MONICA IUNICE LOPEZ APPELLANT v. THE STATE OF TEXAS APPELLEE (2016)

MEMORANDUM OPINION

Monica Iunice Lopez appeals her conviction for driving while intoxicated. In one issue, Appellant challenges the denial of her motion to dismiss for a speedy trial violation. We affirm.

BACKGROUND

On September 2, 2012, Appellant was arrested for driving while intoxicated, a Class B misdemeanor. She was released on bond that same day. On September 20, 2012, Appellant was formally charged by information with the offense. The first court setting in Appellant's case was October 1, 2012, at which time the prosecuting attorney provided a sentencing recommendation. During the course of the next thirty-five months, the case was reset twenty-two times. Appellant filed five demands for a speedy trial between November 26, 2013, and March 18, 2015. On April 15, 2015, Appellant agreed to plead “guilty.”

On September 17, 2015, Appellant filed a motion to dismiss based on the violation of her right to a speedy trial. The trial court denied Appellant's motion. Thereafter, Appellant pleaded “guilty” and was sentenced to confinement for three days. This appeal followed.

RIGHT TO SPEEDY TRIAL

In her sole issue, Appellant contends that the trial court improperly denied her motion to dismiss based on the violation of her right to a speedy trial. The essential ingredient of the Sixth Amendment's speedy trial guarantee is “orderly expedition and not mere speed.” U.S. v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L. Ed. 2d 468 (1971) (Sixth Amendment right to speedy trial would appear to guarantee criminal defendant that Government will move with dispatch that is appropriate to assure him early and proper disposition of charges against him). Since 1972, United States Supreme Court precedent has required courts to analyze federal constitutional speedy trial claims “on an ad hoc basis” by weighing and then balancing four factors: (1) length of the delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972). This balancing test requires weighing case by case “the conduct of both the prosecution and the defendant.” Id. No single factor is a “necessary or sufficient condition to the finding” of a speedy trial violation. Id., 407 U.S. at 533, 92 S. Ct. at 2193; State v. Wei, 447 S.W.3d 549, 553 (Tex. App.–Houston [14th Dist.] 2014, pet. ref'd). The related factors must be considered together with such other circumstances as may be relevant. See Wei, 447 S.W.3d at 553.

In reviewing the trial court's decision on Appellant's speedy trial claim, we apply a bifurcated standard of review. See State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). We review factual issues for abuse of discretion and review legal issues de novo. Id. Because the trial court ruled against Appellant on her motion to dismiss, we must presume the trial court resolved any disputed fact issues in the State's favor, and we are required to defer to these implied findings of fact that the record supports. See id.

In this case, we conclude that the approximately two-and-one-half year delay from the time of the formal charge against Appellant until she entered into a plea agreement ¹ meets the first factor and triggers analysis under the remaining Barker factors. See, e.g., id., at 822 (delay of seventeen months between time of the appellant's arrest and the date of speedy trial hearing).

Reason for the Delay

Under Barker, “different weights should be assigned to different reasons” for the delay. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. A “deliberate attempt to delay the trial” should be weighed heavily against the government. Id. A “more neutral reason such as negligence or overcrowded courts should be weighed [against the government] less heavily.” Id. A valid reason for the delay should not be weighed against the government at all. Id. (valid reason for the delay “should serve to justify appropriate delay”). And delay which is attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim. Id., 407 U.S. at 528–30, 92 S. Ct. at 2191–92 (delay attributable to defendant constitutes waiver of speedy trial); see also Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574, 26 L. Ed. 2d 26 (1970) (Brennan, J., concurring) (defendant may be “disentitled to the speedy trial safeguard in the case of a delay for which he has, or shares, responsibility”).

The burden of excusing the delay rests with the State, and in light of a silent record or one containing reasons insufficient to excuse the delay, we must presume that no valid reason for the delay existed. See Turner v. State, 545 S.W.2d 133, 137–38 (Tex. Crim. App. 1976). As such, the State's failure to secure Appellant's presence at trial while Appellant was incarcerated will weigh against the State. But absent evidence of intent, we will not weigh the factor so heavily as we would were there evidence of intentional conduct on the State's part. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192.

The record in this case reflects that Appellant was arrested on September 2, 2012, and charged with the offense on September 20, 2012.² On October 1, 2012, the State filed its sentence recommendation. There is some indication in the record that plea negotiations were ongoing until July 16, 2013, when a trial conference certificate indicates “State's Best Offer.” See Munoz, 991 S.W.2d at 824 (good faith plea negotiations do not count against the State for speedy trial purposes). However, at the hearing on Appellant's motion to dismiss, no evidence was introduced concerning the substance of any plea negotiations between Appellant and the State. Thus, even considering the implied finding that the plea process was not foreclosed to Appellant, there is no evidence that the parties were engaged in “good faith” plea negotiations for this entire period. Accordingly, this delay weighs slightly against the State.

From September 18, 2013, through February 25, 2015, the case was reset ten times. Of these resets, seven are attributable to the trial court,³ two are attributable to the State, and one is attributable to Appellant.⁴ The first of the State's resets occurred on August 12, 2014, and resulted from the State's failure to make available to the defense the video of the events leading to Appellant's arrest. The State concedes that the failure to procure and make this evidence available for nearly two years constitutes negligence on its part.

The second of the State's two resets occurred on December 11, 2014, and resulted from the unavailability of the State's witness. Appellant argues that this reset should be weighed against the State because it did not seek to procure the witness's availability by subpoena. The State argues that it is the ordinary procedure in the Dallas County District Attorney's office to not subpoena certain expert witnesses like the intoxilyzer supervisor in question, and, therefore, this reset should not be weighed against it. Ordinarily, a missing witness is a valid reason for delay. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. However, in this case, we cannot ignore the State's admitted policy of declining to secure by subpoena the testimony of certain expert witnesses.⁵ Absent evidence that the State exercised some effort to have its witness appear on the scheduled trial date, it is logical to conclude that the unavailability of any such witnesses should be weighed against the State in a manner similar to other negligent conduct.

We next consider the fact that one reset was attributable to Appellant. At the hearing on the motion to dismiss, Appellant's attorney described this reset as being due to a “conflict.” This short delay weighs against Appellant.⁶ Additionally, at the hearing on Appellant's motion, the trial court referred to its offer allowing Appellant's case to be tried before another court and Appellant's decision that the case remain in the same court. Neither the trial court nor Appellant's counsel could recall the specific details underlying the incident.

Based on the foregoing, we conclude that this factor, while weighing somewhat against Appellant, weighs slightly more against the State.

Assertion of Federal Constitutional Right to Speedy Trial

Under Barker, a defendant is responsible for asserting or demanding his right to a speedy trial. See Barker, 407 U.S. at 528–29, 92 S. Ct. at 2191. Although a defendant's failure to assert his speedy trial right does not amount to a waiver of that right, “failure to assert the right ․ make[s] it difficult for a defendant to prove he was denied a speedy trial.” Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). This is because a defendant's lack of a timely demand for a speedy trial indicates strongly that he did not really want a speedy trial, and that he was not prejudiced by lack of one. Id. Furthermore, the longer the delay, the more likely it becomes that a defendant would take some action to obtain a speedy trial. See id. Thus, inaction weighs more heavily against a violation the longer the delay becomes. Id.

Here, Appellant filed five demands for a speedy trial beginning on November 26, 2013, and continuing through March 18, 2015. However, there is no evidence that Appellant actively sought a hearing on these motions until sometime after she pleaded “guilty” in April 2015.⁷ See Zamorano, 84 S.W.3d at 652 n.44 (citing Cook v. State, 741 S.W.2d 928, 940 (Tex. Crim. App. 1987), vacated and remanded on other grounds, 488 U.S. 807, 109 S. Ct. 39, 102 L. Ed. 2d 19 (1988)) (assertion of right factor weighs against appellant where there is no evidence beyond motions for speedy trial filed with district clerk that appellant asserted right to speedy trial by requesting hearings to present evidence on the matter). Thus, we conclude that even though Appellant repeatedly filed speedy trial demands over a fifteen month period, her failure to seek a hearing at which to present evidence on the matter causes this factor to weigh against her. See id.

Prejudice

The last Barker factor is “prejudice to the defendant.” Barker, 407 U.S. at 532–33, 92 S. Ct. at 2193–94. Prejudice is assessed in light of the interests that the speedy trial right is designed to protect. Id. These interests are (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Id. Of these interests, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. Even so, the four interests are interrelated and must be considered together with such other circumstances as may be relevant. See Munoz, 991 S.W.2d at 828. The court must still engage in a difficult and sensitive balancing process. Id. Although a defendant has the burden to make some showing of prejudice, actual prejudice is not required. Id. at 826. When a defendant makes a prima facie showing of prejudice, the State must prove that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. Id. Excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove. See Doggett v. U.S., 505 U.S. 647, 655, 112 S. Ct. 2686, 2693, 120 L. Ed. 2d 520 (1992). Yet such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria. Id., 505 U.S. at 656, 112 S. Ct. at 2693. But when the State's negligence causes extraordinary delay, and when the presumption of prejudice, whether specified or presumed, is neither extenuated, as by the defendant's acquiescence, nor persuasively rebutted by the State, the defendant is entitled to relief. Id., 505 U.S. at 658, 112 S. Ct. at 2694.

In this case, at the hearing on Appellant's motion to dismiss, Appellant's counsel argued that Appellant suffered prejudice by (1) the length of time before trial, (2) the economic hardship caused to her as an hourly wage earner, who was forced to miss work to attend nine trial settings, all of which were passed, (3) the further economic hardship because she did not feel she could look for other employment while the case was pending against her, and (4) the personal hardship caused because she determined that she could not have more children while her case was pending. Appellant's counsel conceded that Appellant was not incarcerated during the pendency of her case nor was her defense prejudiced as a result of the delay. Appellant testified at the hearing in support of these arguments.

Regarding the length of time before trial, we conclude that the two-and-one-half year delay was not excessive enough to presumptively compromise the reliability of a trial. See State v. Wray, No. 05-01-01799-CR, 2002 WL 1763567, at *4 (Tex. App.–Dallas July 31, 2002, pet. ref'd, untimely filed) (op., not designated for publication) (delay of twenty-five months not presumptively prejudicial even though sufficient to trigger Barker analysis) (citing Sanders v. State, 978 S.W.2d 597, 605 (Tex. App.–Tyler 1997, pet. ref'd)); see also Clarke v. State, 928 S.W.2d 709, 717 (Tex. App.–Fort Worth 1996, pet. ref'd) (concluding no presumptive prejudice in case where delay in bringing appellant to retrial on punishment was two years and five months after U.S. Supreme Court denied certiorari and five months after appellant filed motion for speedy retrial); but see Dragoo, 96 S.W.3d at 312 (concluding three-and-one-half-year delay in which appellant played no role is patently excessive).

Nonetheless, Appellant also argued she suffered economic hardship resulting from the delay because she missed one-half of a work day to appear at each setting. The State responded that expenses pertaining to missing work, transportation, and parking expenses are ordinary consequences of the process. But while that may be true to a certain degree, there is undoubtedly a point when the number of resets exceeds what can be considered an ordinary hardship.⁸ See, e.g., Zamorano, 84 S.W.3d at 654 (appellant's testimony concerning economic costs and economic hardship resulting from missing eleven full days of work amounting to a $1,320 loss considered among other factors of prejudice). Thus, even assuming arguendo that some of the settings in this case did not amount to ordinary delay, we must defer to the trial court's implied findings that Appellant's economic burden was reduced by whatever amount was attributable to ordinary delay and that, ultimately, the financial burden she suffered apart from ordinary delay was minimal.

The State further argued that Appellant had a two-year-old son, who was born while her case was pending. While this fact does not undermine Appellant's decision to further grow her family, we note that Appellant's testimony on the subject was both brief and vague. Once the State cross examined Appellant about the fact that she had conceived a child in the early stages of the case, Appellant's counsel did not elicit further testimony from his client regarding whether her anxiety over her growing her family increased as the delays mounted. Cf. Cantu, 253 S.W.3d at 286 (evidence of generalized anxiety, though relevant, not sufficient proof of prejudice under Barker test).

Appellant's testimony concerning her desire to seek other employment was similarly vague. Cf. id. Appellant offered no testimony concerning what opportunities she considered, but ultimately delayed investigating due to the protracted criminal proceedings against her. The State pointed to the fact that Appellant maintained her current employment during the pendency of the proceedings. Although this argument does not contradict Appellant's testimony, we hesitate to conclude that Appellant's generalized testimony concerning foreclosed future employment opportunities, without more, amounts to evidence of prejudice suffered as a result of the delay in proceedings.

In sum, Appellant was not incarcerated during the pendency of the proceedings and her counsel candidly stated to the trial court that the defense of Appellant's case was not prejudiced by the delay. See Barker, 407 U.S. at 532–33, 92 S. Ct. at 2193–94 (noting that subfactor pertaining to impairment of defense is most serious because inability of defendant adequately to prepare case skews fairness of entire system). Furthermore, Appellant's testimony concerning her desire to grow her family and to consider other employment opportunities was vague at best. Moreover, the trial court was entitled to find that any economic hardships Appellant suffered as a result of her having to miss work to attend multiple trial settings apart from delays inherent to the process were minimal.⁹ Thus, having carefully considered and weighed each of these interests, we conclude that this factor weighs against Appellant.

Balancing the Barker Factors

We now consider and weigh the aforementioned factors. The reasons for the delay is attributable to the State, but only as an aggregate of delays attributable to a crowded docket and those attributable on a “negligence” level. See Barker, 407 U.S. at 531, 925 S. Ct. at 2192. Moreover, we cannot overlook that one of the delays is attributable to Appellant. While this factor weighs against the State, it does so only slightly. Despite the fact that Appellant filed multiple speedy trial demands, there is no indication she sought a hearing on the matter during a lengthy period prior to her pleading “guilty,” and, thereafter, sought a dismissal. Thus, this factor weighs against her. See Zamorano, 84 S.W.3d at 652 n.44; see also Cantu, 253 S.W.3d. at 283. Lastly, the prejudice prong weighs in the State's favor because, as previously discussed, it is undeniable that Appellant's ability to defend her case was not compromised and any economic or familial hardships were minimal. See Munoz, 991 S.W.2d at 826. Thus, having considered the aforementioned factors and the entirety of the record, we conclude that the factors weigh against Appellant. See Barker, 407 U.S.at 539, 92 S. Ct. at 2182. Therefore, we hold that Appellant's right to a speedy trial was not violated and the trial court did not err in overruling her motion to dismiss. Appellant's sole issue is overruled.

DISPOSITION

Having sustained Appellant's sole issue, we affirm the trial court's judgment.

JUDGMENT

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

FOOTNOTES

1.   During the hearing on the motion to dismiss, Appellant's counsel stated that April 15, 2015, was the first date Appellant potentially could have gone to trial. However, because the trial court previously had indicated to Appellant that it would deny a motion to dismiss based on the violation of her right to a speedy trial, Appellant decided to plead “guilty,” but appeal the trial court's subsequent ruling on her motion to dismiss.

2.   The case against Appellant for D.W.I. was not a complex case. See Zamorano v. State, 84 S.W.3d 643, 650 (Tex. Crim. App. 2002).

3.   Other than one reset due to weather, the rest of these resets are apparently due to a crowded docket, a factor which weighs against the State, although not heavily. See Shaw v. State, 117 S.W.3d 883, 889–90 (Tex. Crim. App. 2003).

4.   The language of these apparently court generated “pass slips” indicate that they are motions for continuance instigated and signed by Appellant's counsel. See Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013) (appellant's explicitly agreeing to every reset by signing reset form were acts inconsistent with demand for speedy trial).

5.   Indeed, the trial court expressly stated that it weighed this delay against the State.

6.   That Appellant was partially responsible for the delay of which she complains is potentially dispositive of Appellant's sole issue. See Munoz, 991 S.W.2d at 825. However, we will examine the other Barker factors since this is what Barker seems to require. See id.

7.   Even then, Appellant pursued the matter as a motion to dismiss. See Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008) (filing for dismissal instead of speedy trial will generally weaken speedy trial claim because it shows desire to have no trial instead of speedy one).

8.   The amount of money attributable to Appellant's attending these settings is approximately five hundred dollars.

9.   We note that Appellant's trial counsel expressed to the court that he was not charging Appellant for his time attributable to the numerous resets.

Greg Neeley, Justice.