Opinion
No. 05-04-01343-CR
Opinion issued August 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-85090-02. Affirmed.
OPINION
Appellant Michael Lynn Smith appeals from the trial court's order denying his pretrial motion to dismiss for violation of his speedy trial rights under both the federal and state constitutions. After the trial court denied his motion, appellant pleaded guilty to the offense of misdemeanor assault on his ex-wife. The trial court deferred adjudicating appellant's guilt, placed him on community supervision for fifteen months, assessed a $600 fine, and made an affirmative finding of family violence. For reasons that follow, we affirm the trial court's judgment. Background Viewing the evidence at the motion to dismiss hearing in the light most favorable to the trial court's ruling, the following relevant facts were developed. Appellant is the ex-husband of the complainant. They owned a business together. On or about May 3, 2002, appellant and the complainant were working together at their business location. Their landlord, Leroy Terry, was in his office and storage facility across the hall about ten feet from their location when he heard screaming and a "thud" or "thump." Alone, Terry followed the noise, knocked on the door, and opened it to see what was going on. Terry saw the complainant on her back on the floor with appellant on top of her. Terry asked appellant to get up and told him he had better leave. Appellant commented, "we can take care of this now." Terry next heard "[a] loud voice behind [him] say `you will leave now.'" Terry looked around and saw another man, whom he did not recognize, behind him. Terry assumed the man was a tenant, although he did not know. The man was later determined to be George Nichols. Appellant left. When Terry thanked Nichols for his help, Nichols replied, "no problem," and left. The Plano Police Department (PPD) was called. Terry did not remember giving the police any information about Nichols and did not know whether Nichols was there when the police arrived. The police arrived at the scene and spoke to the complainant and to Terry. After obtaining certain information and written statements from both the complainant and Terry, the police filed a report and secured a warrant from a corporation court magistrate. However, the warrant did not contain appellant's address. On September 12, 2002, the Collin County District Attorney (CCDA) filed an Information charging appellant with misdemeanor assault and the county court issued a capias for his arrest. The Collin County Sheriff's Office (CCSO), tried, but failed, to arrest appellant at his last known address. The warrant was entered into the TCIC database. On February 8, 2004, after being stopped for a traffic violation in Hill County, appellant was arrested. However, appellant was released because the Hill County police were unable to confirm the warrant. Appellant testified to a different version of facts at the hearing. He admitted that an "altercation" occurred on May 3, 2002 between him and the complainant while they were working together at their office in Plano. Appellant answered a knock on his office door and saw two men standing in the doorway: Leroy Terry, his landlord, and a man appellant later learned to be George Nichols. Appellant had never seen Nichols before nor has appellant seen him since. Appellant left the scene before the police arrived and was not arrested at that time. He did talk to the complainant later that day. She did not, however, tell him she had filed a case with the police or that the police were looking for him. Appellant had no idea a case had been filed against him until he was stopped on February 8, 2004 in Hill County. Before releasing appellant, the Hill County police instructed him to check in with the PPD when he got home, which appellant did. The PPD referred him to the Department of Public Safety (DPS). There the warrant was discovered and appellant was arrested and held in custody until he posted bond. Appellant and the complainant were divorced shortly before May 3, 2002, the date of the assault. Appellant moved out of the home they had shared and lived with his sister for three to four months. He then got an apartment of his own and lived there some seven to eight months after leaving his sister's. Appellant did not change the address on his driver's license or his car registration during this period. It was only when he moved into a house on Francis Way in Richardson that he changed his address on his driver's license. After appellant moved to Richardson, he went to DPS and changed the address on his driver's license, But, he was neither arrested nor told there was an outstanding warrant for him. From February 2003 until February 2004, appellant lived at the address shown on his driver's license. Appellant had several conversations with the complainant between the time of the "altercation" and the time of his arrest. Based on what she told him, appellant believed charges would either not be filed or, if filed, would be dropped. Appellant believed charges were filed after he was pulled over in Hill County. Appellant never attempted to hide from the police nor did he know there was a warrant out for him until he was stopped in February 2004 in Hill County. Appellant never set his case for trial because he could not defend himself without Nichols's testimony. Appellant initially denied Nichols told him to leave. However, appellant later testified he just heard a voice and did not know whose voice it was. Nevertheless, appellant "believed" Nichols would testify that appellant answered the knock on the door and that Nichols did not see appellant commit an assault. The following exchange occurred during the hearing between appellant and his attorney: [Defense Counsel]:If Mr. Nichols was available as a witness what could he testify to if available as a witness? [Appellant]: Other than just me opening the door and I was there, that's all I can tell you.
[Counsel]: So if Mr. Nichols were available as a witness and testified truthfully, Mr. Nichols could corroborate your story that there was no physical contact that he witnessed?
[Appellant]: Yes, ma'am.
[Counsel]: And that he and Mr. Terry came in to your office at the same time?
[Appellant]: Right.Tonya Smith, a custodian of records for the CCSO, testified that the CCSO received a warrant on August 5, 2002 without appellant's address on it. The warrant was entered into TCIC on August 7, 2002 and assigned to Deputy Sheriff Summers. Summers attempted to serve the warrant at appellant's last known address, but it was returned unexecuted due to a bad address. On September 20, 2002, a capias was issued. When that capias was received by the CCSO, the municipal warrant was deleted and the September 20, 2002 warrant was entered into the system. Two validation checks on the warrant were run in November of both 2002 and 2003; however, those checks revealed no new information. On February 8, 2004, appellant was arrested in Hill County, but on February 10, 2004, when Collin County authorities contacted the Hill County authorities, they learned appellant had been released. The warrant for appellant's arrest was active from August 5, 2002 until February 8, 2004, when appellant was arrested. On February 10, 2004, appellant was re-arrested, confined, and posted bond in Collin County. Mike Middleton, a criminal investigator for the CCDA, testified to his efforts to locate Nichols. He got the initial information that Nichols was a witness from the PPD records listing Nichols's name and a Rowlett address, which Middleton confirmed was incorrect. The complainant did not appear on the first day of the hearing and, over appellant's objection, the trial court recessed the hearing until September 9, 2004 to obtain her appearance. However, complainant was never called to testify by either side. When the hearing resumed, Patricia McClure, the PPD responding officer, testified about what she saw and did when she arrived at the scene on May 3, 2002. Based on the information she obtained, she made a written report and the case was then turned over to Detective Pyryt with the PPD. Detective Pyryt contacted the complainant by telephone and told her a case would be filed with the CCDA and that she should contact them for anything further regarding the case. Appellant's case was set for a first appearance on May 7, 2004, and at appellant's request, was reset several times. On August 8, 2004, appellant filed a motion to dismiss on speedy trial grounds. On September 2, 2004, a hearing on appellant's motion to dismiss was begun. The hearing was recessed and resumed on September 9, 2004. At the conclusion of the hearing, the judge denied appellant's motion. On September 22, 2004, appellant pleaded guilty. Standard of Review and Applicable Law An appellate court is required to apply a bifurcated standard of review to the trial court's order denying appellant's pretrial motion to dismiss: 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 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. The trial judge did not make written findings of fact and conclusions of law. Therefore, findings supported by evidence will be implied in favor of the trial court's ruling, and we must defer to such findings. See id. We must independently weigh and balance the Barker factors to determine the legal significance of the relevant facts to appellant's claim. See id. 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; see 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). If an accused's speedy trial right is violated, the proper remedy is dismissal of the prosecution with prejudice. Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App. 2003) (citing Strunk v. United States, 412 U.S. 434, 440 (1973); Hull v. State, 699 S.W.2d 220, 224 (Tex.Crim.App. 1985)). 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 id. (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. Analysis We turn now to our de novo review and independent weighing and balancing of the Barker factors. A. Length of the Delay The length of the delay is measured from the time the defendant is arrested or formally accused. See United States v. Marion, 404 U.S. 307, 313 (1971). We measure the delay here from the date the Information was filed on September 12, 2002 until September 9, 2004, when the trial court denied appellant's motion to dismiss for speedy trial violations, a period of almost twenty-four months. The State concedes the length of delay presumptively requires a Barker analysis. See Barker, 407 U.S. at 530. The State, however, contends that appellant's speedy trial rights were not violated for three reasons: much of the delay is attributable to appellant's failure to follow the law requiring him to keep his address current on his driver's license, appellant did not timely assert his right to speedy trial, and appellant has not shown his defense was harmed by the delay. 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. A deliberate attempt to delay the trial weighs heavily against the State, whereas a more neutral reason such as negligence or overcrowded courts should be weighed less heavily against the State. Munoz, 991 S.W. 2d at 822 (quoting Barker, 407 U.S. at 531). And a valid reason for the delay should not be weighed against the State at all. Id. Here, the warrant was issued without appellant's address. The CCSO knew appellant's driver's license number. However, because appellant had not changed his address on his driver's license as the law requires, efforts made on October 30, 2002 to serve the warrant at appellant's last known address were unsuccessful. The case was set for a first appearance on May 7, 2004. There is nothing in the record to show the State is responsible for the delay of the case from May 7, 2004 until September 9, 2004, when the trial court denied appellant's motion to dismiss, a period of approximately four months. Excluding those four months leaves a period of approximately a twenty-month delay. Appellant admitted that he did not change his address on his driver's license until approximately a year after his divorce, which was shortly before the offense. That delay should be attributed to the appellant and not against the State. See Wade v. State, 83 S.W.3d 835, 839 (Tex.App.-Texarkana 2002, no pet.) (attributing delay to defendant for failing to comply with obligation to notify Texas authorities of change of address). More than half of the twenty-four-month delay is attributable to the appellant. We conclude this factor weighs against appellant. 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. See Zamorano, 84 S.W.3d at 651 (citing Barker, 407 U.S. at 531). Appellant did not file a motion affirmatively requesting a speedy trial. Instead, he filed a motion to dismiss in which the only relief sought was dismissal of the Information. This fact potentially weakens appellant's case, because "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." Id. n. 40 (citing Parkerson v. State, 942 S.W.2d 789, 791 (Tex.App.-Fort Worth 1997, no pet.)). Although a defendant's failure to seek a speedy trial does not amount to a waiver of his right, it makes it difficult for a defendant to prevail on a speedy trial claim. See Barker, 407 U.S. at 531-32. 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 interets are: (1) to prevent oppressive pretrial incarceration, (2) to minimize the accused's anxiety and concern, and (3) to 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)). Although appellant's motion to dismiss alleged he suffered anxiety and concern and financial hardship, the record presents no evidence to support those allegations. Nor is there evidence that appellant was subject to oppressive pretrial incarceration. Therefore, the first two interests are not matters of concern in our analysis. Consequently, appellant's claimed prejudice necessarily turns on the possibility that his defense was impaired by the delay. Nichols was never located despite attempts by both the defense and the State to locate him. Appellant claims his defense was impaired because Nichols was the only witness who could contradict Terry; therefore, without Nichols, appellant could not defend himself. Appellant "believed" Nichols would testify he and Terry came in together when appellant opened the door, and that he saw no physical contact between appellant and the complainant, contrary to Terry's testimony. Appellant, however, states no facts in support of his belief. The evidence simply shows that Terry was alone when he walked over and knocked on appellant's door; that after Terry told appellant to leave, Nichols was present and said to appellant in a loud voice, "[y]ou will leave now;" and Nichols responded, "no problem," to Terry's thanks for helping him. The only evidence in the record does not provide a reasonable basis for appellant's belief that Nichols's testimony would have contradicted Terry and corroborated him. The trial court was within its discretion in disregarding it. Because appellant made no showing of prejudice, the burden never shifted to the State to negate prejudice. See Harlan v. State, 975 S.W.2d 387, 390 (Tex.App.-Tyler 1998, pet. ref'd). We conclude this factor weighs against appellant. Conclusion Giving deference to the implied findings supported by the evidence and balancing the Barker factors, we conclude the record supports the trial court's ruling. We, therefore, resolve appellant's issue against him. We affirm the trial court's judgment.
Terry testified at the pretrial hearing that if Nichols were indeed a tenant it was possible he might have some information about him on a rental agreement form. However, no one ever asked Terry to search his records and bring any information he had to court.
The testimony is unclear whether the police spoke with Nichols, although apparently the police report reflected his name and an address in Rowlett, Texas.
That address was 1937 Thornberry Road, Melissa, Texas, where appellant had lived with the complainant during their marriage.
He lived at the house in Richardson a little over a year until he remarried and moved to Lakemont Drive in Dallas.
The record, however, disputes this inasmuch as it shows the Information was filed on September 12, 2002, and appellant was not stopped in Hill County until February 8, 2004.
The validation was actually done by Brent Yancy. The mandatory validation process required for TCIC participants involves running a new TCIC check to be sure the warrant is still active.
The first date reflected on the docket sheet is March 29, 2004, with an entry "FA 5-7-04." On 5-7-04, appellant appeared with an attorney, and the case was passed to 5-21-04 for announcement. On 5-24-04, the case was passed to 6-23-04, for announcement. On 6-23-04, the case was passed to 7-22-04, with a notation it was a final pass and the next setting must be dispositive. On 7-22-04, docket sheet entries reflect appellant's attorney was not present, a notation that any additional passes must come from the bench, and the case was "finally" passed for a dispositive setting on 8-5-04. On 8-5-04, the case was passed to 9-2-04, with a notation that "Atty Reynolds to file M/Dism b/c Speedy Trial."
Barker v. Wingo, 407 U.S. 514 (1972).
See Tex. Transp. Code Ann. § 521.054 (Vernon 1999).