                                                                                         ACCEPTED
                                                                                     05-15-00012-CR
                                                                          FIFTH COURT OF APPEALS
                                                                                     DALLAS, TEXAS
                                                                               6/16/2015 12:00:43 AM
                                                                                          LISA MATZ
                                                                                              CLERK

      CAUSE NO. 05-15-00011-CR, 05-15-00012-CR, 05-15-00013-CR

                    IN THE FIFTH COURT OF APPEALS                 RECEIVED IN
                            DALLAS, TEXAS                   5th COURT OF APPEALS
                                                                 DALLAS, TEXAS
                                                            6/16/2015 12:00:43 AM
                                                                   LISA MATZ
                         BERNARD JEROME COY,                         Clerk

                                                            Appellant,
                                      V.

                          THE STATE OF TEXAS,
                                                            Appellee.


  ON APPEAL FROM THE 363RD DISTRICT COURT, DALLAS COUNTY
                    The Honorable Pat McDowell, Presiding
            Trial Cause No. F12-537-22, F14-701-04, F14-701-05

                              Appellant’s Brief

                     ORAL ARGUMENT REQUESTED


                           Respectfully submitted,

                           Angel Mata
                           THE LAW OFFICE OF ANGEL MATA, P.C.
                           4314 N. Central Expwy.
                           Dallas, TX 75206
                           972.357.4956 :T
                           972.534.1715 :F
                           attorney@ANGELMATAlaw.com
                           Texas Bar No. 24063940
                           Attorney for Appellant


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APPELLANT’S BRIEF
                 IDENTITY OF PARTIES AND COUNSEL


MR. BERNARD JEROME COY                      APPELLANT

STATE OF TEXAS                              APPELLEE

MS. ANGEL MATA                              APPELLANT’S ATTORNEY
 The Law Office of Angel Mata, P.C.          (TRIAL & APPEAL)
 4314 N. Central Expwy.
 Dallas, TX 75206

MR. DIMITRI ANAGNOSTIS                      STATE’S ATTORNEY
 Assistant District Attorney                 (TRIAL LEVEL)
 Dallas County District Attorney’s Office
 Frank Crowley Courts Building
 133 N. Riverfront Blvd., LB-19
 Dallas, TX 75207

MRS. SUSAN HAWK (or her designated          STATE’S ATTORNEY
 representative)                             (APPEAL)
 Dallas County District Attorney’s Office
 Frank Crowley Courts Building
 133 N. Riverfront Blvd., LB-19
 Dallas, TX 75207

HONORABLE PAT MCDOWELL                      JUDGE PRESIDING
 363RD Criminal District Court
 Frank Crowley Courts Building
 133 N. Riverfront Blvd.
 Dallas, TX 75207




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APPELLANT’S BRIEF
                                      TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . .. . . . . . . . . . . . . . . . . .                         2
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              5
ANY STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . .                                          5
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       6
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           6
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . .                      11
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
       Point of Error 1
                The trial court erred in finding that the Appellant’s right to speedy
                trial was not violated.
       Point of Error 2
                The trial court erred by not dismissing the indictment against
                Appellant on the grounds that Appellant’s right to speedy trial was
                violated.
       Point of Error 3
                The Appellant was denied his Sixth Amendment right to speedy trial
                because the delay in prosecution was presumptively prejudicial.
       Point of Error 4
                The Appellant was denied his Sixth Amendment right to speedy trial
                because the Appellee gave no valid reason for the delay.
       Point of Error 5
                The Appellant was denied his Sixth Amendment right to speedy trial
                because the Appellant timely asserted his right to speedy trial.

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APPELLANT’S BRIEF
         Point of Error 6
                  The Appellant was denied his sixth amendment right to speedy trial
                  because he was prejudiced by the delay.
         Point of Error 7
                  The trial court erred in the application of the Barker balancing test.
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21




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APPELLANT’S BRIEF
                          INDEX OF AUTHORITIES


Cases                                                                   Page
Federal Cases
Barker v. Wingo, 407 U.S. 514 (1972)                                   11-21
Doggett v. United States, 505 U.S. 647 (1992)                         13, 18
United Stated v. Marion, 404 U.S. 307 (1971)                              18
State Cases
Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003)                 12, 18
Hardesty v. State, 738 S.W.2d 9 (Tex. App. – Dallas 1987)                 15
Phillips v. State, 650 S.W.2d 396 (Tex. Crim. App. 1983)             18 – 21
Shaw v. State, 117 S.W.3d 883 (Tex. Crim. App. 2003)           12, 17, 18, 21
State v. Burckhardt, 952 S.W.2d 100 (Tex. App. – San Antonio              12
1997).
Constitution, Rules, Statutes
U.S. Const. amend. VI
U.S. Const. amend XIV




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APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
      COMES NOW, BERNARD JEROME COY, hereinafter referred to as the
Appellant and respectfully submits this brief on appeal for three charges of
possession of controlled substance. The Appellant would show the following
points of error of which he wishes to complain.
                          STATEMENT OF THE CASE
      The Appellant was charged with three felony offenses of possession of a
controlled substance arising out of two different transactions. (RR1: 4, 5). One
offense and arrest took place on March 25, 2012 and the other two on April 21,
2012. (RR1: 4, 5). The court heard Appellant’s Motions for Speedy Trial on May
25, 2014. (RR1: 1). The Motions for Speedy Trial were denied by the trial court
and findings of fact and conclusions of law were entered into the record. (CR1: 31;
RR2: 6). The Appellant subsequently plead guilty to all three offenses and received
deferred probation however the trial court granted permission for Appellant to
appeal. (RR2: 7; RR3:7; CR1:41). Appellant appeals all three cases this instant
appeal follows.
              STATEMENT REGARDING ORAL ARGUMENT
      Appellant requests oral argument and believes that the Court’s decisional
process would be aided by oral argument. More specifically, this appeal, though
factually straightforward, involves several different issues pertaining to the
Appellant’s right to speedy trial and the dates on which the events all took place
are easily confused and oral argument would help set forth a timeline of events.
Appellant believes that the Court would be assisted in understanding the facts and
the law by having parties’ counsel argue their respective positions.




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APPELLANT’S BRIEF
                             ISSUES PRESENTED
                                 Point of Error 1
 The trial court erred in finding that the Appellant’s right to speedy trial was not
                                      violated.
                                 Point of Error 2
  The trial court erred by not dismissing the indictment against Appellant on the
                grounds that his right to speedy trial was violated.
                                 Point of Error 3
 The Appellant was denied his Sixth Amendment right to speedy trial because the
               delay in prosecution was presumptively prejudicial.
                                 Point of Error 4
 The Appellant was denied his Sixth Amendment right to speedy trial because the
                   Appellee gave no valid reason for the delay.
                                 Point of Error 5
 The Appellant was denied his Sixth Amendment right to speedy trial because the
                Appellant timely asserted his right to speedy trial.
                                 Point of Error 6
 The Appellant was denied his Sixth Amendment right to speedy trial because he
                           was prejudiced by the delay.
                                 Point of Error 7
       The trial court erred in the application of the Barker balancing test.
                           STATEMENT OF FACTS
      On March 25, 2012, Appellant was arrested for possession of a controlled
substance, (cause number F12-537-22) and two misdemeanor offenses. (RR1: 5, 14
CR1 of F12-537-22: 12). He was subsequently arraigned on the felony possession

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APPELLANT’S BRIEF
of a controlled substance on March 26, 2012 at 5:18pm. (RR1: 30; CR1 of F12-
537-22:12) On April 21, 2012, Appellant was arrested for two additional charges
of possession of a controlled substance (cause numbers F14-701-04 and F14-701-
05) and two additional misdemeanor offenses. (RR1: 4, 7, 14). Appellant was
taken to the hospital and turned himself into the jail the following day and was able
to bond himself out. (RR1: 4, 14, 21).
      For almost two years, all three felony offenses remained unindicted however
the misdemeanor cases were filed by information and Appellant was required to go
to court and answer for those offenses. (RR1: 14-15). In Dallas County it is the
normal practice of the misdemeanor courts not to allow the accused to plea to
misdemeanor offenses if they have unresolved or pending felony offenses out of
the same transaction and to “pass” or delay them as a “FE(L)P.” (RR1: 31).
Between the time of arrests and the date of the hearing, Appellant was required to
appear at court for the misdemeanor offenses 33 times. (RR1: 15).
      On January 14, 2014, F12-537-22 was indicted however the final two cause
numbers remained unindicted. (RR1: 5; CR1: 07). In early 2014, Appellant
learned there were two additional warrants for his arrest in cause numbers F14-
701-04 and F14-701-05 yet the cases remained unindicted and unfiled. (RR1: 18).
      On February 28, 2014, Appellant’s third and final attorney made an
appearance for the very first court setting on any of the felony offenses. On this
court date Appellant was granted personal recognizance bonds on F14-701-04 and
F14-701-05 because warrants had been issued for his arrest. (CR1: 5). The
following court date after the initial appearance, on March 17, 2014, Appellant
asserted his speedy trial right on a “pass slip” filed with the court on March 17,
2014. (RR1: 11). Appellant began appearing at court now for all the misdemeanor



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APPELLANT’S BRIEF
offenses and the one felony offense however the two remaining felony offenses
remained unindicted. (RR1: 15).
       On April 23, 2014, Appellant filed three Motion’s for Speedy Trial on all
three separate causes. (CR1: 22). On May 25, 2014, the court conducted a hearing
on Appellant’s Motions for Speedy Trial. (RR1: 1). On October 31, 2014 the trial
court denied all three Motions for Speedy Trial and findings of fact and
conclusions of law were filed with the court. (RR3: 6; CR1:32). At the time of the
hearing the two remaining causes F14-701-04 and F14-701-05 still remained
unindicted. (CR1: 08; CR1: 08). From the date of first arrest to the time of the
hearing, over two years had elapsed. (RR1: 14).
      At the hearing, the State of Texas by and through his assistant district
attorney, Dimitri Anagnostis, hereinafter referred to as Appellee stated that the
delay on indictment was a result in a backlog at the lab that tests the drugs. (RR1:
4). He stated that the lab test was not conducted until October 30, 2013 and “there
was a little bit of a delay between the offense date and the lab.” (RR1: 6). Appellee
further stated that because Appellant was out on bond that his case got “pushed to
the bottom” and that the Appellee’s concentration was on individuals “who are in
jail for a period of time” and those jail cases were “number one priority.” (RR1: 6).
The Appellee also stated that there was additional delay because the police officers
“were unable to identify the type of drug.” (RR1: 7, 28). At the hearing no
evidence was presented to substantiate either of the reasons the Appellee alleged
for their delay. (RR1: All).
      During the hearing the Appellant testified regarding the prejudice he
sustained during the pendency of the prosecution. (RR1: 13- 33). He began by
stating that while awaiting prosecution on the felony cases he was required to
attend court 33 times on the misdemeanor cases. (RR1: 15). The cases were reset

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APPELLANT’S BRIEF
each time for “FE(L)P” which meant a felony was pending. (RR1: 31). During this
time he also had to report in to his bondsman once a week, totaling 116 times.
(RR1: 16). Each of the 33 times Appellant came to court he was accompanied by
his father, and his mother on occasion. (RR1: 16). Having just secured employment
the month prior to the hearing he already had to miss work to attend court. (RR1:
16). He also indicated that each time his father accompanied him to court he had to
miss work as well. (RR: 16).
      Appellant stated that during the two years after the arrest he was unable to
secure employment and believed he was not able to find employment in part
because his criminal history showed that he had three felony arrests. (RR17).
While not admitted into the record, the Appellant brought with him, paperwork to
evidence all the places he had applied for employment. (RR1:17). He testified that
he believed he had applied to well over a hundred jobs. (RR1: 17).
      Appellant further stated that the pending cases caused him stress, “monetary
issues” and effected his family. (RR1: 19). Despite going to court every month and
checking in with the bondsman on a weekly basis, after the lab was returned on the
felony offenses warrants were issued for his arrest and the police went to his
parents’ home to arrest him. (RR1: 19). Appellant retained a new attorney and was
able to secure personal recognizance bonds on the two newly issued warrants for
the F14 causes. (RR1: 20). With two personal recognizance bonds, Appellant was
booked into the county jail at 10:30am and not released until the following
morning at 1:00am. (RR1: 20-21). Appellant also testified that there was anxiety in
knowing warrants could be issued at any time because of the two unindicted cases.
(RR1: 23). He also indicated that he had anxiety knowing that if he ever missed a
court date or failed to check in with his bondsman just once over the previous two
years that a warrant could be issued for his arrest. (RR1: 23).

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APPELLANT’S BRIEF
                       SUMMARY OF THE ARGUMENT
      The trial court erred in not dismissing the indictment against Appellant after
his Sixth Amendment right to speedy trial was violated. The trial court incorrectly
balanced the Barker factors in favor of the Appellee.
      The length in delay was of over two years and was presumptively
unreasonable and the reason for the delay was inadequate and should have been
weighed heavily against the Appellee. Moreover the trial court in his findings of
facts and conclusions of law determined the period of delay was “presumably
harmful.” The Appellee’s excuse for the delay was that there was a back log at the
lab and that jail cases were processed first. The Appellee also stated that the delay
was also due in part because the police were unable to identify the type of drug the
Appellee was alleged to have possessed. Neither of these reasons was evidenced
with anything besides the Appellee’s argument.
      The Appellant timely asserted his right to speedy trial on March 17, 2014. In
the F12 cause he asserted his right on his counsel’s second appearance and asserted
his speedy trial right on the other two F14 causes to indictment. The trial court
agreed that Appellant timely asserted his right to speedy trial.
      Appellant suffered prejudice as a result of the delay. Appellant lived under a
cloud of fear of arrest on all three causes. If he failed to show up to court or failed
to check in with his bondsman he would get warrants issued for his arrest. He was
made to report to court 33 times in misdemeanor court and report to his bondsman
116 times over the course of two years awaiting the felonies to be indicted.
      Additionally the stress caused to his family was reflected upon him as well.
Each time he appeared at court his father or mother would accompany him and in



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APPELLANT’S BRIEF
2014 some two years after the initial arrest the police showed up at his parents
home attempting to arrest him on warrants for in the F14 causes.
      Appellant also believes that his defense may have been harmed after two
years and was unsure how he would be able to contact the two witnesses to the
offense/arrest. For all of the aforementioned reasons he suffered anxiety that
exceeded that of a normal prosecution.
                                    ARGUMENT
      The Sixth Amendment to the United States Constitution provides that the
accused shall enjoy the right to speedy trial. Dragoo v. State, 96 S.W.3d 308, 313
(Tex. Crim. App. 2003).This constitutional right is subsequently made applicable
to the states through the Due Process Clause of the Fourteenth Amendment. Id. at
313. The right to speedy trial while not invoked as frequently as one’s other
fundamental rights is equally as important and “must be carried out with full
recognition.” Barker v. Wingo, 407 U.S. 514, 515, 533 (1972).
   Unlike one’s other constitutional rights, the right to a speedy trial does not
attach until a person has been formally “accused.” State v. Burckhardt, 952 S.W.2d
100, 102 (Tex. App. – San Antonio 1997). To invoke one’s right to a speedy trial
one must be under indictment, have been arrested or otherwise officially accused.
Id, at 102. In the instant cases, Appellant was arrested as a result of the first
incident on March 25, 2012. (RR: 14) He was arrested a total of three times for the
second incident, on April 21, 2012, April 23, 2012 and February 28, 2014. (RR:
14). Since the right to a speedy trial does not attach until one has been arrested,
indicted or otherwise formally charged, in the instant case, Appellants right
attached on March 25, 2012 when he was first arrested and arraigned (March 26,
2012) for the F12-537-22 offense. (RR1: 6, 30). His right attached in the F14
causes when he was arrested and arraigned on April 28, 2014. (RR1: 7; CR1: 13).

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APPELLANT’S BRIEF
   The test in determining whether or not the speedy trial right of the accused was
violated are set forth in the four factor balancing test of Barker, 407 U.S. at 530.
This test balances the conduct of not just the accused but also the state in
determining if there was a violation of the accused’s right to speedy trial. Id at 530.
The four balancing factors include: 1. the length of the delay, 2. the reason for the
delay, 3. the defendant’s assertion of his right to speedy trial and 4. prejudice to the
defendant because of the delay. Id. at 530 After assessing each factor the court
must be balance them together to determine if the accused right to speedy trial has
been violated. Id.
   I.     The Length of the Delay.
   To begin the balancing test the accused must first surpass the triggering
mechanism set forth in Barker. Id. According to Barker “until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.” Id. While Barker did not draw a bright line rule in
the amount of time that must pass, the court in Doggett gave some guidance when
determining if the delay is presumptively unreasonable. Id.; Doggett, 505 U.S. at
652. When applying the test each individual trial court must look at the “peculiar
circumstances of the case.” Barker, 407 U.S. at 530.
   In all of the instant cases, the time that elapsed between the time of arrest and
time of the hearing exceeded two years. (RR1: 1, 4). Due to the extent of the delay
in the trial courts findings of facts and conclusions of law the court agreed with
Appellant and found that the delay was “presumably harmful” thereby triggering
the rest of the Barker test. (CR1: 32). The trial court having determined that the
delay was presumptively unreasonable, the Court then proceeds to the following
factors of the balancing the test set forth in Barker.
   II.    The Reason for the Delay.

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APPELLANT’S BRIEF
   The second factor the Court factors in is “the reason for the delay.” Id. In
Barker the court provided that the burden ultimately rests with the State in
providing a reason for the delay rather than with the accused. Id. at 531. The
weight to be given this factor in the balancing test is determined on a case by case
basis. Id. For example, if the state had intentionally caused the delay it would be
weighed more heavily against them than had they just been negligent. Id. In some
instances the accused may cause the delay, to gain a tactical advantage in plea
negotiations. Id. at 519. In such instances “the reason for the delay” factor would
be weighed against the accused. Id. at 526-527.
   In the instant case the Appellee, provided no testimony or actual evidence for
the cause of the delay and only argument. (RR1: All). The Appellee stated that
there were “delays in getting drugs tested” and those “on bond” had their labs
“pushed to the bottom.” (RR1: 6-7). The Appellee indicated that their
“concentration” was on those in jail and that was their “number one priority.”
(RR1: 6). Since Appellee was not in jail his case was “pushed to the bottom,” not
their “number one priority.” (RR1: 6). The State also placed some blame on the
police agency for the delay stating that the “officer could not identify what drugs
there were.” (RR1: 7).
   The court in Barker recognized that in some instances the state has no control
over crowded dockets which may cause delay however even a crowded court
docket would be balanced against the state. Shaw v. State, 117 S.W.3D 883, 890
(Tex. Crim. App. 2003).; Barker, 407 U.S. at 519-520.
   However, the delay set forth in this cause was due to a backlog at a “lab,”
completely independent of the courts and something presumably the Appellee has
control over. (RR1: 6-7). The Appellee provided no testimony or evidence
evidencing what labs were being used, what the length of delay is in the jail cases

                                                                                      14
APPELLANT’S BRIEF
versus bond cases or if there were other alternative labs that could be used. (RR1:
Whole). They further placed blame on the police however the record does not
reflect when the police even submitted the drugs to the lab for testing or how much
of a delay was attributable to the police. (RR1: Whole).
   The trial court in their findings of facts and conclusion of law believed the
delay was “not intentional or negligent and are slightly weighted against the state.”
(CR1: 33). The courts in other cases have weighed the backlog of the docket
against the State however they have given it only little weight. In the instant case
the court should weigh it more heavily against the Appellee as there is no evidence
that by the Appellee why it takes so long, what the normal wait time is, whether
there are other laboratories that could test the drugs in a timelier manner. Further,
this case is distinguishable from Barker and other appellate cases in that the delay
pertains to the lab rather than the court’s docket. Id. at 519-520; Hardesty v. State,
738 S.W.2d 9, 10-11 (Tex. App. – Dallas 1987). With multiple labs across the
United States, presumably the State could send the drugs to another lab to get the
results back in a timelier manner. Unlike a heavy court docket where one must
have consent or good cause to transfer to another court, presumably, the State
could send the drugs to another lab that is not so back up that it takes almost two
years to test drug evidence.
   Lastly, the record reflects that despite the Appellees excuse for delay being the
clogged labs the record shows that the drugs were tested on October 28, 2013 and
in the F12 cause it still took at additional three months to indict the case (January
9, 2014). (RR1: 6). Additionally, even with the lab results from October 28, 2013
the two F14 causes at the time of speedy trial hearing still remained unfiled and
unindicted. (RR1: 8). The Appellee indicated that they were “waiting to be put on



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APPELLANT’S BRIEF
the new online system.” and he had contacted some “individuals.” (RR1: 8-9) At
the time of the hearing the Appellee now had the lab available for eight months.
   While he trial court weighed the third factor only slightly against the Appellee,
the Appellant believes this factor should be given more weight considering the
control the State has over the lab the drugs are sent to, the lack of “evidence”
provided by the Appellee to substantiate their claims, placing the blame on the
police and the fact that the F14 causes were still unindicted, unfiled and just
waiting to be put on the new online system.” It is the burden of the State to “insure
that the trial is consistent with due process” and if there is a backlog at the lab they
employ it is “incumbent upon the state ensure somebody has a speedy trial and that
they get a fair trial.” Barker, 407 U.S. at 527; (RR1: 36). In Barker, the court
provides that the “defendant has no duty to bring himself to trial,” in the instant
case counsel had to go so far as to create its own docket sheets. (RR1: 37); Id. In
argument counsel stated that she thinks “it’s about time that somebody stand up
and says that this is---this is unreasonable, that Dallas County needs to send their
drugs somewhere else to get them tested a lot quicker” because it is the “State’s
responsibility to ensure that he receives a fair and speedy trial.” (RR1: 11-12). For
the foregoing reasons the Appellee believes that the weight against the Appellee
should be more than just slight.”
   III.   The Defendant’s Assertion of His Right.
   The appellate courts have held that the accused must assert his right in a timely
manner however “a defendant has no duty to bring himself to trial, the State has that
duty as well as the duty of insuring that the trial is consistent with due process.” Id.
If the accused does not assert his right in a timely manner then it may be construed
as a waiver and that he did not really want a speedy trial afterall. Id.



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APPELLANT’S BRIEF
   After creating his own docket sheet for entry, the Appellee timely asserted his
right to speedy trial on March 17, 2014. (RR1: 11, 37). Appellee asserted his right
to speedy trial only two month after indictment in the F12 cause and prior to
indictment in the F14 causes. (RR1: 6-7, 11). The trial court in his findings of facts
and conclusions of law agreed that the defendant had timely asserted his right. (CR1:
33). Despite finding that the Appellee timely asserted his right the trial court
indicated that the weight of this factor was mitigated because Appellant “was
seeking dismissal rather than a speedy trial.” (CR1: 33). The appellate courts are
very clear that the proper remedy for a violation of one’s speedy trial right is
dismissal and believes that because Appellant requested dismissal in his prayer to
the trial court that it should not be assessed against him. Shaw, 117 S.W.3d at 888.;
(CR1: 22). Appellant believes the trial court incorrectly mitigated the third factor
and unmitigated weight of this factor should be held in favor of Appellant.
   IV.    Prejudice to the Appellant Resulting from the Delay.
   The last factor and what the appellate courts have indicated is the most
important is the prejudice to the accused caused by the delay. Shaw v. State, 117
S.W.3d 883, 889 (Tex. Crim. App. 2003). Barker, 407 U.S. at 533; Dragoo, 96
S.W.3d at 316. While this factor is the most important it is also the most difficult
to establish, that is why the courts have provided that it is not necessary to show
actual prejudice so long at the accused is able to show some prejudice. Doggett v.
United States, 505 U.S. 647, 655 (1992). The courts have additionally indicated
that no one single factor is “necessary or sufficient” to establish that there has been
a violation. Shaw, 117 S.W.3d at 889. The court in the United States v. Marion
stated that “possible prejudice is inherent in any delay, however short.” United
Stated v. Marion, 404 U.S. 307, 322 (1971).



                                                                                       17
APPELLANT’S BRIEF
   When weighing the amount of prejudice, Barker further requires that the courts
must balance three interests of the defendant: a. to prevent oppressive pretrial
incarceration, b. to minimize anxiety and concern of the accused; and c. to limit the
possibility that the defense will be impaired. Barker, 407 U.S. at 518.
       a. To Prevent Oppressive Pretrial Incarceration
   While the court in Barker cited that incarcerated individuals have the most
detrimental impact, the fact that someone has not been in jail awaiting trial does
not go without notice. Id. at 532. In the instant case the Appellant cited several
sources of anxiety involving pretrial incarceration including a total of four arrest,
police going to his parents’ house to arrest him and constant fear of being
rearrested. (RR1: 14-16, 21).
   In Phillips v. State the accused was not arrested pre-indictment and did not
learn of the indictment until over a year later however the court still found
prejudice in the “potential danger inherent in any delay” and “even more when, as
here, the danger is not even perceived.” Phillips v. State, 650 S.W.2d 396, 402
(Tex. Crim. App. 1983). Considering that two criminal episodes led to Appellant
being incarcerated a total of four times, the Appellant believes this should be
weighed in his favor.
       b. To Minimize Anxiety and Concern of the Accused
   The second interest the accused has in preventing prejudice is to minimize
anxiety and concern of the accused; Barker, 407 U.S. at 518. The court in Barker
discussed different sources of anxiety an accused may encounter while he awaits
trial including loss of job, disruption to family life, and enforcement of idleness, as
well as living under the cloud of anxiety, suspicion and often hostility. Id. at 532-
533.



                                                                                        18
APPELLANT’S BRIEF
   Appellant was able to identify several sources of anxiety and stress that the
pending cases had caused him in addition to that one may normally experience
when faced with criminal prosecution. This stress and anxiety was caused by the
33 times he had to appear in misdemeanor court, the 116 times he checked in with
his bondsman, “monetary issues,” inability to gain employment and missing work
to appear for court. (RR1: 15-19). He also stated that the stress to his family had
an impact on him as well. (RR1: 19). He described how the police went to his
parents’ home looking for him despite the fact that he was attending court on a
monthly basis and he described how his parents missed work each time they came
to court with him. (RR1: 16, 19).
   The trial court in the courts findings of fact and conclusions of law stated
anxiety was “scarcely shown” and there was “minimal anxiety due to the delay.”
(CR1: 33). Appellant believes the court erred in the weight given to this factor
considering the numerous sources of anxiety and stress caused to him because of
the delay prosecution as previously stated. In Phillips the court still found that the
accused right to speedy trial was violated despite even thought he was not aware of
the case pre-indictment and when discussing the anxiety the accused encountered
they stated “we can hardly dismiss appellant's claim by saying that ‘where
ignorance is bliss, `tis folly to be wise.’ Phillips, 650 S.W.2d at 401. Accordingly,
the resulting anxiety and stress went beyond that normally encountered when
awaiting prosecution and should be weighed against the State for their delay.
   c. To Limit the Possibility that the Defense Will be Impaired
   In Barker the court stated that this last interest was the most serious of the three
when determining if there was prejudice because they believed “the inability of a
defendant adequately to prepare his case skews the fairness of the entire system.”



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Barker, 407 U.S. at 532. Extensive delay that may impair the defendant’s defense
include loss of or fading memory and the unavailability of witnesses. Id. at 521.
         During the hearing in the instant case there was evidence that there was a
witness in the F14 causes by the name of “P. Crowder” who the Appellant no
longer had contact. (RR1: 22, CR1: 9). Additionally, there was an unknown 911
caller in) that the Appellant was not aware of and can be evidenced by the
Affidavit for Arrest. (CR1: 8 of the F12 cause). At the hearing the Appellant
testified that he did not know how he would have been able to keep track of these
two individuals over a two year period. (RR1: ALL). Considering the
aforementioned, Appellant believes the last interest should would in his favor.
There is no evidence that the Appellant knew who the 911 caller was and he is
unsure how he was to try and track down any witnesses given the passage of two
years.
   In Phillips the accused could not testify whether the deceased witness would
have been favorable to him however the courts do not put that impossible burden
on the defense to make this showing. Phillips, 650 S.W.2d at 402. Like in Phillips
it is possible that the witness would have testified favorably for the State or would
not have added anything to for the defense of Appellant however it is not necessary
for Appellant to make this showing. Id. at 402.
   V.       Balancing All Four Factors.
   Having addressed the four Barker factors, we must now balance them to
determine if there was a violation of the Appellants Sixth Amendment right to
speedy trial. Weighing in favor of a violation, was the presumptive prejudice of the
two year delay found by the trial court and evidences by the record. Second,
weighing in favor of a violation was the reason for the delay. The Appellee was
unable to articulate any basis in law or equity that excused their delay and the

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delay was distinguishable from the overcrowded dockets that the appellate courts
have encountered in the past because Appellee has control over where the drugs
are sent to. Third, weighing in favor of violation is that the Appellant as the trial
court noted as well was that the Appellant timely asserted his right and was not the
cause of the delay. Lastly and most importantly, the Appellant was able to establish
several causes of prejudice. With the weight of all the factors together, balanced
together, the Court should find that the Appellant was prejudiced by the
unreasonable delay and his fundamental right to a speedy trial secured by the Sixth
Amendment to the U.S. Constitution was violated.

   VI.    Remedy.
   If the court finds that an accused right to speedy trial has been violated the
proper remedy is dismissal. Shaw, 117 S.W.3d at 888. Consequently, Appellant
prays the court remand the case back to the trial court for dismissal. Appellant
believes that the weight of the four factors balanced together, should be in favor of
finding that there was a violation of Appellants right to a speedy trial.
                                         PRAYER
      WHEREFORE, PREMISES CONSIDERED Appellant requests that the
court find that the trial court should have granted the Motion for Speedy Trial and
asks that the appellate court reverse the judgement of the trial court and remand the
case to the trial court for dismissal.


                                     Respectfully submitted,
                                     _/s/ Angel Mata___________________
                                     Angel Mata
                                     THE LAW OFFICE OF ANGEL MATA,
                                     P.C.
                                     4314 N. Central Expwy.

                                                                                        21
APPELLANT’S BRIEF
                                   Dallas, TX 75206
                                   972.357.4956 :T
                                   972.534.1715 :F
                                   attorney@ANGELMATAlaw.com
                                   Texas Bar No. 24063940

                                   Attorney for Appellant

                         CERTIFICATE OF SERVICE

      This certifies a true and correct copy of the foregoing Appellant’s Brief was
emailed to the Assistant District Attorney on June 16, 2015 at
dcdaappeal@dallascounty.org.

                                   Respectfully submitted,

                                   By: _/s/Angel Mata_________________
                                   ANGEL MATA
                                   State Bar No. 24063940
                                   Attorney for Appellant




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APPELLANT’S BRIEF
