                                  NO. 07-08-0009-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                    JULY 15, 2008

                         ______________________________


                        THE STATE OF TEXAS, APPELLANT

                                           V.

                       ROBERT ROY GILLINGHAM, APPELLEE

                       _________________________________

       FROM THE COUNTY COURT AT LAW NO. 2 OF JOHNSON COUNTY;

            NO. M200701578; HONORABLE JERRY D. WEBBER, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      The State seeks to have this Court overturn the trial court’s order granting

Appellee’s motion to discharge for delay. By one multifarious point of error, the State

contends Appellee’s motion was (1) untimely and (2) without notice to the State; and, the

trial court’s order was (3) not supported by the record, and (4) incorrect under the
applicable law. Finding that the trial court’s order is supported by the record and the

applicable law, we affirm.


                                      Background


       On May 25, 2007, Appellee, Robert Roy Gillingham, was charged by information

with the misdemeanor offense of assault against a family member, an offense that was

alleged to have occurred on August 15, 2005. A bench trial commenced on November 29,

2007. Subsequent to the reading of the information and the entry of Appellee’s plea of not

guilty, Appellee’s counsel made an oral motion to the effect that the prosecution was

barred because a court had previously taken the offense into account when, on October

4, 2006, Appellee was convicted of interfering with a 911 call, another offense arising out

of the same facts and involving the same complaining witness, Appellee’s wife. See Tex.

Penal Code Ann. § 12.45(d) (Vernon 2007). The State did not object to the fact that the

motion was not in writing or to the timeliness of the motion.


       Following a recess, presumably to review the transcript of the prior proceeding, the

court reconvened and announced that there was “some question” as to whether the case

at bar was addressed in that prior proceeding. Upon inquiry as to whether there was

anything further Appellee wished to present to the trial court, Appellee’s counsel stated:


       Yes, Your Honor. We would ask the Court to consider a discharge for delay
       under Article 28.061. If a motion to set aside an Indictment, Information, or
       Complaint for failure to provide a speedy trial is sustained, the Court shall
       discharge the defendant.

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       Again, the State did not object to the fact that this motion was not in writing or to its

timeliness. At that point, the trial court heard evidence from Appellee’s wife to the effect

that, at the time of the prior proceeding on October 4, 2006, it was her understanding and

desire that all charges against Appellee were to be dismissed when the court convicted

Appellee of the offense of interfering with a 911 call.


       Following presentation of testimony, the trial court granted Appellee’s motion for

discharge based upon delay. The State gave timely notice of appeal.


                                          Discussion


I.     Standard of Review


       When reviewing a trial court’s ruling on a motion for speedy trial, this Court uses a

bifurcated standard of review. Cantu v. State, No. PD-1176-07, 2008 WL 1958983, at *4

(Tex.Crim.App. May 7, 2008) (citing Zamorano v. State, 84 S.W.3d 643, 648

(Tex.Crim.App. 2002)). This Court applies an abuse of discretion standard for factual

components and a de novo standard for the legal components. Cantu, 2008 WL 1958983,

at *4. Those standards are well established and a detailed recitation of those standards

need not be repeated here. It is sufficient to note that the trial court’s ruling will be affirmed

only if it is supported by the record and is correct under the applicable law. Shaw v. State,

117 S.W.3d 883, 889 (Tex.Crim.App. 2003).




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II.    Timeliness of the Motion and Lack of Notice


       By its first argument, the State maintains that it did not receive proper notice of

Appellee’s motion to dismiss for delay because article 27.10 of the Texas Code of Criminal

Procedure mandates that all motions to set aside an information be in writing, and

Appellee’s motion was orally made. Secondly, the State maintains that the motion was

untimely because it was never raised until after the trial had started in violation of section

2 of article 28.01 which requires that matters not raised or filed seven days before the

hearing will not thereafter be allowed to be raised or filed, except by permission of the court

for good cause shown. However, these arguments were never presented to the trial court

and no objection was ever made. Therefore, the State waived those objections. Tex. R.

App. P. 33.1(a). Martinez v. State, 91 S.W.3d 331, 335-36 (Tex.Crim.App. 2002).


III.   Unsupported by the Facts and the Applicable Law


       The Sixth Amendment to the United States Constitution guarantees an accused the

right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972). This right is applicable to state criminal prosecutions by virtue of the Due Process

Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87

S.Ct. 988, 18 L.Ed.2d 1 (1967). In addition, Article I, § 10 of the Texas Constitution

guarantees the accused the right to a speedy and public trial in all criminal prosecutions.

Tex. Const. art. I, § 10; Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App. 1985).



                                              4
        Supreme Court precedent dictates that the trial court should analyze a speedy trial

claim “on an ad hoc basis” by weighing and then balancing the four Barker v. Wingo

factors: (1) length of the delay, (2) reason for the delay, (3) assertion of the right, and (4)

prejudice to the accused. Cantu, 2008 WL 1958983, at *3. While review of the individual

Barker factors necessarily involves both fact determinations and legal conclusions, “[t]he

balancing tests as a whole . . . is a purely legal question.” Zamorano, 84 S.W.3d at 648,

n.19.


        After a balancing of the Barker factors, dismissal of the charging instrument is

mandated only upon a finding that the accused’s actual and asserted interest in a speedy

trial has been violated and that the accused has been prejudiced by that violation. Cantu,

2008 WL 1958983, at *3. Because the trial court granted Appellee’s motion, we presume

that the trial judge resolved any disputed fact issues in Appellee’s favor, and we defer to

the implied findings of fact that the record supports. Cantu, 2008 WL 1958983, at *5.


A.      Length of the Delay


        The first Barker factor, the length of the delay, is measured from the time the

accused is arrested or formally charged until the time the accused asserts his right to a

speedy trial. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468

(1971). The record in this case does not establish when Appellee was arrested; however,

it does support an implied finding that he was arrested on or near the date of the alleged

offense, August 15, 2005. Furthermore, the record clearly supports a finding that Appellee

                                              5
was in custody on February 11, 2006, when he made bond. Considering the fact that

charges were not formally filed until May 25, 2007, there was a delay of not less than 15

months from the time of arrest until the presentment of formal charges; and, considering

the fact that Appellee’s motion for dismissal was made on November 29, 2007, there was

an undisputed delay of not less than 21 months from the time of arrest until the date

Appellee asserted his right to a speedy trial.


       Analysis of the remaining Barker factors is triggered by a delay that is unreasonable

enough to be “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 652 n.1,

112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). There is no set time element that triggers the

analysis, however, a seventeen-month delay has been held to be sufficient to warrant a full

analysis of the Barker factors. Phillips v. State, 650 S.W.2d 396, 399 (Tex.Crim.App.

1983). Under the facts of this case, we cannot say that the trial court abused its discretion

in determining that the delay was presumptively prejudicial, thereby resolving the delay

factor in favor of Appellee and warranting analysis of the three remaining Barker factors.


B.     Reason for the Delay


       Once the trial court determines that a delay was presumptively prejudicial, the

burden shifts to the State to justify the delay. Turner v. State, 545 S.W.2d 133, 137-38

(Tex.Crim.App. 1976). Under Barker, “different weights” should be attributed to this factor

depending upon the different reasons for the delay. Barker, 407 U.S. at 531; State v.

Munoz, 991 S.W.2d 818, 822 (Tex.Crim.App. 1999).

                                             6
       It is undisputed that the facts giving rise to the underlying information arose out of

the same facts that gave rise to the offense of interfering with a 911 call, the offense to

which Appellee entered a plea on October 4, 2006. More than any other factor, the delay

in the prosecution of the underlying charge appears to have arisen from the State’s failure

to timely file the information until after the date of Appellee’s prior plea. Under those

circumstances, the trial court’s resolution of this factor in favor of Appellee was not an

abuse of discretion.


C.     Assertion of the Right


       The third factor a reviewing court must consider in accordance with Barker is the

accused’s assertion of his right to a speedy trial. The accused has no duty to bring himself

to trial; that is the State’s duty. Cantu, 2008 WL 1958983, at *5. However, the failure of

the accused to diligently seek a speedy trial will generally weaken his speedy trial claim.

Id.   In this case, Appellee did not assert his right to a speedy trial until after

commencement of his trial. While this factor weighs heavily against Appellee, we note that

no single factor is determinative because the Court must “engage in the difficult and

sensitive balancing process” in each individual case. Zamorano, 84 S.W.3d at 648

(quoting Barker, 407 U.S. at 530).




                                             7
D.     Prejudice to the Accused


       In considering the fourth Barker factor, the court must consider whether the delay

caused prejudice to the accused. In this case, Appellee claims that his defense was

impaired because if the case had been timely filed with the County Attorney’s Office, the

prosecution of this case would have been barred because a court would have taken the

offense into account when, on October 4, 2006, Appellee was convicted of interfering with

a 911 call, because that offense arose out of the same facts and involved the same

complaining witness, Appellee’s wife. See § 12.45(d).


       Impairment of a defense is considered to be the “most serious” way in which delay

might prejudice an accused because the inability of a defendant to adequately prepare a

defense places into question the fairness of the entire system. Barker, 407 U.S. at 532.

From the testimony given at the hearing on Appellee’s motion to dismiss, it is clear that the

complaining witness, Appellee’s wife, believed that the facts giving rise to the present

prosecution were going to be considered by the court at the October 4, 2006 hearing. But

for the delay in presenting the information, Appellee would have had an absolute defense

pursuant to the provisions of § 12.45(c) of the Texas Penal Code. Considering the trial

court’s earlier consideration of Appellee’s plea in bar, it is not unreasonable to conclude

that the trial court gave great emphasis to this factor.




                                              8
                                       Conclusion


       Having conducted a review of the four Barker factors, we believe the trial court’s

decision to grant Appellee’s motion to dismiss for delay is supported by the record and the

applicable law. Accordingly, the State’s point of error is overruled and the judgment of the

trial court is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice

Do not publish.




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