Opinion
No. 05-10-00999-CR
Opinion Filed July 15, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause No. F00-32514-U.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
In a single issue, the State appeals the trial court's order granting Abdul Rasheed Khan's motion to dismiss the indictment for violation of his constitutional right to a speedy trial. We affirm.
BACKGROUND
The background facts were developed as part of Khan's motion to dismiss filed in June of 2010. The case began over nine years earlier, on July 29, 2000, when Khan was arrested by Irving police during a traffic stop and charged with possession of less than one gram of a controlled substance. The other occupant of the vehicle, Jawwad Cheema, was not charged. Cheema arranged for Khan's bond, and Khan was released the next day. The bond required Khan to appear before the 195th district court on September 5, 2000. Khan completed the bond application with contact information for as many relatives as he could remember so he could give the bondsman an "extensive list of contact numbers." At the time of his arrest, Khan was a medical resident at the Louisiana State University Health Sciences Center in Shreveport. After his release on bond, he contacted a Louisiana attorney, Michael Carmody, who referred Khan to Dallas attorney Richard A. Anderson. After being retained by Khan, Anderson began his investigation. Anderson visited the Irving Police Department at least twice, meeting with detectives or their supervisors each time. Anderson testified his goal with these visits was to present Khan's case to the satisfaction of the Irving police so it would be resolved at the police level, rather than being filed with the district attorney. Anderson testified he left the police department on the second visit with the distinct impression that his goal had been accomplished, although he could not recall the exact words said or to whom he spoke regarding Khan's case. Anderson thereafter contacted Carmody, who in turn advised Khan in August 2000 that the case "was taken care of" and Khan "had no need to worry about it anymore." Anderson described himself as a compulsive note-taker. He also used a voice recorder to ensure accuracy. He testified that before he would have spoken with Irving police, he would have spoken to Cheema and any other witnesses and taken notes of those interviews. He also would have taken notes of his conversations with the Irving police and detailed his defenses and concerns. Pursuant to his former law firm's document-retention policy, Anderson destroyed all notes and files related to Khan's matter because the case did not involve the death penalty and he could not reasonably predict "that the file might be needed in the foreseeable future." Without Khan's or Anderson's knowledge, the Irving Police Department later submitted Khan's case to the Dallas County District Attorney on October 2, 2000, and the grand jury returned a true bill indictment on October 23, 2000. Somehow, Khan's bond was discharged and reentered as an appearance bond on November 6, 2000. The case was called to trial on November 29, 2000, and Khan did not appear. The trial court declared Khan's bond forfeited, entered judgment nisi, and directed that a capias issue for his arrest. As the State describes in its brief, for "reasons not explained in the record, the capias for [Khan's] arrest either was not `activated' or, at least, was not executed." There was no activity in the case until nine years later in November 2009, when "either a new capias was issued or the previous capias was `activated.'" Khan testified he had no knowledge of the presentation of his case to the grand jury, the indictment, or any court dates; the bail bondsman never notified him of any dates to appear at court. Instead, in the nine years following his 2000 arrest, Khan completed his residency and entered a fellowship program in New Orleans. Khan accepted a job offer from the same institution where he completed his fellowship and remained in New Orleans until hurricane Katrina, at which time he moved to Baton Rouge. Khan lived openly in Louisiana: the clinic where he performed surgery listed him as a principal on its website; since 2000, Khan purchased homes in his name in Shreveport, Baton Rouge, and the New Orleans area and paid parish taxes on those properties in his name; Khan's driver's license accurately reflected his residence; and Khan was married and had three children, expecting a fourth. As part of the mandatory renewal of his medical certificates in both Louisiana and Tennessee, Khan was subject to background checks during this time. In early 2010, everything changed. While at his medical office in Louisiana, an East Baton Rouge Parish Sheriff's Office SWAT team arrested Khan on the November 2009 warrant. Khan waived extradition and voluntarily appeared before the trial court on January 23, 2010. He posted bond and filed his motion to dismiss on June 16, 2010. On August 5, 2010, the trial court held an evidentiary hearing on the motion; Khan, Anderson, and Irving police officer Steve Junker testified. In addition to the evidence from Khan and Anderson described above, Junker testified that the controlled substance seized from Khan was still available for testing and that all police officers involved in the case were still available to present testimony. At the conclusion of the hearing, the trial court granted Khan's motion to dismiss. This appeal followed.DISCUSSION
In support of its argument that the trial court erred when it granted Khan's motion to dismiss, the State argues (1) the true cause of delay was Khan's failure to appear in court, (2) Khan did not assert his right to a speedy trial, but instead filed a motion to dismiss, and (3) Khan failed to meet his burden of showing prejudice.Standard of Review and Applicable Law
A speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and article 1, section 10 of the Texas Constitution. See U. S. Const. amend. VI; Tex. Const. art. 1, § 10; Zamorano v. State, 84 S.W.3d 643, 647 n. 6 (Tex. Crim. App. 2002) (citing also to Tex. Code Crim. Proc. Ann. art. 1.05 as guaranteeing speedy trial). It mitigates the anxiety and concern accompanying public accusation and protects a defendant from oppressive pretrial incarceration and impairment to his defense. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing Barker v. Wingo, 407 U.S. 514, 532 (1972); United States v. Ewell, 383 U.S. 116, 120 (1966)). The right to a speedy trial attaches once a person is arrested or charged. See id. (citing United States v. Marion, 404 U.S. 307, 321 (1971)). While the Texas Constitution provides an independent speedy trial guarantee, the Texas Court of Criminal Appeals has traditionally analyzed speedy trial claims under the same framework established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Zamorano, 84 S.W.3d at 648. That framework requires us to consider four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the assertion of the right; and (4) the prejudice to the defendant. Barker, 407 U.S. at 530. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial, although the length of the delay is a "triggering mechanism" for analysis of the other factors. Id. at 530, 533. The analysis is not triggered by a set time element, although the court of criminal appeals has held a four-month delay to be insufficient, while finding a seventeen-month delay "presumptively prejudicial." Cantu, 253 S.W.3d at 281 (citing Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973); Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. 1983)). If the delay is "presumptively prejudicial," the State then bears the burden of justifying the delay and the defendant has the burden of proving the assertion of the right and prejudice. Id. at 280. The defendant's burden of proof "varies inversely" with the State's degree of culpability for the delay-the less culpability the State has in the trial delay, the more a defendant must show actual prejudice or proof of diligence in asserting his speedy trial right. Id. at 280-81. In evaluating a speedy trial claim, we balance the State's conduct against the defendant's and consider the four factors together, along with any other relevant circumstances. Barker, 407 U.S. at 530, 533. We review a trial court's ruling in light of the arguments, information, and evidence available to the trial court at the time it ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). We apply a "bifurcated standard of review" to the trial court's ruling: "an abuse of discretion for the factual components, and a de novo standard for the legal components." Zamorano, 84 S.W.3d at 648 (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)) (emphasis removed). The balancing test of speedy-trial analysis as a whole is a legal question. Cantu, 253 S.W.3d at 282. We defer to the trial court's resolution of disputed facts and its right to draw reasonable inferences from those facts. Id. The trial court may disregard a witness's testimony based on credibility and demeanor, even if that testimony is uncontroverted; the trial court may disbelieve evidence "as long as there is a reasonable and articulable basis for doing so." Id. All the evidence must be viewed in the light most favorable to the trial court's ultimate ruling. Id. Because Khan prevailed in the trial court on his speedy-trial claim, we presume that the trial court resolved any disputed fact issues in Khan's favor and we defer to the implied findings of fact supported by the record. Id.Length of Delay
We consider the length of delay as a double inquiry. Doggett v. United States, 505 U.S. 647, 651 (1992). If the interval between accusation and trial has crossed the threshold dividing ordinary from "presumptively prejudicial," we must then consider the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Id. at 652. This latter inquiry is significant because the presumption that pretrial delay has prejudiced the accused intensifies over time. Id. Here, the State concedes that the "delay in bringing [Khan] to trial has been significant" and this first factor favors Khan. We agree; ten years between arrest and hearing on a speedy-trial motion is extraordinary, weighs significantly against the State, and triggers a speedy trial inquiry. See id. ("extraordinary" eight-and-a-half-year period between indictment and arrest "clearly suffices to trigger the speedy trial enquiry"); see also Zamorano, 84 S.W.3d at 649 ("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.").Reason for Delay
The State bears the burden of justifying the length of delay. Cantu, 253 S.W.3d at 280. Under Barker, different weights should be assigned to different reasons for the delay. Barker, 407 U.S. at 531. Deliberate tactics meant to hamper the defense are weighed more heavily against the State than periods of delay resulting from official negligence or overcrowded courts. Id. Complexity of the case also will factor into the justification of the delay. Zamorano, 84 S.W.3d at 650. The State admits that, for "reasons not explained in the record, the capias for [Khan's] arrest [in 2000] either was not `activated' or, at least, was not executed." In November 2009, "either a new capias was issued or the previous capias was `activated,'" resulting in Khan's arrest by a Louisiana SWAT team in January 2010. Not a single docket entry exists for Khan's case during the period between Khan's trial date and the activation of the "new" capias. Simply put, the State offers no explanation for the complete absence of activity in this matter between November 2000 and November 2009. In the absence of an explanation for the delay, we cannot presume a valid reason. Dragoo, 96 S.W.3d at 314. Nor do we presume a deliberate attempt to prejudice the defendant. Id. The State and the courts have the primary burden to insure defendants are brought to trial speedily. State v. Jones, 168 S.W.3d 339, 348 (Tex. App.-Dallas 2005, pet. ref'd). This includes exercising due diligence in obtaining the presence of an accused for trial after a capias is issued. See id. Khan presented evidence he was living openly, paying taxes, updating his residence for his driver's license, submitting to background checks, and practicing medicine. He also provided his bail bond company contact information for multiple relatives, none of which was shown to be inaccurate. Only two months passed after the November 2009 capias was issued or "activated," evidencing how easily Khan was located. The State did not exercise due diligence in obtaining the presence of Khan for trial. See id. at 347-48 (concluding second factor weighed against state when it offered no evidence "to explain why the Dallas County Sheriff's Office waited almost two years to execute the `capias/warrant' when the State knew of appellee's location"). The State also presented no evidence the matter was complex and required nine years of investigation. This was an uncomplicated matter of possession of a controlled substance, and the State repeatedly argued that only four witnesses had knowledge of the events: Khan, Cheema, and the two arresting officers. See Zamorano, 84 S.W.3d at 650 (no explanation for not trying simple DWI case for four years). The State argues "the real source of the delay was [Khan's] failure to abide by his duty to appear for all court appearances," citing two non-binding cases in support. See Thorne v. State, No. 03-02-00811-CR, 2003 WL 22409450 (Tex. App.-Austin Oct. 23, 2003 pet. ref'd, untimely filed) (mem. op., not designated for publication); Smith v. Georgia, 579 S.E.2d 829 (Ga. Ct. App. 2003). These cases are distinguishable on multiple grounds. In Thorne, an unpublished opinion from the Austin court of appeals, the defendant was arrested in 1998 for stealing clothing, but was released the same day after posting an appearance bond. Thorne, 2003 WL 22409450, at *1. For the rest of that year, both Thorne and the state requested and agreed to continuances. When Thorne did not appear for her trial date set for January 1999, the trial court rendered a judgment nisi and issued a capias a few days later; Thorne was not arrested until 2002 following a traffic stop. Id. She filed motions for a speedy trial and to dismiss. Id. Thorne testified at the hearing that she believed a civil suit replaced the criminal prosecution; yet she did not appear for either trial. Id. The bail bond company representative testified Thorne was sent notice of her trial date. Id. at *2. He also testified that when Thorne did not appear for trial, the company attempted to contact her at the address listed on her bond application, but she had not been seen at that address "for some time." Id. Thorne also had failed to appear on another case on which the company posted her bail. Id. After the trial court denied Thorne's motions, she again agreed to multiple continuances of the trial date and later pleaded guilty. Id. On appeal, the court concluded the "primary reason for the delay was not action or inaction by the State, but appellant's failure to appear at the January 1999 trial." Id. at *4. The appellate court also noted Thorne "had experience resolving criminal prosecutions with guilty pleas," yet testified she believed the civil suit replaced her criminal prosecution, agreed to continuances, and had not been seen at the address provided to her bail bond company "for some time." Id. at *3-4. Unlike Thorne, Khan showed that both he and his attorney believed the case was effectively dismissed prior to any court dates requiring his appearance. Khan also provided multiple contacts, and the bail bond company never contacted him or his contacts regarding any court date. He lived openly for nine years and was located easily when the capias was "activated." The State did not contradict any of his evidence. Thorne is neither precedential, see Tex. R. App. P. 47.7(a), nor helpful to the State's analysis. The facts in Smith, an opinion from a Georgia appellate court, similarly are distinguishable. Smith was arrested in 1988 for a DUI offense. Smith, 579 S.E.2d at 832. He posted bond the next day and signed an acknowledgment that he was required to appear in court for trial in October; if he did not appear, he would forfeit his bond and he would be subject to arrest under a bench warrant. Id. Smith did not appear for trial; his bond was forfeited, and a bench warrant was issued. Id. Fourteen years later, Smith was arrested under the outstanding bench warrant following a traffic stop. Id. Smith filed a motion for discharge and acquittal, arguing the State's failure to "catch and prosecute him" violated his right to a speedy trial; the trial court denied the motion. Id. The appellate court affirmed, stating the "reason for the delay in the trial was Smith's failure to appear as noticed" and he "cannot benefit from his own failures." Id. Contrasting the facts of Smith with the uncontroverted evidence here, Khan was unaware of an indictment and he and his attorney thought the charges had been dismissed or handled through the arresting agency prior to any required court appearance. There are no docket entries to show what happened, and there is an unexplained nine-year delay before the capias was issued or "activated." The court's finding in Smith does not change our conclusion that the reason-for-delay factor weighs against the State. See Thompson v. State, 983 S.W.2d 780, 784 (Tex. App.-El Paso 1998, pet. ref'd) (concluding where there were no docket entries and defendant's trial counsel believed case had been dismissed, only "reasonable inference" was that case "somehow became lost in shuffle"). Given the evidence before the trial court, we defer to the court's implied findings that Khan believed the matter had been handled without court intervention, did not know of the indictment or November trial date, and was not evading prosecution. See Cantu, 253 S.W.3d at 282. We therefore conclude that, on this record, the nine-year delay is due to official negligence. See Thompson, 983 S.W.2d at 784.Assertion of Right
It was Khan's burden to prove assertion of his right to a speedy trial. Cantu, 253 S.W.3d at 280. The State argues Khan could have asserted his speedy-trial rights earlier had he appeared in court or taken initiative to learn of the pending charges. The State also contends that Khan's demand for dismissal, rather than a speedy trial, weighs against him. See id. at 283 (generally, filing for dismissal rather than speedy trial weakens claim "because it shows the desire to have no trial instead of a speedy one"). Khan was arrested in early 2010 and waived extradition, voluntarily appearing before the trial court. Within months of this 2010 arrest, Khan filed his motion to dismiss, pressed for hearing on the motion, and was successful in receiving a hearing in less than two months. Khan cannot be faulted for not pressing for a speedy trial earlier, when he and his counsel believed the charges had been dismissed and he asserted his rights promptly after learning of the indictment through his 2010 arrest. See Thompson, 983 S.W.3d at 785 ("Appellant cannot, however, be faulted for failing to assert his right during the subsequent eight years when this case disappeared from the trial court's docket and Appellant's trial counsel mistakenly believed the case had been dismissed."); see also Orand v. State, 254 S.W.3d 560, 568 (Tex. App.-Fort Worth 2008, pet. ref'd) (concluding appellant should not "be taxed for invoking his speedy trial right only after his arrest" when he testified he had no knowledge of indictment and turned himself in as soon as he was informed twelve years after alleged crime). The State's argument that Khan's request for dismissal, rather than a speedy trial, weakens his claim, must be addressed in the context of the rights available and the reasons for dismissal. First, dismissal is the only remedy if a defendant's speedy-trial right has been violated. See Strunk v. United States, 412 U.S. 434, 440 (1973). Where a defendant requests dismissal before (or instead of) requesting a speedy trial, "he should provide cogent reasons for this failure." Cantu, 253 S.W.3d at 283. Here, Khan's reasons for not requesting a speedy trial earlier than 2010 are cogent: neither he nor his attorney knew of the indictment against him. Almost ten years had passed when he learned of the charges, and he appeared voluntarily and sought immediate resolution. Even if we were to conclude Khan's request for dismissal weighs against assertion of his speedy-trial rights, it would be slight.Prejudice
The last factor we examine is prejudice. In doing so, we consider three defense interests the speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern, and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532. Of these interests, impairment of the defense is the most serious. Id. Affirmative proof of particularized prejudice is not essential to every speedy trial claim. That is because "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify." Doggett, 505 U.S. at 655. The "greater the State's bad faith or official negligence and the longer [the State's] actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial." Cantu, 253 S.W.3d at 280-81. This presumption of prejudice, however, is extenuated "by the defendant's acquiescence in the delay." See Dragoo, 96 S.W.3d at 315 (internal quotations removed). The first interest of preventing oppressive pretrial incarceration is not at issue here because Khan was released on bond the day after his arrest in 2000. Similarly, it would be contradictory to conclude the second interest of minimizing anxiety and concern is implicated, because Khan did not know of the pending indictment against him. See Thompson, 983 S.W.3d at 785. We therefore address whether Khan has shown his defense was impaired as a result of the nine-year delay. The State argues Khan has not met his burden, emphasizing the availability of evidence of Khan's charged offense. Specifically, the State provided testimony that the drugs Khan was accused of possessing are still available for testing and police witnesses are still available to testify. The State also argues there is no evidence Cheema, the other occupant, would be unavailable to testify or that any witnesses' memories had faded. Khan responds first that he lost Anderson, his "very capable counsel," an attorney with "impeccable credentials" who wound down his law practice in 2006 to become the federal Public Defender for the Northern District of Texas. Anderson's files, investigative work, and recollection of information presented to the police department also are gone. Khan also argues that the State misconstrues the Barker standard because it "is not whether a defendant's trial would likely have resulted in acquittal but for the loss of evidence over time. It's whether there is a possibility that the accused's defense `would be impaired' or limited by dimming memories and the loss of exculpatory evidence." The United States Supreme Court's discussion in Doggett is instructive to the circumstances presented here. In Doggett, the government had delayed over eight years in prosecuting the defendant. During that time, Doggett had earned a college degree, married, and lived openly under his own name without running astray of the law. Doggett, 505 U.S. at 649. Addressing those circumstances, the Court described the presumption of prejudice the longer the prosecution delays: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. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness, and its consequent threat to the fairness of the accused's trial. Condoning 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. The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it.Id. at 657 (internal citations omitted). Similar to the circumstances involved in Doggett, Khan finished his medical degree, completed a fellowship, established a medical practice, purchased homes and paid taxes, and started a family. Khan did not acquiesce to the nine-year delay between his "trial" and arrest; he knew nothing of the indictment against him. Orand, 254 S.W.3d at 569; Thompson, 983 S.W.3d at 786. Beyond such presumptive prejudice, Khan's trial counsel, who had conducted an investigation and was "compulsive" about taking notes, lost not only his documents and memory of the case, but was unavailable as trial counsel due to his federal appointment. The State made no effort to rebut this evidence or Anderson's testimony that he believed from his discussions with the police department he had achieved the goal preventing submission of the case to the district attorney. "When the Government's negligence thus causes delay [nine] times as long as that generally sufficient to trigger judicial review, and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant's acquiescence, nor persuasively rebutted, the defendant is entitled to relief." Doggett, 505 U.S. at 657 (internal citations omitted); see also Orand, 254 S.W.3d at 570 (citing Doggett, 505 U.S. at 656). We conclude the prejudice factor weighs in favor of Khan.