No. 05-05-01449-CR
Opinion issued July 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-68402-V. Affirmed.
Before Chief Justice THOMAS and Justices LANG-MIERS and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Carson Huddleston pleaded guilty to aggravated assault causing serious bodily injury. See Tex. Pen. Code Ann. § 22.02(a) (Vernon Supp. 2005). Pursuant to the plea agreement, the trial court assessed punishment at two years' imprisonment. In his sole issue on appeal, appellant contends the trial court erred in denying his motion to dismiss for failure to afford him a speedy trial. We affirm the trial court's judgment.
Background
Appellant was indicted on June 26, 1998 for aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Appellant was not arrested for that robbery until July 31, 2005, when he was arrested in Mississippi. On August 25, 2005, appellant filed a motion to dismiss for violation of his right to a speedy trial. On September 26, 2005, the trial court held a hearing on appellant's motion to set aside the indictment for failure to afford him a speedy trial. Both sides announced ready. As movant on the motion, appellant had the burden of proof. To satisfy his burden, appellant requested the trial court to take judicial notice of the court's file, which the trial court did. Information in that file showed that on June 26, 1998, appellant was indicted for an aggravated robbery which was alleged to have occurred on April 22, 1998. Information also showed that appellant was not arrested on that charge until July 31, 2005, more than seven years later. Such period of time being "presumptively prejudicial," the burden shifted to the State to show a reasonable reason for such delay. At the hearing, the State called Jeff Savage, an investigator with the Dallas County District Attorney's Office (DA) assigned to the 292nd Judicial District Court. Savage testified that, upon request of the prosecutor, he looked into the reasons for the delay in arresting appellant. Savage first ran a criminal history on appellant through the National Crime Index Center (NCIC). That investigation revealed a post-indictment warrant had been issued for appellant on June 29, 1998. That warrant was entered into both NCIC and the Texas Crime Index Center (TCIC). On July 18, 1998, an unsuccessful attempt to serve the warrant was made by the Dallas County Sheriff's Office at appellant's last known address. On August 4, 2000, a second unsuccessful attempt was made to serve the warrant at the last known address "per DPD round-up." Appellant was arrested in Mississippi in 2002, but apparently the Mississippi authorities did not run an NCIC warrant check. Although the aggravated robbery warrant remained active at all times, Texas authorities were not notified of appellant's arrest until July 31, 2005, when a warrant check showed him to be a fugitive from justice from Texas. On cross-examination, defense counsel brought out that as early as June 29, 1998, the DA had appellant's social security number and date and place of birth. Savage did not know whether anyone ever contacted the victim, ran a credit check on appellant, or went to Mississippi, which was appellant's place of birth, in an attempt to locate him. Defense counsel also brought out there was no evidence appellant had used any alias, that past and current criminal history information was consistent, and there was no indication appellant knew there was an outstanding warrant for him. Savage had not spoken to anyone from the sheriff's office. Cross-examination further revealed that a note on the computer screen showed the DA declined to extradite appellant after his July 31, 2005 arrest. Savage had no knowledge who input that notation, nor did he know how appellant eventually got from Mississippi to Dallas. Savage speculated that he may have been stopped on a traffic violation and a warrant check at that time revealed the outstanding warrant. The defense rested without presenting any evidence. The State argued efforts were made to arrest appellant, and as soon as Texas learned appellant had been arrested in Mississippi, he was extradited to Texas. The State also emphasized that appellant had shown no prejudice. The defense, citing Doggett v. United States, 505 U.S. 647 (1992), argued that prejudice was inherent in the length of the delay itself, and no further showing of prejudice was required. Appellant also relied on Thompson v. State, 983 S.W.2d 780 (Tex.App.-El Paso 1999, pet. ref'd), in arguing that the length of the delay itself was inherently prejudicial. After the hearing, the trial court denied appellant's motion to dismiss, but set appellant's case for a jury trial on October 11, 2005. On that date, after a jury was selected, but not sworn, appellant withdrew his not guilty plea, waived a jury, signed a judicial confession, and pleaded guilty to the lesser-included offense of aggravated assault causing serious bodily injury. The judge sentenced appellant in accordance with the plea agreement and this appeal followed. Standard of Review
An appellate court is required to apply a bifurcated standard of review: an "abuse of discretion" standard to the trial court's factual findings and a de novo standard of review to the trial court's legal conclusions. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)) (appellate courts should afford almost total deference to a trial court's determination of the historical facts that are supported by the record); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997) (appellate courts conduct de novo review by independently weighing and balancing the four Barker factors)). Our review must be done in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). We must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. See Munoz, 991 S.W.2d at 821. We must defer to the trial judge's fact findings that are supported by the record. See id. We, therefore, review de novo and independently weigh and balance the Barker factors to determine the legal significance of the relevant facts to appellant's claim his speedy trial right was violated. Right to a Speedy Trial
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." U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972). This right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV; see Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The Texas Constitution likewise provides that "[i]n all criminal prosecutions the accused shall have a speedy . . . trial." Tex. Const. art. 1, § 10. The Texas Court of Criminal Appeals has traditionally analyzed state constitutional claims of the denial of a speedy trial under the factors established in Barker. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). The primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial. See Chapman v. Evans, 744 S.W.2d 133, 136-37 (Tex.Crim.App. 1988) (orig. proceeding) (citing Turner v. State, 504 S.W.2d 843, 845 (Tex.Crim.App. 1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex.Crim.App. 1973)). In determining whether one has been denied his federal or state right to a speedy trial, a court must use a balancing test to weigh the conduct of both the State and the defendant. See Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App. 2003) (citing Barker, 407 U.S. at 530). The relevant factors to be weighed include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and any prejudice to the defendant resulting from the delay. Id. at 888-89. We turn now to our de novo review and independent weighing and balancing of the relevant Barker factors. A. Length of the Delay
We measure the length of the delay from the time the defendant is arrested or formally accused. See United States v. Marion, 404 U.S. 307, 313 (1971). Unless the length of the delay is "presumptively prejudicial," courts need not inquire into the other factors. See Barker, 407 U.S. at 530. Here, the delay was more than seven years. The State concedes such delay is sufficient to trigger a speedy trial inquiry. See Munoz, 991 S.W.2d at 821. We agree. B. Reasons for Delay
In assessing the "reason for the delay" factor, different weights must be assigned to different reasons. See Barker, 407 U.S. at 531. Some reasons are valid and serve to justify the delay, while other reasons are not valid and do not serve to justify the delay. See id. Here, two attempts were made to serve the warrant on appellant at his last known address — the first on July 8, 1998 and the second on August 4, 2000. Both were unsuccessful. Appellant's criminal history shows no use of an alias. The State had appellant's social security number and his date and place of birth as early as 1998. The record is, however, silent as to what, if any, attempts were made to locate appellant using that data. The warrant information was entered into both NCIC and TCIC. Appellant was arrested in Mississippi on April 11, 2002. Although an active Texas warrant was in NCIC at that time, the Mississippi charge was apparently dismissed without the authorities checking NCIC. More than three years later, on July 31, 2005, appellant was arrested again in Mississippi when a warrant check showed he was a fugitive from Texas. A computer entry by an unknown person showed the DA declined to extradite at that time. The warrant, however, was reactivated on August 2, 2005, for TCIC only, and was executed on August 11, 2005. The trial court's docket sheet shows the case was first set on August 15, 2005. On that date, appellant was in jail. Appellant's arrest would have come three years sooner had the Mississippi authorities checked NCIC and discovered the outstanding Texas warrant in April 2002. In light of the efforts of Texas authorities to arrest appellant twice and its early posting of the warrant information on both TCIC and NCIC, we decline to hold the State of Texas accountable for Mississippi's failure. The trial court did not make explicit fact findings. However, by its ruling, it is a viable legal theory the trial court impliedly found the State used reasonable diligence in its attempts to locate appellant by its two efforts to arrest him at his last known address very shortly after indictment, and by posting the warrant on NCIC and TCIC. We, therefore, give considerable deference to the trial court's supported implied finding of reasonable diligence. We decline to disturb that finding. See State v. Ross, 32 S.W.3d 853, 858 (Tex.Crim.App. 2000) (upholding a viable legal theory in the absence of explicit findings of fact). Moreover, within a short period of time after the State learned of appellant's whereabouts, and within some forty-seven days after appellant filed his motion to set aside the indictment, appellant's trial began. We conclude, therefore, this factor weighs in favor of the State. C. Appellant's Assertion of His Speedy Trial Right
Whether and how a defendant asserts his speedy trial right is closely related to the other three factors because the strength of his efforts will be shaped by them. Zamorano, 84 S.W.3d at 651 (citing Barker, 407 U.S. at 531). Therefore, the defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of that right. Id. Failure to seek a speedy trial does not waive, but makes it difficult for a defendant to prevail on a speedy trial claim. See Barker, 407 U.S. at 531-32. The longer the delay, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one. See id. at 531. Thus, a defendant's inaction weighs more heavily against a speedy trial violation the longer the delay becomes. See id. at 532. Appellant was arrested in this case on July 31, 2005, and on August 25, 2005, he filed "Defendant's Motion to Set Aside the Indictment for Failure to Afford Defendant a Speedy Trial." In that motion, appellant sought dismissal, or alternatively, a speedy trial. Contemporaneously requesting a speedy trial and dismissal potentially weakens appellant's case. "[A] dismissal instead of a speedy trial weakens [a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial." Zamorano, 84 S.W.3d at 651 n. 40 (quoting Parkerson v. State, 942 S.W.2d 789, 791 (Tex.App.-Fort Worth 1997, no pet.)). Although appellant's motion explains that he had not invoked his speedy trial right sooner because he was unaware of any allegations pending against him, appellant offered no evidence in support of that allegation. There was no evidence to show appellant knew there was an outstanding Texas warrant for him nor any evidence to show he did not know about the outstanding Texas warrant. Cf. Doggett, 505 U.S. at 653 (Doggett's wife testified she did not know of the charges against her husband until his arrest; Doggett's mother testified she did not tell Doggett or anyone else the police had come looking for him). We conclude this factor weighs against appellant. D. Prejudice to Appellant Resulting from the Delay
The final factor of "prejudice" must be assessed in light of the interests the speedy trial right was intended to protect. See Barker, 407 U.S. at 532. Those interests are to: (1) prevent oppressive pretrial incarceration; (2) minimize the accused's anxiety and concern; and (3) limit the possibility the defense will be impaired. Id. The third interest of limiting the impairment of the defense has been said to be the most serious. See id. Although a showing of actual prejudice is not required in Texas, the accused has the burden to make some showing of prejudice that was caused by the delay of his trial. See Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex.Crim.App. 1971)). Once the accused makes some showing of prejudice, the burden shifts to the State to show that no prejudice resulted. Harlan v. State, 975 S.W.2d 387, 390 (Tex.App.-Tyler 1998, pet. ref'd). Appellant was not arrested for more than seven years and he was incarcerated for only twenty-five days before he moved to dismiss the case on speedy trial grounds. Thus, appellant was not "oppressively incarcerated" pretrial and the first interest is not implicated. And, inasmuch as appellant asserted in his motion and argued to the trial court he did not know there were pending charges against him, the second interest of "anxiety and concern" is not implicated. That leaves only the third interest of defense impairment. Affirmative evidence of particularized prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify. See Doggett, 505 U.S. at 655. However, the presumption of prejudice to a defendant's ability to defend himself can be "extenuated . . . by the defendant's acquiescence" in the delay. Id. at 658. Appellant alleges generally he was prejudiced by not having had the opportunity to investigate this case immediately and secure witnesses, that he lost potential witnesses and any such witnesses who remain have suffered memory loss. Appellant did not present any evidence to support those allegations. Where the basis for prejudice is witness unavailability, a defendant must demonstrate that the: (1) witness was unavailable at the time of trial; (2) witness's testimony may be relevant and material to the defense; and (3) defendant exercised due diligence in attempting to locate the witness at the time of trial. See Phipps v. State, 630 S.W. 2d 942, 947 (Tex.Crim.App. [Panel Op.] 1982). Appellant presented no evidence there were witnesses to the offense, what his efforts were to contact any such witnesses, nor what the witnesses' testimony would have been. We conclude appellant has not presented evidence sufficient to constitute "some showing of prejudice." But that does not end the inquiry. Appellant claims he is presumptively prejudiced by the excessively long delay-in other words, that prejudice is inherent in the delay itself. In support of his argument, appellant relies on Doggett, 505 U.S. at 654-57 (delay of eight and one-half years because of government's negligence presumptively prejudicial), and Thompson, 983 S.W.2d at 786 (twelve-year delay presumptively prejudicial when eight years of delay due to court's negligence). In each of those cases, however, the prosecuting authority was found to be negligent in its efforts to locate appellant. Moreover, it is stated that presumptive prejudice alone cannot carry a speedy trial claim. Rather, it is part of the mix of the relevant Barker factors and its importance increases with the length of delay. See Doggett, 505 U.S. at 657; Thompson, 983 S.W.2d at 786. We conclude Doggett and Thompson are distinguishable from this case because, here, the "mix" is different. In this case, the trial court impliedly found the State used reasonable diligence in its efforts to locate appellant. In Thompson, the court was negligent, and in Doggett, the government was negligent. Official negligence compounds over time. See Doggett, 505 U.S. at 657. Moreover, Doggett states the appellate court must review "with considerable deference" the trial court's factual finding of negligence. Here, there was no finding of negligence. In fact, there was an implied finding of a lack of negligence, which we must review "with considerable deference." Moreover, even if we were to presume prejudice, that alone would not carry appellant's speedy trial claim. It must be considered together with the other relevant Barker factors. See id. Having reviewed the evidence and the trial court's finding, we conclude this factor weights against appellant. Conclusion
Having balanced all of the Barker factors, and giving deference to the trial court's implied findings on the relevant facts, and more specifically, giving "considerable deference" to the trial court's implied factual finding of reasonable diligence, or lack of negligence, and considering appellant's contemporaneous motion to dismiss his case and his failure to show some prejudice resulting from the delay, we conclude the record does not show the trial court abused its discretion by denying appellant's motion to dismiss for failure to provide a speedy trial. We resolve appellant's issue against him. We affirm the trial court's judgment.