Gerard Dewayne Allen v. State

Affirmed and Opinion filed May 9, 2006 Affirmed and Opinion filed May 9, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00223-CR ____________ GERARD DEWAYNE ALLEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 03CR0488 O P I N I O N Appellant, Gerard Dewayne Allen, appeals from his conviction for murder. After the trial court denied his motion to dismiss for violation of his right to a speedy trial, appellant pleaded guilty pursuant to a plea bargain. The trial court then found him guilty and assessed punishment at ten years= imprisonment. In his sole issue on appeal, appellant contends that his constitutional right to a speedy trial was violated. We affirm. I. Background The record reflects that appellant was arrested on March 5, 2003, and indicted for murder on March 23, 2003. According to the trial court=s docket sheet, appellant told the court on April 17 that he had retained counsel, but on April 24, the attorney in question advised the court that in fact he had not been retained by appellant. On April 25, the trial court appointed defense counsel to represent appellant. An agreed discovery order and a docket control order were issued on June 17, and the court set the case for trial on September 22. The court reset the case for trial beginning November 29, 2003, and then again for January 1, 2004. In the interim, appellant requested a reduction in his bond. On December 30, 2003, the court appointed a different attorney to represent appellant. A docket entry reflects that the first appointed attorney was Aremoved,@ but it does not explain why and no related motion appears in the record. The notice of appointment and the docket sheet also indicate that the ANext Court Date@ was set for February 9, 2004. The docket entry for that date reads: AAtty appeared for SCCCase reset on trial docket.@ On February 23, the court set the trial date for April 12, 2004. On April 6, 2004, appellant filed a request for the approval of funds to be used to hire a private investigator. Appellant filed a second request on July 13, and the trial court granted the request on October 5. In the interim, the trial was reset first for June 1, 2004, and again for November 29, 2004. At a pretrial conference on November 29, 2004, the State moved for a continuance. Apparently, a new prosecutor had taken over the case. In the hearing on the motion to dismiss, defense counsel suggested that the first prosecutor had been elected to a judgeship. The new prosecutor stated that she had asked for the continuance because she had just been assigned to the case. The court reset the case for a pretrial conference on January 18, 2005. On January 19, 2005, appellant filed his motion to dismiss for failure to provide him with a speedy trial. The trial court denied the motion after a hearing on February 14. That same day, appellant pleaded guilty to murder. The trial court granted appellant permission to appeal. II. Standards of Review A person accused of a crime is guaranteed the right to a speedy trial by both the United States and Texas constitutions. U.S. Const. amend. VI; Tex. Const. art. I, ' 10. Because appellant draws no distinctions between his rights under these two sources of law, we treat them as being the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 & n.21 (Tex. Crim. App. 2002). In the seminal case of Barker v. Wingo, the United States Supreme Court observed that Athe right to a speedy trial is a more vague concept than other procedural rights.@ 407 U.S. 514, 521 (1972). Thus, the Court rejected any bright line rule and set forth a delicate balancing test that must be applied on a case-by-case basis. See id. at 530. The Court advised that as a prerequisite to applying the four balancing factors, a court must determine whether the delay imposed on the accused was of such a length as to be presumptively prejudicial, thus requiring further analysis. Id. at 530-31. The length of delay is calculated beginning with the time the defendant is formally accused or arrested. Dillingham v. United States, 423 U.S. 64, 64-65 (1975). Although the Barker Court emphasized that the period of delay must be assessed based on the circumstances of the particular case, in the later case of Doggett v. United States, the Court noted that lower courts generally find further analysis necessary when delay approaches one year. Doggett, 505 U.S. 647, 652 n.1 (1992); Barker, 407 U.S. at 530-31. Once a court determines that the period of delay is presumptively prejudicial, it then weighs the following four factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether and to what degree appellant asserted his right to a speedy trial, and (4) the degree of prejudice that resulted. Barker, 407 U.S. at 530. None of the factors alone is either necessary or sufficient to find a violation of the right; A[r]ather, they are related factors and must be considered together with such other circumstances as may be relevant.@ Id. at 533. Although we review the trial court=s ruling under a de novo standard, Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997), we give deference to the trial court=s factual determinations. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). Because no findings of fact were requested or entered, we assume that the trial court made the factual findings necessary to support its ruling. See id. III. Analysis Appellant was arrested on April 5, 2003. On February 14, 2005, he pleaded guilty, and the trial court found him guilty and assessed punishment at ten years in prison. Thus, over twenty-one months passed between appellant=s arrest and the determination of his guilt. For purposes of this opinion, we assume that such a delay was presumptively prejudicial against appellant. See, e.g., Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (assuming without deciding that thirteen-month delay was sufficient to require further analysis under Barker). We now turn to an analysis of the four Barker factors. A. Length of Delay The first factor we must consider under the Barker balancing test is the length of the delay. 407 U.S. at 530. As stated, over twenty-one months elapsed between appellant=s arrest and the determination of his guilt. A delay of this duration is certainly significant, but it is by no means extraordinary. See Munoz, 991 S.W.2d at 829-30 (finding seventeenBmonth delay in attempted murder case was not excessive and did not weigh heavily against the State); Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992) (finding thirteenBmonth delay was neither trivial nor extraordinary in capital murder case); see also Swisher v. State, 544 S.W.2d 379, 380 (Tex. Crim. App. 1976) (finding delay of three years and eight months did not constitute per se violation of the right to a speedy trial). This factor weighs moderately in favor of finding a violation of the right to a speedy trial. B. Reasons for Delay Under the second Barker factor, we must consider how much weight should be assigned to the different reasons for the delay. 407 U.S. at 531. A deliberate attempt to delay the trial certainly weighs heavily against the government. Id. A more neutral reason, such as negligence or a congested court docket, weighs less heavily against the State. Id. A valid reason for the delay actually justifies an appropriate period of delay. Id. Lastly, delays contributed to or caused by the defendant may actually constitute waiver of the right to a speedy trial. Id. at 528-30. The State carries the burden of demonstrating the reasons for the delay. Turner v. State, 545 S.W.2d 133, 136-38 (Tex. Crim. App. 1976). 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). Here, the record is mostly silent as to why the case was reset for trial on several occasions. The State suggests that the case was relatively complex, given that it was a murder case with a lengthy list of potential witnesses. However, this would be a valid reason only if such complexity actually caused the delay. See Flores v. State, 951 S.W.2d 134, 141 (Tex. App.CCorpus Christi 1997, no pet.). Largely because the case never went to trial, the record contains scant evidence that the case=s complexity caused the delay. Likewise, although the State asserts that plea negotiations may have delayed the trial, there is no showing in the record of how much delay this may have caused, if any. See generally Munoz, 991 S.W.2d at 822-25 (holding that good faith plea bargaining is a valid reason for delay). On the other hand, the record contains no evidence that the State deliberately attempted to delay trial. At the hearing on appellant=s motion to dismiss, the prosecutor explained the State=s one motion for a continuance by stating that she had just received the case from another assistant district attorney. This excuse appears to some degree valid, or at least neutral, especially since there is no suggestion of subterfuge or pretext. Additionally, it should be noted that appellant apparently played a role in the delay in that (1) he told the court that he had retained counsel when he had not; (2) original defense counsel was removed and replaced by new defense counsel; and (3) the ultimate defense counsel did not obtain a ruling on his request for investigator funds until oneBandBaBhalf years after appellant=s arrest. However, the fact remains that the State failed to provide any explanation for most of the delay period; thus, this factor weighs slightly in favor of finding that a violation occurred. See Dragoo, 96 S.W.3d at 314. C. Assertion of the Right The third Barker factor requires us to consider whether and with what persistence appellant asserted his right to a speedy trial. 407 U.S. at 531-32. Although failure to assert the right does not constitute waiver of the right, it does make it difficult for a defendant to prove that he or she was denied a speedy trial. Id. at 532. Here, appellant filed his motion to dismiss for violation of his right to a speedy trial less than a month before he pleaded guilty and the court determined his guilt. Although defense counsel stated that he had raised the issue earlierCwhen the State made its one motion for a continuanceCthere is no showing of this in the record, and the trial court was within its discretion to disregard it. In Dragoo, the Court of Criminal Appeals held that when a defendant did not assert his speedy trial right until shortly before trial, the defendant had Aquietly acquiesced@ in the delay; thus, this factor weighed heavily against finding a violation of the right. 96 S.W.3d at 314-15. Additionally, we note that appellant filed a motion to dismiss rather than a request for a trial setting, which diminishes the strength of his claim because it shows a desire to have no trial as opposed to a speedy trial. See, e.g., Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.CFort Worth 1997, no pet.). Accordingly, this factor weighs heavily against finding that appellant=s right to a speedy trial was violated. D. Prejudice The fourth Barker factor requires us to examine the prejudice suffered by appellant as a result of the delay. See Doggett, 505 U.S. at 655-56 (suggesting that some presumptive prejudice will always exist from an excessive delay in trial). In considering this factor, we must keep in mind the interests that the speedy trial right was designed to guard: (1) to prevent oppressive pretrial incarceration, (2) to minimize the accused=s anxiety and concern, and (3) to limit the possibility that the accused=s defense will be impaired. Barker, 407 U.S. at 531-32. The last of the three types of prejudice is the most serious because of its propensity to skew the fairness of the entire system. Id. at 532. Claims of prejudice to preparation of a defense must be founded in the record. See Deeb v. State, 815 S.W.2d 692, 706 (Tex. Crim. App. 1991). Unsupported assertions of prejudice are of little or no significance. Id. The initial burden of demonstrating prejudice lies with the defendant; however, once the defendant presents a prima facie showing, the burden shifts to the State to show that the defendant suffered no more serious prejudice than that caused by ordinary and inevitable delay. Munoz, 991 S.W.2d at 826. A defendant who has pleaded guilty, as appellant did here, may still be able to demonstrate prejudice from delay. See Doggett, 505 U.S. at 658; 42 George E. Dix & Robert O. Dawson, Texas practice: Criminal Practice and Procedure ' 23.47 (2001). But see Griffin v. State, 489 S.W.2d 290, 292 (Tex. Crim. App. 1973) (holding that defendant failed to show any prejudice where his only claim was that he was not guilty and he later pleaded guilty). In his motion to dismiss, appellant argued that he was prejudiced by the delay because defense witnesses had Adecreased memory of the events.@ However, as noted above, assertions of defense prejudice that are not supported by evidence in the record carry minimal weight. See Deeb, 815 S.W.2d at 706. At the hearing on the motion to dismiss, appellant testified that he had constantly wanted to go to trial, that he needed to proceed to trial to prove his innocence, and that waiting for trial had caused him anxiety and concern. Such self-serving and limited testimony is of little use in our analysis. Appellant has neither demonstrated any impairment to his defense nor provided any details of the anxiety and concern allegedly caused by the lack of a trial. The trial court was free to disregard the testimony, and we defer to the trial court=s factual determinations. See Munoz, 991 S.W.2d at 828-29. Although appellant=s incarceration for the entire delay period is of some concern, appellant=s inability to demonstrate any specific prejudice weighs against finding that a violation of the right to a speedy trial occurred. See Doggett, 505 U.S. at 655-56. E. The Balance Having analyzed the four Barker factors, we must now balance them. We have determined that the length of the delay weighs moderately toward a finding of a violation and that the State=s inability to offer valid excuses for most of the delay period weighs slightly toward finding a violation. However, appellant=s failure to raise the issue until immediately before the determination of his guilt and his inability to demonstrate specific prejudice weigh heavily against finding a violation. Accordingly, we find that the weight of the four factors balanced together is against a finding of a violation of the right to a speedy trial. See Dragoo, 96 S.W.3d at 316 (arriving at a very similar balance). We overrule appellant=s sole issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed May 9, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).