Alberto Cantu v. State

NUMBER 13-04-608-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ALBERTO CANTU, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the County Court at Law No. 2 of Cameron County, Texas. MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Yañez Alberto Cantu appeals the judgment convicting him of driving while intoxicated. Cantu argues he was denied his right to a speedy trial under the Sixth Amendment to the Constitution of the United States and article 1, section 10 of the Texas Constitution. We affirm the judgment of the trial court. I. Background On March 5, 2003, Cantu was arrested for driving while intoxicated (DWI), second offense. (1) Cantu posted bond the next day. On July 6, 2004, Cantu was formally charged by complaint and information with the DWI offense. Cantu then asserted his speedy trial complaint in a motion to dismiss on August 17, 2004. On August 26, 2004, a hearing was held on the motion. The motion was denied and on October 25, 2004, upon Cantu entering a plea of guilty, the trial court suspended his sentence and placed him on community supervision for twelve months. Cantu then timely filed this appeal. (2) II. Standard of Review and Applicable Law In reviewing a trial court's ruling on a defendant's 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. (3) This means we independently weigh and balance the Barker factors, but we presume the trial court resolved any disputed fact issues in a manner that supports its ruling. (4) Stated differently, we review legal issues de novo but give deference to a trial court's resolution of factual issues, including deference to the trial court's drawing of reasonable inferences from the facts. (5) The right to a speedy trial is guaranteed by the United States and Texas Constitutions. (6) The test under both the federal and state constitutions is the same. (7) In reviewing a trial court's decision to grant or deny a speedy trial claim, we must balance four factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his/her right, and (4) any resulting prejudice to the defendant. (8) No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. (9) Thus, we must "engage in a difficult and sensitive balancing process" in each individual case. (10) III. Analysis Cantu was arrested on March 5, 2003, was formally charged by complaint and information on July 6, 2004, and his trial started on October 25, 2004. Over nineteen months elapsed between Cantu's arrest and the start of trial. As a result, Cantu asserts, and the State agrees, that his trial delay was presumptively prejudicial because Texas courts have generally held that a delay of eight months or longer is "presumptively unreasonable" and thus triggers a speedy trial analysis. (11) We disagree. We observe that pre-indictment delay has not been accorded any weight in determining a defendant's Sixth Amendment right to a speedy trial. Even though a defendant's defense may be somewhat prejudiced by the lapse of time caused by pre-indictment delay, the pre-indictment delay is "wholly irrelevant" to a Sixth Amendment speedy trial claim. (12) Nevertheless, the United States Supreme Court has held that due process places some limits on pre-indictment delays, though it has not applied a specific test. (13) The Texas Court of Criminal Appeals has held that an accused will be entitled to relief on a claim of pre-indictment delay if he can show the delay (1) has caused substantial prejudice to his right to a fair trial, and (2) was an intentional device used by the State to gain a tactical advantage over the accused. (14) Cantu did not make a due process claim of oppressive pre-indictment delay in the trial court, nor has he done so on appeal. Even if such an argument was raised, Cantu's claim would fail because he agreed to stipulate at trial that any delay prior to indictment was unintentional. (15) Our focus is thus directed toward the length of the delay between the time Cantu was initially charged and his trial date. (16) Cantu was initially charged on July 6, 2004, and trial commenced on October 25, 2004; this four-month delay is not "presumptively unreasonable." (17) Because this first Barker factor favors the State, we need not examine the remaining three factors. (18) We thus find that Cantu was not denied his right to a speedy trial. IV. Conclusion We affirm the trial court's judgment. LINDA REYNA YAÑEZ, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum opinion delivered and filed this the 1st day of February, 2007. 1. See Tex. Pen. Code Ann. §§ 49.04(a), 49.09(a) (Vernon 2003). 2. We note that a defendant waives his right to a speedy trial claim by pleading guilty in the trial court. Larson v. State, 759 S.W.2d 457, 459 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd) (court held that appellant waived his claimed deprivation of right to a speedy trial when he voluntarily pled no contest to sexual assault and guilty to indecency with a child). A defendant who appropriately raises a constitutional violation prior to pleading guilty, however, will not have the issue foreclosed on appeal. Young v. State, 8 S.W.3d 656, 663 (Tex. Crim. App. 2000). 3. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). 4. See id.; State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). 5. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). 6. See U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 10.; Zamorano, 84 S.W.3d at 647. 7. Floyd v. State, 959 S.W.2d 706, 709 (Tex. App.-Fort Worth 1998, no pet.) (citing Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985)). 8. Zamorano, 84 S.W.3d at 648 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). 9. Id. (citing Barker, 407 U.S. at 533). 10. Id. 11. See Zamorano, 84 S.W.3d at 649 n.26 (citing Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App.), cert. denied, 506 U.S. 942 (1992)). 12. See United States v. Lovasco, 431 U.S. 783, 788-90 (1977). 13. United States v. Marion, 404 U.S. 307, 324-25 (1971). 14. Ibarra v. State, 11 S.W.3d 189, 193 (Tex. Crim. App. 1999). 15. See id. 16. "The length of the delay between an initial charge and trial (or the defendant's demand for a speedy trial) acts as a 'triggering mechanism.'" Zamorano, 84 S.W.3d at 648 (emphasis added). 17. See Zamorano, 84 S.W.3d at 649 n.26 (citing Harris, 827 S.W.2d at 956). 18. Id. at 648.