No. 04-01-00789-CR
Delivered and Filed: June 18, 2003 Do Not Publish
Appeal From the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CR-2594-B, Honorable Juanita Vasquez-Gardner, Judge Presiding. AFFIRMED
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sandee Bryan MARION, Justice.
Opinion by: Paul W. Green, Justice
Appellant Larry Hargrove was arrested for possession of cocaine with the intent to deliver less than four grams. He subsequently filed a motion to suppress and a motion to dismiss his case for lack of a speedy trial. Following a hearing, the trial court denied both motions. Hargrove then pled no contest and was sentenced to five years' imprisonment and a $1000 fine. Hargrove now appeals the trial court's denial of his motions in two issues.
Background
On November 25, 1997, Detective Paul Battaglia and other members of the Alamo Area Narcotics Task Force executed a search warrant on 611 I Street, the residence of Appellant Larry Hargrove. The search warrant listed the property to be searched as 613 I Street, the duplex unit adjoining Hargrove's residence, but described the unit in which Hargrove lived. Subsequent to the search, Hargrove was arrested for possession with intent to deliver a controlled substance. Hargrove's case was rejected by the District Attorney's office in January of 1998 because of a missing lab report. Det. Battaglia resent the lab report in April of 1998. When he had not heard from the District Attorney's office regarding Hargrove's case by October of 1999, Det. Battaglia resent the entire case file. Hargrove was finally indicted in May of 2000. In March of 2001, Hargrove filed a motion to suppress physical evidence based on the insufficient property description in the search warrant. He also filed a motion to dismiss his case for lack of a speedy trial. The trial court denied both motions and Hargrove now appeals. Motion to Suppress
In his first issue, Hargrove contends the trial court erred in denying his motion to suppress. Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). In reviewing the trial court's ruling on a motion to suppress, we afford deference to the trial court's determination of the historical facts and rulings on mixed questions of law and fact if the resolution of those questions turns upon the credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App. 1997); Morfin v. State, 34 S.W.3d 664, 666 (Tex.App.-San Antonio 2000, no pet.). Appellate courts are not at liberty to disturb the trial court's findings of fact as long as they are supported by the record. However, we decide de novo whether the trial court erred in misapplying the law to the facts. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 87-88; Morfin, 34 S.W.3d at 666. Hargrove's written motion to suppress attacks the sufficiency of the search warrant Detective Paul Battaglia used to enter and search Hargrove's duplex unit. He argues the description of the property is not sufficient because the warrant lists the duplex unit to be searched as 613 I Street rather than 611 I Street, Hargrove's actual address. The test for determining the sufficiency of a search warrant's description of the place to be searched is whether the description of the place to be searched is sufficient to apprise the police of where they are to conduct the search. Haynes v. State, 475 S.W.2d 739, 740 (Tex.Crim.App. 1972); Mansell v. State, 756 S.W.2d 95, 98 (Tex.App.-San Antonio 1988, writ ref'd). Where the warrant describes a multiunit dwelling, the description must contain sufficient guidelines to apprise the officers executing that warrant of the particular unit to be searched. Haynes, 475 S.W.2d at 740-41; Mansell, 756 S.W.2d at 98. In addition, it should be noted that an incorrect numerical standing alone will not automatically defeat a search warrant. See Olivas v. State, 631 S.W.2d 553 (Tex.App.-El Paso 1982, no writ). It is also well settled law in Texas that the description contained in the affidavit limits and controls the description contained in the warrant. Madrid v. State, 595 S.W.2d 106, 107 (Tex.Crim.App. 1979); Rios v. State, 901 S.W.2d 704, 706 (Tex.App.-San Antonio 1995, no writ). The warrant and the attached affidavit should be considered together as defining the place to be searched, but the description in the affidavit controls over the language of the warrant itself. Riojas v. State, 530 S.W.2d 298, 303 (Tex.Crim.App. 1975); Rios, 901 S.W.2d at 706. When the affidavit is made a part of the warrant, the description of the premises contained in the affidavit can be used to aid the description found in the warrant. Phenix v. State, 488 S.W.2d 759, 764 (Tex.Crim.App. 1973); Rios, 901 S.W.2d at 706. The warrant in question described the residence to be searched as a "single story duplex residence, tan with turquoise, . . .the residence on the left side as one faces it from the street with the front door perpendicular to the street and facing east located at and known as and numbered as 613 "I" Street. . ." In addition, Det. Battaglia, who was both the affiant and executing officer, stated that the informant had pointed out the apartment to him and that he had visited the apartment himself and was unable to obtain an apartment number from any source in spite of the accurate description of the residence laid out above. The primary purpose of the limiting words of the Fourth Amendment to the United States constitution and art. I, § 9 of the Texas Constitution, that the place to be searched must be particularly described, is to minimize the risk that officers executing search warrants will by mistake search a place other than the place intended. In keeping with this purpose, we find that is was readily apparent from the warrant, read in conjunction with the affidavit, which unit of the duplex was to be searched. Hargrove's first issue is overruled. Motion to Dismiss for Lack of Speedy Trial
In his second issue, Hargrove argues the trial court erred in denying his motion to dismiss for lack of a speedy trial. In determining whether a defendant's right to a speedy trial has been violated, we balance four factors: (1) length of delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003); State v. Guerrero, ___S.W.3d ___(Tex.App.-San Antonio 2003, no pet.). The conduct of both the State and the defendant must be weighed when balancing the four Barker factors. Barker, 407 U.S. at 530; Dragoo, 96 S.W.3d at 313. Importantly, no single factor is necessary or sufficient to find a speedy trial violation. Barker, 407 U.S. at 530; Dragoo, 96 S.W.3d at 313. In reviewing the trial court's ruling, we apply a bifurcated standard of review. Zamorano v. State, 84 S.W.3d 643, 649 (Tex.Crim.App. 2002). When using a bifurcated standard of review, we employ an abuse of discretion standard for the factual components and a de novo standard for the legal components fo the trial court's decision. Id. Because Hargrove did not prevail on his speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State's favor and are required to defer to these implied findings of fact that the record supports. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). Length of Delay
In determining whether a defendant has been denied his right to a speedy trial, we must first examine the length of the delay. Unless the delay is presumptively prejudicial, we need not reach the other Barker factors. Barker, 407 U.S. at 530; Zamorano, 84 S.W.3d at 648-49. The length of delay necessary to invoke such an inquiry depends upon the circumstances surrounding each case. Zamorano, 84 S.W.3d at 648-49. Once a defendant demonstrates the time from accusation to 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. Zamorano, 84 S.W.3d at 649. The length of delay for speedy trial purposes is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313 (1971); Dragoo, 96 S.W.3d at 313. Generally, a delay of eight months is considered presumptively prejudicial, triggering further analysis. State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). The evidence presented at the pre-trial hearing shows that Hargrove was arrested on November 25, 1997. His case was rejected by the district attorney in January of 1998 because of a missing lab report. Although Det. Battaglia resent the missing lab report in April of 1998 and the entire case file in October of 1999, an indictment against Hargrove was not returned until May of 2000. Thus, the delay in this case was approximately 30 months. The State argues the delay began at the time of Hargrove's indictment in May of 2000 and extended to the date on which he filed his motion to dismiss, February 2, 2001. Even assuming the State is correct in its calculations, the delay exceeds the presumptively prejudicial period of eight months. This delay, therefore, is sufficient to trigger a complete Barker inquiry. See Munoz, 991 S.W.2d at 822 (recognizing a 17 month delay as sufficient to trigger consideration of other Barker factors). Consequently, this factor weighs in Hargrove's favor. Reason for Delay
Looking at the second Barker factor, the State bears the burden of justifying the delay. Rangel, 980 S.W.2d at 843. Courts assign different weights to different reasons for a delay. Dragoo, 96 S.W.3d at 314. Neutral reasons, such as negligence or overcrowded dockets, are weighed less heavily against the State. Zamorano, 84 S.W.3d at 649. "Although negligence is to be weighed more lightly than 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." Doggett v. United States, 505 U.S. 647, 657 (1992). When the record is silent regarding the 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. Dragoo, 96 S.W.3d at 314. At the hearing on Hargrove's motion to dismiss, the State offered no justification for the 30 month delay in prosecuting Hargrove. In addition, the State's brief admits it bears the burden and offers no justification for the delay. This factor, then, also weighs in favor of Hargrove. Assertion of the Right
The third factor a court must consider is the defendant's assertion of his right to a speedy trial. Munoz, 991 S.W.2d at 825. The defendant is responsible for asserting his right to a speedy trial. Id. However, if the defendant fails to assert this right, it does not amount to a waiver. Dragoo, 96 S.W.3d at 314. It simply makes it more difficult for the defendant to prove he was denied a speedy trial. Id. The State argues that this factor should weigh against Hargrove because he attempted to have the case dismissed rather than to actually obtain a speedy trial. The Court of Criminal Appeals has found a defendant's motivation in asking for dismissal rather than a prompt trial to be clearly relevant. Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983). Although asking only for a dismissal will not result in a waiver, each case must turn on its own facts, and the particular relief a defendant seeks is but one factor to consider. Id. Because Hargrove failed to introduce any reason why a dismissal, rather than a speedy trial, was in his best interest, we find this factor to weigh in favor of the State. Prejudice Resulting From the Delay
The final Barker factor takes into account any prejudice suffered by the defendant as a result of the delay. Dragoo, 96 S.W.3d at 315. The prejudice to the defendant is assessed in light of the interests which the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. When the defendant makes a prima facie showing of prejudice, the State carries the burden of proving that the defendant "suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973). In his motion to dismiss, Hargrove mentioned the impairment of his ability to "adequately prepare for trial and to locate (a) witness" who would have been beneficial to his case. Hargrove, however, fails to introduce any evidence regarding exactly how he was prejudiced. In addition, at the hearing on the motion to dismiss, Hargrove failed to present evidence regarding any prejudice he suffered due to the delay. Neither did Hargrove demonstrate any way in which the delay impaired his defense. Because Hargrove failed to show prejudice, this factor also weighs in favor of the State. After balancing all four Barker factors, we find the sum of the evidence to weigh in favor of the State. Because Hargrove failed to assert his right to a speedy trial until shortly before trial, and because he did not introduce any evidence regarding prejudice against him caused by the delay, we overrule his second issue. The judgment of the trial court is affirmed.