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Court of Appeals of Texas, Dallas.


No. 05-09-00594-CR

Decided: February 24, 2011

Before Justices FitzGerald, Lang-Miers, and Fillmore


Opinion By Justice FitzGerald

Elizabeth Rollins Payne served as treasurer of an elementary school parent-teacher association (the “Association”);  she was charged with stealing the Association's funds by writing approximately sixty checks to herself and forging a cosigner's signature.   A jury found Payne guilty of theft of property with a value of at least $20,000 but less than $100,000.   The trial court assessed her punishment at four years' imprisonment and ordered restitution in the amount of $57,932.87.   On appeal, Payne contends (1) her right to a speedy trial was violated, and (2) the trial court erroneously denied her motion for directed verdict concerning proof of ownership of the stolen funds.   We affirm the trial court's judgment.

Speedy Trial

In her first issue, Payne contends she was denied her right to a speedy trial.   The Sixth Amendment to the United States Constitution provides in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial․”  U.S. Const. amend VI. We review a claim of denial of the right to a speedy trial under the balancing test set out in Barker v. Wingo, 407 U.S. 514 (1972).   The test requires a weighing of factors including-but not necessarily limited to-the length of the delay, the reasons for the delay, the defendant's assertion of her right to a speedy trial, and the prejudice to the defendant resulting from the delay.  Id. at 530.   No one of these factors is necessary or sufficient to establish a violation of the defendant's right to a speedy trial.  Id. at 533.   We review the trial court's ruling on a motion to dismiss for want of a speedy trial in light of the arguments, information, and evidence available to the trial court at the time it ruled.  Shaw v. State, 117 S.W.3d 883, 889 (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.  Id.

The first Barker factor, the length of the delay, is measured from the time the defendant is arrested or formally accused;  a delay approaching one year is sufficient to trigger a speedy-trial inquiry.  Id. The record indicates Payne's indictment was filed on September 21, 2006.   Her trial began on March 9, 2009.   This period of almost two and one-half years between being charged and being tried is sufficient to support further inquiry into Payne's complaint and circumstances.   See id.   Indeed, because the delay in this case stretched well beyond the bare minimum needed to trigger the

inquiry, this factor weighs heavily in favor of finding a violation of Payne's right to a speedy trial.   See Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App.2003).

The State has the burden on the second Barker factor;  it must justify the length of the delay.  Cantu v. State, 253 S.W.3d 273, 280 (Tex.Crim.App.2008).   In this case, the time period between indictment and trial can be divided into segments;  we address each segment in turn to discern, if possible, the reason for delay.

• September 21, 2006-March 28, 2007:  Payne made her first appearance on March 28, 2007.   The record is silent as to the reason for this initial six-month time period following the indictment.   The State is entitled to a reasonable time period in which to prepare its case.   See Shaw, 117 S.W.3d at 889-90 (three-month period between indictment and trial not counted against State).   To the extent this preparation period stretched on without explanation, the unexplained delay weighs against the State, but not heavily.   See, e.g., Dragoo, 96 S.W.3d at 314 (“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.”).

• March 28, 2007-September 18, 2007:  Payne announced on September 18, 2007, that she would go to trial rather than accept the State's plea offer.   The record comports with the State's description of this time period as “good-faith plea negotiations.”   A pass-slip dated August 17, 2007-signed by both Payne and her attorney as well as the prosecutor-gave details of the proposed plea and scheduled its entry for September 18, 2007.   However, Payne's announcement on September 18 was for a jury trial instead.   Delay caused by good-faith plea negotiations is justified.   See Barker, 407 U.S. at 531 (valid reason “serve [s] to justify appropriate delay”);  see also State v. Munoz, 991 S.W.2d 818, 824 (Tex.Crim.App.1999) (“We decide delay caused by good faith plea negotiations is a valid reason for the delay and should not be weighed against the prosecution.”).   Trial was set by agreement for January 7, 2008.

• September 18, 2007-January 7, 2008:  The record indicates that during this time both parties filed documents and participated in hearings in preparation for trial on January 7, 2008.   However, given how much time had passed since the indictment, mere trial preparation cannot excuse all delay.   Further unexplained delay weighs, although not heavily, against the State.   See Dragoo, 96 S.W.3d at 314.

• January 7, 2007-August 4, 2008:  On December 5, 2007, Payne filed a motion for continuance, seeking more time to process documents produced by the State in discovery.   The trial date was continued until April 14, 2008.   A week prior to that trial date, the trial court heard and denied Payne's motion to quash the indictment.   At the end of that hearing, Payne's counsel sought another continuance.   The trial date was re-set to August 4, 2008.   This period of delay weighs against finding a violation of Payne's speedy trial rights.   See Emery v. State, 881 S.W.2d 702, 709 (Tex.Crim.App.1994) (defendant's motions for continuance undercut claim he wanted speedy trial).

• August 4, 2008-September 8, 2008:  The record indicates that-on May 8, 2008-the attorneys agreed to re-set the trial date until September 8, 2008.   We find no explanation for this re-set in the record.   Once again, the unexplained delay weighs against the State, but not heavily.   See Dragoo, 96 S.W.3d at 314.

• September 8, 2008-March 9, 2009:  On August 27, 2008, Payne filed her first demand for a speedy trial.   On September 8, the scheduled trial date, the trial judge heard Payne's demand, but decided to hear the case of a defendant who was incarcerated at the time rather than Payne's case.   The State's busy docket prohibited re-setting the trial before March 9, 2009.   Delay based on a heavy docket is weighed less heavily than purposeful delay by the State, but it does weigh against the State.   See Barker, 407 U.S. at 531 (“[A] neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”).   For the first time, Payne's counsel marked through the pass slip's title, which reads “Speedy Trial Waiver.”   Payne's case was tried at the March 9 trial setting.

In sum, approximately seven months of the delay is attributable to Payne.   We do not charge the six months of good-faith plea negotiations to either party.   That leaves something less than one and one-half years of delay that weigh against the State and in favor of a finding of a violation of Payne's right to a speedy trial.   The unexplained delay weighs against the State, but not heavily.   Likewise, the delay based on the court's busy docket is not weighed heavily against the State.

The third Barker factor looks to the defendant's assertion of her right to a speedy trial.   Although the courts and prosecutors have the primary burden to assure that cases are brought to trial, a defendant is responsible for asserting her right to a speedy trial.  Id. at 528-29.   We give this assertion strong weight in our balancing because, as the Supreme Court stated, “[t]he more serious the deprivation, the more likely a defendant is to complain.”  Id. at 531-32.   Payne did not assert her right to a speedy trial until August 27, 2008, nearly two years after her indictment, and less than two weeks before her September 8, 2008 trial setting.   Payne re-urged her demand and sought dismissal of the indictment the day her trial started on March 9, 2009.   When a defendant “quietly acquiesces” in delay and fails to assert her right until just before trial, the third factor weighs very heavily against finding a violation of the speedy-trial right.  Dragoo, 96 S.W.3d at 314-15.

Finally, the fourth Barker factor requires us to assess the prejudice Payne suffered on account of the delay;  Payne has the burden of showing prejudice.   See Cantu, 253 S.W.3d at 281.   Our analysis considers the various interests that the speedy-trial right was intended to protect:  (1) preventing oppressive pretrial incarceration, (2) minimizing the defendant's anxiety and concern, and (3) limiting the possibility that the defendant's defense will be impaired.  Shaw, 117 S.W.3d at 890.   Payne was not incarcerated during the pendency of this case;  the first interest, therefore, is not implicated here.   Payne testified at the March 9, 2009 hearing concerning the anxiety she and her family suffered when the accusations against her became public.   In response to the public scrutiny and ridicule, Payne's family moved out of the area, making her trips to court longer and more costly.   We conclude Payne's anxiety was not more than the level normally associated with a criminal charge or investigation.   This generalized anxiety is relevant but not sufficient proof of prejudice under the Barker standard.   See Cantu, 253 S.W.3d at 286.   And with regard to consideration of the third prejudice factor, impairment of Payne's defense, Payne's only relevant testimony was that she had forgotten many relevant names and details.   There was no evidence of any unavailable witness or lost documents.   Moreover, any presumptive prejudice caused by lengthy delay is mitigated by Payne's failure to assert her right until most of that time had already passed.   See Shaw, 117 S.W.3d at 890 (presumption of prejudice is “extenuated by appellant's longtime acquiescence in the delay”).   We conclude overall that Payne suffered no prejudice or only minimal prejudice to her defense as a result of the delay.   Accordingly, this factor weighs against a finding that Payne was denied her right to a speedy trial.

When we balance the Barker factors, we conclude they weigh against finding a violation of Payne's right to a speedy trial.   Payne was charged with theft in September 2006, but she did not assert a demand for speedy trial until August 2008.   Once she did assert her right the trial judge heard her demand, but he decided to try the case of a defendant who was in jail before trying Payne's case.   The case was re-set for the State's first available docket, and the case was in fact tried at this next setting.   We conclude the trial court's denial of Payne's motion to dismiss is supported by the record and is correct under applicable law.   Accordingly, we overrule Payne's first issue.

Ownership of the Stolen Funds

In her second issue, Payne contends the trial court erroneously denied her motion for directed verdict.   Specifically, she argues the State failed to prove that the owner alleged in the indictment had a greater right to possession of the funds than Payne did.   A person commits the offense of theft if she unlawfully appropriates property with intent to deprive the owner of the property.  Tex. Penal Code § 31.03(a) (West 2003).   The owner of property is a person who has title to the property, possession of the property, or a greater right to possession of the property than the actor.   Id. § 1.07(a)(35)(A).   When the owner is an organization, the State may allege ownership in the individual who has care, custody, or control of the property on behalf of the organization;  that person is a “special owner.”   See Harrell v. State, 852 S.W.2d 521, 523 (Tex.Crim.App.1993).   We review Payne's challenge to the denial of her directed verdict motion using a legal-sufficiency standard.   See Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App.2003).   We view all of the evidence in the light most favorable to the ruling and then determine whether any rational trier of fact could have found this element of the crime beyond a reasonable doubt.  Id. (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

When the State charged Payne, it alleged the owner of the stolen funds to be Michele Slavin.   Slavin testified she served as the Association's parliamentarian during the terms ending in 2004 and 2005.   On July 1, 2005, Slavin became the president of the Association.   It is undisputed that, as president, Slavin had a right to possess the Association's funds that was superior to Payne's.   But Payne contends that during the time period when Slavin served as parliamentarian, she did not have a right to possess funds that was superior to Payne's rights as treasurer.

We need not address the issue of Slavin's right to possess the funds during her terms as parliamentarian.   The record contains copies of all checks Payne was convicted of writing to effect the theft of Association funds.   The record also contains an affidavit relating to each of those checks, establishing that the signatures of the checks' cosigners were forged.   The checks and affidavits in the record establish that-on or after July 1, 2005-Payne stole a total of $25,103.00.   Thus, ample evidence establishes that Payne stole more than $20,000, as the indictment alleged, while Slavin was president of the Association and undisputedly had a greater right to possession of the funds than Payne.   We overrule Payne's second issue as well.

We affirm the judgment of the trial court.


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