                                   IN THE
                           TENTH COURT OF APPEALS

                                 No. 10-08-00021-CR

JAMES BRADBURRY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 278th District Court
                               Walker County, Texas
                               Trial Court No. 22901


                            MEMORANDUM OPINION


          Appellant James Bradburry was convicted of the offense of Aggravated Assault

with a Deadly Weapon and sentenced to twenty-five (25) years confinement in the

Texas Department of Criminal Justice-Institutional Division. TEX. PEN. CODE ANN. §

22.02 (Vernon Supp. 2007). Bradburry’s sole issue on appeal is the trial court’s denial of

his motion to dismiss his indictment for the denial of his right to a speedy trial. We

affirm.

          The Sixth Amendment to the United States Constitution guarantees an accused

the right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).
(citing Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002)). Supreme Court

precedent requires state courts to analyze federal constitutional speedy-trial claims "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. Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). While

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

of proving the assertion of the right and showing prejudice. Id. The four factors are

related and must be considered together along with any other relevant circumstances.

Id. at 281.    Courts must apply the Barker balancing test with common sense and

sensitivity to ensure that charges are dismissed only when the evidence shows that a

defendant's actual and asserted interest in a speedy trial has been infringed. Id.

Standard of Review

        "In reviewing the trial court's ruling on appellant's federal Constitutional speedy

trial claim, we apply a bifurcated standard of review: 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. Under the abuse of discretion standard, appellate courts

defer not only to a trial judge's resolution of disputed facts, but also to his right to draw

reasonable inferences from those facts. Cantu, 253 S.W.3d at 282. The trial judge may

completely disregard a witness's testimony, based on credibility and demeanor

evaluations, even if that testimony is uncontroverted. Id. And all of the evidence must

be viewed in the light most favorable to his ultimate ruling. Id.



Bradburry v. State                                                                     Page 2
        As a general rule, an appellate court reviewing a trial court's ruling on a motion

to dismiss for want of a speedy trial must do so in light of the arguments, information,

and evidence that was available to the trial court at the time it ruled. Dragoo v. State, 96

S.W.3d 308, 313 (Tex. Crim. App. 2003).

The Hearing

        Bradburry was indicted by the grand jury on August 16, 2005 for an offense that

occurred on or about January 19, 2005. On June 8, 2007, Bradburry filed his first motion

for speedy trial, requesting a trial date no later than August 31, 2007. There was no

request for a hearing on this motion. On September 11, 2007, Bradburry filed a motion

to dismiss the indictment for failure to grant him a speedy trial. On October 5, 2007, the

trial court had a hearing on Bradburry’s motion to dismiss the indictment. The trial

court denied Bradburry’s motion, but stated its intent to set Bradburry’s case for trial in

December of 2007. Bradburry then filed a request for trial setting in December of 2007.

Bradburry’s trial by jury actually commenced on November 5, 2007.

Length of the Delay

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

formally accused. Dragoo, 96 S.W.3d at 313. This factor is, to some extent, a triggering

mechanism, so that a speedy trial claim will not even be heard until passage of a period

of time that is, on its face, unreasonable under the circumstances. Id. (citing Doggett v.

United States, 505 U. S. 647, 651-652, 120 L. Ed. 2d 520, 112 S. Ct. 2686 (1992); Barker v.

Wingo, 407 U.S. at 530). In general, a delay approaching one year is unreasonable

enough to trigger the Barker inquiry. Dragoo, 96 S.W.3d at 313.

Bradburry v. State                                                                    Page 3
        It is apparent from the record that there is no dispute that the case had been

pending for over two years. In fact, at the hearing on the motion to dismiss, the State’s

attorney references being ready to “take the hit” for the case being over two years old.

        A delay of over two years is long enough to trigger the Barker inquiry and weighs

against the State.

Reason for the Delay

        When a court assesses the second Barker factor, "different weights should be

assigned to different reasons" for the delay. Dragoo, 96 S.W.3d at 316. A valid reason

for the delay should not be weighed against the government at all. State v. Munoz, 991

S.W.2d 818, 822 (Tex. Crim. App. 1999) (citing Barker v. Wingo, 407 U.S. at 531) (valid

reason for the delay "should serve to justify appropriate delay")).           Delay which is

attributable in whole or in part to the defendant may even constitute a waiver of a

speedy trial claim. Id. (citing Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26,

38 (1970) (Brennan, J., concurring) (defendant may be "disentitled to the speedy-trial

safeguard in the case of a delay for which he has, or shares, responsibility")). While it is

not the sole responsibility of the defendant to protect his right to a speedy trial, the

defendant has some affirmative obligation to assert his right to a speedy trial. Barker v.

Wingo, 407 U.S. at 527).

        The only reasons given for the delay by the State were that the trial court’s

docket as a traveling judge makes it difficult to get a setting and that the prosecutor had

been unavailable for a period of approximately four months in early 2007. A crowded



Bradburry v. State                                                                        Page 4
court docket is not a valid reason for delay, and must be weighted against the State,

although not heavily. Shaw, 117 S.W.3d at 890.

        There are three docket entries in the clerk’s record during the relevant time

period. On November 4, 2005, it appears but is not clear from the record that Bradburry

was arraigned and pled not guilty. The other two entries are dated March 3, 2006, and

December 1, 2006, but the only annotation is “Case reset.” The next setting was the

hearing on Bradburry’s motion to dismiss. The record is silent as to the reasons for the

resets or whether they were agreed resets.

        It is the State’s burden to justify the length of the delay, which it did not do.

Thus, this factor weighs against the State, although not heavily. Shaw, 117 S.W.3d at

889-890.

Assertion of the Right

        A defendant has the responsibility to assert his right to a speedy trial. Cantu, 253

S.W.3d at 283. The lack of a timely demand for a speedy trial strongly indicates that a

defendant did not really want a speedy trial and that he was not prejudiced by the lack

of one. Dragoo, 96 S.W.3d at 316. Inaction weighs more heavily against a violation the

longer the delay becomes. Id. Filing for a dismissal instead of a speedy trial will

generally weaken a speedy-trial claim because it shows a desire to have no trial instead

of a speedy one. Cantu, 253 S.W.3d at 283.

        Bradburry filed a motion for speedy trial on June 8, 2007, which requested a trial

setting no later than August 31, 2007, approximately within two and a half months of

the filing date. There is no reference in the record as to whether this request was

Bradburry v. State                                                                    Page 5
brought to the trial court’s attention. The motion itself has no request for a hearing.

Bradburry then filed his motion to dismiss the indictment based on the denial of a

speedy trial on September 11, 2007, which was set for hearing on October 5, 2007.

        As evidence of his readiness for trial, Bradburry points to his boilerplate pretrial

motions filed as early as December 20, 2005. What these motions also demonstrate,

however, is that Bradburry was represented by counsel since at least that date, and

there is no question raised as to the competency of his counsel.

        The short length of time specified in Bradburry’s motion to set Bradburry’s case

for trial was unreasonable. Additionally, Bradburry’s failure to request a hearing on his

speedy trial motion or to otherwise demonstrate that it was brought to the trial court’s

attention created a situation where Bradburry could quietly sit back and await the

passage of the deadline he set prior to demanding a dismissal.

        It is also important to note that once the motion to dismiss was brought to the

trial court’s attention, the hearing was held in less than a month after the motion was

filed, and Bradburry’s trial commenced less than two months after the filing of the

motion to dismiss and approximately one month after the hearing on the motion to

dismiss. In view of the delay in which it is reasonable for the trial court to infer that

Bradburry quietly acquiesced, this factor weighs against Bradburry. Dragoo, 96 S.W.3d

at 314-315.

Prejudice to the Accused

        When a court assesses the final Barker factor, it must do so in light of the interests

of defendants the speedy trial right was designed to protect: (1) to prevent oppressive

Bradburry v. State                                                                      Page 6
pretrial incarceration; (2) to minimize the accused's anxiety and concern; and (3) to limit

the possibility that the accused's defense will be impaired. Barker v. Wingo, 407 U.S. at

532; Dragoo, 96 S.W.3d at 316.

        Bradburry was serving a life sentence in prison at the time of the offense in the

instant case. Without more, the trial court could reasonably infer that there was no

oppressive pretrial incarceration. Bradburry put forth no evidence of any at the hearing

on the motion to dismiss. This sub-factor weighs against Bradburry.

        Nor did Bradburry present any evidence of anxiety or concern regarding his

impending trial; therefore, this sub-factor weighs against him.

        At the hearing on the motion to dismiss, Bradburry presented one witness who

was the investigator for his case.     That investigator presented documents of nine

potential witnesses who had been subsequently discharged from incarceration and

whose whereabouts were at that time unknown. These individuals were persons who

were believed to have witnessed the offense. The dates of release were varied, with at

least five of them being from 2006 to 2007. However, the investigator did not begin his

search for these witnesses until September of 2007, after his arbitrary trial deadline and

less than one month before the hearing on the motion to dismiss. There was also no

testimony as to how these individuals would aid in Bradburry’s defense.

        In order to demonstrate prejudice, Bradburry must show not only that the

witnesses were unavailable, but also that their testimony might be material and relevant

to his case, and that he exercised due diligence in his attempt to find them and produce

them for trial. Harris v. State, 489 S.W. 2d 303, 308 (Tex. Crim. App. 1973); Phipps v.

Bradburry v. State                                                                   Page 7
State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982). Even if it was conceded that the

testimony of the missing witnesses was material to the instant case, we do not believe

Bradburry has met his burden to establish diligence in procuring the witnesses. The

record fails to indicate that the search for the witnesses was undertaken until after

Bradburry’s motion to dismiss was filed in September of 2007. See Harris, 489 S.W. 2d at

308; Peoples v. State, 477 S.W.2d 889, 889 (Tex. Crim. App. 1972).          This delay in

investigating the case to attempt to locate any witnesses is in large part attributable to

Bradburry. This factor weighs against Bradburry.

        Bradburry complains for the first time on appeal that he was prejudiced by the

lack of recollection by the State’s witnesses. Bradburry has not preserved this error as

required by Texas Rule of Appellate Procedure 33.1(a)(1)(A).             TEX. R. APP. P.

33.1(a)(1)(A). At the time of the dismissal hearing, no evidence was presented nor was

argument made as to the lack of recollection of any witnesses or any potential

witnesses. Any evidence regarding the witnesses’ ability to recall the facts was not

before the trial court before it rendered its decision on the motion to dismiss. Dragoo, 96

S.W.3d at 313; Shaw, 117 S.W.3d at 889. The trial court had informed Bradburry that the

issue of the dismissal could be brought up again during the trial. Dismissal for a

speedy trial violation was not raised again during Bradburry’s jury trial. We therefore

cannot consider any evidence presented during the trial in evaluating the prejudice, if

any, to Bradburry by trial witnesses who testified regarding their lack of recollection of

certain facts of the incident.



Bradburry v. State                                                                   Page 8
Balancing

         In balancing the four factors, we find that the delay was excessive and the State

did not present an adequate explanation for the delay. While it appears from the record

that no trial setting had been made for over six months when Bradburry filed his

motion for a speedy trial, Bradburry delayed in demanding a speedy trial. He then did

not request a hearing for the trial court to consider his motion for speedy trial, which

also contributed to the delay. The prejudice to Bradburry, evaluating only the evidence

before the trial court at the time of the dismissal hearing was weakened significantly by

Bradburry’s lack of investigation for more than two years after his indictment.

         Balancing the four Barker factors, we hold that they weigh against Bradburry.

The trial court properly overruled Bradburry’s motion to dismiss for denial of a speedy

trial.

         We overrule Bradburry’s sole issue and affirm the judgment of the trial court.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed July 1, 2009
Do not publish
[CRPM]




Bradburry v. State                                                                   Page 9
