

Motion for Rehearing
Granted; Memorandum Opinion issued on April 23, 2009 Withdrawn; Reversed and
Rendered and Substitute Opinion filed October 8, 2009.
 
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-08-00568-CR
_______________
 
JOHN L. NEWMAN, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
                                                                                     
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 851820
                                                                                    

 
S U B S T
I T U T E  O P I N I O N  
Appellant John L. Newman=s motion for rehearing is granted. 
We withdraw our Memorandum Opinion issued on April 23, 2009, and issue this
Substitute Opinion.
Pursuant to a plea bargain, appellant pleaded no contest to
the felony offense of intoxication assault.  The trial court found him guilty
and, consistent with the plea bargain, assessed punishment of two years= confinement.  The trial court also
certified that appellant has the right to pursue this appeal.  




In two issues, appellant contends the trial court abused its
discretion by failing to dismiss the indictment for denial of appellant=s rights
to a speedy trial under the state and federal constitutions.  For reasons
outlined below, we conclude the state=s approximately nine-year delay in
bringing this case to trial violated appellant=s constitutional rights to a speedy
trial.  We reverse the judgment of the trial court and order the indictment
dismissed for violation of appellant=s constitutional rights to a speedy
trial. 
I.  Background
On April 22, 1999, appellant drove his vehicle into one
occupied by Helen Savre, causing her serious bodily injury.  On May 20, 1999,
in cause number 811136, a Harris County grand jury indicted appellant for the
April 22 intoxication assault of Savre.  During July and August of 1999,
appellant=s trial counsel twice agreed to disposition settings.  Moreover,
appellant entered into an agreement to set the case for jury trial on November
5, 1999.  However, on October 29, 1999, the State filed a motion for a
continuance on the ground that Houston Police Officer Steve Salley, a material
witness in the case, was on assignment with United Nations forces in Bosnia and
would not be permitted to return until late June 2000.  On November 12, 1999,
the State filed a motion to dismiss, alleging a Amissing witness.@  The trial court granted the motion
and dismissed the case.
On August 3, 2000, in cause number 851820, the State filed a
new complaint alleging the same offense.  On August 4, 2000, a grand jury
authorized a second indictment.  A Harris County sheriff=s deputy acknowledged receipt of an
instanter arrest warrant on August 5, 2000; however, appellant was not
arrested until April 5, 2008.  Appellant=s re-filed case was set for trial on
June 5, 2008.  Appellant=s counsel agreed to a second trial setting for June 26,
2008.  Two handwritten notes appear on the agreed-setting form.  Defense
counsel noted, A[Defendant] requests a speedy trial & does not waive
right!@ 




On June 9, 2008, appellant filed a AMotion to Dismiss for Denial of the
Accused=s Constitutional Right to a Speedy
Trial Pursuant to the State and Federal Constitutions.@  In his prayer for relief, however,
appellant requested a speedy trial.  Although the motion included an affidavit
by which appellant could have sworn to the truth of the averments in his
motion, the affidavit was not signed or executed before a notary.  The State
did not file a response.  On June 26, 2008, the trial court denied the
speedy-trial motion and accepted appellant=s plea.
II. Analysis
In issues one and two, respectively, appellant argues the
trial court Aabused its discretion by failing to grant appellant=s motion to dismiss for denial of his
constitutional right to a speedy trial@ under Article I, section 10 of the
Texas Constitution and the Sixth Amendment to the United States Constitution.
A.  Standard of Review




In determining whether a defendant=s federal and state constitutional
rights to a speedy trial have been violated, we apply a balancing test in which
we consider the following four factors:  (1) length of the delay; (2) reason
for the delay; (3) the defendant=s assertion of his right; and (4)
prejudice to the defendant.  See Barker v. Wingo, 407 U.S. 514, 530
(1972) (creating balancing test for reviewing speedy-trial claims under federal
constitution).  When considering the merits of a federal constitutional speedy
trial claim, we employ a bifurcated standard of review:  an abuse of discretion
standard for the factual components, and a de novo standard for the
legal components.@  Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim.
App. 2002).  Moreover, when a defendant loses a speedy-trial motion, we presume
the trial court resolved any disputed fact issues in the State=s favor.  Id.    Finally, we
conduct our review of factual determinations with due deference to the trial
court=s findings; however, once the facts
have been established, we undertake a de novo review, and employ the Barker
v. Wingo balancing test.[1] 
B.  Status of the Record
The only indication the trial court held a hearing on
appellant=s speedy-trial motion is the following statement on the trial court=s June 26, 2008 order denying the
motion:  AOn this day came on to be heard the Accused [sic] forgoing [sic] Motion
and after a hearing, it is the opinion of this Court that relief should be:           GRANTED 
   T    DENIED.@  There is no reporter=s record of anything that transpired
at that June 26 hearing.  Moreover, the State did not file a reply to appellant=s speedy-trial motion.




The evidence submitted in support of this appeal consists of
documents attached to appellant=s unsworn speedy-trial motion. These documents were either
certified or file-stamped copies from the court=s file or the District Clerk=s office. The chronology below is
gleaned from those documents. The record is devoid of any testimony regarding
the circumstances surrounding appellant=s second indictment and subsequent
arrest, nine years after the first indictment.   However, there is no dispute
that appellant asserted his right to a speedy trial while this case was pending
in the trial court.  Accordingly, we are not addressing this issue for the
first time on appeal.  Compare Newcomb v. State, 547 S.W.2d 37,
37B38 (Tex. Crim. App. 1977) (AThe record reflects no such motion
filed by appellant.@); Grimaldo v. State, 130 S.W.3d 450, 453-54 (Tex.
App.CCorpus Christi 2004, no pet.)
(determining Awhether an accused waives a speedy trial claim by
raising it for the first time on appeal@); State v. De Leon, 975
S.W.2d 722, 724 (Tex. App.CCorpus Christi 1998, no pet.) (AThe record in the
present case, however, reveals that the issue of defendant's speedy trial right
was never raised@ below). Appellant=s speedy trial motion was filed and
subsequently denied by the trial court.  See Newcomb, 547 S.W.2d
at 38. Appellant attached copies of court documents to his speedy-trial motion
which substantiate the chronology outlined below.  Moreover, the record in this
case reveals little, if any, factual dispute regarding the first and third Barker
factors: length of the delay and assertion of the right to a speedy trial. 
Relative to the second Barker factor, the record is silent regarding the
reason for the eight-year delay between the second indictment and arrest. 
Notwithstanding averments in appellant=s unsworn motion to dismiss, the
record is also silent on the Barker fourth factor: whether appellant=s case was actually prejudiced by the
state=s delay. 
The record before this court is sparse,[2] 
and we
acknowledge that a speedy-trial issue may be waived by (1) not raising the
claim before trial begins; (2) not presenting evidence of the claim to the
trial court; or (3) not obtaining a ruling after presentation of the evidence. 
See Tex. R. App. P. 33.1; see
also Wade v. State, 83 S.W. 3d 835, 838 (Tex. App.B Texarkana 2002,
no pet.). However, appellant fulfilled all three requirements.  Accordingly, we
conclude there is sufficient evidence to perform the balancing test prescribed
in Barker despite appellant=s failure to
present testimonial evidence supporting this appeal. In addition, we
acknowledge the high probability of prejudice to appellant=s defenses
resulting from an extremely excessive nine-year delay between the original
indictment and final trial date reflected in this record.  The presumption of
prejudice from excessive delay grows and intensifies over time.  See Doggett v. United States, 505 U.S. 647, 655 (1992); see
also  Orand v. State, 254 S.W.3d 560, 569 (Tex. App.CFort Worth 2008, pet. ref=d).      
C.  Barker v. Wingo Analysis         




No single Barker factor is necessary or sufficient to
a finding that appellant was deprived of the right to a speedy trial.  Zamorano,
84 S.W.3d at 648.  Instead, the factors are interrelated, and a court must
consider them together along with any other relevant circumstances.  Id. 
Once the defendant has established a delay sufficient to trigger the Barker analysis,
the State has the burden of justifying the length of delay, and the defendant
generally has the burden of proving timely assertion of the right and showing
prejudice.  See Cantu, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).[3]  
The defendant=s burden of proof on the latter two factors varies inversely with the
State=s degree of culpability for the
delay.  Id.
The length of the delay.  The first factor, length of the delay,
is a double inquiry.  Doggett, 505 U.S. at 651.  To trigger the analysis
under Barker,  the accused must allege that the interval between
accusation and trial has crossed a threshold dividing ordinary from
presumptively prejudicial delay.  Id.  If the accused makes this first
showing, the court must then consider how far the delay stretches beyond the
bare minimum that triggers the analysis.  Id.
The court documents in the present case and those from cause
number 811136, which were attached to appellant=s motion to dismiss, establish
(without factual dispute) the following time line:
Apr. 22, 1999            offense
May 20, 1999            indictment in
cause number 811136




Oct. 29, 1999            State=s motion for continuance because arresting officer out
of the country until June, 2000
Nov. 12, 1999           State=s motion to dismiss on ground of missing witness
Nov. 12, 1999           dismissal of
cause number 811136
----
Aug. 3, 2000              complaint and
warrant in cause number 851820
Aug. 4, 2000              indictment in
cause number 851820
Apr. 5, 2008              appellant=s arrest
Jun. 5, 2008               counsel=s handwritten note on agreed resetting form:  A[Defendant] requests a speedy trial & does not
waive right!@ 
Jun. 9, 2008               appellant=s speedy trial motion
Jun. 26, 2008            denial of the
speedy trial motion and entry of guilty plea
 
Thus, a delay of over nine years elapsed between the first
accusation and appellant=s assertion of his speedy-trial right and entry of his guilty
plea, and a delay of almost eight years between the second accusation and
appellant=s assertion of his speedy trial right and entry of his guilty plea.  This
second period of almost eight years is Apresumptively prejudicial,@ thus triggering analysis under the Barker
factors.  See id. at 652 & n. 1 (holding Aextraordinary 8 2 year lag@ between accused=s indictment and arrest clearly
sufficient to trigger speedy trial inquiry and noting lower courts have
generally held delays approaching one year presumptively prejudicial).  The
length of delay is not factually disputed, and stretches far beyond the bare
minimum required to trigger the analysis.  Accordingly, the first factor weighs
heavily in favor of finding a speedy-trial violation.




Reason for the delay.  The State has the burden to justify
the lengthy delay.  See Cantu, 253 S.W.3d at 280.  The State presents
nothing in this record to explain the almost eight-year delay between the
second indictment and arrest.  Appellant did not present any evidence
pertaining to the State=s reason, if any, for the delay.  Absent disputed facts or an
assigned reason for the delay, we may presume neither a deliberate attempt by
the State to prejudice the defense nor a valid reason for delaying the trial.  Dragoo
v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).  Consequently, this
factor weighs in favor of finding a speedy-trial violation, but does not weigh
heavily in favor of such a finding.  Id.
Assertion of the right to a speedy trial.  The defendant has no duty to bring
himself to trial; that is the State=s duty.  Cantu, 253 S.W.3d at
282.  Nevertheless, the defendant does have the responsibility to assert his
right to a speedy trial.  Id.  Filing for a dismissal instead of
a speedy trial will generally weaken a speedy-trial claim because it shows a
desire to have no trial instead of a speedy one.  Id. at 283.  The
failure to make such request supports an inference the defendant does not
really want a trial; he wants only a dismissal.  Id.  We would be
reluctant, barring extraordinary circumstances, to rule that a defendant was
denied his constitutional right on a record that strongly indicates the
defendant did not want a speedy trial.  Barker, 407 U.S. at 536. 
Moreover, a defendant who acquiesces or contributes to the delay has not been
deprived of his due process right to a speedy trial.  See id. at 534; Cantu,
253 S.W.3d at 283; Dragoo, 96 S.W.3d at 315. 
 Here, relative to the first indictment, the record reflects
appellant=s trial counsel twice agreed to disposition settings, and entered into an
agreement to set the case for jury trial on November 5, 1999. The second
indictment was issued on August 4, 2000, and the record is silent on whether
appellant was aware of pending charges until he was arrested on April 5, 2008. 
Appellant=s trial counsel requested a speedy trial, relative to the second
indictment, on June 9, 2008, when he made a handwritten note on the trial reset
form.  Appellant argues that this request was a timely assertion of his right
to a speedy trial, but does not address open questions about whether appellant
might have procured or acquiesced in the delay. 




The question of acquiescence is essential to determining
whether the third factor weighs in favor of a violation of appellant=s constitutional right to a speedy
trial.  See Doggett, 505 U.S. at 653; Barker, 407 U.S. at 534;
Cantu, 253 S.W.3d at 282B83; Dragoo, 96 S.W.3d at 315.  For example, if
appellant knew of his indictment, the third factor would be weighed heavily
against him; however, if appellant was not aware of the indictment, he could
not Abe taxed for invoking his speedy
trial right only after his arrest.@  Doggett, 505 U.S. at 653.           As
previously noted, we defer to the trial court=s implicit findings against
appellant.  However, our deference must be supported by evidence in the
record.  Zamorano, 84 S.W.3d at 648. 
Other than documentation reflecting the date a warrant was prepared and the
date of appellant=s second arrest, there is no evidence submitted by appellant
or the state indicating appellant either procured or acquiesced in the State=s delay.  
In setting forth the Barker analysis, the Supreme
Court stated very clearly that Acourts should indulge every reasonable presumption against
waiver, and they should not presume acquiescence in the loss of fundamental
rights.@  407 U.S. at 525 (citation
omitted).  Presuming waiver from a silent record is impermissible.  Id. 
Therefore, we cannot presume  appellant acquiesced in the delay.  Accordingly,
with proper deference to the trial court=s implicit findings against the
State, and in consideration of our duty to indulge in every reasonable
presumption against waiver, the third factor weighs slightly in favor of
finding a violation. 
Prejudice from the delay.  We analyze prejudice to an accused
in light of the interests the speedy trial right protects:  (1) preventing
oppressive pretrial incarceration, (2)  minimizing the accused=s anxiety and concern, and (3)
limiting the possibility that the accused=s defense will be impaired.  Cantu,
253 S.W.3d at 285.  Of these, the third is the most serious because a defendant=s inability to prepare his case
adequately Askews the fairness of the entire system.@  Dragoo, 96 S.W.3d at 315.




Affirmative evidence of particularized prejudice is not
essential to every speedy trial claim because Aexcessive delay presumptively
compromises the reliability of a trial in ways that neither party can prove or,
for that matter, identify.@  Doggett, 505 U.S. at 655B56; see also Orand v. State,
254 S.W.3d 560, 569 (Tex. App.CFort Worth 2008, pet. ref=d).  Further, the presumption of
prejudice grows and intensifies with the length of the delay.  Doggett,
505 U.S. at 655B56.  In both Doggett and Orand, the courts held
that, following delays of eight-and-one-half years and eleven years, eight
months, respectively, the defendants were not required to prove actual
prejudice.  Doggett, 505 U.S. at 654B56; Orand, 254 S.W.3d at 570B71.  In both cases however, the
defendants presented affirmative evidence they were unaware of the pending
indictments.  See Doggett, 505 U.S. at 653B54; Orand, 254 S.W.3d at 658. 
Thus, as the Orand court explained, the delay in both cases was not
extenuated by acquiescence.  Orand, 254 S.W.3d at 571.  Although
appellant presented no affirmative evidence that he was unaware of his
indictment, we cannot presume that he acquiesced in the State=s delay.  Barker, 407 U.S. at
525.  Therefore, we cannot conclude that the presumption of prejudice resulting
from the almost eight-year delay was extenuated by acquiescence to the delay.  See
Barker, 407 U.S. at 525;  Dragoo, 96 S.W.3d at 315.  AWhen the presumption of prejudice,
albeit unspecified, is neither extenuated, as by the defendant=s acquiescence, nor persuasively
rebutted, the defendant is entitled to relief.@  Doggett, 505 U.S. at 658. 
Accordingly, we sustain appellant=s two issues. We reverse the judgment of the trial court and order the
indictment dismissed for violation of appellant=s constitutional rights to a speedy
trial.                                              
 
/s/        Charles Seymore
Justice
 
Panel
consists of Chief Justice Hedges and Justices Anderson and Seymore.
PublishC Tex. R. App. P. 47.2(b).




[1]  Appellant argues that the Barker balancing
test as a whole is a purely legal question.  On the contrary, appellate review
of Barker speedy trial factors necessarily involves fact determinations
and legal conclusions. See Zamorano, 84 S.W.3d at 648. Moreover,
we must defer to the trial court=s
implied findings of fact that the record supports. Id.  


[2]  We limit the applicability of our holding to the
unique facts of this case and caution practitioners  regarding the importance
of developing a record.  See Oldham v. State, 5 S.W. 3d 840, 846 (Tex.
App.BHouston[14th Dist.] 1999, pet. ref@d). 


[3]  Some intermediate appellate courts have stated that,
after the accused meets his burden of production of showing sufficient delay to
require application of the Barker test, the burden shifts to the State
to justify the delay, and then, if the State provides a reason for the
delay, the burden shifts back to the accused to show diligent assertion of
the right to a speedy trial and prejudice resulting from the delay. See,
e.g., Moreno v. State, 987 S.W.2d 195, 198 (Tex. App.CCorpus Christi 1999, pet. ref=d). Under such an analysis, the State=s failure to present evidence in response to appellant=s having documented a delay of almost eight years from
the second indictment to his arrest would, at first glance, appear to be fatal
to the State=s case. However, we note the analysis set forth in Dragoo
v. State, in which the court considered all of the Barker factors despite the State=s failure to provide a reason for the delay. 96 S.W.3d
308, 314B16 (Tex. Crim. App. 2003). 


