                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-14-00208-CR
                               NO. 02-14-00209-CR


THE STATE OF TEXAS                                                APPELLANT

                                        V.

DOROTHY MAE BRYAN                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
               TRIAL COURT NOS. 1287413, 1287414

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                           MEMORANDUM OPINION 1

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      The State appeals from the trial court’s order granting appellee Dorothy

Mae Bryan’s motions to dismiss the charges brought against her based on

speedy-trial violations.   We reverse the trial court’s order and remand these

cases to the trial court for further proceedings. See Tex. R. App. P. 43.2(d),

43.3(a).

      1
       See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      On June 28, 2012, the Tarrant County District Attorney filed informations

charging Bryan with possession of not more than fifteen milligrams of

hydrocodone (the possession case) and interference with public duties (the

interference case). See Tex. Code Crim. Proc. Ann. art. 21.20 (West 2009); Tex.

Health & Safety Code Ann. § 481.104(a)(4) (West Supp. 2014), § 481.117 (West

2010); Tex. Penal Code Ann. § 38.15 (West 2011). As alleged, both offenses

were misdemeanors. See Tex. Health & Safety Code Ann. § 481.117(b); Tex.

Penal Code Ann. § 38.15(b). The offenses were alleged to have occurred on

May 18, 2012, and Bryan was released on bond the next day—May 19, 2012.

On July 20, 2012, Bryan’s retained counsel—Steven Swander—entered an

appearance in each case. Six days later on July 26, 2012, Swander filed in the

possession case a motion to suppress the hydrocodone pill found on Bryan after

she was arrested for the interference offense. Swander alleged that the arrest

had been without a warrant or probable cause. See generally Tex. Code Crim.

Proc. Ann. art. 38.23(a) (West 2005) (mandating exclusion of evidence procured

illegally). Swander argued that because Bryan’s interference was solely verbal,

she did not illegally interfere with public duties; thus, the arrest was unlawful.

See Tex. Penal Code Ann. § 38.15(d).




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      The record does not reflect that the motion was set for a hearing as

Swander requested in the motion; 2 however, on July 26, 2012, the trial court

signed a “continuance” order in both cases and “continued” the motion to

suppress until November 1, 2012 on its own motion.         The record does not

indicate whether any action was taken on or before November 1, 2012 regarding

the motion to suppress. On December 31, 2012, a new attorney—Leigh W.

Davis—entered an appearance as Bryan’s retained attorney in both cases. 3 On

January 7, 2013, the trial court, sua sponte and in both cases, continued the

motion to suppress until April 11, 2013. Because the trial court was concerned

Davis did not have notice of the April 11, 2013 setting, the motion to suppress

was not heard that day either although all parties appeared for the hearing. The

prosecutor informed Davis that she would “discuss with the arresting officers the

case in more detail”; therefore, Davis agreed not to immediately request a

hearing on the motion to suppress.

      On May 28, 2013, Bryan filed a motion for continuance in both cases,

waiving her rights to a speedy trial in writing. The trial court continued “this

cause” until June 28, 2013 after noting “State” on the order as the reason for the

continuance. Bryan filed a similar continuance motion on June 28, 2013, waiving


      2
      Bryan’s appellate counsel asserted at oral argument that the motion was
scheduled for a hearing in November 2012.
      3
       New counsel was required after Swander died during the pendency of
these cases.


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her speedy-trial rights, and the trial court granted a continuance until

July 22, 2013. No reason for the continuance was noted in the motion or the

order. On July 22, 2013, the trial court continued both the possession case, the

interference case, and the motion-to-suppress hearing in the possession case

until September 26, 2013, noting “Pass By The Court.” On September 26, 2013,

Davis called the trial court’s coordinator to inform her that he could not attend the

hearing on the motion to suppress because he was in trial in another court. The

coordinator informed Davis that his unavailability was not a problem because “the

State’s witness was not available anyway.” Apparently, the trial court reset the

motion to suppress for January 9, 2014. On that date, the coordinator called

Davis and told him that the motion to suppress would not be heard that day

because the State had “asked for a verbal continuance.” It appears a hearing on

the motion to suppress was then set for March 13, 2014.

      On February 13, 2014, Bryan filed motions to dismiss the information in

both the possession case and the interference case based on speedy-trial

violations. The motion to suppress was not heard on March 13 because “the

court was closed.” The trial court then set a hearing on the motion to suppress

for April 3, 2014. On March 28, 2014, the coordinator called Davis and told him

that the hearing would have to be rescheduled, possibly for May 15, because the

judge had a doctor’s appointment. On May 14, 2014, Bryan filed a supplemental

motion to dismiss in the possession case raising the two continuances of the




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motion-to-suppress hearing that had occurred after her motions to dismiss were

filed.

         On May 15, 2014, almost two years after the informations were filed, the

trial court scheduled a hearing on Bryan’s motion to suppress and all attorneys

and Bryan were present. At the beginning of the hearing, Davis stated that he

was ready to proceed on the motion to suppress but directed the court’s attention

to the motions to dismiss and asked that the court “take that up first,” which

“might alleviate the motion [to suppress] hearing.” 4 The prosecutor affirmed that

she had reviewed the motions to dismiss but later stated that she had not

received the supplemental motion. After hearing a review of the settings and re-

settings of the motion as recounted by Davis and the prosecutor, the trial court

granted the motions to dismiss and stated that the dismissals were not a

“reflection on [the State] at all” but were “a reflection on the way my court has

handled this.” Indeed, the prosecutors appearing at the hearing apparently had

been assigned to Bryan’s cases for less than six months. No party requested

and the trial court did not enter findings of fact or conclusions of law. The State

appeals the dismissals. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West

Supp. 2014).




         4
      Bryan’s appellate counsel acknowledged at oral argument that the
motions to dismiss were not actually set for a hearing on that date.


                                         5
                                 II. DISCUSSION

      In a single point, the State argues that the trial court erred by granting

Bryan’s motions to dismiss because there was insufficient evidence that Bryan’s

speedy-trial rights were violated. In reviewing a speedy-trial claim, we are to

apply a balancing test to determine if a defendant has been denied her

constitutional right to a speedy trial. See Johnson v. State, 954 S.W.2d 770, 771

(Tex. Crim. App. 1997); Harris v. State, 827 S. W.2d 949, 956 (Tex. Crim. App.),

cert. denied, 506 U.S. 942 (1992). This test considers, among other relevant

circumstances, the length of the delay, the reason for the delay, the defendant’s

assertion of the right, and the prejudice to the defendant resulting from the delay.

Barker v. Wingo, 407 U.S. 514, 531, 92 S. Ct. 2182, 2192 (1972). The conduct

of both the State and the defendant must be weighed in balancing these factors,

and no single factor is determinative of a speedy-trial violation. See id. at 530,

533, 92 S. Ct. at 2191–92, 2193.         Before this balancing test is triggered,

however, we must calculate the period of delay and determine if the length of the

delay has passed from ordinary to “presumptively prejudicial.” 5        Id. at 530,

92 S. Ct. at 2192; see also Doggett v. United States, 505 U.S. 647, 651–52,




      5
       The reason-for-the-delay factor and the determination of a triggering
mechanism necessarily take into account the nature of the offense. See Barker,
407 U.S. at 530–31, 92 S. Ct. at 2192; Zamorano v. State, 84 S.W.3d 643, 650
(Tex. Crim. App. 2002).




                                         6
112 S. Ct. 2686, 2690–91 (1992); Gonzales v. State, 435 S.W.3d 801, 808 (Tex.

Crim. App. 2014).

      Our review of the trial court’s application of the Barker test is the same

bifurcated review applicable in the context of a motion to suppress:

      That is, we give almost total deference to historical findings of fact of
      the trial court that the record supports and draw reasonable
      inferences from those facts necessary to support the trial court’s
      findings, but we review de novo whether there was sufficient
      presumptive prejudice to proceed to a Barker analysis and the
      weighing of the Barker factors, which are legal questions. . . . In
      addition, a reviewing court should not consider in its deliberations
      record evidence that was not before the trial court when it made its
      ruling.

Gonzales, 435 S.W.3d at 808–09 (citations omitted). Because the trial court did

not enter findings of fact or conclusions of law, we presume that the trial court

resolved any disputed fact issues in Bryan’s favor and we must defer to such

implied findings. See State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App.

1999).

      In this case, the State asserts that the trial court’s ruling may not be

affirmed because the hearing was nothing more than “a conversation with the

defense attorney and prosecutors”; thus, the required evidence on the Barker

factors was not before the trial court. Several cases reinforce the tenet that a

speedy-trial violation may not be found in the absence of a meaningful hearing.

See, e.g., Wade v. State, 83 S.W.3d 835, 838 (Tex. App.—Texarkana 2002, no

pet.) (reinforcing precedent that speedy-trial issue waived unless raised in trial

court and record developed); State v. DeLeon, 975 S.W.2d 722, 724 (Tex.


                                         7
App.—Corpus Christi 1998, no pet.) (concluding hearing insufficient when no

evidence received and speedy-trial issue not raised at hearing or before). Such

is the case here.

      The May 15, 2014 hearing had been set to hear the motion to suppress

and became a hearing on the motions to dismiss only after Davis mentioned the

dismissal motions at the beginning of the hearing. The State had no notice that a

hearing on the dismissal motions would be held that day and had not received

Bryan’s supplemental motion to dismiss at the time of the hearing. The State,

therefore, did not have an opportunity to marshal its proof on any of the factors,

some of which it bore the burden of proof on. Further, the trial court gave neither

the State nor Bryan the opportunity to introduce evidence relevant to the Barker

factors and solely considered the fact of the delay. This amounts to no hearing

at all. See State v. Reyes, 162 S.W.3d 267, 269 (Tex. App.—San Antonio 2005,

no pet.) (concluding hearing insufficient because motion to dismiss not filed until

morning of trial and State had no prior notice that motion would be considered

that day); State v. Tellez, 976 S.W.2d 333, 334 (Tex. App.—Corpus Christi 1998,

no pet.) (holding hearing insufficient after speedy-trial issue not raised at hearing

or before and trial court received no evidence on Barker factors); State v.

Salinas, 975 S.W.2d 717, 718 (Tex. App.—Corpus Christi 1998, no pet.) (holding

hearing insufficient when speedy-trial right not raised until day of hearing and trial

court received no evidence of Barker factors other than taking notice of delay).




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                               III. CONCLUSION

      We conclude that the trial court’s failure to hold a meaningful hearing on

Bryan’s motions to dismiss and supplemental motion to dismiss results in our

inability to properly evaluate the trial court’s ruling under the Barker factors.

Accordingly, the trial court erred to the extent it dismissed the charges without

conducting a meaningful hearing on the issue of whether the State denied Bryan

her right to a speedy trial. Reyes, 162 S.W.3d at 269; see also 42 George E. Dix

& John M. Schmolesky, Texas Practice Series: Criminal Practice & Procedure

§ 28:27 (3d ed. 2011) (“A trial court has no authority to simply dismiss pending

cases on speedy trial grounds, at least without prior notice to the State and a

hearing.”). We reverse the trial court’s order granting the motions to dismiss and

remand to the trial court for further, prompt proceedings consistent with this

opinion. See Tex. R. App. P. 43.2(d), 43.3(a).


                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 19, 2015




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