                             NUMBER 13-08-00282-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


                          EX PARTE: LAURA SKINNER


   On appeal from the 105th District Court of Nueces County, Texas.


                          MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

       Appellant, Laura Skinner, appeals from the trial court’s order denying her pre-trial

petition for a writ of habeas corpus. By a single issue, Skinner argues that the trial court

erred by refusing to dismiss the prosecution on speedy trial grounds. We affirm.

                                     I. BACKGROUND

       The facts are undisputed. Skinner was arrested on December 14, 2007. After her

arrest, Skinner was released on $500 surety bond for the offense of gambling promotion

and a $1500 surety bond for the offense of engaging in organized criminal activity. See

TEX . PENAL CODE ANN . § 47.03 (Vernon 2003) (making gambling promotion a Class A
misdemeanor); id. § 71.02 (Vernon Supp. 2008) (making engaging in organized criminal

activity based on gambling promotion a state jail felony).

       On January 2, 2008, the trial court imposed several bond conditions. Specifically,

among other things, Skinner was required to: (1) report weekly to a bond supervision

officer; (2) remain in the county of her residence unless given permission to leave by a

magistrate, judge, or pre-trial services officer; (3) permit a pre-trial services officer to visit

her at work, home, or elsewhere and provide the officer with contact information; (4) report

any new arrest to a pre-trial officer within twenty-four hours; (5) maintain a daily home

curfew from 9:00 p.m. to 6:00 a.m.; (6) refrain from consuming alcohol or controlled

substances; (7) avoid places where alcohol is possessed, sold, or given; (8) complete a

substance abuse evaluation; (9) submit to weekly substance abuse testing at her own

expense; (10) submit to substance abuse counseling; (11) refrain from possessing a

firearm; and (12) pay a $10 supervision fee every week.

       Three months after Skinner’s arrest, on March 18, 2008, she filed a pre-trial petition

for habeas corpus, arguing that the trial court should dismiss the prosecution on speedy

trial grounds because the State had not yet brought formal charges against her. The State

did not file a response to the motion. On April 30, 2008, the trial court held a hearing on

the petition. Skinner was the only witness to testify. As of the date of the hearing, the

State had not yet presented an information or an indictment against Skinner. The State

did not present any evidence or argument. At the conclusion of the hearing on April 30,

2008, the trial court denied the petition and ordered Skinner to continue on bond

supervision. Skinner then filed a notice of appeal.




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                                  II. STATE’S ARGUMENTS

       By a single issue, Skinner argues that the trial court erroneously denied her petition

for habeas corpus relief. In its brief, the State does not address Skinner’s speedy trial

argument; rather, the State argues that (1) because Skinner failed to comply with the oath

requirement in Code of Criminal Procedure article 11.14, there is nothing for this Court to

consider; and (2) Skinner cannot raise a speedy trial complaint by way of a pretrial habeas

corpus proceeding. We will address the State’s arguments first, as they affect our ability

to review the merits of Skinner’s argument.

A.     Oath Requirement

       The State argues that Skinner’s petition for a writ of habeas corpus was not made

under oath. See TEX . CODE CRIM . PROC . ANN . art. 11.14(5) (Vernon 2005). A petition for

writ of habeas corpus must be made under oath and must state that “the allegations of the

petition are true, according to the belief of the petitioner.” Id. The State cites Ex parte

Gray, 564 S.W.2d 713, 714 (Tex. Crim. App. 1978), and Jordan v. State, 54 S.W.3d 783,

787 (Tex. Crim. App. 2001). Neither of these cases are directly on point. Rather, in Ex

parte Golden, the Texas Court of Criminal Appeals directly addressed the oath requirement

and its effect on review of a petition for writ of habeas corpus, and it controls our

disposition of this issue. 991 S.W.2d 859, 860-62 (Tex. Crim. App. 1999).

       In Golden, an inmate filed a petition for a writ of habeas corpus, but he did not

include a proper oath or its equivalent. Id. at 860. The Court of Criminal Appeals

determined that the oath was not a jurisdictional requirement, the failure of which

absolutely precluded review of the merits. Id. at 861-62. The court then decided it would

address the merits of the petition because (1) the State did not move to dismiss applicant’s


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application on the ground it is unsworn; (2) the State conceded that the applicant was

entitled to relief; (3) the trial court made relevant fact-findings; and (4) there was adequate

proof in the record to support applicant’s claim. Id. at 862 & n.2.

       We have nearly the same situation here. First, the State did not move to dismiss

Skinner’s petition on the ground that it was not sworn. We believe this is a defect that

could have been corrected had it been pointed out. Second, the State does not argue that

Skinner is not entitled to relief. Third, although the trial court did not make any findings of

fact, the facts are undisputed. Finally, we find adequate proof in the record to allow our

consideration of the merits of the petition—the petition is based on the fact that Skinner

has been subjected to bond conditions for a lengthy period of time and that the State has

yet to bring formal charges against her. The record adequately shows these facts.

Accordingly, under the circumstances of this case, as in Golden, we will exercise our

discretion to review the merits. Id.; see also Ex parte Owens, 206 S.W.3d 670, 675-56 &

n.38 (Tex. Crim. App. 2006).

B.     Availability of Pretrial Habeas Corpus for Speedy Trial Claims

       Next, the State argues that a pretrial writ of habeas corpus is not available to seek

dismissal of a proceeding on speedy trial grounds because Skinner has an adequate

remedy at law. The State is correct that typically, a speedy trial argument is not cognizable

in a pretrial petition for habeas corpus because an adequate remedy at law exists. See

Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001) (citing Ex parte Delbert, 582

S.W.2d 145, 146 (Tex. Crim. App. 1979); Ex parte Jones, 449 S.W.2d 59, 60 (Tex. Crim.

App. 1970)); Ex parte Lamar, 184 S.W.3d 322, 323-24 (Tex. App.–Fort Worth 2005, pet.

ref’d) (op. on reh’g). In Lamar, the Fort Worth Court of Appeals explained that a defendant


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has an adequate remedy at law because he could file a motion to dismiss the indictment

against him on speedy trial grounds, and that ruling would be appealable after conviction.

184 S.W.3d at 324.

       In contrast to the above authority, litigants have routinely used a pretrial writ of

habeas corpus to obtain relief when the accused has been arrested but the State has failed

to bring formal charges in a timely fashion. See, e.g., Ex parte Martin, 6 S.W.3d 524, 525

(Tex. Crim. App. 1999); State v. Fisher, 198 S.W.3d 332, 335 (Tex. App.–Texarkana 2006,

pet. ref’d) (“The traditional method for presenting a speedy trial claim before an indictment

is returned is through the filing of a pretrial application for writ of habeas corpus.”). In these

circumstances, an indictment has not been presented; thus, the accused does not have

the ability to file a motion to dismiss the indictment, and there is no adequate remedy at

law. See Fisher, 198 S.W.3d at 336. Accordingly, we hold that an accused may raise a

speedy trial claim based on delay between an arrest and indictment in a pretrial petition for

a writ of habeas corpus, and we will review the merits of Skinner’s arguments.

                                  III. PRE-INDICTMENT DELAY

A.     Standard of Review

       When reviewing a trial court’s ruling on a speedy trial claim, we apply a bifurcated

standard of review, reviewing the factual components for abuse of discretion and the legal

components de novo. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).

“Because appellant lost in the trial court on his speedy trial claim, we must presume the

trial court resolved any disputed fact issues in the State’s favor, and we must also defer

to the implied findings of fact that the record supports.” Id. Here, where the facts are

undisputed, “the primary issue in this case involves the legal significance of these facts to


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appellant’s claim.” Id.

B.     Analysis

       The Sixth Amendment guarantees the right to “a speedy and public trial.” U.S.

CONST . amend. VI. When evaluating a speedy trial claim, we consider the factors set out

by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33 (1972);

Zamorano, 84 S.W.3d at 648; Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App.

1992). These factors include: (1) “whether delay before trial was uncommonly long”; (2)

“whether the government or the criminal defendant is more to blame for that delay”; (3)

“whether, in due course, the defendant asserted his right to a speedy trial”; and (4)

“whether he suffered prejudice as the delay’s result.” Zamorano, 84 S.W.3d at 648

(quoting Barker, 407 U.S. at 530).

       The right to a speedy trial is triggered by an arrest or an indictment, whichever

comes first. Nelson v. Hargett, 989 F.2d 847, 851 (5th Cir. 1993); see United States v.

McDonald, 456 U.S. 1, 7 (1982) (holding that period between arrest and indictment must

be considered when evaluating speedy trial claim); Harris, 827 S.W.2d at 956. “The length

of the delay is to some extent a triggering mechanism, so that a speedy trial claim will not

be heard until passage of a period of time that is, prima facie, unreasonable under the

existing circumstances.” Harris, 827 S.W.2d at 956 (citing Barker, 407 U.S. at 530). If the

delay is not “presumptively prejudicial,” we need not examine the other three Barker

factors. Zamorano, 84 S.W.3d at 648.

       The length of delay that will provoke a speedy trial inquiry depends on the

circumstances of the case. Id. at 649. For example, “‘the delay that can be tolerated for

an ordinary street crime is considerably less than for a serious, complex conspiracy


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charge.’” Id. (quoting Barker, 407 U.S. at 531). The Texas Court of Criminal Appeals has

held that a delay of four months is not presumptively prejudicial, but a delay of seventeen

months is. See Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008); Pete v.

State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973). Additionally, Texas courts of appeals

have held that a delay of eight months is “presumptively prejudicial” and triggers a speedy

trial analysis. See, e.g., State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.–San Antonio

1998, no pet.).

         In this case, Skinner was arrested on December 14, 2007. She was immediately

released on bond. On January 2, 2008, Skinner was ordered to appear, and the trial court

imposed bond conditions. On March 17, 2008, a mere three months after her arrest,

Skinner moved to dismiss and alleged a speedy trial violation. The trial court held a

hearing and denied the motion on April 30, 2008, just a little over four months after the

arrest. Under the circumstances, the four-month delay in this case was insufficient to

invoke the Barker analysis, as it was not presumptively prejudicial. See Cantu, 253 S.W.3d

at 281; Pete, 501 S.W.2d at 687. Accordingly, we need not consider the remaining Barker

factors, and the trial court did not err by denying the pretrial writ of habeas corpus.1

        1
              Texas Code of Crim inal Procedure article 32.01 provides another m eans to obtain dism issal due
to delay in obtaining an indictm ent, although Skinner did not argue this provision below. See T EX . C OD E C R IM .
P R O C . A N N . art. 32.01 (Vernon 2006). Article 32.01 provides

         W hen a defendant has been detained in custody or held to bail for his appearance to answer
         any crim inal accusation, the prosecution, unless otherwise ordered by the court, for good
         cause shown, supported by affidavit, shall be dism issed and the bail discharged, if indictm ent
         or inform ation be not presented against such defendant on or before the last day of the next
         term of the court which is held after his com m itm ent or adm ission to bail or on or before the
         180th day after the date of com m itm ent or adm ission to bail, whichever date is later.

Id. By statute, the term s of the 105th district court in Nueces County begin the first Mondays of February and
August. T EX . G O V ’T C OD E A N N . § 24.207 (Vernon Supp. 2008). Skinner was arrested on Decem ber 14, 2007,
which was in the August term . Id. Under this provision, the State had until the end of the February term to
indict Skinner, which would have been August 1, 2008. Skinner’s m otion was, therefore, prem ature by any
standard.

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                                     IV. CONCLUSION

       Having overruled Skinner’s issue, we affirm.




                                                      GINA M. BENAVIDES,
                                                      Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 13th day of August, 2009.




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