Opinion
No. 05-03-00132-CR.
Opinion filed March 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F-9923374-VL. Affirmed.
Before Justices MOSELEY, FITZGERALD, and LANG.
OPINION
Joseph Eric Aleu appeals his conviction for unlawful delivery of cocaine, a controlled substance, in an amount of one gram or more but less than four grams, a second degree felony. See Tex. Health Safety Code Ann. § 481.112(a), (c) (Vernon 2003). In a single issue, appellant contends the trial court erred in denying his motion for a speedy trial pursuant to the Sixth Amendment of the United States Constitution. See U.S. Const. amend. VI. For the reasons that follow, we resolve appellant's issue against him and affirm the trial court's judgment. FACTUAL AND PROCEDURAL BACKGROUND Thomas Pilling, a Garland police officer, testified that, on November 24, 1998, while he was working undercover in narcotics cases, he bought cocaine from appellant. He also testified that an informant, Mike Stafford, was present when the delivery took place and saw the person who sold the cocaine to Pilling. According to Pilling, he did not file the case against appellant "for quite a while" because it was part of an ongoing undercover investigation. Subsequently, Pilling obtained an "at large" arrest warrant for appellant. Appellant was indicted on August 18, 1999. An arrest warrant was issued on August 19, 1999. Appellant was arrested April 2, 2001. A death certificate shows that Stafford died August 28, 1999. On September 17, 2001, appellant filed a motion for dismissal for failure to afford appellant his constitutional right to a speedy trial. The motion was heard on June 20, 2002. Although there is no order in the record denying the motion, the docket sheet indicates that the trial court denied the motion in August 2002. On December 31, 2002, appellant pled no contest to the charged offense pursuant to a negotiated plea agreement. The trial court accepted appellant's plea, deferred adjudication of guilt, placed appellant on community supervision for a period of five years, and assessed a $2,000 fine. This appeal followed. SPEEDY TRIAL In his sole issue, appellant argues he was denied a right to a speedy trial pursuant to the Sixth Amendment of the United States Constitution. He argues that each of the factors stated in Barker v. Wingo, 407 U.S. 514, 530-32 (1971), weighs in his favor, and, therefore, a balancing of those factors shows he was denied his right to a speedy trial. Accordingly, he contends his conviction should be reversed and set aside. A. Applicable Law and Standard of Review 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; Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). This right is also applicable to state criminal prosecutions as a result of the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV; Dragoo, 96 S.W.3d at 313. If a violation of the speedy trial right is established, the only possible remedy is dismissal of the prosecution. 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, 407 U.S. at 530. 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. Id. at 530-32. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Id. at 533. The Barker factors are "related" and "must be considered together with such other circumstances as may be relevant." Id. In reviewing a trial court's decision on a federal constitutional speedy trial claim, we apply a "bifurcated standard of review." State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim. App. 1999). We apply an abuse of discretion standard for the factual components in which we "afford almost total deference to the trial court's determination of the historical facts that the record supports." Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). We apply a de novo standard for the legal components of the trial court's decision by independently weighing and balancing the four Barker factors. Id. (citing Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997)). Most of the facts relevant to appellant's speedy trial claim are undisputed. The issue here mostly involves the legal significance of these facts to this claim. 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 are required to defer to those implied findings of fact if the record supports them. See id. (citing Guzman, 955 S.W.2d at 89). B. Discussion 1. Length of delay The length of the delay between an arrest or formal accusation and trial (or the defendant's demand for a speedy trial) acts as a "triggering mechanism." Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003); Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002); Santallan v. State, 922 S.W.2d 306, 307 (Tex. App.-Fort Worth 1996, pet. ref'd). Unless the delay is presumptively prejudicial, courts need not inquire into the other three factors. Zamorano, 84 S.W.3d at 648. 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." Id. (quoting Barker, 407 U.S. at 530-31). 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. Id. This second inquiry is significant because "the presumption that pretrial delay has prejudiced the accused intensifies over time." Id. (quoting Doggett v. United States, 505 U.S. 647, 652 (1992)). 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 likely is that delay prejudicial to the defendant. Id. In general, delay approaching one year is sufficient to trigger a speedy trial inquiry. Shaw, 117 S.W.3d at 889 (citing Doggett, 505 U.S. at 652 n. 1). Here, appellant was indicted on August 18, 1999, and he filed his speedy trial motion on September 17, 2001, a delay of about twenty-five months. This delay was sufficient to trigger a speedy trial inquiry. Furthermore, the delay here stretched far beyond the minimum needed to trigger the inquiry. Consequently, this factor weighs heavily in favor of finding a violation of appellant's right to a speedy trial. See id.; Dragoo, 96 S.W.3d at 314; Zamorano, 84 S.W.3d at 649. 2. Reasons for the Delay The State has the initial burden of justifying a lengthy delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). When the State does not offer a reason for the delay, this factor is weighed, although not heavily, in favor of finding a speedy trial violation. 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. The State concedes that there was no evidence offered at the hearing on this issue. Consequently, this issues weighs in favor of finding a violation of appellant's right to a speedy trial, although not heavily. See id. 3. Assertion of the Right to a Speedy Trial A defendant has no duty to bring himself to trial. Barker, 407 U.S. at 527. The primary burden is on the courts and prosecutors to assure that cases are brought to trial. Id. Nevertheless, a defendant does have some responsibility to assert his right to a speedy trial, and his failure to do so indicates strongly that he did not really want a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App. 1992). Although a motion to dismiss notifies the State and the court of the speedy trial claim, a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983). Appellant's speedy trial motion requested dismissal of his case rather than prompt trial. See id. Moreover, appellant's motion was not heard until June 20, 2002, a delay of eight months after it was filed. We conclude this factor weighs against appellant. 4. Prejudicial Effect of the Delay Prejudice must be assessed in light of the defendant's interests that the right to a speedy trial was designed to protect: (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. Barker, 407 U.S. at 532. Even when a delay is presumptively prejudicial, the appellant must nevertheless show that he has been prejudiced by the delay. Russell v. State, 90 S.W.3d 865, 873 (Tex. App.-San Antonio 2002, pet. ref'd). Only "some showing" of prejudice, not "actual prejudice," is required. Munoz, 991 S.W.2d at 826. Once the appellant has made such a showing, the burden shifts to the State to refute that prejudice. Russell, 90 S.W.3d at 873. If a potential witness is shown to have died during the delay, the defendant must show that the witness's testimony would have been "exculpatory or otherwise beneficial" to him. Id. (quoting Deeb v. State, 815 S.W.2d 692, 706 (Tex.Crim.App. 1991)). Appellant argues that the passage of time impaired his ability to prepare effectively his defense to the charge because a witness to the drug transaction, Stafford, the informant, died after the return of the indictment and prior to appellant's arrest. Appellant contends that, because of the delay, he was denied the opportunity of presenting Stafford's testimony that appellant was not involved in the drug transaction and was wrongly accused. Further, appellant contends that he was denied the opportunity of obtaining Stafford's deposition that would have been admissible at the trial. In support of his argument, appellant relies on Phillips, 650 S.W.2d at 403 (concluding appellant showed prejudice when a co-defendant died during delay, before appellant was "even aware that his testimony might be crucial to his defense"). Pilling testified the alleged drug transaction was part of an "ongoing investigation," involving "numerous suspects." He testified that if he had filed a case on any one individual, it would have "tipped my identity to the rest." In any event, the calculation of delay began when appellant was formally indicted, on August 18, 1999. See Santallan, 922 S.W.2d at 307. Stafford died ten days later, on August 28, 1999. Appellant was arrested April 2, 2001. We cannot conclude that the delay between the indictment and arrest caused Stafford's unavailability under these circumstances. See Russell, 90 S.W.3d at 873. Even if appellant had shown prejudice, he has not demonstrated prejudice beyond that which ensued from the ordinary and inevitable delay. See Munoz, 991 S.W.2d at 826. Moreover, the strength of the State's case is also relevant to the weight of the prejudice factor. See Thomas v. State, 530 S.W.2d 834, 836 (Tex.Crim.App. 1975) ("The strength of the State's case, and the uncontested confession of appellant, precludes any showing that he was prejudiced thereby."). Here, Pilling testified that he purchased cocaine from appellant and identified appellant in the courtroom. Appellant argues that Stafford would have testified that appellant was not involved in the alleged drug transaction. However, even if Stafford would have denied appellant's involvement, such testimony would merely have contradicted Pilling's testimony. Appellant pled no contest at his trial and did not provide any defense. Appellant did not provide evidence that Stafford's testimony would have been "crucial" to his defense. Cf. id. Considering the circumstances of the short time between appellant's indictment and Stafford's death and the strength of the State's case, we conclude this factor weighs against appellant. CONCLUSION In light of the above analysis, we balance the four Barker factors and conclude that appellant's right to a speedy trial pursuant to the Sixth Amendment of the United States Constitution was not violated.
We note that appellant does not argue, either in the trial court or on appeal, that his right to a speedy trial pursuant to article I, section 10 of the Texas Constitution was violated. See Tex. Const. art. I, § 10. Therefore, we need not analyze whether appellant was denied his state speedy trial right.