ANTONIO HENRY GONZALEZ v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Myers

Appellant, Antonio Henry Gonzalez, was convicted of misdemeanor theft and sentenced to ninety days in jail, probated for six months, and a $300 fine.   In one point of error, he argues the trial court erred by denying his motion to dismiss based on the constitutional right to a speedy trial.   We affirm.

Background and Procedural History

Appellant and a friend, Mary Fortney, rented a house from Laura Flores.   As part of the one-year rental agreement, Flores's ten-year-old son was allowed to enter the rental property after school to wait for Flores to pick him up.   One afternoon, Flores's son found a sawed-off twelve-gauge shotgun that appellant kept in his room and accidently fired the gun.   As a result, some clothing belonging to appellant was damaged.

Appellant and Fortney ultimately left the residence, and the lease was terminated.   Before moving out, appellant took with him a washer and dryer that belonged to Flores.   Appellant alleged that he took the washer and dryer pursuant to an agreement with Flores to cover the costs of his damaged clothing, but Flores called the police and reported the items as stolen.   She denied there was any agreement with appellant.

An information alleging class A misdemeanor theft ¹ was filed against appellant on July 17, 2008, and a warrant was issued for his arrest four days later.   Appellant was arrested on October 22, 2009.   After he was released on bond, appellant appeared pro se at his first court date on November 20, 2009.   Appellant was advised of the dangers and disadvantages of representing himself and signed a document provided by the trial court indicating he understood and wished to proceed pro se.   At a second pretrial setting on December 4, 2009, appellant requested a court-appointed attorney, and his case was continued until January 29, 2010.   On January 29, the case was set for trial for March 8, 2010, with a pretrial setting of March 4, 2010.

No action was taken on the case until the March 4 pretrial conference.   At that time, both appellant and the State appeared, and the State announced it was not ready for trial.   The State asked for a continuance.   Defense counsel objected.   The trial court granted the State's request for a continuance, and the case was reset to March 29, 2010.   On that same day, March 4, appellant's counsel filed a “motion for speedy trial,” and served a copy of this motion on the State.   The record does not indicate whether the motion was filed and tendered to the State before or after the State requested its continuance.

At a second pretrial hearing on March 25, 2010, both the State and defense announced ready.   Trial was reset for March 31, 2010.   On March 25, the defense filed a “motion to dismiss with prejudice for speedy trial violation” and a memorandum in support of the motion.   The record does not indicate whether this motion was filed before or after the March 25 pretrial hearing.

The case was called to trial on March 31, at which point appellant argued his speedy trial motion.   The court held a hearing on the motion shortly before the start of voir dire.   No testimony or evidence was presented at the hearing.   Defense counsel argued that the fifteen-month delay between the filing of the information and the date of appellant's arrest should trigger a review by the court to determine whether appellant's speedy trial rights had been violated.   The State argued appellant knew or should have known there was a warrant for his arrest, and that he should have turned himself in.   Appellant argued there was no evidence he had any knowledge that a case had been filed against him.   Appellant also directed the court's attention to his speedy trial motion, which requested a trial rather than dismissal.   Appellant argued he was prejudiced by the delay because memories may have faded over time, and because a defense witness, Mary Fuentes, who is described in appellant's memorandum of law as the “actual[ ] lessee of the premises in question,” could no longer be located.

The trial court denied appellant's motion to dismiss.   The case went to trial, and the jury found appellant guilty of the lesser-included offense of class B misdemeanor theft.²

Discussion

Appellant argues the trial court erred by denying his motion to dismiss “for failure to afford him his constitutional right to a speedy trial when—after excessive delay and demand for a speedy trial—his trial had still not begun almost two years after he was charged.”

Standard of Review

We use a bifurcated standard of review when reviewing the trial court's ruling on a speedy trial motion.  Cantu v. State, 253 S.W.3d 273, 282 (Tex.Crim.App.2008).   We apply “an abuse-of-discretion standard for factual components, and a de novo standard for the legal components.”  Id. The trial court's ruling will be affirmed only if it is supported by the record and is correct under the applicable law.  Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App.2003).   When, as in this case, the trial court does not make written findings of fact and conclusions of law, findings supported by evidence will be implied in favor of the trial court's ruling, and we must defer to such findings.   See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999).

Applicable Law

In determining whether a defendant was denied his right to a speedy trial, we consider four factors:  (1) the length of the delay;  (2) the State's reasons for the delay;  (3) the defendant's effort to obtain a speedy trial;  and (4) the prejudice to the defendant.   See Barker v. Wingo, 407 U.S. 514, 530, (1972).   No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial.  Barker, 407 U.S. at 533;  Shaw, 117 S.W.3d at 889.   The length of the delay is a triggering mechanism for a speedy trial analysis;  absent a presumptively prejudicial delay, we need not consider the other Barker factors.  Munoz, 991 S.W.2d at 820.   The State acknowledges that the length of the delay in this case—approximately twenty months from the filing of the information until the date of appellant's trial—is sufficient to trigger the presumption and require analysis of the remaining factors.   Thus, we address the other Barker factors.   See id.

The State has the initial burden of justifying a lengthy delay.  Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App.1994).   When a court considers the reasons the State offers to justify the delay, different weights must be assigned to different reasons.  Shaw, 117 S.W.3d at 889 (citing 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.  Id. “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State], while “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily․”  Barker, 407 U.S. at 531.   Other reasons, such as missing witnesses, may justify appropriate delay.  Id. “In the absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay.”  Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App.2003).  “[D]elay which is attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim.”  Munoz, 991 S.W.2d at 822.

A defendant has no duty to bring himself to trial, and the primary burden rests upon the courts and the prosecution to insure cases are brought to trial.  Barker, 407 U.S. at 527.   But this does not mean a defendant has no responsibility to assert his right.  Id. at 528.   The failure of a defendant to assert his right to a speedy trial “will make it difficult to prove that he was denied a speedy trial.”   Id. at 532.   The longer the delay, the more likely it is that a defendant who wanted a speedy trial would take some action to obtain one.  Id. at 531.   A defendant who seeks a dismissal instead of a speedy trial weakens his case because it shows a desire for no trial rather than a speedy trial.  Zamorano v. State, 84 S.W.3d 643, 651 n.40 (Tex.Crim.App.2002);  State v. Jones, 168 S.W.3d 339, 348 (Tex.App.—Dallas 2005, pet. ref'd).

Prejudice to a defendant should be assessed in light of the interests the speedy trial right was designed to protect, i.e., preventing oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and limiting the possibility that the defense will be impaired.  Barker, 407 U.S. at 532.   The most serious of these interests is the possibility of impairment to the defense, “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”  Id. The defendant has the initial burden of showing some prejudice, although showing actual prejudice is not required.  Munoz, 991 S.W.2d at 826.   When the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show the defendant “suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.”  Id.

“Dismissal of the charging instrument with prejudice is mandated only upon a finding that an accused's Sixth Amendment speedy-trial right was actually violated.”  Cantu, 253 S.W.3d at 281.  “Because dismissal of the charges is a radical remedy, a wooden application of the Barker factors would infringe upon ‘the societal interest in trying people accused of crime, rather than granting them immunization because of legal error.’ ”  Id. (quoting United States v. Ewell, 383 U.S. 116, 121 (1966)).   Therefore, we “must apply the Barker balancing test with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed.”  Id.;  see Barker, 407 U.S. at 534–35 (five-year delay did not violate speedy trial requirement when record showed accused did not want speedy trial).  “The constitutional right is that of a speedy trial, not dismissal of the charges.”  Id.

Reasons for the Delay

In this case, the court did not hear any testimony and neither party offered any arguments or reasons for the delay in bringing the case to trial.   The Clerk's record shows that the State requested a continuance at the first trial setting, on March 4, 2010, but this accounts for only five of the twenty months.   Because no reason was given for the remaining period of time, we may presume neither a deliberate attempt to delay nor a valid reason.  Dragoo, 96 S.W.3d at 314.   This factor weighs only slightly against the State.   See Barker, 407 U.S. at 531.

Assertion of the Right to a Speedy Trial

Appellant's “Motion For Speedy Trial” was filed on March 4, 2010.   This was four months and ten days after appellant was arrested on October 22, 2009, and twenty-seven days before the start of trial.   Appellant argues he appeared “ready to proceed” for trial on March 8, 2010, and that the State was not ready and requested a continuance.   Appellant adds that only after “this additional delay” did he move to dismiss the case “because of a violation of his right to a speedy trial.”   Yet the Clerk's record shows the State requested its continuance at the March 4, 2010 pretrial conference, which was the same day appellant filed the speedy trial motion.   There was no hearing on the motion and there is no indication in the record as to whether the March 4 speedy trial motion was filed before or after the case had been set for trial.   The Clerk's record shows that appellant objected to the State's motion for a continuance, but the record does not reflect whether the speedy trial motion was brought to the court's attention.   The State points out that appellant waited over four months after his arrest to request a speedy trial, and that the trial was held less than a month after he filed the motion.   We conclude this factor weighs against appellant.

Prejudice to the Defendant

No witnesses were called or evidence presented in the trial court regarding the question of prejudice to appellant.   Appellant alludes to a missing witness, but he provides no explanation of the measures that were taken to locate this witness, nor has there been any showing regarding how the witness's testimony would have benefitted appellant.   Such a complaint is too generalized to support a showing of prejudice.   In arguing that prejudice resulted from witness unavailability, a defendant must demonstrate that (1) the witness was unavailable at the time of trial;  (2) the witness's testimony may be relevant and material to the defense;  and (3) the defendant exercised due diligence in an attempt to locate the witness at the time of trial.   See Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App.1982);  Johnson v. State, 975 S.W.2d 644, 652 (Tex.App.—El Paso 1998, pet. ref'd).   Appellant has failed to make this showing and, accordingly, has not shown prejudice.   See Phipps, 630 S.W.2d at 947;  Ervin v. State, 125 S.W.3d 542, 548 (Tex.App.—Houston [1st Dist.] 2002, no pet.).

Appellant also argues that memories faded due to the passage of time, but no testimony or evidence was offered in the trial court to support this contention.   We must review a trial court's ruling on a motion to dismiss for want of a speedy trial in light of the arguments, information, and evidence that was available to the trial court at the time it ruled.  Shaw, 117 S.W.3d at 889 (citing Dragoo, 96 S.W.3d at 313).   Unsworn trial motions and arguments of counsel, moreover, are not evidence.   An unsworn motion does not, by itself, present evidence upon which relief can be granted.  Newman v. State, 331 S.W.3d 447, 449 (Tex.Crim.App.2011) (quoting Whitehead v. State, 130 S.W.3d 866, 873 (Tex.Crim.App.2004)).   There is no exception to this rule for speedy trial motions.   See id.   Appellant did not satisfy his burden of showing some prejudice.   This factor weighs against appellant.

Having reviewed the Barker factors, we conclude the record supports the trial court's ruling.   We overrule appellant's point of error.

We affirm the trial court's judgment.

FOOTNOTES

FN1. See Tex. Penal Code Ann. § 31.03(e)(3) (value of the property stolen is $500 or more but less than $1,500)..  FN1. See Tex. Penal Code Ann. § 31.03(e)(3) (value of the property stolen is $500 or more but less than $1,500).

FN2. See Tex. Penal Code Ann. § 31.03(e)(2)..  FN2. See Tex. Penal Code Ann. § 31.03(e)(2).

LANA MYERS JUSTICE