trial.”
We agree
that this factor weighs against the State. The docket sheet shows that twenty-two resets occurred
between November 13, 1995 (the date of appellant’s first appearance) and August 6, 1999 (the
date of the denial of the motion to reconsider the motion for speedy trial, and plea of no contest).
As the court of appeals notes, and appellant candidly admits, he announced “not ready”
on July 19, 1996. One reset is therefore clearly attributable to appellant’s conduct.
But that
reset was apparently for three days, until July 22, 1996, to give appellant time to file written
pretrial motions in limine, to suppress evidence, and to request a list of the State’s witnesses.
Still, the State gave no reason for the remainder of the delay that the court of appeals considered–
the delay “between the date Zamorano announced ‘not ready’ and the date his motion for speedy
trial was heard - a delay of approximately two years.” And more strikingly, the State gave no
reason for the continued delay–the additional year between the date appellant’s original motion
for speedy trial was denied and the date that the trial court rejected his motion to reconsider.
This was not a complex case; it was a simple DWI, and yet the State had no explanation for why
it could not try the case for four years.
We disagree that the record is entirely silent concerning the reasons for the delay. The
docket sheet entry for January 14, 1999 states: “Transfer to CC #2 (Video is in Spanish)” and
“Set for Motions & Trial 2-18-99.” This entry supports trial counsel’s explanation, at the speedy
trial hearing, that the delay arose partially because the prosecutors did not understand appellant,
who spoke Spanish. Had appellant spoken an unusual language, the difficulty in finding an
interpreter would be understandable and support additional delay, but Spanish speakers and
interpreters in San Antonio, Texas, are hardly rare. While no evidence indicates that the State
deliberately attempted to delay the trial, the fact that the State could not evaluate appellant’s
Spanish-speaking video for more than three years, until the case was transferred to another court,
constitutes official negligence. “Although negligence is obviously to be weighed more lightly
than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide
between acceptable and unacceptable reasons for delaying a criminal prosecution once it has
begun.”
We find that this factor weighs against the State--while not heavily, not lightly either.
Furthermore, this factor weighs more heavily against the State because, even after the case was
transferred to another court for a Spanish-speaking prosecutor to assess appellant’s DWI video,
the case still lingered on the docket for another six months.
C. Assertion of the Right
According to the Supreme Court, the nature of the speedy trial right “makes it impossible
to pinpoint a precise time in the process when the right must be asserted or waived, but that fact
does not argue for placing the burden of protecting the right solely on defendants.”
Of course,
the defendant has no duty to bring himself to trial; that is the State’s duty.
This does not mean
that the defendant has no responsibility to assert his right to a speedy trial.
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.
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 the right.
Conversely, a failure to assert the right makes it difficult for a
defendant to prove that he was denied a speedy trial.
Appellant filed his motion for speedy trial on June 3, 1998, about two and one-half years
from the date of his arrest.
The record is unclear whether appellant objected to the resets before
that date. During the two hearings, defense counsel argued that appellant had announced “ready”
on all dates, save the one “not ready” mentioned above. The court of appeals discounted
appellant’s second try for a speedy trial because “there [was] no indication that he requested an
immediate setting of the motion to reconsider,” and held that appellant’s “delay and lack of
persistence in asserting his right to a speedy trial weigh[ed] against him.”
We disagree that the assertion-of-the-right factor weighs against appellant. It is true that
appellant’s initial motion was tardy. This late assertion, had no subsequent motion been filed,
might well have undercut his Sixth Amendment claim.
But appellant’s second attempt to seek
a speedy trial, which came less than two months after the trial court denied his initial motion,
evidenced his persistence.
This is not a case where appellant never asked for a hearing.
Nor
is this a case in which evidence shows a defendant’s affirmative desire for any delay.
Appellant’s repeated assertion weighs in his favor.
D. Prejudice Caused by the Delay
“Prejudice, of course, should be assessed in the light of the interests of defendants which
the speedy trial right was designed to protect.”
The Supreme Court has identified three such
interests: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of
the accused; and 3) to limit the possibility that the defense will be impaired.
Although the last
type of prejudice is the most serious,
a defendant’s claim of a speedy trial violation need not
necessarily demonstrate prejudice to his ability to present defensive matters.
Appellant was on
bail pending his trial and has never claimed that his defense was specifically impaired. The first
and third interests are not strongly implicated. The second clearly is. Appellant testified
regarding his anxiety and concern:
Q Mr. Zamorano, were you arrested for a D.W.I. back in October of 1995?
A Yes.
Q And did you hear me telling the Court all the court dates that we had been present for?
A Yes.
Q And is it true that you have been present in court on all of those dates?
A Yes.
Q And what do you do for a living, sir?
A I’m a cement finisher, concrete finisher.
Q And when you’ve had to come to these court dates, have you missed work?
A I’ve had to work. Right now I was going to work. I was going to work now.
Q And if you don’t work, do you get paid?
A No.
Q So you’ve had to miss working on at least eleven days because of this case?
A Yes, the whole time – the whole time I’ve missed.
Q And you didn’t get paid for any of those days?
A No.
Q And it’s true that you’re out on a bond right now; is that correct?
A Yes. Yes.
***
Q How often do you have to report to the company?
A Every Tuesday–On Tuesdays.
Q And when you have to report to the bond company, do you also miss work?
A No, I have work, but I’ve gone at 9, 8 at night, even as late as 10 at night.
Q So you have to go after work?
A From the work I go to report.
Q And has this case caused you anxiety?
A Yes, a lot of desperation I’ve had. Yes.
Q Have you been worried about what was going to happen every time you’ve come to court?
A Yes. Yes.
Q Can you tell the Judge ho–how it’s affected you that you’ve had to come back to court now for three years?
A Well, it’s like–it’s like affected me a lot because they give me 120 per day and I don’t earn, I lose. Well, I can’t–can’t–can’t go, because like last night they called me and now I can’t go.
Q And how does that make you feel? Are you stressed out, worried?
A Yes, yes like thinking about what was going to go on tomorrow thinking–thinking–I wanted to receive something from her–from her [defense counsel]. I wanted to see her, but she was working here in the center of town. But I got out late–I got out late and I could not see her.
The State did not cross examine appellant, put on any evidence, or argue against the motion.
The court of appeals– relying on the fact that “the only evidence [appellant] offered to
demonstrate his anxiety was his testimony”– found that appellant’s testimony was too little and
too late to support a showing of prejudice. The court of appeals said: “given [appellant’s] failure
to pursue a motion for speedy trial for over two and one-half years, we infer that the main source
of his anxiety was his fear of conviction, which is not a proper consideration.”
We cannot
agree with this inference. In Klopfer v. North Carolina, the Court noted:
The petitioner is not relieved of the limitations placed upon his liberty by this
prosecution merely because its suspension permits him to go “whithersoever he
will.” The pendency of the indictment may subject him to public scorn and
deprive him of employment, and almost certainly will force curtailment of his
speech, associations and participation in unpopular causes. By indefinitely
prolonging this oppression, as well as the “anxiety and concern accompanying
public accusation,” the criminal procedure condoned in this case ... clearly denies
the petitioner the right to a speedy trial ...
In Barker, the Court added that, “even if an accused is not incarcerated prior to trial, he is still
disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and
often hostility.”
Appellant testified–in Spanish – that he lost $120 per day that he did not work.
When appellant testified, he had missed at least eleven days of work due to court appearances.
That is a minimum of $1,320 worth of personal prejudice to a day laborer.
It is true that the
only evidence appellant offered to demonstrate his anxiety was his own testimony. However,
because the State did not challenge appellant’s testimony, it is at least some evidence of the type
of “anxiety” that the Supreme Court considers under the prejudice prong of Barker.
The court
of appeals dismissed the main source of appellant’s anxiety as “his fear of conviction.”
Even
assuming that the court of appeals correctly characterized the source of appellant’s anxiety, the
sword of Damocles weighs no less merely because the source of anxiety is appellant’s fear of
conviction and the resultant as-yet-unknown punishment. Here, the length of the delay itself
supports an inference of actual prejudice, as does appellant’s testimony of the direct economic
costs, the four years’ worth of disruptions to his job, and the weekly requirement to report to the
bonding company.
E. Balancing
We find that all four factors weigh in favor of relief. First, the length of the initial delay–
two years and ten months– was presumptively prejudicial, and the additional year of delay after
the denial of appellant’s original speedy trial motion was clearly prejudicial. Second, the delay
was the result of the State’s negligence. Third, appellant twice asserted his right to a speedy trial.
Finally, appellant produced evidence of prejudice which the State failed–indeed did not attempt–
to rebut. At no point did the State challenge the merits of appellant’s claim to a speedy trial.
The State sat silent on all fronts; it neither offered any evidence, nor cross-examined appellant,
nor made any legal argument in the trial court to justify the delay.
Because the State’s
negligence caused a delay which was nearly six times as long as the delay generally considered
sufficient to trigger judicial review and it did not rebut, explain, or minimize the presumption of
prejudice, appellant is entitled to relief.
Even if appellant’s actual prejudice was minimal,
“[c]ondoning prolonged and unjustifiable delays in prosecution would both penalize many
defendants for the state’s fault and simply encourage the government to gamble with the interests
of criminal suspects assigned a low prosecutorial priority.”
This DWI prosecution may have
been of little moment to the State, but it mattered greatly to appellant.
Because we find that
appellant’s constitutional right to a speedy trial was violated, we reverse appellant’s conviction
and remand the case to the trial court for entry of a judgment of acquittal.
Cochran, J.
Delivered: September 11, 2002
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