Opinion
02-22-00200-CR
09-07-2023
Stephen Allen, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 462nd District Court Denton County, Texas Trial Court No. F21-1436-462
Before Birdwell, Bassel, and Womack, JJ.
MEMORANDUM OPINION
WADE BIRDWELL JUSTICE
Appellant Stephen Allen appeals his felony conviction for continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b). In a single issue, Allen argues that the trial court erred when it denied his Motion to Dismiss for Failure to Provide a Speedy Trial. Because Allen has not shown that his right to a speedy trial was violated, we affirm his conviction.
I. Background
Allen does not challenge the sufficiency of the evidence supporting his conviction.
We will therefore set out a detailed timeline of the facts essential to our analysis and resolution of his speedy-trial issue.
A. Speedy-Trial Facts
• November 3, 2020: Allen's stepdaughter told an intake specialist at Red River Hospital that she was molested in 2018 at the age of eleven by Allen.
• January 2021: After her release from the hospital, Allen's stepdaughter was forensically interviewed and again accused Allen of sexually abusing her.
• February 18, 2021: Police interviewed Allen in Pueblo, Colorado, where he was living at that time.
• June 2, 2021: Allen was indicted.
• September 16, 2021: Allen was arrested.
• October 13, 2021: Allen filed a demand for speedy trial. The trial court immediately set the case for "Docket call" on December 17, 2021, and jury trial on January 10, 2022.
• November 2021: The State (on November 11) and the defense (on November 18) signed an agreement for the State to provide Allen's attorney with a copy of his stepdaughter's forensic interview.
• December 17, 2021: Allen's jury trial was reset to March 28, 2022. Both parties announced ready. • March 18, 2022: Allen's jury trial was reset to May 2, 2022.
• March 29, 2022: The State filed a Motion for Continuance "to procure attendance of a material witness."
• April 14, 2022: The State filed an amended Motion for Continuance. The trial court held a hearing, granted the continuance, and reset Allen's jury trial for May 23, 2022.
• May 18, 2022: Allen filed a Sealed Medical Motion for Continuance, stating that his trial counsel had been diagnosed positive for COVID-19 and was "still experiencing symptoms . . . with no decrease in symptoms."
• May 19, 2022: The trial court heard and granted Allen's Motion for Continuance and reset Allen's jury trial to June 27, 2022.
• May 24, 2022: The State notified the defense of "some witness availability issues with the June 27th date" and represented that all the State's witnesses would be available on August 8th.
• June 2, 2022: The attorneys met with the trial court regarding "the State's witness issues."
• June 3, 2022: The trial court did not require the State to file another motion for continuance but reset Allen's jury trial to August 15, 2022.
• August 12, 2022: Allen filed his motion to dismiss.
• August 15, 2022: The trial court heard and denied Allen's motion to dismiss, and Allen's trial began.
• August 18, 2022: A jury convicted Allen of continuous sexual abuse of a young child and assessed his punishment at thirty years' confinement.
The detective who had been investigating the report of sexual abuse for the Denton Police Department testified at Allen's trial that he had received information that Allen was living in Pueblo, Colorado, and had contacted the Pueblo Police Department to assist him.
Allen was apprehended in Bellingham, Washington. The record before us contains little else that would explain the three-and-a-half-month gap between Allen's indictment and arrest.
The trial court signed an order on April 14, 2022, stating that "this cause is continued until the 14th day of April, 2022." However, the trial court stated on the record that it was "setting the case for Monday, May 23rd, 2022," and a setting notice filed on April 18, 2022, reflects the jury trial date of May 23, 2022.
Allen's trial counsel appeared remotely at this hearing via Zoom.
II. Sixth Amendment Right to a Speedy Trial A. The Barker Factors
Allen complains that the trial court erred in denying his motion to dismiss based on the failure to provide him a speedy trial, thus violating his constitutional rights. See U.S. Const. amend. VI. The Sixth Amendment to the United States Constitution guarantees the accused in all criminal prosecutions the right to a speedy trial, which is extended to the states by the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184 (1972); see U.S. Const. amends. VI, XIV. To determine when a Sixth Amendment speedy-trial violation occurs, appellate courts apply a balancing test using four factors. See Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014) (reciting Barker factors). Appellate courts weigh (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his speedy-trial right, and (4) prejudice to the defendant because of the delay. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; see State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim. App. 2021). The conduct of the State and the defendant are weighed under each factor, though no single factor alone is necessary or sufficient to establish a speedy-trial violation. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Black v. State, No. 02-21-00057-CR, 2022 WL 3464563, at *3 (Tex. App.-Fort Worth Aug. 18, 2022, no pet.) (mem. op., not designated for publication); Cochnauer v. State, No. 02-19-00165-CR, 2021 WL 3931914, at *3 (Tex. App.-Fort Worth Sept. 2, 2021, no pet.) (mem. op., not designated for publication).
The length of the delay is, to an extent, a triggering mechanism for the remaining factors in the balancing test. Lopez, 631 S.W.3d at 113; Black, 2022 WL 3464563, at *3; Cochnauer, 2021 WL 3931914, at *3. Until there is some delay which is "presumptively prejudicial," there is no necessity for inquiry into the other factors that go into the balance. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. "Nevertheless, because of the imprecision of the right to a speedy trial, the length of the delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Id. at 530-31, 92 S.Ct. at 2192; see Lopez, 631 S.W.3d at 113; Dragoo v. State, 96 S.W.3d 308, 313-14 (Tex. Crim. App. 2003). Notably, the United States 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." Barker, 407 U.S. at 531, 92 S.Ct. at 2192.
If a presumptively prejudicial delay has occurred, then the State bears the initial burden of justifying the delay. Black, 2022 WL 3464563, at *3; Harper v. State, 567 S.W.3d 450, 459 (Tex. App.-Fort Worth 2019, no pet.). The defendant, in turn, has the burden to prove both his diligent assertion of his right to a speedy trial and to show prejudice. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008); see Black, 2022 WL 3464563, at *3. The defendant's burden on the third and fourth factors "varies inversely with the State's culpability for the delay; the greater the bad faith or official negligence on the part of the State, the less a defendant must show assertion of the right or prejudice." Black, 2022 WL 3464563, at *3.
B. Standard of Review
In our review, we apply an abuse of discretion standard for the factual components, giving "almost total deference to historical findings of fact of the trial court that the record supports and draw[ing] reasonable inferences from those facts necessary to support the trial court's findings." Gonzales, 435 S.W.3d at 808-09; see Lopez, 631 S.W.3d at 113-14. We review de novo "whether there was sufficient presumptive prejudice to proceed to a Barker analysis and the weighing of the Barker factors, which are legal questions." Gonzales, 435 S.W.3d at 809. However, "while an evaluation of the Barker factors includes fact determinations and legal conclusions, 'the balancing test as a whole is a purely legal question that we review de novo.'" Lopez, 631 S.W.3d at 114 (quoting Balderas v. State, 517 S.W.3d 756, 767-68 (Tex. Crim. App. 2016)).
C. Analysis 1. Length of the Delay
At the outset, Allen was required to make a threshold showing that the length of the delay was presumptively prejudicial. See Gonzales, 435 S.W.3d at 808; Black, 2022 WL 3464563, at *4. Presumptive prejudice "simply marks the point at which courts deem the delay unreasonable enough to trigger [the Barker] enquiry." Lopez, 631 S.W.3d at 114 (quoting State v. Munoz, 991 S.W.2d 818, 821-22 (Tex. Crim. App. 1999)). "When the length of delay stretches well beyond the bare minimum needed to trigger a full Barker analysis, the length of [the] delay weighs against the State, and the longer the delay, the more the defendant's prejudice is compounded." Gonzales, 435 S.W.3d at 809 (footnote omitted).
To calculate the delay length, we measure from the time that the accused is arrested or formally accused. Id. An "accusation" occurs when the defendant is either arrested or formally charged with a crime. Black, 2022 WL 3464563, at *4 (quoting Gonzales, 435 S.W.3d at 809). The "speedy-trial clock" thus starts when a formal indictment, information, or actual arrest occurs. Cochnauer, 2021 WL 3931914, at *3 (quoting Santallan v. State, 922 S.W.2d 306, 307 (Tex. App.-Fort Worth 1996, pet. ref'd)).
Allen and the State disagree on when the "speedy-trial" clock started. Allen contends that he was "charged" on June 1, 2017, the date of the offense alleged in the indictment. The State responds, and we agree, that the date of "accusation" for speedy-trial purposes is the date of indictment-June 2, 2021. We also agree with the State that the fourteen-month, two-week period between indictment and trial is sufficient to trigger analysis of the remaining Barker factors. See Lopez, 631 S.W.3d at 114 ("Generally, a delay of eight months to a year, or longer, is presumptively prejudicial and triggers a speedy trial analysis."); see also Dragoo, 96 S.W.3d at 314 ("In general, courts deem delay approaching one year to be 'unreasonable enough to trigger the Barker enquiry.'" (quoting Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 2691 n.1 (1992))). This factor weighs against the State.
2. Reasons for the Delay
The State has the burden of justifying the length of the delay. Cantu, 253 S.W.3d at 280; Wade v. State, No. 02-21-00125-CR, 2023 WL 2534468, at *5 (Tex. App.-Fort Worth Mar. 16, 2023, pet. ref'd) (mem. op., not designated for publication). When assessing this factor-reasons for delay-different weight is given to different reasons. Gonzales, 435 S.W.3d at 809; Cochnauer, 2021 WL 3931914, at *3. For instance, deliberate conduct by the State will weigh more heavily against the State than more neutral reasons such as negligence or overcrowded dockets. Gonzales, 435 S.W.3d at 809; Cochnauer, 2021 WL 3931914, at *3. But "a valid reason, such as a missing witness, should serve to justify appropriate delay." Barker, 407 U.S. at 531, 92 S.Ct. at 2192. If the State fails to give a reason for delay, the factor will be considered neutral and weigh slightly against the State. Dragoo, 96 S.W.3d at 314. And, as with the triggering point for a full-Barker analysis, a justifiable reason for delay in a complex case may not be a justifiable reason in a simple case. Gonzales, 435 S.W.3d at 810; Wade, 2023 WL 2534468, at *5.
The record reflects that, as soon as Allen filed his demand for speedy trial, the trial court gave him a trial setting. "We do not hold the first three months after the arrest against the State because the State is allowed a reasonable period to prepare its case." Wade, 2023 WL 2534468, at *5. Three months and one day after Allen's arrest, both parties announced ready for trial, but the trial court reset Allen's jury trial from January 10, 2022, to March 28, 2022. The January trial setting was used to try a defendant who had eight sexual assault cases pending in the same court and had been incarcerated for longer than Allen. Then, rather than try Allen's case in March, the trial court chose to begin a three-week-long trial of another incarcerated defendant.Although "a crowded court docket is not a valid reason for delay," Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003), overcrowded courts are a "more neutral reason" that "should be weighted less heavily" than a deliberate attempt to delay the trial in order to hamper the defense, Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Allen's jury trial setting was reset from March to May 2, 2022, but the trial court reset the trial again-this time for a new reason-the unavailability of a material witness.
The State claims in its brief that the defendant in this other case had also been "incarcerated for much longer than" Allen. Because the State did not prove that fact up in the trial court, we will not consider it in our analysis. However, Allen did acknowledge on the record that that other defendant "had been in jail for quite a long time," and the record indicates that his case was indicted on December 20, 2019- long before Allen's.
The next delay occurred at Allen's request because his trial counsel had contracted COVID-19. While Allen should not be faulted for his attorney's untimely illness, this reason for the further delay of Allen's trial also does not count against the State. See Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.-Fort Worth 1993, pet. ref'd) (stating that continuances granted on defense's motion "will not be counted against the State"). The record provides little detail about the last part of the delay- from the June trial setting to August 15, 2022-but does indicate that the trial court reset Allen's trial one final time without requiring the State to file a motion for continuance due to "witness availability issues." Because a missing witness is "a valid reason" that "serve[s] to justify appropriate delay," Barker, 407 U.S. at 531, 92 S.Ct. at 2192, this last part of the delay in bringing Allen's case to trial does not count against the State.
At the hearing on Allen's motion to dismiss, the State told the trial court that "[i]t was the lead detective in this case" who was unavailable for the June trial setting.
In sum, less than four months of the eleven-month delay between Allen's arrest and trial "were caused by neutral reasons, which weigh against the State but not heavily." Fuller v. State, 624 S.W.3d 855, 865 (Tex. App.-Fort Worth 2021, pet. ref'd) (op. on reh'g), cert. denied, 142 S.Ct. 1159 (2022). The remainder of the delay does not count against the State. This factor weighs only slightly in Allen's favor.
Even counting the three months and two weeks that elapsed between Allen's indictment and arrest toward the "length of the delay," this factor still does not weigh heavily against the State. Cf. Padilla v. State, No. 03-02-00345-CR, 2003 WL 21401256, at *2 (Tex. App.-Austin June 19, 2003, pet. ref'd) (mem. op., not designated for publication) (holding that five-year delay, which "appears to have been the result of official negligence," between appellant's indictment and arrest weighed "against the State, but not heavily").
3. Assertion of the Right
The third factor-assertion of the speedy-trial right-concerns whether and how the defendant asserts the right. Gonzales, 435 S.W.3d at 810; Cochnauer, 2021 WL 3931914, at *4. The defendant bears the burden to show that he timely asserted his right. Cantu, 253 S.W.3d at 280, 282-83. Any delay in asserting a speedy-trial right weighs against a defendant, as does requesting dismissal rather than trial. See Dragoo, 96 S.W.3d at 314-15; see also Cochnauer, 2021 WL 3931914, at *4 (filing for dismissal after trial court granted defendant's request for speedy trial undermined defendant's claim of speedy-trial violation because it showed a desire for no trial instead of a speedy trial). But "[r]epeated requests for a speedy trial weigh heavily in favor of the defendant." Cantu, 253 S.W.3d at 283.
Here, the record shows that Allen promptly asserted his right to a speedy trial by filing a speedy-trial demand on October 13, 2021, less than a month after his initial arrest. In reasserting his right at the April 14, 2022 hearing on the State's motion for continuance, Allen told the trial court-and the State did not dispute-that he had "announced ready for trial . . . at every setting." The one time that Allen moved for a continuance, he referenced his speedy-trial demand in his motion, in which he also stated, "This motion for continuance is brought by Defense Counsel due to medical necessity only." This motion also contained the unchallenged assertion, "Defense Counsel announced ready for trial at docket call on May 13, 2022, and is ready for trial but for, the COVID diagnosis and continuing symptoms." The record also reflects that Allen "would not agree to [the final reset of his trial from June to August] because of the speedy trial."
This record leads us to the inescapable conclusion that Allen wanted a speedy trial and diligently asserted his right to one. He did not seek a dismissal until after he had requested a speedy trial several times. Moreover, the State concedes that following his initial speedy trial demand, "at each live hearing in the case and in correspondence with the [trial c]ourt, [Allen] asserted the right." We conclude that Allen asserted his right and that his repeated requests for a speedy trial weigh in Allen's favor.
4. Prejudice
The final Barker factor-prejudice-is assessed in light of what the speedy-trial right is designed to prevent: oppressive pretrial incarceration, a defendant's anxiety and concern, or impairment of a defense. Dragoo, 96 S.W.3d at 315. Impairment of a defense is the most serious, as an inability to adequately prepare for trial skews the fairness of the justice system. Id. (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193). Actual prejudice is not required, but the defendant must show some prejudice caused by the delay. McCarty v. State, 498 S.W.2d 212, 218 (Tex. Crim. App. 1973). If the defendant makes a prima facie showing of prejudice, then the burden shifts to the State to prove that the defendant "suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay." State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999) (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)).
Although Allen argues on appeal that "all four factors weigh in favor of relief," he wholly fails to make any argument as to how he was prejudiced by the delay. Allen's only "showing" of prejudice in the record is the following paragraph in his motion to dismiss,
In the present matter, [Allen] has received a prejudicial delay of being continuously incarcerated. This incarceration has caused tremendous anxiety for [Allen]. He has been away from his family, who reside in another [s]tate, and had to be continually incarcerated in jail. [Allen] is unable to afford bond. [Allen] has been deprived of his liberty by being incarcerated in the Denton County Jail since September 16, 20201 [sic] for a total of 331 days as of the date of filing of this motion.
Allen does not direct us to any evidence supporting these allegations. Cf. McCain v. State, No. 02-17-00210-CR, 2018 WL 3059964, at *10 (Tex. App.-Fort Worth June 21, 2018, no pet.) (mem. op., not designated for publication) (rejecting "prejudice" argument where appellant relied on unsworn statements in his motions to dismiss without any supporting evidence); Salazar v. State, No. 02-10-00105-CR, 2011 WL 1223737, at *7 (Tex. App.-Fort Worth Mar. 31, 2011, pet. ref'd) (mem. op., not designated for publication) (holding that appellant's failure to "provide any particular facts to support his otherwise conclusory claims" weighed against his claim of prejudice).
Allen's incarceration "may have been oppressive if he had not received credit on his sentence for time served or if he had ultimately been found innocent of the charges," but Allen received credit on his sentence for his pretrial incarceration. See Christmas v. State, Nos. 02-08-00004-CR, 02-08-00005-CR, 2009 WL 579278, at *8 (Tex. App.-Fort Worth Mar. 5, 2009, pet. ref'd) (mem. op., not designated for publication); see also Salazar, 2011 WL 1223737, at *7 n.15 (holding defendant's confinement was not oppressive because he received credit for three days of confinement after ultimately being convicted). His pretrial incarceration was therefore not oppressive. As for Allen's "tremendous anxiety," Allen "offered no evidence to the trial court that the delay had caused him any unusual anxiety or concern, i.e., any anxiety or concern beyond the level normally associated with being charged with a felony sexual crime." Shaw, 117 S.W.3d at 890. He claimed that he had been away from his family, who resided in another state, but this was a consequence of his incarceration, which we have determined was not oppressive. Lastly, Allen has made no argument whatsoever that his defense was impaired as a result of the delay, and the record contains no evidence of any such impairment. We thus conclude that Allen failed to even make a prima facie showing that he suffered oppressive pretrial incarceration, that the delay in his trial caused him to suffer anxiety or concern, or that it impaired his defense. Cf. Thames v. State, No. 02-17-00295-CR, 2019 WL 237556, at *11 (Tex. App.-Fort Worth Jan. 17, 2019, no pet.) (mem. op., not designated for publication). Accordingly, we conclude that Allen was not prejudiced by the delay of his trial. This factor weighs heavily against him.
5. Balancing the Barker Factors
Three of the four Barker factors weigh in Allen's favor, but only the assertion factor weighs heavily so, and the prejudice factor weighs strongly against him. Taken together, the Barker factors do not demonstrate a speedy-trial violation. The length of the delay was enough to trigger a full Barker analysis, but most of the delay was justified. The two times that Allen announced ready for trial only to have his case passed over for another, the cases that went to trial instead of Allen's were older and also involved incarcerated defendants. Allen diligently and repeatedly asserted his right to a speedy trial, but on balance, that does not tip the scales in favor of finding a violation of that right when Allen has wholly failed to show he was prejudiced by the delay. While Allen certainly appears to have been in a much greater hurry to go to trial than the State was, we "must apply the Barker balancing test with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed." See Cantu, 253 S.W.3d at 281. We conclude that Allen's constitutional right to a speedy trial was not infringed. We overrule his sole issue.
III. Conclusion
Having overruled Allen's sole issue on appeal, we affirm the judgment of the trial court.