Opinion
No. 06-17-00177-CR
06-14-2018
MARLO DETRIC HOLLIE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court Hunt County, Texas
Trial Court No. 30,960 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
A jury convicted Marlo Detric Hollie of four counts of sexual assault of a child. Hollie pled true to the State's habitual-offender allegations and was sentenced to fifty years' imprisonment on each count, with the sentences running consecutively. On appeal, Hollie argues that the trial court erred (1) in denying his motion to dismiss the cases based on an alleged violation of this right to a speedy trial and (2) in excluding global positioning system (GPS) evidence obtained from an ankle monitor Hollie was wearing at the time of the alleged offenses.
We find that the trial court did not err in declining to dismiss the indictment or in excluding Hollie's GPS evidence. Accordingly, we affirm the trial court's judgment.
I. The Trial Court Did Not Err in Declining to Dismiss the Indictment
A. Standard of Review
"The Sixth Amendment to the United States Constitution provides, in relevant part, that, '[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial."' Nguyen v. State, 506 S.W.3d 69, 77 (Tex. App.—Texarkana 2016, pet. ref'd) (quoting U.S. CONST. amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972)). "That right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment." Id. (citing U.S. CONST. amend. XIV; Klopfer v. N. Carolina, 386 U.S. 213, 223-26 (1967)). "The Texas Constitution likewise provides that, . . . 'the accused shall have a speedy . . . trial.'" Id. (quoting TEX. CONST. art. 1, § 10).
The right to a speedy trial cannot be quantified in days or months. Barker v. Wingo, 407 U.S. 515, 523 (1972). Thus, Texas courts "analyze federal constitutional speedy-trial claims 'on an ad hoc basis' by weighing and then balancing the Barker v. Wingo factors." Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). In executing the balancing test, "[t]he court should inquire about (1) the length of the delay, (2) reasons for the delay, (3) the circumstances of the defendant's assertion of the right, and (4) any prejudice that resulted from the delay." Nguyen, 506 S.W.3d at 77 (citing Barker, 407 U.S. at 530). No one factor is determinitive, and all factors must be considered together along with relevant circumstances on a case-by-case basis. Cantu, 253 S.W.3d at 281.
"When reviewing a trial court's decision on a speedy trial claim, an appellate court applies a bifurcated standard of review." Nguyen, 506 S.W.3d at 77 (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.—Dallas 2005, pet. ref'd)). "[W]e review legal issues de novo[,] but give deference to a trial court's resolution of factual issues." Id. (quoting Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz, 991 S.W.2d at 821; Jones, 168 S.W.3d at 345). "We review a speedy trial claim in light of the arguments, information, and evidence that was available to the trial court at the time it ruled." Id. (citing Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345). Under an abuse of discretion standard, we defer to the trial judge's resolution of facts and reasonable inferences drawn therefrom, and we review the evidence in a light most favorable to the ruling. Cantu, 253 S.W.3d at 282.
B. Analysis
1. The Length of Delay
The Barker test is triggered by a delay that is unreasonable enough to be considered presumptively prejudicial. Id. at 281. In this case, Hollie was arrested in November 2015, the indictment was filed on February 26, 2016, but no trial was conducted until September 11, 2017. That delay is presumptively prejudicial. See id. (citing Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. [Panel Op.] 1983); Doggett v. United States, 505 U.S. 647, 651, 652 n.1 (1992) (noting courts generally find delays approaching one year presumptively prejudicial)). Accordingly, this factor weighs in Hollie's favor. See Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).
2. Reason for the Delay
While the "burden of excusing the delay rests with the State," Phillips v. State, 650 S.W.2d 399, 400 (Tex. Crim. App. [Panel Op.] 1983), "different weights should be assigned to different reasons," Barker, 407 U.S. at 531, when analyzing this prong of the Barker test. Deliberate attempts to delay trial in order to hamper a defense are weighed heavily against the State. Id. More neutral reasons, such as negligence or overcrowded courts are weighed less heavily. Id. A valid reason for delay "should serve to justify appropriate delay." Id. Delay which is attributable in whole or in part to the defendant is heavily weighed against the defendant and "may even constitute a waiver of a speedy trial claim." State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (citing Barker, 407 U.S. at 528-30; Dickey v. Florida, 398 U.S. 30, 48 (1970) (Brennen, J., concurring, joined by Marshall, J.)).
The complexity of the charged offense should also be considered: "[T]he 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.
In order to examine the reasons for the delay, we briefly review the timeline of events taking place in this case. A sample of Hollie's DNA was taken by the Hunt County Sheriff's Office (HCSO) on February 18, 2016, for the purpose of comparing it to DNA samples recovered after the victim was examined by a sexual assault nurse examiner. After the February 26, 2016, indictment was filed, Hollie was arraigned on March 4, 2016, and agreed to set the next hearing for April 8, 2016. No hearing was held on April 8. Instead, Hollie asked for a May 11 setting. On May 11, the parties agreed to a June 10 setting, which was again reset by agreement to July 13 in order to confirm discovery. On the agreement of the parties, the case was reset on July 13 for a jury trial to be conducted on December 5, 2016.
At a November 22, 2016, hearing, Hollie informed the trial court that he would not be ready to try the case because, through no fault of the State, Hollie's DNA sample was not sent for testing as the State had requested. The State also agreed that it would not be ready to try the case and ensured that the DNA sample would be sent before December 5. On that date, that State informed the trial court that, even though it had repeatedly requested that Hollie's sample be sent for testing, the HCSO claimed "they got busy" and had not completed the task. Hollie and the State both represented that they were "in agreement to set this off for a trial date maybe on the March docket" in 2017. Hollie signed a request for a March 20, 2017, trial setting.
Although Hollie agreed to the March 20 setting, he filed a motion asking the trial court to dismiss for lack of a speedy trial on March 13 because the results from the DNA testing were still unavailable. Hollie asked the trial court for a March 23 hearing on his motion.
On March 23, 2017, the trial court heard Hollie's motion to dismiss for lack of a speedy trial. At the hearing, the trial court took evidence of the HCSO's failure to timely submit Hollie's DNA sample for forensic testing. Although Hollie's DNA sample was taken in February 2016, it was not submitted to the laboratory until December 5, 2016. As of the date of the hearing, no laboratory report had been returned. The hearing ended with the trial court taking the matter under advisement. Prior to the trial court's ruling, Hollie requested an April 7, 2017, review hearing. The trial court denied the motion to dismiss on April 10, 2017.
The appellate record demonstrated that, at the time the trial court ruled on Hollie's motion, the reason for the delay was not the result of any deliberate attempt by the State to delay the trial or hamper Hollie's defense. Rather, the delay was due to the negligence of the HSCO, which constitutes a neutral reason that serves to justify the delay. See Barker, 407 U.S. at 531.
Yet, the trial court could have concluded that the HSCO's negligence was not the only reason for the delay in light of the fact that Hollie either himself requested or agreed to several resets prior to the March 23, 2017, hearing. See Porter v. State, 540 S.W.3d 178, 182 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (citing Celestine v. State, 356 S.W.3d 502, 507-08 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("[A]greed resets are 'inconsistent with assertion of a speedy trial right, and the delay covered by such resets should not be included in speedy trial computations.'")). In light of this fact, it would not be an abuse of discretion for the trial court to find that the reason for the delay was attributable in whole or in part to Hollie, which weighs heavily against him.
Moreover, while we look at a speedy-trial claim in light of what was before "the trial court at the time it ruled," we note that Hollie participated in further delaying trial after the DNA results were returned on May 15, 2017. See Nguyen, 506 S.W.3d at 77. On June 5, 2017, Hollie sought an August 7 trial setting. On July 18, Hollie filed a request to continue the case and then asked for a September 11, 2017, setting.
3. Assertion of Right
Next, Hollie had the responsibility to timely assert his right to a speedy trial. See Cantu, 253 S.W.3d at 282 (citing Barker, 407 U.S. at 527-28). Although Hollie was indicted in February 2016 and the initial trial date of December 5, 2016, had passed without return of the DNA test results, Hollie did not assert his right to a speedy trial until March 13, 2017, when he filed (1) a motion asking the trial court to set aside the indictment for lack of a speedy trial, and (2) a separate motion for a speedy trial.
"Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the failure to make such requests supports an inference that the defendant does not really want a trial, he wants only a dismissal." Id. at 283 (citing Barker, 407 U.S. at 534-36). No requests for a speedy trial were filed until or after March 13.
Under Texas law, a request that the court dismiss the charges for a speedy-trial violation, rather than a request for a prompt trial setting, attenuates the strength of a speedy-trial claim because it indicates more of a desire to avoid trial rather than a desire to obtain a speedy trial. Phillips, 650 S.W.2d at 401; Barringer v. State, 399 S.W.3d 593, 601 (Tex. App.—Eastland 2013, no pet.); Orosco v. State, 827 S.W.2d 575, 577 (Tex. App.—Fort Worth 1992, pet. ref'd). "The constitutional right is that of a speedy trial, not dismissal of the charges." Cantu, 253 S.W.3d at 281.
Here, Hollie's point of error on appeal complains of the trial court's failure to dismiss the indictment. Although it is true that Hollie's motion contains a request for a prompt trial setting in the prayer clause of that motion, he did not press the trial court to grant that relief. For example, in his brief in support of his motion to set aside the indictment, he only argued that the case should be dismissed, not that it should receive an expedited trial setting. Moreover, at no point during the hearing on the motion to set aside the indictment did Hollie urge the court to grant his request for a prompt trial setting that was contained in the prayer clause of that motion. Rather, as in his brief, Hollie only argued for dismissal rather than for an expedited trial. In fact, other than the prayer clause of his motion, the only time Hollie requested a prompt setting was after his motion to set aside the indictment was denied. Thus, Hollie's actions indicate more of a desire to avoid trial than a desire to obtain a speedy trial
We find that this Barker factor weighs against Hollie.
4. Prejudice
"[T]he burden is on the accused to make some showing of prejudice which was caused by the delay of his trial." Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973). Prejudice occasioned by the delay in proceeding to trial is assessed in the light of the three interests which the right to a speedy trial was designed to protect: (1) freedom from oppressive pretrial incarceration; (2) mitigation of the anxiety and concern on the part of the accused that accompanies a public accusation; and (3) avoidance of impairment to the defense of the charges. Barker, 407 U.S. at 532.
Here, Hollie argued that he was prejudiced by the death of a material witness, Margie Lavern Clark, the alleged victim's great-grandmother who was at the location of the alleged incidents. The possibility of impairment of a defense is the most serious interest that is protected by the right to a speedy trial. Id. at 531. If witnesses become unavailable during a delay or are unable to recall events, prejudice is obvious. Id. at 532.
However, Clark was never interviewed by either Hollie or the State. At the hearing, Hollie admitted, "[I]t's a forgone conclusion as to what she would be able to say." Aside from Hollie's belief, there was no evidence that Clark was a material witness. A defendant must offer more than mere speculation to show prejudice. See Munoz, 991 S.W.2d at 829. Because there was no evidence that Clark was, in fact, a material witness that could be favorable to Hollie, we conclude that impairment of the defense, the most important consideration under this factor, is not shown. See Barker, 407 U.S. at 532.
As to the remaining two factors, Hollie was incarcerated during the pendency of the case. Yet, we cannot say that his pretrial incarceration prejudiced him to such a degree to warrant dismissal of the case because he "acquiesced to" some of the delay and "received full credit for his time spent in jail." Porter, 540 S.W.3d at 184 (citing Starks v. State, 266 S.W.3d 605, 612-13 (Tex. App.—El Paso 2008, no pet.) ("Appellant 'received full credit for the time he had spent in jail, so his twenty-five-month pretrial incarceration was not, in this case, oppressive.'")). Further, there was no evidence that Hollie suffered "greater anxiety or concern beyond the level normally associated with a criminal charge or investigation." See id. (quoting Cantu, 253 S.W.3d at 286); see Shaw, 117 S.W.3d at 890.
We conclude that the prejudice factor does not weigh in favor of dismissal of the case.
5. Balancing
"Having addressed the four Barker factors, we must now balance them." Dragoo, 96 S.W.3d at 316. Finding only the first Barker factor—the length of delay—in Hollie's favor, we conclude the trial court did not err in declining to dismiss the indictment. Accordingly, we overrule Hollie's first point of error.
II. The Trial Court Did Not Err In Excluding GPS Evidence
In his second point of error, Hollie argues that the trial court erred in excluding, as unreliable, GPS evidence obtained from an ankle monitor.
A. Standard of Review
In addressing this point of error, we will examine the trial court's decision to exclude the evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs only if the decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
B. Factual Background
The evidence at trial established that Hollie lived across the street from his alleged victim. After the State rested, Hollie sought to introduce the GPS records of Sentinel Offenders Services (Sentinel) obtained from an ankle monitor he was wearing at the time of the offenses to show "he wasn't . . . beside some bed assaulting a girl." Hollie later clarified that he sought to admit the GPS records obtained from the tracking device to show that he was not in a stationary position.
At a hearing outside of the jury's presence, Hollie called Herman Versey, the branch manager of Sentinel. Among other things, Versey testified that he did not consider himself an expert on GPS technology, that he did not know the margin of error on Sentinel's GPS tracking devices, and that Sentinel's GPS is "not that accurate" when trying to pinpoint a location or discern which room someone is in because it is not "military grade." Versey also said he had "no clue" whether the Sentinel GPS tracking device was accurate within a sixteen-foot radius and that the Sentinel system occasionally created inaccurate "drift points," showing that a person was in one location when they were actually somewhere else. He explained that, as satellites rotate, the system could ping someone "a couple streets over" or in a different building. Versey also testified that the Sentinel GPS tracking device could ping someone in several spots, even if they actually remained stationary.
Hollie then called Bobby Stovall, owner of Stovall & Associates Land Surveying. Stovall testified that he used GPS technology in his line of business and considered it reliable. However, Stovall testified that he did not know how accurate the Sentinel GPS tracking devices were and added that the Sentinel system showed that "every point was . . . basically hitting on two separate pieces of propert[y]." Stovall also admitted that he would be unable to testify where the defendant was at a particular time based on the information he had reviewed.
At the conclusion of the hearing, the trial court stated that, while it found GPS technology reliable in general, it did not find the Sentinel GPS tracking device reliable based on Versey's and Stovall's testimony. After the jury retired to deliberate, Hollie moved to admit the GPS records obtained from Sentinel's tracking device for record purposes. Outside of the jury's presence, Stovall testified that there was a period of time in the Sentinel records, from "3:16 to about 3:43" showing that Hollie was, in fact, stationary. Stovall again stated that he would be unable to testify about Hollie's actual whereabouts based on the Sentinel GPS tracking reports.
The State argues that Hollie did not preserve this point of error because he never offered the Sentinel GPS records into evidence. However, because the trial court heard testimony regarding those records and excluded the GPS evidence as unreliable during a gatekeeping hearing, we find the issue preserved for our review.
C. Exclusion of GPS Evidence Was Not an Abuse of Discretion
"A proponent of evidence based on scientific theories must demonstrate the reliability of the science which generated the evidence." Cox v. State, 446 S.W.3d 605, 608 (Tex. App.—Texarkana 2014, pet. ref'd). "The threshold determination in an inquiry into the admissibility of scientific evidence is whether the evidence is helpful to the trier of fact, and for such evidence to be helpful, it must be reliable." Id. (quoting Somers v. State, 368 S.W.3d 528, 535-36 (Tex. Crim. App. 2012) (citations omitted)). "A trial court must act as a gatekeeper to ensure that unreliable evidence does not reach the trier of fact." Id. (quoting Somers, 368 S.W.3d at 535-36 (citations omitted)).
The proponent's burden to demonstrate "through clear and convincing evidence that the proposed evidence is reliable . . . is met by showing that: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied on the occasion in question." Somers v. State, 368 S.W.3d 528, 536 (Tex. Crim. App. 2012) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)).
A nonexclusive list of factors that a trial court could consider in determining reliability includes:
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such community can be ascertained; (2) the existence of literature supporting or rejecting the underlying scientific theory and technique; (3) the clarity with which the underlying scientific theory and technique can be explained to the court; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the qualifications of the expert(s) testifying; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.Somers, 368 S.W.3d at 536 (citing Kelly, 824 S.W.2d at 573).
Here, although the trial court found the underlying scientific theory of GPS valid, it determined that Hollie failed to show that the technique was properly applied to the Sentinel GPS tracking device. Versey testified that he was not an expert in GPS technology, did not know the margin of error on Sentinel's GPS tracking devices, and was unable to testify whether they were accurate within a sixteen-foot radius. Versey also added that the Sentinel system was not accurate when trying to pinpoint a location and that, in some instances, the Sentinel GPS tracking device could place someone in a different building or report movement when someone was actually stationary. Stovall testified that he did not know how accurate the Sentinel GPS tracking device was.
Here, the alleged offense occurred across the street from where Hollie was living. Based on Versey and Stovall's testimony, we cannot conclude that the trial court abused its discretion in excluding evidence obtained from the Sentinel GPS tracking device. See Cox, 446 S.W.3d 605. Accordingly, we overrule Hollie's last point of error.
III. Conclusion
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: May 9, 2018
Date Decided: June 14, 2018 Do Not Publish