


 
IN THE
TENTH COURT OF APPEALS










 

Nos. 10-05-00341-CR,
10-05-00342-CR,
10-05-00343-CR, and
10-05-00344-CR
 
The State of Texas,
                                                                      Appellant
 v.
 
Malcolm Delshaun Manley,
ERIC DESHUN LEWIS, KEVIN DALE
BROWN, JR., AND BRANDON RATCLIFF,
                                                                      Appellees
 
 
 

From the County Court at Law No.
2
Brazos County, Texas
Trial Court Nos. 02-00669-CRM-CCL2,
03-00965-CRM-CCL2,
02-00670-CRM-CCL2, and
04-00241-CRM-CCL2
 

Opinion

 




          The State appeals the trial court’s
dismissal of these four cases on speedy trial grounds.  The State argues in its
sole issue that the court erred by dismissing the cases because: (1) the length
of delay in trying Appellees was not unreasonable; (2) legitimate reasons exist
for the delay; (3) Appellees did not promptly assert their speedy trial rights;
and (4) Appellees did not suffer prejudice from the delay.  We will affirm.
Background
          Arrest warrants were issued for each
of the Appellees for his alleged participation in a misdemeanor assault in
September 2002.  Malcolm Delshaun Manley and Kevin Dale Brown, Jr. were
arrested in October 2002, Eric Deshun Lewis was arrested in March 2003, and Brandon
Ratcliff was arrested in January 2004.  The court granted the State’s motion
for a joint trial as to all four defendants, and a jury trial was held in June
2004.  However, the court declared a mistrial on the third day of trial at the
defendants’ request because of the discovery of potentially exculpatory
evidence which the State had not previously disclosed.
          Lewis filed a motion to dismiss on
speedy trial grounds in October 2004.  The court heard Lewis’s motion in
December 2004 but deferred a ruling, allowing the State an opportunity to
review the matter further and respond as appropriate.  The court scheduled the
matter for another hearing in January 2005, which apparently never occurred,
and for trial in February 2005.  The parties were notified on July 12, 2005 of
a preferential trial setting for August 22, 2005.  The other Appellees filed
dismissal motions on speedy trial grounds three days before this August trial
setting.  The court granted all four dismissal motions after a hearing that
same day.
Applicable Law
          “[W]e 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 v. State, 84
S.W.3d 643, 648 (Tex. Crim. App. 2002).  Because the court granted Appellees’
speedy trial motions, we must presume that the court resolved any disputed fact
issues in Appellees’ favor, and we must defer to any implied findings supported
by the record.  Id.  We “must uphold the trial court’s ruling if it is
supported by the record and is correct under the applicable law.”  Shaw v.
State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).
          We balance four non-exclusive factors
when considering a speedy trial claim: (1) the length of the delay; (2) the
reasons for the delay; (3) the timeliness of the assertion of the right to a
speedy trial; and (4) any prejudice caused by the delay.  Barker v. Wingo,
407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972); Shaw,
117 S.W.3d at 888-89; Shea v. State, 167 S.W.3d 98, 102 (Tex. App.—Waco 2005, pet. ref’d).
Effect of Joint Prosecution
          The fact that the State chose to
prosecute the Appellees in a single trial raises at least two issues: (1)
whether the “speedy trial clock” should begin at the same time for all four of
them even though they were arrested at different times; and (2) whether delays
attributable to any one of them should be attributable to the others.  Because
our research discloses no Texas cases addressing the effect of a joint
prosecution on a speedy trial claim, we will look to other jurisdictions for
guidance.[1]
          According
to federal decisions, there is only one “speedy trial clock” in cases involving
multiple defendants which does not begin to run until the commencement of the
“clock” applicable to the most recently added defendant.  See Henderson v.
United States, 476 U.S. 321, 323 n.2, 106 S. Ct. 1871, 1873 n.2, 90 L. Ed.
2d 299 (1986); United States v. Gambino, 59 F.3d 353, 362 (2d Cir.
1995); United States v. Piteo, 726 F.2d 50, 52 (2d Cir. 1983).  These
decisions are grounded in the federal Speedy Trial Act, which contains a
specific provision governing joint trials.  Title 18, section 3161(h)(7)
excludes from speedy trial calculations:
A reasonable period of delay
when the defendant is joined for trial with a codefendant as to whom the time
for trial has not run and no motion for severance has been granted.
 
18 U.S.C.S §
3161(h)(7) (LexisNexis 1993).[2]
          Numerous
states have enacted speedy trial laws with identical or substantially similar
provisions.[3]  See
Alaska R. Crim. P. 45(d)(5); Ark.
R. Crim. P. 28.3(g); Colo. Rev.
Stat. Ann. § 18-1-405(6)(c); Colo.
R. Crim. P. 48(b)(6)(III); Conn.
Practice Book § 43-40(4); Fla. R.
Crim. P. 3.191(l)(5); Haw. R.
Pen. P. 48(c)(7); Mass. R. Crim.
P. 36(b)(2)(E); Mich. R. Crim. P.
6.004(C)(5); Neb. Rev. Stat. §
29-1207(4)(e); N.Y. Pen. Law §
30.30(4)(d); S.D. Codified Laws §
23A-44-5.1(4)(e); see also Unif.
R. Crim. P. 722(f)(13), 10 U.L.A. 203-04 (2001).  Oklahoma by comparison
permits delay if “the accused is charged as a codefendant or co-conspirator and
the court has determined that the codefendants or co-conspirators must be tried
before separate juries taken from separate jury panels.”  Okla. Stat. § 812.2(A)(2)(f).
          The
State of New York has adopted the federal approach regarding when the speedy
trial clock begins to run in cases involving multiple defendants.  See
People v. Barnett, 517 N.Y.S.2d 849, 850-51 (N.Y. Crim. Ct. 1987)
(construing N.Y. Pen. Law §
30.30(4)(d)).  Conversely, the State of Ohio, which does not have a comparable
statutory exclusion, has rejected this approach.  See State v. Leadingham, 1989 Ohio App. LEXIS 2242, at *5-7 (Ohio Ct. App. 1989).
          Like
 Ohio and many other states, Texas does not have a statutory exclusion
comparable to that found in the federal Speedy Trial Act for delays
attributable in some manner to the State’s attempt to jointly try co-defendants. 
In addition, a slight majority of states and the District of Columbia have
concluded that, for a Sixth Amendment speedy trial claim, delays attributable
to a co-defendant are not weighed against the defendant, particularly if the
defendant objects to any delays sought by a co-defendant.  See Kelley v.
State, 568 So. 2d 405, 410 (Ala. Crim. App. 1990); Sanchez v. Super. Ct. of Los Angeles County, 182 Cal. Rptr. 703, 708 (Cal. Ct. App. 1982); State v.
Ellis, 1987 Del. Super. LEXIS 1038, at *6 (Del. Super. Ct. 1987); Hartridge
v. United States, 896 A.2d 198, 210 (D.C. 2006); Jackson v. State,
534 S.E.2d 796, 800 (Ga. 2000); State v. Winters, 690 N.W.2d 903, 909-10
(Iowa 2005); Epps v. State, 345 A.2d 62, 75-76 (Md. 1975); Flores v. State, 574 So. 2d 1314, 1322 (Miss. 1990); contra Lee v. State,
684 N.E.2d 1143, 1146 (Ind. 1997); Kelly v. Richardson, 469 S.W.2d 700,
700 (Ky. Ct. App. 1971); State v. Gale, 526 So. 2d 861, 864 (La. Ct. App. 1988); State v. Smith, 2004-Ohio-6062, at ¶ 20 (Ohio Ct. App. 2004); Commonwealth
v. Kimbrough, 872 A.2d 1244, 1260 (Pa. Super. Ct. 2005); State v. Dukes,
182 S.E.2d 286, 288 (S.C. 1971).
          A
minority of states with speedy trial statutes have similarly concluded that
delays attributable to a co-defendant are not weighed against the defendant,
particularly if the defendant objects to any delays sought by a co-defendant.  People
v. Abeyta, 578 P.2d 645, 646 (Colo. 1978); Miner v. Westlake, 478
So. 2d 1066, 1067 (Fla. 1985); People v. Roberts, 479 N.E.2d 386, 390 (Ill. Ct. App. 1985); State v. McDonald, 718 So. 2d 542, 545 (La. Ct. App. 1998); Flores,
574 So. 2d at 1321; State v. Anthony, 448 A.2d 744, 748 (R.I. 1982). 
Consistent with this position, courts in at least five states have concluded
that delays attributable to a co-defendant should be weighed against a defendant
who either joined in the co-defendant’s requested delay or failed to object.  See
Hicks v. State, 12 S.W.3d 219, 222-23 (Ark. 2000); State v. Faalafua,
686 P.2d 826, 829-30 (Haw. 1984); State v. Campbell, 662 P.2d 1149, 1154
(Ida. 1983); People v. Fluellen, 553 N.Y.S.2d 670, 672 (N.Y. App. Div.
1990); State v. Morrison, 1995 Ohio App. LEXIS 5352, at *5-6 (Ohio Ct.
App. 1995).  At least five other states apparently take the position that
delays attributable to a co-defendant should not be weighed against the
prosecution or are otherwise justified under those states’ respective speedy
trial statutes, regardless of whether there is an objection.  See State v. Hankins, 686 P.2d 740, 745 (Ariz. 1984); Randall v. State,
474 N.E.2d 76, 84 (Ind. 1985); Commonwealth v. Long, 532 A.2d 853, 855 (Pa. Super. Ct. 1987); State v. Dent, 869 P.2d 392, 401-02 (Wash. 1994); State v.
Johnson, 1994 Wisc. App. LEXIS 1271, at *8-9 n.4 (Wisc. Ct. App. 1994) (per
curiam).
          The McDonald
decision rendered by the Second Circuit Court of Appeals for Louisiana appears
to conflict with that of its sister court, the Fourth Circuit Court of Appeals,
in Gale.  Compare McDonald, 718 So. 2d at 545, with Gale, 526
So. 2d at 864.  Conversely, the Mississippi Supreme Court applied the same
reasoning to both its Sixth Amendment speedy trial analysis and its statutory
analysis.  See Flores, 574 So. 2d at 1321-22.  Disregarding these
decisions, we presume that the remaining four states with speedy trial statutes
(Colorado, Florida, Illinois, and Rhode Island) which have determined that
delays attributable to a co-defendant are not weighed against the defendant
would reach the same conclusion if presented with a Sixth Amendment speedy
trial claim under these circumstances.  See Abeyta, 578 P.2d at 646; Miner,
478 So. 2d at 1067; Roberts, 479 N.E.2d at 390; Anthony, 448 A.2d
at 748.
          We
agree with these decisions and hold that, when co-defendants are joined for
trial, delays attributable to one defendant are not attributable to the
co-defendants who object to those delays.  See Kelley, 568 So. 2d at
410; Sanchez, 182 Cal. Rptr. at 708; Abeyta, 578 P.2d at 646; Ellis,
1987 Del. Super. LEXIS 1038, at *6; Hartridge, 896 A.2d at 210; Miner,
478 So. 2d at 1067; Jackson, 534 S.E.2d at 800; Roberts, 479
N.E.2d at 390; Winters, 690 N.W.2d at 909-10; Epps, 345 A.2d at
75-76; Flores, 574 So. 2d at 1322; Anthony, 448 A.2d at 748; accord
Hicks, 12 S.W.3d at 222-23; Faalafua, 686 P.2d at 829-30; Campbell,
662 P.2d at 1154; Fluellen, 553 N.Y.S.2d at 672; Morrison, 1995
Ohio App. LEXIS 5352, at *5-6.
          We likewise hold, consistent with the
Ohio Court of Appeals, that each defendant’s “speedy trial clock” begins to run
on the date of the defendant’s arrest or the presentment of an indictment or
information against that defendant, whichever occurs earlier, regardless of
whether the State seeks to try the defendant jointly with a co-defendant.  See
Shaw, 117 S.W.3d at 889; Shea, 167 S.W.3d at 102 n.1; see also
Leadingham, 1989 Ohio App. LEXIS 2242, at *5-7.
          Applying these principles, we now
examine the Barker factors.
Length of Delay
          The length of delay is “a triggering
mechanism” for consideration of the remaining factors.  Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Shaw, 117 S.W.3d at 889; Shea, 167 S.W.3d at 102.  The
delay is measured from the date of arrest or the filing of the information,
whichever occurs first, to the date of trial.  See Shaw, 117 S.W.3d at
889; Shea, 167 S.W.3d at 102 n.1.  A delay of one year is “unreasonable
enough to trigger the Barker enquiry.”  Doggett v. United States,
505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691 n.1, 120 L. Ed. 2d 520 (1992); accord
Shaw, 117 S.W.3d at 889.
          Perhaps it could be argued that the
grant of the defendants’ request for mistrial should operate to start afresh
the “speedy trial clock.”  However, the “clock” continues to run until the
commencement of a trial which concludes with a verdict or other final disposition. 
See, e.g., Shaw, 117 S.W.3d at 889 (calculating length of delay from
date of indictment to commencement of second trial after first trial had ended
with declaration of mistrial).
          For Manley and Brown, the length of
delay was thirty-four months.  For Lewis, it was twenty-nine months.  And for Ratcliff,
it was nineteen months.  Thus, the delays are sufficient to require
consideration of the remaining factors.  See Doggett, 505 U.S. at 652 n.1, 112  S. Ct. at 2691 n.1; Shaw, 117 S.W.3d at 889.
Reasons for the Delay
          “The State has the burden of
justifying the delay.”  Shaw, 117 S.W.3d at 889 n.3.  Different weights
are assigned to the various reasons for the delay asserted by the State.  Id. at 889.
          The reasons for delay are similar in
all four cases, although some of the cases present unique reasons applicable to
only that particular case.  The State cites the following reasons to justify
the delay:
·                   
“the great difficulties
inherent in scheduling four cases and four attorneys, thru arraignment,
pre-trials, docket calls, final pre-trials, discovery, motions, and trial”;
 
·                   
a crowded trial court docket
which resulted in the trial court passing over these cases on several occasions
to try other cases;
 
·                   
continuance motions filed by
Manley and Brown;
 
·                   
Lewis’s decision to accept
then later reject a plea bargain;
 
·                   
an October 2003 reset
obtained by Lewis’s counsel for maternity leave; and
 
·                   
the mistrial.
 
          “[A] crowded court docket is not a
valid reason for delay and must be counted against the State, although not
heavily.”  Shaw, 117 S.W.3d at 890.  The State requested a joint trial
which the court granted over Appellees’ objections.  Thus, any scheduling
difficulties (and corresponding delays) arising from the State’s tactical
decision to try Appellees together must also be weighed against the State.  See Kelley, 568 So. 2d at 410; Sanchez, 182 Cal. Rptr. at 708; Abeyta, 578 P.2d at 646; Ellis, 1987 Del. Super. LEXIS
1038, at *6; Hartridge, 896 A.2d at 210; Miner, 478 So. 2d at 1067;
 Jackson, 534 S.E.2d at 800; Roberts, 479 N.E.2d at 390; Winters,
690 N.W.2d at 909-10; Epps, 345 A.2d at 75-76; Flores, 574 So. 2d
at 1322; Anthony, 448 A.2d at 748.
          The court granted a continuance motion
filed by Brown which resulted in a one-month delay in his case.[4]
 The court granted two continuance motions filed by Manley which resulted in
three months’ delay in his case.  Brown’s motion and Manley’s first motion were
filed and granted before the State filed its motion for joint trial, and these
motions were not served on the other co-defendants.  Thus, Lewis and Ratcliff
had no opportunity or reason to object to these continuance motions, nor did
Brown or Manley have opportunity or reason to object to each other’s motion. 
Manley’s second continuance motion was filed after the court granted the
State’s motion for joint trial.  However, Manley did not serve copies of this
motion on his co-defendants.  Thus, they did not have opportunity to object to
Manley’s second continuance motion.  Accordingly, the delays attributable to
Brown’s continuance motion should be weighed against Brown, and the delays
attributable to Manley’s continuance motions should be weighed against Manley,
but none of these delays should be weighed against Lewis and Ratcliff.  Id.
          The “maternity continuance” sought by
Lewis’s counsel resulted in a five-month delay.  However, there is no
indication in the record that any of Lewis’s co-defendants were aware that his
attorney sought this continuance.  Therefore, this delay should be weighed
against Lewis but not against his co-defendants.  Id.
          There was a reference to a plea offer
during the December 2004 hearing on Lewis’s speedy trial motion.  Apparently,
the State offered to reduce Lewis’s charge to a Class “C” misdemeanor, but
Lewis ultimately rejected the offer.[5] 
Any delay attributable to good faith plea negotiations should not be weighed
against the State.  State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999).  However, we may presume from the record that the court attributed a
delay of no more than three months to the parties’ plea negotiations based on
the dates in the notice settings which appear in the record.  See Zamorano,
84 S.W.3d at 648 (appellate court must presume that trial court resolved any
disputed fact issues against losing party and must defer to any implied
findings supported by the record).
          Appellees contend that the mistrial
should be weighed against the State because it arose from the State’s failure
to disclose Brady evidence before trial.  On the second day of trial,
three different pieces of evidence came to light which arguably constitute Brady
evidence: (1) a witness for the State was unable to identify any of the four
Appellees as a suspect in a photo line-up she viewed a few weeks after the
assault; (2) another witness had made an electronically-recorded statement to
the police suggesting that two of the Appellees may not have been involved in
the assault; and (3) another person who had since joined the Army and was in basic
training told the police that none of the four Appellees was involved in the
assault.
          Appellees filed standard Brady motions
before trial, but the State did not identify any Brady evidence.  During
the jury trial, the State’s first witness identified Manley and Brown as having
been in the club where the assault occurred on the date in question.  However,
during the questioning of a detective that afternoon, the State provided
Appellees with a copy of a detective’s offense report, in which it was revealed
that the witness had been unable to identify any of the defendants in a
photographic line-up prepared a few weeks after the assault.  Instead, the
witness identified three other men in the line-up as persons who looked
“familiar” to her.
          Appellees also filed pretrial motions
requesting copies of any recorded witness statements.  Appellees’ counsel
discovered at trial that the police had recorded conversations with at least
two witnesses and that the State had failed to provide a copy of these
recordings to Appellees or even disclose their existence.  The trial court
ordered the State to play these recordings for Appellees and their attorneys
during the lunch break.  After the lunch break, counsel for Ratcliff and
counsel for Lewis both asked the court to dismiss the prosecutions against
their clients because the State had failed to produce five recordings which
contain information suggesting that their clients may not have been involved in
the assault.  The court deferred a ruling on these motions.
          Finally, examination of the previously
undisclosed report prepared by the detective revealed that another person,
Michael Bielamowicz, told the police on the night of the assault that none of
the Appellees was involved in the assault.  Bielamowicz was arrested for public
intoxication that night, and the detective concluded, after reviewing the
offense report for the public intoxication arrest, that he would not be “a
credible or a reliable witness.”  Thus, the detective did not make any attempt
to contact Bielamowicz.
          At the end of the second day of trial,
the court advised that a mistrial rather than a dismissal might be the
appropriate remedy for a Brady violation but deferred a ruling and
instructed the parties to try and locate Bielamowicz.  The next morning it was
determined that Bielamowicz was in basic training with the Army and would not
be available for in-court testimony for several weeks.  With the assistance of
the Judge Advocate General Corps, Bielamowicz was located in South Carolina and
testified via teleconference (and outside the jury’s presence) about his
recollection of the pertinent facts.  His testimony was contradictory to that
of some of the State’s witnesses, and so counsel for Appellees advised the
court that they wanted Bielamowicz to be subpoenaed for his testimony.  All
four Appellees requested a mistrial, which the court granted.
          We may presume from the record that
the court attributed the delay from the mistrial to the State because of its
failure to disclose the evidence which necessitated that ruling.  See
Zamorano, 84 S.W.3d at 648 (appellate court must presume that trial court
resolved any disputed fact issues against losing party and must defer to any
implied findings supported by the record).  As the court stated in the hearing
on the speedy trial motions, “the mistrial, which though inadvertent, at least
is partly the State’s responsibility.”
          The delay from the mistrial lasted a
minimum of six months, which is the amount of time that passed between the
court’s declaration of a mistrial and the initial hearing on Lewis’s speedy
trial motion.[6]  Because
the mistrial was granted due to the State’s failure to disclose Brady evidence,
this six-month delay can be weighed against the State.
          At the December 2004 status hearing,
the parties tentatively agreed to a trial setting in February 2005.  It was
still unknown at that juncture when Bielamowicz would be available to testify,
and the State had not yet provided access to the previously undisclosed tape
recordings which necessitated the mistrial.
          Lewis asked for a dismissal on speedy
trial grounds, because a retrial would violate double jeopardy, and because
there was no probable cause to support his prosecution.  Lewis first presented
the speedy trial argument and testified in his own behalf.  Lewis explained
that the delay had been burdensome for him because he had moved to Houston a few months before the first trial to attend school and was having to miss school
for hearings.  He also testified that it caused him stress and anxiety to be
accused of something he did not do and that the delay and additional settings
caused additional stress.
          On the double jeopardy claim, Lewis
argued that dismissal was warranted because the State had acted in bad faith by
failing to disclose the Brady evidence which non-disclosure was one of
the grounds for the mistrial.  See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S. Ct. 2083, 2091, 72 L. Ed. 2d 416 (1982); Bauder v. State, 921 S.W.2d
696, 699 (Tex. Crim. App. 1996), overruled by Ex parte Lewis, NO.
PD-0577-05, 2007 Tex. Crim. App. LEXIS 33 (Tex. Crim. App. Jan. 10, 2007); Ex
parte Fife, 49 S.W.3d 35, 38 (Tex. App.—Fort Worth 2001, pet. ref’d).
          Finally, Lewis argued that the case
should be dismissed because none of the State’s witnesses during the first
trial ever identified him as one of the assailants.
          The court deferred a ruling on Lewis’s
motion. Instead, the court advised the parties that it would review cases on the
right to speedy trial, expressing doubt at that time about the merits of
Lewis’s speedy trial claim.  The court asked the prosecutor to review his file
and identify evidence tending to inculpate Lewis.  All agreed that the matter
would be taken up again within a few weeks.  However, it was apparently not
taken up again until August 2005.
          After the December 2004 hearing, the
clerk’s record contains a June 2005 notice of setting advising the parties that
the case was set for a “scheduling order” on July 8.  The record also contains
a July 12 notice advising that the case was set for a “preferential jury trial”
setting of August 22.  Except for Ratcliff’s case, the clerk’s record provides
no indication of the reason the case was not taken up between December 2004 and
June 2005.
          In Ratcliff’s case, the court signed
an order in January 2005 transferring his case to a Brazos County district court where he had a felony case pending.  In April, the district court
transferred Ratcliff’s case back to the County Court at Law pursuant to a plea
agreement between Ratcliff and the State.  This delay should not be weighed
against the State.  See Munoz, 991 S.W.2d at 824.  But it should not be
weighed against Ratcliff’s co-defendants either.
          At the August 2005 hearing, the
prosecutor advised the court that the State had almost finished transcriptions
of the previously undisclosed tape recordings which had necessitated the
mistrial.  This further delay on the part of the State should also be weighed
against the State.[7]
Assertion of Right to Speedy Trial
          Lewis asserted his right to a speedy
trial in a motion filed less than five months after the mistrial was declared. 
The other Appellees did not file speedy trial motions until ten months later,
on the eve of the second trial.
          After the court granted Lewis’s motion
to dismiss on speedy trial grounds, Brown’s newly-appointed counsel asked the
court for similar relief.[8] 
Brown’s counsel acknowledged that Brown had not promptly filed a motion for
this relief but argued that: (1) he had only recently been appointed; (2) all
four attorneys had adopted the others’ motions during the first trial; and (3)
if Brown were not granted a dismissal on speedy trial grounds, then Brown would
have a meritorious claim for ineffective assistance of counsel because of his
prior attorney’s failure to timely raise the issue.
          The prosecutor opined that it would be
better to treat all four cases the same “for judicial economy.”
Prejudice from Delay
          Only Lewis presented testimony
regarding the impact the delay was having on him.  He explained that the delay
had been burdensome for him because he had moved to Houston a few months before
the first trial to attend school and was having to miss school for hearings. 
He also testified that it caused him stress and anxiety to be accused of
something he did not do and that the delay and additional settings caused
additional stress.
          The other defendants alleged in their
speedy trial motions that they were prejudiced because: (1) they have “suffered
much anxiety and concern”; (2) unspecified witnesses for the defense have
disappeared and/or their recall of pertinent events has faded; and (3) the
“excessive delay” has “presumptively compromised the ability to defend this
case in ways not susceptible to proof.”
Analysis Regarding Lewis
          The length of delay for Lewis was
twenty-nine months.  The evidence supports a finding that eight of these months
are attributable to Lewis: three for delay during plea negotiations and five
for delay during his attorney’s pregnancy.  The court did not abuse its
discretion by holding the State responsible for the mistrial, which caused an
additional six months’ delay.  From the record, the remaining fifteen months are
either unexplained or attributable to resets occasioned by the court’s crowded
docket or resets necessitated by scheduling difficulties arising from the
State’s decision to try Lewis jointly with his three co-defendants over their
objections.  Thus, twenty-one of the twenty-nine months can be attributed to
the State.  See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).
          Lewis asserted his right to a speedy
trial within a few months after the mistrial was declared.  It was within the
court’s discretion to conclude that Lewis did not immediately assert his right
to a speedy trial after the mistrial because he wanted to see how promptly the
State would provide the previously undisclosed evidence.
          Lewis testified about the impact the
delay was having on his education and the stress and anxiety it was causing him. 
In addition, ten months after Lewis filed his speedy trial motion and three
days before trial, the State had still not produced all the previously
undisclosed evidence which had necessitated the mistrial.
          Accordingly, we hold that the court
did not abuse its discretion by granting Lewis’s motion to dismiss.
Analysis Regarding Brown
          The length of delay for Brown was thirty-four
months.  The evidence supports a finding that only one of these months is
attributable to Brown’s continuance motion.  The court did not abuse its
discretion by holding the State responsible for the mistrial, which caused an
additional six months’ delay.  From the record, the remaining twenty-seven
months are either unexplained or attributable to resets occasioned by the
court’s crowded docket or resets necessitated by scheduling difficulties
arising from the State’s decision to try Brown jointly with his three
co-defendants over their objections.  Thus, thirty-three of the thirty-four
months can be attributed to the State.  See Dragoo, 96 S.W.3d at 314.
          Brown did not directly assert his
right to a speedy trial until the eve of trial.  Nevertheless, Brown
essentially argued that he should be credited with asserting his right to a
speedy trial at the same time Lewis did because the attorneys had stated during
the first trial that they were adopting each other’s motions.  We disagree.
          During the June 2004 trial when the
issue first arose regarding whether the State had possession of one or more
tape recordings which had not been previously disclosed, the following
interchange occurred:
Ratcliff’s Counsel:     Judge,
while we’ve got everyone here, I would like to get something on the record. 
I’m making an oral motion to adopt all objections and motions made by other
counsel in this case so that we don’t have to each object—you know, each one of
us object to make a record.
 
Manley’s Counsel:     Individually. 
Yeah.
 
Ratcliff’s Counsel:     On behalf
of Brandon Ratcliff, I move that the Court allow my client and I to adopt all
motions and objections made by other counsel.
 
The Court:              Other
defense counsel?
Ratcliff’s Counsel:     Yes.
 
Manley’s Counsel:     Yes.  I
request the same in regards to Malcom Manley.
 
Lewis’s Counsel:      Your Honor,
I request the same in regards to Mr. Lewis.
 
Brown’s Counsel:     I would like
the same for Mr. Brown, as well, Judge.
 
The Court:              I honestly
don’t know whether each defendant would automatically get the benefit of
objections made by someone else’s attorney on appeal; but I’ll, based on  your
motions, assume that all the motions and objections by any defense counsel have
been adopted by the other three.
 
          Fourteen months later and three days
before the second trial was scheduled to begin, Brown first raised the speedy
trial issue on his own behalf.  In considering Brown’s claim and the timeliness
of his assertion, the trial court concluded that, even at the time of the
hearing, Brown had not yet properly asserted the issue because he had not filed
a speedy trial motion.  In the court’s words near the end of the hearing, “I’m
going to wait until somebody asserts the right.”[9]  The
court’s view of the matter is further supported, as the court observed, by the
fact that when the court first heard Lewis’s speedy trial motion in December
2004, Brown’s counsel and the other attorneys left the courtroom, having
obtained their February trial setting.  
          A co-defendant can adopt by reference
the objections of another co-defendant.  See Martinez v. State, 833
S.W.2d 188, 191 (Tex. App.—Dallas 1992, pet. ref’d); Frederick C. Moss, Rethinking
  Texas Evidence Rule 103, 57 Baylor
L. Rev. 503, 539-40 (2004).[10]  Nevertheless,
given the passage of time and the failure of Brown and the other Appellees to
participate with Lewis in the December 2004 speedy trial hearing, it was within
the court’s discretion to conclude that defense counsels’ adoption of each
others’ objections and motions was limited to those presented in the first
trial and did not extend to the speedy trial motion which Lewis filed several
months later. 
          The court almost explicitly found that
Brown did not assert his right to a speedy trial in a timely fashion.  As
Brown’s counsel observed however, the timeliness of the assertion of this right
is not dispositive.  See Dragoo, 96 S.W.3d at 314.  Although this is
true, “a defendant’s lack of a timely demand for a speedy trial ‘indicates
strongly that he did not really want a speedy trial’  .  .  .  .  Thus,
inaction weighs more heavily against a violation the longer the delay becomes.” 
  Id. (quoting Harris v. State, 827 S.W.2d 949, 957 (Tex.
Crim. App. 1992)).  Accordingly, Brown’s failure to timely assert his right to
a speedy trial “weighs very heavily against finding a violation of his right to
a speedy trial.”  See Shaw, 117 S.W.3d at 890 (addressing 38-month delay
and defendant’s failure to file speedy trial motion until 32 months had passed
or seek a hearing until the eve of trial).
          Brown alleged in his speedy trial
motion that he was prejudiced because: (1) he had “suffered much anxiety and
concern”; (2) unspecified defense witnesses had disappeared and/or their recall
of pertinent events had faded; and (3) the “excessive delay” has “presumptively
compromised the ability to defend this case in ways not susceptible to proof.” He
offered no testimony to support his allegations of anxiety and concern, nor did
he identify the witnesses who have disappeared or whose recall had faded.
          However, 
affirmative proof of particularized prejudice is
not essential to every speedy trial claim, because “excessive delay
presumptively compromises the reliability of a trial in ways that neither party
can prove or, for that matter, identify.”  On the other hand, this “presumption
of prejudice” is “extenuated . . . by the defendant’s acquiescence” in the
delay.
 
Dragoo,
96 S.W.3d at 315 (quoting Doggett, 505 U.S. at 655, 658, 112 S. Ct. at 2693,
2694) (citation omitted).
          The delay was presumptively
prejudicial to Brown’s defense, “but this presumption is extenuated by [his]
longtime acquiescence in the delay.”  See Shaw, 117 S.W.3d at 890.
          The facts in Brown’s case are similar
to the facts in Shaw.  The length of delay and the reasons for delay
weigh in favor of a finding that his right to a speedy trial was violated.  See
id. at 891.  Conversely, his failure to timely assert this right and his
failure to demonstrate prejudice weigh against such a finding.  Id.  But Brown’s case is different in two respects.  First, the trial court found
that Brown’s right to a speedy trial was violated while the trial court in Shaw
found to the contrary.  Cf. id. at 887-88.  And second, the delay in Shaw
was generally attributed to a crowded docket, defense continuances, and a
mistrial due to a hung jury.  See id. at 886, 889-90.  Conversely in
Brown’s case, the mistrial was due to the State’s failure to comply with its obligation
to disclose Brady evidence.  And to compound this failure, the State had
still not provided defense counsel with transcriptions of the tape recordings
in question on the eve of trial.
          This is a close question. 
Nevertheless, the record supports the trial court’s ruling so we “must uphold”
it.  Id. at 889.
Analysis Regarding Manley
          The analysis for Manley is similar to
that for Brown.  The length of delay was the same.  The evidence supports a
finding that only three of these thirty-four months is attributable to Manley’s
continuance motion.  Thus, thirty-one of the thirty-four months can be
attributed to the State.  See Dragoo, 96 S.W.3d at 314.
          Neither Manley nor his counsel
appeared at the August 2005 pretrial hearing in which the court granted Lewis’s
speedy trial motion and heard Brown’s argument that he was entitled to the same
relief.  But Manley did file a speedy trial motion about thirty minutes before
Brown filed his.[11]
          As with Brown, we presume that the
court found that Manley did not assert his right to a speedy trial in a timely
fashion.  See Shaw, 117 S.W.3d at 890.
          Manley alleged in his speedy trial
motion the same forms of prejudice caused by the delay as Brown did but offered
no testimony to support his allegations of anxiety and concern and did not
identify the witnesses who have disappeared or whose recall had faded.  The
delay was presumptively prejudicial to Manley’s defense, “but this presumption
is extenuated by [his] longtime acquiescence in the delay.”  See Shaw,
117 S.W.3d at 890.
          As with Brown, two of the factors
applicable to Manley weigh in favor of a finding that his right to a speedy
trial was violated and two weigh against such a finding.  Id. at 891.  Nevertheless,
the record supports the trial court’s ruling so we “must uphold” it.  Id. at 889.
Analysis Regarding Ratcliff
          The primary distinction in Ratcliff’s
case is that the length of delay (nineteen months) is almost half the length of
delay in Brown’s and Manley’s cases.  However, we may presume from the record that
the court attributed the entirety of the delay in Ratcliff’s case to the State.
 See Zamorano, 84 S.W.3d at 648.
          Neither Ratcliff nor his counsel
appeared at the August 2005 pretrial hearing in which the court granted Lewis’s
speedy trial motion and heard Brown’s argument that he was entitled to the same
relief.  But Ratcliff did file a speedy trial motion about thirty minutes
before Brown filed his and around the same time Manley filed his.[12]
          As with Brown and Manley, we presume
the court found that Ratcliff did not assert his right to a speedy trial in a
timely fashion.  See Shaw, 117 S.W.3d at 890.
          Ratcliff alleged in his speedy trial
motion the same forms of prejudice caused by the delay as Brown and Manley did
but offered no testimony to support his allegations of anxiety and concern and
did not identify the witnesses who have disappeared or whose recall had faded. 
The delay was presumptively prejudicial to Ratcliff’s defense, “but this
presumption is extenuated by [his] longtime acquiescence in the delay.”  See
Shaw, 117 S.W.3d at 890.
          As with Brown and Manley, two of the
factors applicable to Ratcliff weigh in favor of a finding that his right to a
speedy trial was violated and two weigh against such a finding.  Id. at 891.  Nevertheless, the record supports the trial court’s ruling so we “must
uphold” it.  Id. at 889.
We affirm the dismissal orders as to all four
Appellees.
 
FELIPE REYNA
Justice
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief
Justice Gray dissenting)
Affirmed
Opinion delivered and
filed February 7, 2007
Publish
[CR25]
 




[1]
          The Court of Criminal Appeals
has reviewed at least two cases involving speedy trial claims in which some of
the delay involved a co-defendant who was not tried jointly with the
defendant whose case was under review.  In County v. State, the Court
overruled a speedy trial claim because, among other reasons, “appellant and his
counsel agreed to a large part if not all of the delay in that they wished to
see appellant’s co-indictee tried first.”  668 S.W.2d 708, 711 (Tex. Crim. App. 1984).  In Deeb v. State, the appellant’s trial was delayed in part
because Deeb’s co-defendant was tried first.  815 S.W.2d 692, 705-06 (Tex. Crim. App. 1991).  Deeb “attempted to establish that this was purely a decision by the
State.”  Id. at 706.  However, the Court rejected this assertion
stating, “It is difficult to conclude from the record that the State was
maneuvering for a tactical advantage and was therefore responsible for the
delay.”  Id.  The Court concluded that this was a “neutral reason for
the delay” which “should be weighed less heavily” against the State.  Id. (citing Barker v. Wingo, 407 U.S. 514, 531, 92 S. Ct. 2182, 2192, 33 L. Ed.
2d 101 (1972)).


[2]
          The federal act was enacted in
1974 and was derived from speedy trial standards first approved by the American
Bar Association in 1968.  See ABA
Standards for Criminal Justice: Speedy Trial and Timely Resolution of Criminal
Cases, at 19 (3d ed. 2004) (Introduction to Standards); see also Standards Relating to Speedy Trial §
2.3(g) (1968).
 


[3]
          Texas enacted a similar statute
in 1977, article 32A.02, section 4(8) of the Code of Criminal Procedure.  See
Act of May 23, 1977, 65th Leg., R.S., ch. 787, § 1, 1977 Tex. Gen. Laws 1970,
1971.  However, the Court of Criminal Appeals declared article 32A.02
unconstitutional in violation of the separation of powers doctrine as expressed
in article II, section 1 of the Texas Constitution.  See Meshell v. State,
739 S.W.2d 246, 257 (Tex. Crim. App. 1987).  The Legislature repealed this
statute in 2005.  See Act of May 29, 2005, 79th Leg., R.S., ch. 1019, § 2,
2005 Tex. Gen. Laws 3464, 3464.


[4]
          The State contends that Brown
requested two continuances but does not provide a citation to the record to
support this contention.  Our review of the record discloses only one
continuance request on Brown’s behalf.
 


[5]
          During the State’s
cross-examination of Lewis in this hearing, Lewis agreed that an unspecified
“plea bargain” was made in March 2003 and ultimately rejected by him in
September 2003.  An April 3, 2003 Notice of Setting indicates that Lewis’s case
was scheduled for jury trial in May 2003, but an April 23 Notice of Setting
indicates that it was set for a “Status/Class C Reduction” hearing in June
2003.  A July 11 Notice of Setting recites that the case was again set for jury
trial in September 2003.


[6]
          The clerk’s record contains two
intervening setting notices during this 6-month period.  The first rescheduled
the case for a status hearing four months after the mistrial.  The second (as
amended) rescheduled the case for a status hearing and for a hearing on Lewis’s
speedy trial motion two months later.


[7]
          As Lewis’s counsel argued in the
December 2004 hearing, the State’s delay in providing this evidence adversely
affected counsel’s ability to “[f]airly cross-examine” the State’s witnesses.
 


[8]
          Brown was appointed new counsel
in July 2005.  Counsel for Manley and Ratcliff did not appear at this hearing
but filed speedy trial motions that afternoon.


[9]
          The court had already announced
its intention to grant Lewis’s speedy trial motion and proceed to trial with
the other three defendants.
 


[10]          According to Professor Moss,
 
            Co-parties
may escape the technical rigors of the “all must object” rule by seeking a
ruling from the court, preferably before trial, that the objections of one
co-party will be deemed joined by all unless the parties otherwise indicate.
This will preserve error for all co-parties even though they were silent when a
co-party objected to the admission or exclusion of evidence.
 
Frederick C. Moss, Rethinking Texas Evidence Rule 103, 57 Baylor L. Rev. 503, 540 (2004).


[11]
         Brown filed his speedy trial
motion at 2:58 p.m.  Manley had already filed his at 2:29.


[12]
         Ratcliff filed his speedy trial
motion somewhere between 2:20 and 2:29—the last number is indecipherable.  The
court’s signed dismissal order was entered at 2:30.


