                                  NO. 07-08-0208-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                     APRIL 1, 2009

                         ______________________________


                       CHARLES H. HARRISON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

       FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

           NO. 2006-497,399; HONORABLE L.B. “RUSTY” LADD, JUDGE

                        _______________________________


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


                                       OPINION


      Appellant, Charles H. Harrison, was convicted following a jury trial of driving while

intoxicated. The court assessed sentence at 180 days confinement and a $2,000 fine–all

of which was suspended in favor of twenty-four months of community supervision.
Appellant’s single issue on appeal is whether the trial court erred in denying his motion for

dismissal based upon a violation of his constitutional right to a speedy trial. We affirm.


                                        Background


       On November 27, 2005, Appellant was stopped by Sergeant Leland Hufstedler of

the Lubbock Police Department, at approximately 1:30 a.m. for driving without headlights.

When Sergeant Hufstedler spoke with Appellant, he detected the smell of alcoholic

beverage emanating from his person. When asked, Appellant responded that he had been

drinking earlier. Sergeant Hufstedler observed that Appellant was unsteady on his feet and

leaned on his vehicle while walking on the sidewalk. He radioed Corporal Jimmy Altgelt

of the LPD–DWI Unit to take over the investigation. After administering three standardized

field sobriety tests, Corporal Altgelt determined Appellant was driving while intoxicated and

placed him under arrest. Appellant later declined to provide a breath sample.


       On January 11, 2006, the State filed an announcement indicating it was ready for

trial. Although neither Appellant nor the State filed any motions for continuance, the trial

court repeatedly reset the date for the pre-trial hearing until the hearing was ultimately held

January 17, 2007. Thereafter, the trial court repeatedly reset the trial date until Appellant

was tried March 10-11, 2008.


       A week prior to trial, Appellant filed a motion to dismiss asserting that his

constitutional right to a speedy trial had been violated. During the twenty-seven months


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that had passed since his arrest, Appellant asserted that the State and the court had failed

to take dispositive action and, as a result, relevant witnesses might not be available to aid

his defense.


        On March 10, 2008, the trial court held a hearing on Appellant’s speedy-trial claim.

Appellant testified that, because of the delay, he might not be able to contact a witness

who had accompanied him throughout the night prior to his arrest and witnessed the traffic

stop and events leading to his arrest. He testified that, during the delay, the witness had

moved to Wyoming, and he last spoke with the witness six months prior to the filing of his

motion. Although he had a telephone number for the witness, he was unsure whether it

was a working number. The State presented no evidence. The trial court accepted fault

for the delay noting that the delay was due to the court’s caseload.1 The trial court denied

Appellant’s motion and asked if both sides were ready for trial. Appellant re-urged his

motion and the trial court denied the motion a second time. Thereafter, Appellant and the

State indicated they were ready for trial.


        After the State rested, Appellant again re-urged his speedy-trial claim. He asserted

that, had there been no delay, he would have been able to call the witness identified in his

motion to “testify about [Appellant’s] whereabouts and activities the evening in question.”

Without stating how the witness’s testimony would be beneficial to the defense, Appellant



        1
          The trial court indicated that 200 to 250 m isdem eanor cases were filed in the court each m onth and,
in addition to pre-trial proceedings, the trial court conducted twenty-four to twenty-five jury trials each year.

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indicated that he was prejudiced because his testimony would “counteract some of the

evidence that’s been introduced by the State.” The trial court again denied the motion.


       Following the two day trial, the jury convicted Appellant of driving while intoxicated.

Punishment was assessed by the court and this appeal followed.


                                        Discussion


       Appellant asserts his right to a speedy trial was violated by the twenty-seven month

delay. He contends his defense was prejudiced because he lost contact with a “potential

witness” whose testimony would have “counteract[ed] some of the evidence that [was]

introduced by the State” at trial.


       I.     Standard of Review


       In reviewing the trial court’s ruling on Appellant’s speedy-trial claim, we apply a

bifurcated standard of review: an abuse of discretion standard for factual components and

a de novo standard for legal components.          Cantu v. State, 253 S.W.3d 273, 282

(Tex.Crim.App. 2008); Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002).

While our review necessarily involves factual and legal conclusions, how these two inter-

relate “as a whole . . . is a purely legal question.” Cantu, 253 S.W.3d at 282 (quoting

Zamorano, 84 S.W.3d at 648 n.19). This is particularly so here where the facts are not

disputed.



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       II.    The Right to a Speedy Trial


       The right to a speedy trial attaches once a person is arrested and charged. Cantu,

253 S.W.3d at 280. Constitutional speedy-trial claims are analyzed on an ad hoc basis by

weighing and then balancing the four factors set forth in Barker v. Wingo, 407 U.S. 514,

92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These four factors are: (1) length of delay, (2)

reason for the delay, (3) assertion of the right, and (4) prejudice to the accused. Cantu,

253 S.W.3d at 280. We consider the four factors together along with the relevant

circumstances noting that no one factor possesses “talismanic qualities.” Zamorano, 84

S.W.3d at 648.


       While the State has the burden of justifying the length of the delay, the defendant

has the burden of proving the assertion of the right and showing prejudice. See Ex parte

McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973). The defendant’s burden of proof

on the latter two factors varies inversely with the State’s degree of culpability for the delay,

i.e., the greater the State’s bad faith or official negligence and the longer its actions delay

a trial, the less a defendant must show actual prejudice or prove diligence in asserting his

right to a speedy trial. Cantu, 253 S.W.3d at 280-81 (citing Robinson v. Whitley, 2 F.3d

562, 570 (5th Cir. 1993)).




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       A.     Length of Delay


       The Barker test 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). While there is no set time element that triggers a Barker

analysis, the Court of Criminal Appeals has held that a delay of four months is insufficient

while a seventeen-month delay is sufficient. Cantu, 253 S.W.3d at 281 (collected cases

cited therein).


       Here, twenty-seven months passed between Appellant’s arrest and his assertion of

his speedy-trial claim. We find this factor weighs in favor of Appellant. Since the triggering

mechanism has been met, we consider the three remaining Barker factors.


       B.     Reason for the Delay


       We next consider the reason(s) the State provided in an attempt to justify the delay.

Barker, 407 U.S. at 531; Zamorano, 84 S.W.3d at 648-50. Sometimes, the government’s

justifications under this prong should be given greater or lesser weight, depending on the

relative merit of the reasons which are given. Barker, 407 U.S. at 531. A “neutral”

justification such as an overcrowded docket or mere negligence “should be weighted less

heavily but nevertheless should be considered since the ultimate responsibility for such

circumstances must rest with the government rather than with the defendant.” Id.




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       The State announced its readiness for trial in its filing on January 17, 2006, less

than two months following Appellant’s arrest. Neither party sought any continuances.

Rather, the trial court assumed responsibility for the delay because it continually reset the

pre-trial hearing and trial dates due to its crowded docket. Accordingly, the second Barker

factor weighs only slightly in favor of a finding of a speedy trial violation.


       C.     Timeliness of Asserted Speedy-Trial Claim


       The third factor is concerned with the timeliness of a defendant’s assertion of his

right to a speedy trial. See Barker, 407 U.S. at 529, 531-32; Zamorano, 84 S.W.3d at 648,

651-52. Although the defendant has no duty to bring himself to trial, he does have a

responsibility to assert his right to a speedy trial. Cantu, 253 S.W.3d at 282. Nonetheless,

filing for a dismissal before seeking a speedy trial generally weakens a speedy-trial claim

because it indicates a desire to have no trial instead of a speedy one. Id. at 283. When

this occurs, the defendant should provide cogent reasons for this failure to seek a speedy

trial before dismissal. Id.


       In twenty-seven months between Appellant’s arrest and trial, Appellant did not seek

a speedy trial. Then, only a week before trial, he sought a dismissal based on a speedy

trial violation without offering any explanation for his delay in asserting his rights.

Accordingly, this factor weighs heavily against finding a speedy trial violation.




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       D.     Prejudice


       Because pretrial delay is often both inevitable and wholly justifiable, Cantu, 253

S.W.3d at 285, the fourth Barker factor examines whether and to what extent the delay has

prejudiced the defendant. Barker, 407 U.S. at 532. Prejudice “should be assessed in the

light of the interests of defendants which the speedy trial right was designed to protect.”

Barker, 407 U.S. at 532. There are three such interests: (i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the

possibility that the defense will be impaired. Id.


       Appellant did not assert that he suffered from “oppressive pretrial incarceration,”

anxiety, or concern. He asserts that, because of the delay, a potential witness was

unavailable. He also indicated that the missing witness’s testimony would “counteract

some of the evidence” introduced by the State without indicating what the missing

witness’s testimony would show or what evidence introduced by the State would be

counteracted.


       To establish particularized prejudice based on an unavailable witness, a defendant

must present proof both of the efforts made to locate the witness and that the witness

would have benefitted his defense.        See Phipps v. State, 630 S.W.2d 942, 947

(Tex.Crim.App. 1982); Mabra v. State, 997 S.W.2d 770, 780 (Tex.App.–Amarillo 1999, pet.

ref’d). Appellant did neither. Thus, he failed to establish particularized prejudice at the



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hearing before the trial court. This factor weighs against a finding of a speedy trial

violation.


       E.     Weighing of Barker Factors


       In this case, the length of the delay weighs in favor of finding a violation of the right

to a speedy trial and the reasons for the delay weigh only slightly in favor of finding a

violation. These two factors are outweighed by the remaining factors. Appellant’s failure

to timely assert his right to a speedy trial and his choice of remedy (dismissal) indicates he

acquiesced in the delay extenuating any presumptive prejudice. Moreover, Appellant’s

evidence of particularized prejudice, if any, is extremely marginal at best. Thus, the last

and most important factor weighs against a finding of a speedy trial violation. Accordingly,

based on the evidence presented in this case, we find the trial court did not err in its

determination that Appellant’s right to a speedy trial was not violated and overrule

Appellant’s sole issue.


                                         Conclusion


       The trial court’s judgment is affirmed.


                                                   Patrick A. Pirtle
                                                       Justice

Publish.




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