Opinion
NO. 02-17-00151-CR
05-17-2018
THOMAS ERICKSON APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-98-0845-B MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
The State indicted Thomas Erickson in 1998 for attempted sexual assault. Over 18 years later, in 2017, Erickson filed a "Motion to Dismiss for Denial of Constitutional Right to Speedy Trial." After the trial court heard and denied Erickson's motion, he pleaded guilty, and the trial court sentenced him to eight years in the penitentiary. Erickson now appeals the ruling denying his motion to dismiss. We affirm. 1998: Erickson is arrested and later indicted for attempted sexual assault.
The offense's only detailed factual description appears in a document generated in 2002 (a "Request for Provisional Arrest"). It states that the offense occurred on January 30, 1998; that the complainant was a student at the University of North Texas; that Erickson was a teaching assistant there; that the offense occurred in Erickson's bedroom with only the complainant and Erickson present; that Erickson grabbed the complainant by the throat when she resisted his advances; and that the complainant escaped after she kicked Erickson off her and onto the floor. The record shows that the very next day, on January 31, 1998, Erickson was arrested for attempted sexual assault and posted a $2,500 bond.
The resulting July 1998 indictment alleges that on or about January 31, 1998, Erickson "intentionally, with the specific intent to commit the offense of sexual assault of [the complainant, did] an act, to-wit: forcibly hold [the complainant] on a bed, choke [the complainant] about the neck with [Erickson's] hand, forcibly spread apart the legs of [the complainant], and manipulate the buttons on the pants of [the complainant], which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended[.]" Erickson's written confession admits he was guilty "of the offense Attempted Sexual Assault as alleged in the charging instrument . . . ."
A few days later, on February 3, 1998, the University of North Texas sent Erickson a "Trespass Notice" instructing him not to come onto its property and had him served with a "Criminal Trespass Warning."
Months later, on July 30, 1998, the State indicted Erickson for attempted sexual assault, and he then posted a $20,000 bond. For reasons not disclosed in our record, on September 3, 1998, Erickson found himself in Montgomery County's custody, and it was there that the State successfully served him with the indictment.
Shortly thereafter, on September 11, 1998, Erickson was again in Denton County, where he, along with his attorney and the trial judge, signed a "Waiver of Arraignment Rights." The waiver contains blanks where the pretrial and trial dates could have been written in, but in this instance, both blanks were left empty.
The next development occurred on November 3, 1998, when the trial court issued a judgment nisi after Erickson failed to appear for an October 9, 1998 hearing; it also ordered Erickson's $20,000 bond forfeited.
Later in November 1998, Erickson's attorney moved to withdraw based on, among other reasons, Erickson's failure to appear at "scheduled court hearings," which, contextually, seems to refer to the October 9, 1998 hearing. The other reasons counsel gave for withdrawing were that Erickson had not paid the attorney's retainer and had not even returned the attorney's employment contract. The trial court granted counsel's motion on January 8, 1999. 2017: Erickson first asserts his speedy-trial rights.
Over 18 years later, on January 11, 2017, Erickson filed a "Motion to Dismiss for Denial of Constitutional Right to Speedy Trial." A little over two weeks later, on January 27, 2017, the trial court conducted a hearing. January 2017: the trial court holds a speedy-trial hearing.
Erickson presented two witnesses, Deputy Robert Grigg and Investigator Dugan Broomfield, through whom he attempted to show that the State was remiss in apprehending him and bringing him to trial. For its part, the State presented its written response to Erickson's motion along with the numerous exhibits attached to it, which the trial court filed and then, without objection, took judicial notice of. The State's evidence showed that Erickson had left the United States years earlier, and, aside from those instances when Erickson was arrested in other countries, he essentially disappeared.
Deputy Grigg
Sheriff's Deputy Robert Grigg worked in the warrants-and-extraditions department in the Denton County Sheriff's Office and was assigned Erickson's case in 2001 or 2002. His job was to work on cold cases—older cases in which the wanted individuals remained free. Erickson's case of course had its genesis in 1998, when Erickson failed to show up for court.
Although Deputy Grigg had Erickson's file, not all the records transferred because the sheriff's office's computer system had changed since 2002. Deputy Grigg could tell, though, that after the indictment issued, Erickson was arrested in Montgomery County but made bail again a couple of days later. Deputy Grigg testified that it was fair to say that Erickson appeared in court after he was served with the indictment because Erickson posted a bond.
Between December 1998 and 2001 or 2002, the file showed that attempts were made to arrest Erickson at the Sombre Vista Drive address in Denton (paperwork in the clerk's record shows that Erickson lived on Sombre Vista Drive in Denton in 1998), but Deputy Grigg had no idea how many attempts the sheriff's office made.
After putting Erickson on Denton's "top 10 most wanted" list, Deputy Grigg received a teletype from London, England, informing him that New Scotland Yard had arrested Erickson in March 2002 for drunkenness and had him in custody at that time. Deputy Grigg prepared a provisional arrest request, but the Denton County district attorney's office declined it. The "Request for Provisional Arrest" bears the handwritten notation, "6/3/02 - Declined extradition. Will maintain port watch." Deputy Grigg followed up with at least two phone calls to the office within the Department of Justice that was responsible for extraditions from Britain. Deputy Grigg thought that the only reason the provisional arrest request would have been denied was because by that time, Erickson had failed to make his court appearance in London and because New Scotland Yard had not yet found him. Consistent with that assessment, the "Request for Provisional Arrest" itself shows that New Scotland Yard arrested Erickson for drunkenness in March 2002 and that Erickson then failed to make his court appearance. Because Deputy Grigg knew Erickson was in London, he prepared a port watch, or "red page," which he described as a red flag for the U.S. Customs that was good for two years. The "red page," however, never produced a hit.
An active red page, Deputy Grigg said, "watches for by photograph, name, race, sex, date of birth, passport, passport numbers, et cetera. We had gotten passport number and information from the embassy in London so that I would have the information to put on there. And anytime anybody would go through, and especially after 2001, any red page, they were checking everybody coming into the United States and everybody going in and out of Britain and Europe."
Deputy Grigg acknowledged that at this point, he knew where Erickson was but did not make any additional efforts to get him. Deputy Grigg stopped working in the warrant department after 2002, but he could tell by looking at the file during the speedy-trial hearing that Erickson was still outside the United States on July 7, 2004, and that on January 25, 2007, Erickson's case was given to Carl Garner.
According to Deputy Grigg, nothing more happened until January 2009, when they received a Crime Stoppers tip that Erickson was at an address in Rowlett, Texas. The police went to that address but did not find him. In 2010, the sheriff's department received other tips that Erickson was in Centerville, Texas, and Dallas, Texas, but the police were unable to find him at those addresses. Using a law-enforcement information service called Accurint, and by using Erickson's name and social security number, the sheriff's department got three more hits in 2012 and 2013, but they also proved fruitless.
One of those hits gave an address in Wilton, Maine.
Deputy Grigg's understanding was that at some point the Thai authorities took Erickson into custody in Thailand.
Investigator Broomfield
Investigator Dugan Broomfield was assigned Erickson's file around February 2011. Before his involvement, however, he did not know what, if anything, anyone else had done to apprehend Erickson.
From going through the file, Investigator Broomfield could tell that a nisi had issued in 1998. He explained that when a judgment nisi issues for a defendant, the sheriff's department takes over, and a deputy in the warrant section is assigned the case. That deputy then tries to locate the defendant.
Denton County put Erickson on its "top 10" fugitive list in 2011. Investigator Broomfield had picked Erickson out as a wanted person and over the next month exchanged somewhere between ten and fifteen emails with Crime Stoppers about a tip that Erickson was living in Thailand.
Emails in the record show a tipster's inquiry on January 30, 2011, asking if there was still a reward for Erickson, and when the answer was yes, the tipster responded on February 1, 2011, that Erickson had attacked a woman in December 2010 in Thailand, that Erickson was planning on running to Cambodia, but that Erickson had no passport and could not afford bail. Compiling Erickson's fingerprints, photograph, and possibly the warrant, Investigator Broomfield faxed a referral to a U.S. Marshal Fugitive Task Force shortly thereafter. From his research, Investigator Broomfield determined that Erickson had been in Thailand since about 2009.
Investigator Broomfield thought that in February 2011 he also "did up an Interpol red notice" so that the authorities could stop Erickson if he tried to leave Thailand. He did not know what happened after February 2011.
On January 26, 2017 (the day before the hearing on Erickson's motion, and while preparing for the hearing), Investigator Broomfield learned that in 2014, Denton County had sent a warrant to Thailand, where Erickson was being held for another sexual assault. Investigator Broomfield also learned that while the warrant was still active, Thailand had deported Erickson in 2016 and sent him to Orange County, California, where U.S. Marshals picked him up as he deplaned. Erickson was then sent to Denton County.
Investigator Broomfield agreed that U.S. Marshals did not go to Thailand to get Erickson and that Thailand had deported Erickson. He agreed that it was fair to say that after exchanging a few emails and filling out some forms, the State had basically waited for Thailand to "throw [Erickson] out of the country." His understanding was that Erickson was in jail in Thailand for crimes he committed there, and that once the Thai criminal justice system had finished with him, based on Denton County's warrant Thailand sent Erickson back to the United States.
The State's response and supporting exhibits
Along with numerous supporting documents, the State filed its response at the bench during the hearing, making it part of the court's record. At the State's request, the trial court took judicial notice of its file. Tex. R. Evid. 201. Erickson did not object.
The ruling
Expressly stating that it had reviewed the State's response, the trial court denied Erickson's motion.
Standard of review
The Sixth Amendment to the United States Constitution guarantees the accused's right to a speedy trial. Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v. State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref'd). In determining whether this right has been violated, courts weigh and balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2191-93 (1972) (creating test under federal constitution); Cantu v. State, 253 S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008) (stating that test under Texas constitution uses same four Barker factors); see also State v. Jones, 168 S.W.3d 339, 346-52 (Tex. App.—Dallas 2005, pet. ref'd) (applying Barker factors to motion to dismiss for alleged speedy-trial violation).
Once the Barker test is triggered, courts analyze the claim by weighing the four factors' relative strengths and balancing their relative weights in light of both the State's and the defendant's conduct. Cantu, 253 S.W.3d at 281. No one Barker factor is a necessary or sufficient condition to finding a speedy-trial violation; rather, the factors are related, and courts should evaluate them in conjunction with any other relevant considerations. Id.
We apply a bifurcated standard of review when reviewing a trial court's decision on a speedy-trial claim. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). We review the trial court's factual determinations for an abuse of discretion, and we review de novo how it applied the law to the facts. Id. The four Barker factors
Length of delay: presumptively unreasonable here
The delay's length is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 321 n.12, 92 S. Ct. 455, 463 n.12 (1971). Unless the delay was long enough to be presumptively prejudicial, no further inquiry is necessary. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. Generally, depending on the crime charged, courts have found post-accusation delay presumptively prejudicial when it approaches one year. Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691 n.1 (1992); Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). Here, the approximately eighteen-year delay is presumptively unreasonable. We will thus analyze the other Barker factors.
Reasons for the delay: weighs heavily against Erickson
If a presumptively prejudicial delay has occurred, the State bears the initial burden to justify the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1192 (1995). Different weights are assigned to different reasons. Munoz, 991 S.W.2d at 822. A deliberate attempt to delay a trial, for example, is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are still weighed against the State but less heavily. Id. If the record is silent regarding the reason for the delay, it weighs against the State but not heavily, because courts do not presume that the State has tried to prejudice the defense. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003); Zamorano, 84 S.W.3d at 649-50. A delay that is attributable to the defendant, in whole or in part, may waive a speedy-trial claim. Barker, 407 U.S. at 528-30, 92 S. Ct. at 2191-92; Munoz, 991 S.W.2d at 822.
Citing negligence and indifference, Erickson faults the State for not finding him and bringing him to trial sooner. On this record, however, it is a fair assessment that Erickson did not want to be found and was skillful at not being found.
Erickson not only left the State, he left the country. Erickson was known to be in such disparate locations as London, England, and Bangkok, Thailand. The record showed that Erickson allegedly committed crimes in these other locations and was not easy to locate.
And in 2002, New Scotland Yard in London ended up with the identical problem that Denton County had—Erickson had been charged with an offense and then failed to appear in court.
Among the documents that the trial court took judicial notice of was an article about Erickson in the Bangkok Post from January 2014. Erickson had allegedly used a fake British passport to apply for English teaching jobs in Bangkok. The article alleged that Erickson was already a suspect for crimes committed in Bangkok, one of which was a 2011 rape, and that he used his position as a teacher to lure "many Thai women." Because Erickson was trying to cover up his identity, the Thai authorities had trouble tracking him down but eventually succeeded. To do so, however, the Thai authorities assigned two "key investigators" experienced "in dealing with foreign criminals."
We hold that, at the very least, the delay was attributable to Erickson in part and that, assuming he did not waive his speedy-trial claim entirely, this factor weighs heavily against him.
Whether the defendant asserted his right: weighs heavily against Erickson
The third Barker factor that a trial court must consider is the extent to which the defendant asserted his right to a speedy trial. 407 U.S. at 531, 92 S. Ct. at 2192; Munoz, 991 S.W.2d at 825. A defendant is responsible for asserting or demanding this right. Munoz, 991 S.W.2d at 825. An accused's repeated (but futile) requests for a speedy trial heavily favor dismissing the charge. See Murphy v. State, 280 S.W.3d 445, 454 (Tex. App.—Fort Worth 2009, pet. ref'd).
The "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532, 92 S. Ct. at 2193. The longer the delay without the defendant's taking any action, the more that inaction weighs against a violation. Dragoo, 96 S.W.3d at 314.
Erickson contends that he was not aware that he was being charged. He points out that the "Waiver of Arraignment Rights" form left blank the pretrial and trial dates. If he was really unaware that he was being charged, it would follow that he could not be faulted for not asserting his speedy-trial right. See Orand, 254 S.W.3d at 567-69. The trial court's implied finding is that Erickson knew full well that he had been charged with an offense, an implied finding that the record amply supports.
The record shows that Erickson was arrested for this 1998 offense the day after it was committed and that he posted bond. Shortly thereafter, he was served with a criminal-trespass notice not to enter the University of North Texas's property, where he was a teaching assistant. He was indicted, was served with the indictment, had his bond increased, and posted the increased bond. He appeared for his arraignment with his attorney, from which we deduce that he had hired an attorney to defend him against this charge. That same attorney later filed a motion to withdraw after Erickson failed to pay the attorney's retainer, to return the employment contract, and to appear at a hearing; it seems reasonable that a defendant planning on running would have no incentive to take any of those steps. Erickson then actually did abscond, stiffing both his attorney and his bondsman.
The record does not show that Erickson ever asserted his speedy-trial right until after he was finally returned to Denton County in 2016. To the contrary, it shows that Erickson sought to avoid trial. Only after he was apprehended and faced an imminent trial did he move to dismiss the indictment. A speedy trial is a constitutional right, but dismissing charges because the trial is coming too speedily from the defendant's perspective is not. See Cantu, 253 S.W.3d at 281. We are reluctant to rule that Erickson was denied his constitutional right on a record that strongly indicates, as does this one, that he wanted no trial at all, much less a speedy one. See Barker, 407 U.S. at 536, 92 S. Ct. at 2194-95. We hold that this factor weighs heavily against Erickson.
Prejudice to the defendant resulting from the delay: adds no weight to Erickson's speedy-trial-violation claim
The final Barker factor examines whether and to what extent the delay has prejudiced the defendant. Cantu, 253 S.W.3d at 285. Generally, three interests are considered in determining prejudice: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused's anxiety and concern; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. But proving actual prejudice is not required when the delay is excessive, because such a delay "presumptively compromises the reliability of a trial in ways that neither party can prove or even identify." Shaw, 117 S.W.3d at 890. If an accused can show prejudice, the burden shifts to the State to prove that the accused suffered no serious prejudice beyond that which ensued from ordinary and inevitable delay. Munoz, 991 S.W.2d at 826.
Based upon the offense summary in the "Request for Provisional Arrest," this was a he-said/she-said case. Erickson cannot argue oppressive pretrial incarceration because he was not incarcerated—at least not for this offense. There was no evidence that the delay caused Erickson any anxiety or concern whatsoever. And there was no evidence that the nearly two-decade delay impaired his defense in the slightest. In short, Erickson cannot rely on prejudice to show a speedy-trial violation.
Conclusion
We hold that the trial court did not err by denying Erickson's motion for speedy trial. See Hopper v. State, 495 S.W.3d 468, 472-73 (Tex. App.—Houston [14th Dist.] 2016) (holding no speedy-trial violation when defendant was indicted in 1993 and tried in 2015), aff'd, 520 S.W.3d 915 (Tex. Crim. App. 2017) (same); Rivera v. State, 990 S.W.2d 882, 888-93 (Tex. App.—Austin 1999, pet. ref'd) (holding no speedy-trial violation when defendant was indicted in 1978 and tried in 1997), cert. denied, 528 U.S. 1168 (2000).
We overrule Erickson's sole point and affirm the trial court's judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: WALKER, MEIER, and KERR, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 17, 2018