i          i        i                                                                i      i      i




                                  MEMORANDUM OPINION


                                          No. 04-08-00142-CR

                                          Francis J. LEARY,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 399th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2006CR8968
                                Honorable Pat Priest, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 10, 2008

AFFIRMED

           Francis J. Leary pled nolo contendere to the offense of aggravated robbery (habitual) after

the trial court denied Leary’s Petition for Writ of Habeas Corpus to Dismiss with Prejudice All

Charges for State’s Failure to Prosecute. Leary contends the trial court erred in denying his petition

which asserted a speedy trial claim. We affirm the trial court’s judgment.
                                                                                       04-08-00142-CR




                                           BACKGROUND

       Leary was arrested on a charge of theft of an automobile, a state jail felony offense, on

September 15, 2005. Leary was indicted on December 13, 2005, on the charge of aggravated

robbery. Because the first attorney appointed to represent Leary was not qualified to handle a first

degree felony, she withdrew, and a new attorney was appointed. The trial date was reset on May 30,

2006, and August 21, 2006. Although the record does not contain any evidence regarding the reason

for the resets, a motion for the appointment of an investigator was granted in September of 2006.

       On October 18, 2006, the case was dismissed and re-indicted. The trial date was reset on

October 23, 2006; however, the record does not contain any evidence regarding the reason for the

reset. The trial was then set for May 21, 2007. On May 18, 2007, Leary’s attorney filed a motion

for continuance for her personal health reasons. The motion for continuance was granted.

       On September 17, 2007, Leary’s attorney filed: (1) a request for notice of intent to offer

extraneous offenses; (2) a motion for disclosure of names and addresses of persons the State intended

to call at trial; and (3) a motion for discovery, production and inspection of evidence. On September

28, 2007, the State filed its notice of intent to introduce extraneous offenses, listing thirty-seven

“other crimes, wrongs or acts” that the State intended to introduce.

       On January 9, 2008, Leary’s attorney filed a motion for the appointment of an investigator

which the trial court granted the same day. On January 29, 2008, Leary’s attorney filed another

motion for the appointment of an investigator which the trial court again granted the same day. On

February 4, 2008, Leary’s attorney filed a motion to withdraw. At that time, the case was set for trial

on February 25, 2008. The motion stated, “Movant has represented Defendant to the best of her



                                                  -2-
                                                                                          04-08-00142-CR

ability, but the attorney client relationship has become so strained that Movant feels it is [in] the best

interest of everyone involved that she be allowed to withdraw.” On February 12, 2008, the motion

was granted. New counsel was appointed on February 13, 2008.

        On February 20, 2008, Leary filed a pro se Petition for Writ of Habeas Corpus to Dismiss

with Prejudice All Charges for State’s Failure to Prosecute, asserting a speedy trial claim. Leary’s

newly appointed attorney elected to pursue the pro se motion, and after a hearing held on February

26, 2008, the trial court denied the relief requested. Thereafter, Leary pled nolo contendere pursuant

to a plea bargain agreement and was sentenced as a habitual offender to forty years imprisonment

in accordance with his plea. Although this appeal arises from a plea bargain case, the trial court

certified that defendant had the right to appeal the ruling on the speedy trial claim.

                                              DISCUSSION

        “In determining whether a criminal defendant has been denied his federal or state

constitutional right to a speedy trial, a court must use a balancing test in which the conduct of both

the State and the defendant are weighed.” Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App.

2003). The factors to be weighed in the balance include, but are not necessarily limited to: (1) the

length of the delay; (2) reasons for the delay; (3) the defendant’s assertion of his speedy trial right;

and (4) the prejudice to the defendant resulting from the delay. Id. at 888-89. In conducting a

speedy trial analysis, we review legal issues de novo but give deference to a trial court’s resolution

of factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). In addition to

deferring to the trial court’s resolution of disputed facts, we also defer to the trial court’s drawing

of reasonable inferences from the facts because the trial judge’s personal knowledge of the parties

and the sequence of events place him in a better position to draw inferences than an appellate court



                                                   -3-
                                                                                        04-08-00142-CR

without such familiarity. Id. at 726-27.

1.      Length of Delay

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

or formally accused. Shaw, 117 S.W.3d at 889. In general, delay approaching one year is sufficient

to trigger a speedy trial inquiry. Id.

        In this case, Leary was arrested in September of 2005 and his pre-trial hearing was not held

until February of 2008. This delay is sufficient to trigger a speedy trial inquiry, and this factor

weighs heavily in favor of finding a violation of Leary’s right to a speedy trial. See id.

2.      Reason for the Delay

        The State bears the initial burden of justifying the delay. Marquez v. State, 165 S.W.3d 741,

748 (Tex. App.—San Antonio 2005, pet. ref’d). In assessing the reasons the State offers to justify

the delay, different weights must be assigned to different reasons. Shaw, 117 S.W.3d at 889. A

deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons,

such as negligence or overcrowded dockets, are weighed less heavily. Marquez, 165 S.W.3d at 748.

If the record is silent regarding the reason for the delay, we presume neither a deliberate attempt by

the State to prejudice the defense, nor a valid reason for the delay. Id.

        The record is silent regarding the resets during 2006; however, defense counsel requested and

was appointed an investigator from which the trial court could infer that defense counsel needed

additional time to prepare the case. The trial date set in May of 2007 was reset when defense counsel

requested a continuance. Based on the motions filed requesting additional discovery and the

appointment of additional investigators, it appears defense counsel was still preparing the case in late

2007 and early 2008. On the eve of trial in February of 2008, defense counsel moved to withdraw



                                                  -4-
                                                                                         04-08-00142-CR

based on the inability of appointed counsel and the defendant to work together. At the hearing on

the speedy trial motion, the prosecutor also stated that there were ongoing negotiations involving the

case with all three attorneys who had been appointed to represent Leary.

        From the reference to negotiations, the trial court could have inferred that the parties agreed

to the various resets to delay the trial setting. From the motions filed and the ongoing requests for

investigators, the trial court also could have inferred that a greater part of the delay was due to

defense counsel needing to prepare for trial; however, the trial court also referred to the status of its

docket as contributing to the delay. In view of the record, this factor does not appear to weigh in

either party’s favor.

3.      Assertion of the Right

        A defendant is responsible for asserting or demanding his right to a speedy trial. Marquez,

165 S.W.3d at 749. Failure to seek a speedy trial makes it difficult for a defendant to prevail on a

speedy trial claim. Shaw, 117 S.W.3d at 890. “This is so because a defendant’s failure to make a

timely demand for a speedy trial indicates strongly that he did not really want one and that he was

not prejudiced by not having one.” Id. “Furthermore, the longer the delay [lasts], the more likely

it is that a defendant who really wanted a speedy trial would take some action to obtain one.” Id.

“Thus, a defendant’s inaction weighs more heavily against a violation the longer the delay.” Id.

Finally, a defendant who seeks a dismissal as opposed to a speedy trial attenuates the strength of his

speedy trial claim. Marquez, 165 S.W.3d at 749.

        In this case, Leary never asserted his right to a speedy trial and only sought dismissal of the

indictment over two years after his arrest and on the eve of his trial setting. This factor weighs

heavily against finding a violation of Leary’s right to a speedy trial. Shaw, 117 S.W.3d at 890.



                                                   -5-
                                                                                        04-08-00142-CR

4.     Prejudice to the Defendant Resulting from the Delay

       Prejudice to the defendant is assessed in light of the interests which the speedy trial right was

intended to protect: (1) preventing oppressive incarceration; (2) minimizing the anxiety and concern

of the accused; and (3) limiting the possibility that the defense will be impaired. Shaw, 117 S.W.3d

at 890; Marquez, 165 S.W.3d at 749. The defendant has the burden to make some showing of

prejudice. Marquez, 165 S.W.3d at 749. To show his defense was impaired based on the

unavailability of defense witnesses, the defendant must show witnesses were unavailable, their

testimony would have been relevant, and he used due diligence to locate the witnesses. Id. at 750.

To show prejudice based on the dimming memories of the State’s witnesses, the defendant must

show that the lapses of memory are in some way significant to the outcome of the case. Id.

Although an excessive delay presumptively compromises the reliability of a trial in ways that neither

party can prove or even identify, this presumption is extenuated by the defendant’s acquiescence in

the delay. Shaw, 117 S.W.3d at 890.

       Although Leary’s attorney stated that the delay caused Leary some anxiety, Leary made no

showing that his defense would be impaired by the delay. Moreover, Leary’s acquiescence in the

delay extenuates any presumed prejudice. See id. Finally, Leary’s anxiety could be equally

attributable to a second offense for which Leary also was incarcerated. See Hill v. State, 213 S.W.3d

533, 541 (Tex. App.—Texarkana 2007, no pet.). Therefore, although Leary’s attorney stated that

the delay caused Leary some anxiety, any prejudice Leary suffered as a result of the delay was

minimal, and this factor weighs against him. See Marquez, 165 S.W.3d at 750.




                                                  -6-
                                                                                        04-08-00142-CR

5.     Balancing the Factors

       Although the excessive delay weighs heavily in favor of finding a violation, Leary’s failure

to assert his right weighs heavily against such a finding as does his request for a dismissal as opposed

to a speedy trial. Furthermore, the record provides some evidence of a reason for the delay so this

factor does not weigh heavily in favor of a violation. Finally, although Leary’s attorney stated the

delay caused Leary anxiety, Leary presented no evidence that his defense was impaired. Therefore,

balancing all of the factors, the trial court did not err in denying Leary’s petition requesting a

dismissal of his indictment.

                                            CONCLUSION

       The trial court’s judgment is affirmed.

                                                        Phylis J. Speedlin, Justice

DO NOT PUBLISH




                                                  -7-
