      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00267-CR



                                     Gerald Proper, Appellant

                                                   v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
        NO. 97643, HONORABLE MICHAEL J. MCCORMICK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Gerald Proper appeals from his conviction for the offense of sexual assault.

See Tex. Pen. Code Ann. § 22.011 (West 2003). The jury assessed appellant’s punishment,

enhanced by a prior felony conviction, at imprisonment for life and a fine of $10,000. In his sole

point of error, appellant complains that the trial court erred in overruling his motion to dismiss the

indictment because of the State’s failure to accord him his Sixth Amendment right to a speedy trial.

We will affirm the judgment.

               In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court announced the factors

that are to be considered in determining a claim that the State has violated a defendant’s Sixth

Amendment right to a speedy trial. The factors to be weighed in the balance include, but are not

necessarily limited to: (1) the length of the delay, (2) reason for delay, (3) the defendant’s assertion
of his right to a speedy trial, and (4) prejudice to the defendant resulting from the delay. See id. at

530; Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); State v. Munoz, 991 S.W.2d 818,

821 (Tex. Crim. App. 1999). The balancing test requires weighing, case by case, the conduct of both

the prosecution and the defendant. See Barker, 407 U.S. at 530; Munoz, 991 S.W.2d at 821. The

Barker factors must be considered together with such other circumstances as may be relevant. See

Barker, 407 U.S. at 533; Munoz, 991 S.W.2d at 821.


                                          Length of Delay

               The length of delay is measured from the time a defendant is arrested or formally

charged. United States v. Marion, 404 U.S. 307, 313 (1971). The length of delay is a triggering

mechanism; a speedy trial claim need only be considered when the passage of time is unreasonable

in the circumstances. Doggett v. United States, 505 U.S. 647, 651-52 (1992). Delay approaching

one year is generally considered so unreasonable as to trigger the Barker inquiry. Id. at 652 n.1. If

the defendant makes a sufficient showing, the court must then consider, as one factor, the extent to

which the delay stretches beyond the minimum needed to trigger judicial examination of the claim.

Id. In this case, there was a delay of approximately thirteen years; this delay is sufficient to trigger

a full Barker inquiry and a factor to be considered; it weighs in favor of a finding of a violation of

appellant’s right to a speedy trial. We must consider the other Barker factors.


                                          Reason for Delay

               Closely related to length of delay are the reasons the prosecution assigns to justify the

delay. Barker, 407 U.S. at 531. Different weights should be assigned to different reasons. Id. A



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deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against

the prosecution. Id. A more neutral reason such as negligence or overcrowded courts should be

weighed less heavily against the prosecution. Id. A valid reason, such as a missing witness, should

serve to justify appropriate delay. Id.

               The indictment was returned on June 29, 1989; it charged appellant with committing

the offense of sexual assault on April 16, 1989. Appellant fled from Texas to New York where he

was arrested on a fugitive warrant on May 7, 1989. When arrested, appellant was also arrested on

a charge that he had committed the offense of rape in New York after he arrived in that state. In

November 1989, the governor of New York issued an order pursuant to Texas’s request for

extradition. In January 1990, an extradition hearing was held in an Ulster County, New York court.

Appellant contested his extradition to Texas. In the extradition hearing, the Texas indictment was

read to appellant; appellant testified and offered affidavits of his sister, his wife, and his wife’s

employer. The evidence offered was that in the afternoon of April 15 and the evening of April 17,

1989, appellant was in New York. Based on the evidence appellant presented, the trial court denied

extradition and ordered that appellant be held for trial on the New York rape charge. In March 1990,

appellant was convicted in New York of the offenses of first degree rape and first degree sodomy

and sentenced to serve a prison term of twelve and one-half to twenty-five years. On appeal, the

judgments were reversed; appellant was retried, convicted, and sentenced to serve a prison term of

seven and one-half to fifteen years. Appellant was released from prison in New York on August 27,

1999. Appellant testified that he returned to Texas two weeks later.




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                After appellant returned to Texas, he allegedly committed another sexual assault on

October 30, 1999. He was arrested for that offense, the offense in this case, and for violation of

parole relating to a conviction for an offense predating the sexual assault offenses. On November

5, 1999, an attorney was appointed to represent appellant on the sexual assault cases. After several

months, at appellant’s request, that attorney was replaced by another appointed attorney. However,

an attorney was then retained; that attorney represented appellant in the trial of both sexual assault

cases. There is evidence that, at appellant’s request, this case was reset on numerous occasions and

that the State was ready for trial at each setting. With appellant’s agreement, or at least his

acquiescence, the more recent sexual assault case was tried first. In the trial of that case, the jury was

unable to reach a verdict on November 2, 2001. Appellant and the State then agreed upon a

preferential setting to try this case on February 25, 2002. However, on January 27, 2002, appellant

filed a motion to dismiss the indictment in this case because he had not been given a speedy trial.

After an extensive hearing of that motion, it was denied and appellant’s trial commenced on the

agreed date, February 25, 2002. Appellant was convicted by a jury.

                There is no evidence that the State delayed appellant’s trial in this case in order to

hamper his defense. Appellant fled from Texas immediately after committing this offense and he

actively resisted extradition. Appellant committed rape and sodomy in New York and was convicted

and imprisoned for those offenses. After returning to Texas, appellant committed and was tried for

another sexual assault case. The evidence relating to the reason for delay of appellant’s trial in this

case was more attributable to appellant’s conduct than to the State. The reasons for delay weigh

against a finding that appellant was denied a speedy trial.



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                                 Appellant’s Assertion of his Right
                                        to a Speedy Trial

                A defendant’s failure to assert his speedy trial right does not amount to a waiver of

that right. Barker, 407 U.S. at 528; Dragoo, 96 S.W.3d at 314. However, “failure to assert the right

will make it difficult for a defendant to prove he was denied a speedy trial.” Barker, 407 U.S. at 532.

The lack of a defendant’s timely demand for a speedy trial indicates strongly that he did not really

want a speedy trial. Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). “The longer the

delay becomes, the more likely a defendant who wished a speedy trial would be to take some action

to obtain it. Thus inaction weighs more heavily against a violation the longer the delay becomes.”

Dragoo, 96 S.W.3d at 314 (quoting 43 George E. Dix & Robert O. Dawson, Texas Practice:

Criminal Practice and Procedure § 23.40 (2d ed. 2001)). “If a defendant makes an affirmative effort

to assert his right to a speedy trial only after long delay, this strongly indicates that the defendant did

not in fact wish a speedy trial and thus that his right to a speedy trial was not violated.” Id.; see

Harris, 827 S.W.2d at 957; see also Phipps v. State, 630 S.W.2d 942, 946-47 (Tex. Crim. App.

1982); Fields v. State, 627 S.W.2d 714, 721 (Tex. Crim. App. 1982). A motion to dismiss for a

violation of the right to a speedy trial is less persuasive than a motion seeking trial without further

delay. Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.— Fort Worth 1997, no pet.).

                To account for his failing to assert his right to a speedy trial, appellant testified, and

now argues, that during the time he was imprisoned in New York he was unaware of the indictment

in this case. In view of the evidence that the indictment was read to appellant at the extradition

hearing and that he actively resisted extradition, appellant’s claim of not having knowledge of the

pending indictment is untenable and not credible. Appellant also attempts to excuse his failure to

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assert his speedy trial right because Texas failed to lodge a detainer against him. Texas and New

York are parties to the Interstate Agreement on Detainers Act. See Tex. Code Crim. Proc. Ann. art.

51.14 (West 1979).1

               Appellant has never asked for a speedy trial; but, after thirteen years he demanded that

the indictment be dismissed because he had not been given a speedy trial. Appellant actively resisted

extradition from New York and succeeded in stopping the State’s effort to extradite him. While in

prison in New York, appellant did not request that he be returned to Texas for trial. He had that right

aside from the Interstate Agreement on Detainers Act. A simple letter directed to the trial court

could have required the State to cause him to be returned for trial. See Smith v. Hooey, 393 U.S. 374

(1969). Smith, a federal prisoner, mailed a letter to the Texas trial court where an indictment against

him was pending requesting a speedy trial. Id. at 375. In reply to his letter, Smith was notified that

he would be afforded a trial within two weeks of any date he might specify he would be present. Id.

The Supreme Court held that “[T]he Sixth Amendment right to a speedy trial may not be dispensed




       1
           At the hearing on appellant’s motion to dismiss the indictment, an Ulster County, New
York assistant district attorney testified that he remembered appellant and the New York court
proceedings. He testified that it was decided not to appeal from the trial court’s order refusing to
extradite appellant. Also, he testified that New York law would have prevented Texas from gaining
custody of appellant even if Texas had placed a detainer on appellant after the extradition process
failed. If a detainer had been placed on appellant, he could have demanded a pre-transfer hearing.
At that hearing, appellant could have relied upon collateral estoppel on the identity issue decided in
his favor at the earlier extradition hearing. Texas heeded this advice and did not lodge a detainer
against appellant.

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with so lightly . . . . Upon [Smith’s] demand, Texas had a constitutional duty to make a diligent,

good-faith effort to bring him before the Harris County court for trial.” Id. at 383.

               After appellant returned to Texas, he filed several motions for a continuance and

acquiesced in going to trial on a more recently charged sexual assault offense instead of demanding

a trial on the indictment in this case. Appellant fled from Texas and successfully resisted extradition;

he never demanded a speedy trial; he waited thirteen years and then asked that the indictment be

dismissed. In view of the lengthy delay, in which appellant quietly acquiesced, this factor weighs

very heavily against finding a violation of the speedy trial right. See Dragoo, 96 S.W.3d at 315.


                        Prejudice to the Defendant Resulting from Delay

               The prejudice suffered by a defendant is assessed in the light of the interests that the

speedy trial right is designed to protect. See Barker, 407 U.S. at 532; Emery v. State, 881 S.W.2d

702, 709 (Tex. Crim. App. 1994); Rivera v. State, 990 S.W.2d 882, 891 (Tex. App.—Austin 1999,

pet. ref’d). These interests are: (1) preventing pretrial incarceration, (2) minimizing anxiety and

concern of the defendant, and (3) limiting the possibility that the defense will be impaired. Barker,

407 U.S. at 532-33; Munoz, 991 S.W.2d at 826. Of these three interests, the most important is the

last, because the inability of a defendant adequately to prepare his defense skews the fairness of the

entire system. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 822. Initially, a defendant has the

burden to make a showing of prejudice although a showing of actual prejudice is not required.

Munoz, 991 S.W.2d at 826; Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973). Once a

defendant makes a prima facie showing of prejudice, the State has the obligation of proving that the

defendant suffered no serious prejudice beyond that ensuing from the ordinary and inevitable delay.


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Munoz, 991 S.W.2d at 826; Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973).

Lengthy delay may raise a presumption of prejudice. See Zamorano v. State, 84 S.W.3d 643, 654

(Tex. Crim. App. 2002). Still, this presumption of prejudice is extenuated by appellant’s longtime

acquiescence in the delay. Dragoo, 96 S.W.3d at 315.

               During most of the time in question, appellant was in prison serving time for other

unrelated offenses. In these circumstances, we are mainly concerned with whether appellant’s ability

to defend himself was prejudiced by the delay. Id.; McCarty v. State, 498 S.W.2d 212, 218 (Tex.

Crim. App. 1973). Was appellant’s defense in this case prejudiced? A claim of prejudice relying

on the inability to locate witnesses must be supported by a showing that the defendant has used due

diligence in finding and producing them for trial. Harris, 489 S.W.2d at 308. In addition, a

defendant must show that the purported witnesses could furnish evidence relevant to his defense.

See id.

               Appellant’s claim of prejudice relies principally upon his inability to locate witnesses.

Appellant testified that his wife was in Ireland but he could not locate her there. He could not locate

his wife’s former employer. He testified that his father had died and made no explanation regarding

his sister. These are the witnesses who made affidavits furnishing appellant the alibi that resulted

in the New York trial judge’s refusal to extradite appellant. At his trial, the victim of the offense

identified appellant. Also, DNA evidence showed it was appellant who sexually assaulted the

alleged victim. In view of this evidence, weak alibi evidence furnished by appellant’s witnesses

likely would have been more detrimental than helpful to his defense. Appellant also offered

evidence that a former employer, who could not at the time of trial remember the facts, could have

given testimony at an earlier trial that appellant had access to a company truck and would not have

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needed the ride that the victim gave him at the time she was sexually assaulted. Such impeachment

evidence on a collateral matter, even if admitted, would have little probative value. The record fails

to show that the delay materially prejudiced appellant’s defense. The evidence of prejudice suffered

by appellant has slight, if any, weight favoring the finding of a violation of appellant’s right to a

speedy trial.


                                       Balancing the Factors

                The Barker factors are related factors that may be given different weight and they

must be considered together with such other circumstances as may be relevant. Barker, 407 U.S. at

533.   Courts apply a bifurcated standard when reviewing a trial court’s ruling on federal

constitutional speedy trial claims: an abuse of discretion standard for the factual components, and

a de novo standard for the legal components. Zamorano, 84 S.W.3d at 648; Johnson v. State, 954

S.W.2d 770, 771 (Tex. Crim. App. 1997). If a defendant loses in the trial court on a speedy trial

claim, the appellate court must presume that the trial court resolved any disputed fact issues in the

State’s favor, and must defer to the implied findings of fact that the record supports. Zamorano, 84

S.W.3d at 648; Munoz, 991 S.W.2d at 821. Even if it is conceeded that the length of delay and the

prejudice factors slightly favor a finding of the denial of a speedy trial, the other factors—the reason

for delay and appellant’s failure to timely assert his right to a speedy trial—weigh heavily against

a finding that appellant was denied his constitutional right to a speedy trial. We conclude that

appellant was not denied his constitutional right to a speedy trial. Appellant’s point of error is

overruled.




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               The judgment is affirmed.




                                             __________________________________________

                                             Carl E. F. Dally, Justice

Before Chief Justice Law, Justices Patterson and Dally*

Affirmed

Filed: August 29, 2003

Do Not Publish




*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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