Nos. 05-04-01718-CR, 05-05-00162-CR
Opinion issued July 11, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause Nos. 4-83540-03, 4-83541-03. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
AMOS L. MAZZANT, Justice.
Lanita Gail Stewart appeals her convictions for driving while intoxicated and possession of a controlled substance. The court assessed punishment at sixty days' confinement and a fine of $200 for each offense. In appellant's sole issue in both cases, she contends that the trial court erred in denying her motion to dismiss for failure to afford her a speedy trial. We affirm the trial court's judgments.
Factual and Procedural Background
On June 18, 2003, while appellant was driving to her place of employment where she worked as caregiver to Lillian and Richard Layton, she was arrested for driving while intoxicated and possession of a controlled substance-medication belonging to Lillian Layton. Appellant was released on bond the following day. At the time of her arrest, appellant gave a blood sample to police, and the district attorney's office received the laboratory results in October 2003. The State formally charged appellant by information on both cases in February 2004. Appellant's first appearance in court was on March 16, 2004 at which time she filed a motion to dismiss for lack of speedy trial. On June 15, 2004, the court heard and denied the motion. Appellant subsequently waived a jury trial and pleaded guilty to both charges. This appeal ensued. Standard of Review
"In reviewing the trial court's ruling on appellant's federal constitutional speedy trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components." Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). The primary issue before us involves a balancing test-a legal question that is reviewed de novo. See Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997). Discussion
In her sole issue, appellant contends the trial court erred in denying her motion to dismiss both cases for denial of her Sixth Amendment right to a speedy trial. The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." U.S. Const. Amend VI. This right is fundamental and is imposed on the states through the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-223 (1967). In determining whether an accused has been denied the right to a speedy trial, a court must weigh the conduct of both the prosecution and defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). The factors to be balanced include the length of the delay, the reason for the delay, the defendant's assertion of the speedy trial right, and the prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530-532. No single factor is necessary or sufficient to establish a violation of the right to speedy trial. Id. at 533. Thus, we must "engage in a difficult and sensitive balancing process." Id.The Length of the Delay
The length of delay, measured from the time the defendant is arrested or formally accused to the time the defendant asserts a speedy trial claim, acts as a "triggering mechanism" for analysis of the Barker factors. Id. at 530; see Dillingham v. United States, 423 U.S. 64, 64-65 (1975) (twenty-two month interval between defendant's arrest and indictment counted for purposes of speedy trial claim.); see also Dragoo, 96 S.W.3d at 313. A speedy trial claim will not be heard until an unreasonable period of time, under the circumstances, has passed. Dragoo, 96 S.W.3d at 313-314. Texas courts have generally found a delay beyond eight months to be presumptively prejudicial, thus triggering further analysis of speedy trial claims. See Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992); State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). If the delay is not presumptively prejudicial, no further inquiry of the remaining three factors is necessary. Zamorano, 84 S.W.3d at 648. The facts underlying the first factor are undisputed. Appellant was arrested on June 18, 2003 and asserted her speedy trial violation claim on March 16, 2004. The delay reached approximately nine months and is presumptively prejudicial. We conclude that this factor weighs in favor of appellant-however, only slightly due to the small amount of time over the eight-month threshold- and thus triggers further analysis of the remaining factors. The Reason for the Delay
Once a delay has been found to be presumptively prejudicial, the State bears the burden of justifying the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State]," while a reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless against the State. Barker, 407 U.S. at 531. Here, the State argues that the initial four-month delay following appellant's arrest was due to a delay in receiving lab results. The additional delay was due to a crowded intake section of the district attorney's office and scheduling conflicts by both parties following the filing of the motion to dismiss. In the record, appellant concedes that the State's delay was not deliberate. Additionally, the State argues that there is no evidence that the delay in obtaining the lab results was the result of inefficient procedures, carelessness, or untimely requests by the State. Accordingly, we find this second factor to weigh in favor of the State, although only slightly when considering the additional five-month delay that the State attributes to a crowded intake section. Defendant's Assertion of His Speedy Trial Right
The third factor considers if and when the defendant raised the claim of the right to a speedy trial. Failure to assert the right makes it difficult for an accused to prove a denial of speedy trial. Schenekl v. State, 996 S.W.2d 305, 313 (Tex.App.-Fort Worth 1998, pet. ref'd). A defendant's lack of a timely demand for a speedy trial indicates strongly that he did not want one. Harris, 827 S.W.2d at 957. "Of course, the defendant has no duty to bring himself to trial; that is the State's duty." Zamorano, 84 S.W.3d at 651. Nevertheless, a defendant carries the responsibility of asserting the right to a speedy trial. Id. Alternatively, a defendant may notify the State of a speedy trial claim by filing a motion to dismiss. Ervin v. State, 125 S.W.3d 542, 547 (Tex.App.-Houston [1st Dist.] 2002, no pet.). "[B]ut, a defendant's motivation in asking for a dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim." Id.; see McCarty v. State, 498 S.W.2d 212, 215-216 (Tex.Crim.App. 1973) (stating defendant's speedy trial claim is weakened where prime object is not to gain speedy trial but rather to have charges dismissed); Marquez v. State, No. 04-04-00349-CR, 2005 WL 763258, at *5 (Tex.App.-San Antonio 2005, no pet. h.) (concluding that when appellant filed a motion to dismiss two months after indictment, rather than request for speedy trial, it weighed slightly against him). However, in some cases a court may feel that the length of delay has been so prejudicial that a dismissal is warranted. See Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983). Here, appellant asserted her speedy trial claim through a motion to dismiss on March 16, 2004, approximately one month after charges on both cases were filed. Appellant argues that a dismissal was warranted because her employers became unavailable to testify (due to death and incompetence) and this would prevent her from receiving a fair trial. However, appellant fails to recognize that the unavailability of Lillian and Richard Layton as witnesses is not fatal to her case. The Laytons' daughter and son-in-law, Kay and Dana Sisk, were available to testify on appellant's behalf and in fact did so at the speedy trial hearing. The record shows that the Sisks were aware of appellant's business and personal relationship with the Laytons. Therefore, appellant's claim that the unavailability of the Laytons would present her with an unfair trial is unpersuasive and is discussed further under the next factor. Accordingly, appellant's motion to dismiss rather than a demand for a speedy trial-one month after charges were filed-attenuates her claim and weighs in favor of the State. Prejudice to the Defendant Resulting from the Delay
In assessing the final Barker factor, we must do so in light of the interests of the defendant-the interests the speedy trial right was designed to protect. See Barker, 407 U.S. at 532. Those interests are: "(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired." Id. As to the first subfactor, appellant does not argue that she was oppressively incarcerated. Moreover, the record shows that appellant was released on bond the day after her arrest, and she remained free on bond throughout the time prior to her first court date. Thus, this sub-factor weighs in favor of the State. Turning to the second sub-factor, appellant contends she suffered substantial anxiety because she was on parole for a prior offense and her arrest in this case caused her to fear that her parole would be revoked. The record shows that appellant was released from parole in August 2003. Any concern of appellant's parole being revoked would have lasted until her release-approximately two months after her arrest in this case. While two months of anxiety is legitimate, we conclude it is insufficient to support appellant's argument that it caused her substantial anxiety for any more than two months of the nine-month delay. Appellant also contends that her life was disrupted because she could not take a job in Oklahoma due to her court date. The Supreme Court inferred in Klopfer that being deprived of liberties, including employment, for an indefinite period of time could be overly oppressive and prejudicial. See Klopfer, 386 U.S. at 222. However, Klopfer is distinguishable from this case. In Klopfer, eighteen months had passed since the defendant's indictment, and the Court agreed with the defendant's argument that the indefinite delay greatly interfered with his existing professional activities and his abilities to travel locally and abroad. Klopfer, 386 U.S. at 218. The Court found that eighteen months of indefiniteness was overly prejudicial and weighed the sub-factor in appellant's favor. Id. Here, however, appellant experienced only one month of interference with her liberty to seek employment. Appellant testified that because of her court date, she did not take a job offer. The record shows that the order to appear in court was issued on February 19, 2004 and her court date was scheduled for March 16, 2004-when she filed her motion to dismiss. According to her testimony, appellant did not accept the job only after learning of her court date. Thus, the time between appellant's knowledge of her court date and her appearance was one month and not indefinite. We therefore decline to conclude that the delay greatly interfered with appellant's opportunity to find employment for an indefinite period of time. We weigh this second sub-factor in favor of the State. Under the third sub-factor, appellant contends that her defenses and possible punishment mitigation were impaired due to the death and incompetence of Lillian and Richard Layton, respectively. A claim of prejudice based on the unavailability of witnesses requires an appellant to show: (1) the witness was unavailable at the time of trial; (2) the testimony that would have been offered was relevant and material to the defense; and (3) due diligence was exercised in an attempt to locate the witnesses for trial. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App. 1982). Because prejudice is obvious when witnesses die or become incompetent during a delay, a defendant needs to show that the witness was believed to be material to the case. Ervin, 125 S.W.3d at 548. In determining if the witness is believed to be material to the case, a court can consider whether there is any evidence that the defendant attempted to obtain the witness's statement during the delay. Id. The record shows that Lillian Layton died of cancer in October 2003 and Richard Layton became incompetent due to Alzheimer's in December 2003. Appellant contends that the Laytons would have testified on behalf of appellant's "Ultimate User" and "Necessity" defenses in the possession case and they would have been character witnesses in the DWI case. However, appellant fails to demonstrate that the Laytons were believed to be material witnesses. The record shows that appellant knew the Laytons were seriously ill, yet she made no effort to preserve testimony via affidavit or deposition. Appellant argues that because no formal charges had been filed before the Laytons became unavailable, there was no reason to obtain testimony during that time. However, considering appellant's knowledge of the Layton's deteriorating health and the severity of possible charges, the lack of due diligence in preserving their testimony prevents this Court from concluding that appellant believed the Laytons to be material witnesses. Furthermore, as discussed above, the Sisks were aware of Appellant's business and personal relationship with the Laytons, and they were available to testify. In fact, Dana Sisk was also Richard Layton's physician and was aware that appellant had permission to pick up Lillian Layton's medications. Therefore, the unavailability of the Laytons was not overly prejudicial because the Sisks could have testified at a trial on behalf of appellant. Considering all these matters, we cannot conclude that the appellant's defense was impaired. Accordingly, the final Barker factor weighs in favor of the State. Conclusion
In balancing the Barker factors, we conclude that the first factor weigh slightly against the State, the second factor weighs slightly in favor of the State, and the last two factors weigh more heavily against appellant. We accordingly resolve appellant's sole issue in both cases against her. We affirm the trial court's judgments.