Nos. 05-05-00154-CR, 05-05-00155-CR
Opinion Filed October 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-00905-Mn F04-00906-MN. Reverse and Remand.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
Opinion By Justice WRIGHT.
The State of Texas ("the State") appeals the trial court's order dismissing the indictments in these cases based on speedy trial and due process grounds. We reverse the trial court's order and remand these cases to the trial court with instructions to reinstate the indictments.
Background
David Wayne Jones was originally indicted for aggravated sexual assault of a child, J.S., on November 28, 2001. The indictment alleged the offense occurred on or before September 1, 1990. Appellee filed a motion to dismiss based on speedy trial grounds, which the trial court granted. The State appealed and this Court reversed the trial court's order dismissing the indictment. State v. Jones, 168 S.W.3d 339, 351 (Tex.App.-Dallas 2005, pet. filed). We weighed the appropriate factors to be considered in reviewing a speedy trial claim pursuant to Barker v. Wingo, 407 U.S. 514 (1972), and determined that the record did not support the trial court's order. Id. On June 16, 2004, after the original indictment was dismissed, but before this Court's opinion reinstating the original indictment was issued, the State filed the indictments in the present cases. One of the indictments alleged that appellee committed aggravated sexual assault against J.S., but the crime was a separate offense from the offense alleged in the first indictment. The other indictment alleged that appellee committed aggravated sexual assault against M.J., a separate victim altogether. Appellee filed a motion to dismiss both cases on July 16, 2004. After several agreed continuances, the trial court held hearings on the motion on November 17, 2004, and January 7, 2005. The trial court granted appellee's motion and dismissed the indictments on January 14, 2005. This State's appeal followed. Speedy Trial
In its first issue, the State contends the trial court erred by granting appellee's speedy trial motions. When reviewing such claims, we must consider (1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972). The length of the delay is measured from the time the defendant is formally arrested or accused. United States v. Marion, 404 U.S. 307, 313 (1971). To trigger a speedy trial analysis, a defendant must allege that the interval between indictment and trial "has crossed the threshold dividing ordinary and `presumptively prejudicial' delay." Doggett v. United States, 505 U.S. 647, 651-52 (1992). Unless the delay is "presumptively prejudicial," this Court need not consider the remaining factors. Barker, 407 U.S. at 530. Generally, a delay approaching one year is sufficient to trigger a speedy trial analysis. Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003). Here, appellee was indicted on June 16, 2004. Only one month later, on July 16, 2004, he filed his motion to dismiss. The record reflects that appellee agreed to several resets until the trial court held hearings on the motion on November 7, 2004, and January 7, 2005. The trial court then granted appellee's motion on January 14, 2005. The delay in this instance is seven months. This being the case, appellee is unable to show a "presumptively prejudicial" delay which entitles him to a speedy trial analysis, let alone prove that his right to a speedy trial was violated. Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App.), cert. denied, 506 U.S. 942 (1992) (relating that courts generally hold that a delay of eight months or longer is presumptively unreasonable and will trigger a speedy trial analysis); see also Shepherd v. State, 36 S.W.3d 128, 130 (Tex.App.-Tyler 1994, pet. ref'd) (holding that five month delay between indictment and trial was not presumptively unreasonable and insufficient to trigger a speedy trial analysis). Therefore, we conclude the trial court abused its discretion in dismissing the indictments on speedy trial grounds. See State v. Seibert, 156 S.W.3d 32, 34 (Tex.App.-Dallas 2004, no pet.). We sustain the State's first issue. Due Process
In its second issue, the State contends the trial court erred by dismissing the indictments because there were no due process violations. Appellee maintains that the thirteen-year delay between the date of the offenses and the date of the indictments amounts to a due process violation. In order to prevail on his due process claim, appellee must show that the pre-indictment delay (1) caused him actual, substantial prejudice, and (2) was intentionally undertaken by the State for the purpose of gaining some tactical advantage over him, or for some other impermissible, bad faith purpose. State v. Horner, 936 S.W.2d 668, 672-73 (Tex.App.-Dallas 1996, pet. ref'd). Appellee claims he was prejudiced because his memory has been substantially impaired, the building where the offenses allegedly took place has been renovated, and "the records of other employees have been lost or destroyed." He contends that his testimony from the hearing on his original case, in which he testified generally that his defense had been impaired for the reasons stated above, supports his argument. However, he does not demonstrate specifically how his defense was impaired. When appellee testified in the original hearing, he did not reveal the existence of a witness, whose name he did not remember and could aid in his defense; he did not explain how a change in the layout of the building negatively affected his ability to defend himself; and he failed to state a reason why any employee records were relevant in these cases. Appellee's blanket statement that his defense was impaired, supported only by conjecture and speculation, is simply not enough to show actual, substantial prejudice. Horner, 936 S.W.2d at 672; United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir. 1996), cert. denied, 519 U.S. 1076 (1997) (stating that speculative evidence of prejudice or evidence that prejudice could potentially occur is insufficient to show actual harm). Having determined that appellee failed to show he was actually, substantially harmed, an inquiry into whether the State acted intentionally or in bad faith in delaying filing the indictments in these cases is unnecessary. Horner, 936 S.W.2d at 671 (holding that a defendant alleging a pre-indictment delay due process claim must show both that he was prejudiced and that the State acted improperly; neither allegation standing alone is sufficient). Because appellee failed to show a due process violation, we conclude that the trial court abused its discretion in dismissing the indictments in these cases on due process grounds. See Seibert, 156 S.W.3d at 34. We sustain the State's second issue. Accordingly, we reverse the trial court's order dismissing the indictments and remand these causes to the trial court with instructions to reinstate the indictments.