Lemus, Herminio v. The State of Texas--Appeal from 363rd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

HERMINIO LEMUS,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-00-00428-CR

Appeal from the

363rd District Court

of Dallas County, Texas

(TC# F87-99913-W)

OPINION

This is an appeal from a conviction for the offense of possession with intent to deliver cocaine. Appellant pleaded guilty to the jury and the jury assessed punishment at life imprisonment and a $250,000 fine.

I. SUMMARY OF THE EVIDENCE

On August 28, 2000, Appellant filed a motion to set aside the indictment for failure to afford him his constitutional right to a speedy trial. The motion alleged that Appellant had been prejudiced by the delay in coming to trial because he suffered oppressive pretrial incarceration, and substantial anxiety and concern. He also alleged that he suffered from diabetes and gout and had been confined to a bed for six (6) years. The motion further alleged that, AWhile the State may argue that Herminio Lemus failed to appear for his initial court setting in 1988; however, Herminio Lemus argues that the State was not diligent in securing the apprehension of his person for over ten (10) years. Herminio Lemus was residing and gainfully employed in Dallas, Texas.@ Lastly, the motion stated that Herminio Lemus has been substantially prejudiced in that he had suffered.

Trial commenced on the next day after the filing of the speedy trial motion. Prior to voir dire, the following exchange occurred while pretrial motions were heard:

DEFENSE: I just need something on the record, if you set aside the indictment for a speedy trial and a court lineup, your Honor, if you=re denying it.

COURT: Okay The Court will deny -- on the record. The Court will deny the motion to set aside indictment and also the motion for in-court lineup.

No hearing was held on the speedy trial motion and the jury panel was brought into the courtroom. Attached to Appellant=s motion to dismiss the indictment on failure to provide a speedy trial is an order with the word Agranted@ circled. It is signed by the trial judge.

During the presentation of the State=s case, Dan Easterwood, a Texas Department of Public Safety narcotic officer, testified that he had negotiated a cocaine sale with an individual named Jose Escobar. On October 29, 1987, Appellant delivered five kilos of cocaine to Easterwood--half of the negotiated amount. Appellant promised to deliver the remaining five kilos within the hour; however, he was immediately arrested. Easterwood testified before the jury that the street value of the drugs would be about a million dollars after it was cut. The cocaine in Appellant=s possession was 75 percent pure. He offered the opinion that Appellant was on the high end of drug trafficking activity due to the amount and purity of the cocaine.

It was also revealed at trial that Appellant had a prior conviction for delivery of cocaine. The offense occurred on October 29, 1987. Appellant was released on a $50,000 bond the next day. The indictment was filed on November 18, 1987. The case was set for December 14, 1987. Appellant failed to appear in court on December 14, 1987 and bond forfeiture proceedings were initiated. On September 12, 1988 a final hearing was conducted and a nisi judgment was entered for the State. On November 14, 1988 a motion for new trial was denied. The next setting for the case was on May 5, 2000. After that date, the case was passed several times by agreement until it was called on August 30, 2000. The judgment reflects that Appellant received jail time credit from October 29, 1987 to October 31, 1987 and from March 22, 2000 to August 30, 2000.

 II. DISCUSSION

In Issue No. One, Appellant maintains that the court actually granted the motion to dismiss the indictment for lack of speedy trial; therefore, we should set aside Appellant=s conviction and order his release from imprisonment. However, we must first respond to the State=s contention that Appellant has waived his speedy trial contentions on appeal due to the Helms rule. Under this rule, all non-jurisdictional errors which are independent of, and do not support the judgment rendered are waived by the entry of a non-negotiated guilty plea. Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000). However, an accused who appropriately raises a constitutional violation prior to pleading guilty, will not have the issue foreclosed on appeal. Id. at 663. In this instance Appellant pleaded guilty after the motion was ruled upon and the issue is preserved for appeal.

Regarding Appellant=s contention that the court actually granted his motion to dismiss on speedy trial grounds, we note that the court orally denied the motion and the parties proceeded to trial without objection. All indications in the record demonstrate that the oral pronouncement is the correct manifestation of the court=s intention. If the court had, in fact, granted the motion, further proceedings would have been forestalled. Looking at all the evidence in the record, we view the court=s Agranted@ notation in the order to be a clerical error. See Galvan v. State, 995 S.W.2d 764, 765-66 (Tex. App.--San Antonio 1995, no pet.). Issue No. One is overruled.

In Issue No. Two, Appellant asserts that the court erred in denying his motion to set aside the indictment for lack of speedy trial. The United States Supreme Court has developed a four part balancing test to be used when determining whether an accused has been denied a speedy trial: 1) the length of the delay; 2) the reason for the delay; 3) the defendant=s assertion of his speedy trial right; and 4) prejudice to the defendant from the delay. Barker v. Wingo, 407 U.S. 514, 531, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972). None of these four factors alone is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Barker, 407 U.S. at 533, 92 S. Ct. at 2193. Review of these individual factors necessarily involves fact determinations and legal conclusions. Johnson v. State, 975 S.W.2d 644, 649 (Tex. App.--El Paso 1998, pet. ref=d). The balancing test as a whole, however, is a purely legal question. Id. Legal questions are reviewed de novo. Id. Therefore, we, as the reviewing court, must conduct a de novo review of Appellant's speedy trial claim. Id. However, as the court denied Appellant=s speedy trial motion, we must presume it resolved all disputed fact issues in the State's favor, and we are required to defer to any of these implied fact findings that the record supports. Meyer v. State, 27 S.W.3d 644, 648 (Tex. App. -Waco 2000, pet. ref=d). Further, no hearing was held on Appellant=s motion and no evidence directly related to his speedy trial claim was presented. Thus, his ability to present his claim to us is severely handicapped by the lack of a record on which to present his arguments. Id.

Regarding the first factor, length of delay, there must be enough of a delay to be presumptively prejudicial to the defendant before it becomes necessary to consider the other three factors in the Barker analysis. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994); Johnson, 975 S.W.2d at 649-50. Courts generally hold that any delay of eight months or longer is presumptively unreasonable and triggers the speedy trial analysis. In this instance, the State concedes that a delay of this length is sufficient to require an appellate court to consider the remaining factors.

The State bears the initial burden of justifying the reasons for a lengthy delay. Johnson, 975 S.W.2d at 650; Lott v. State, 951 S.W.2d 489, 493 (Tex. App.--El Paso 1997, pet. ref=d). In examining the delay, different weights should be assigned to different reasons. Johnson, 975 S.W.2d at 650. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Id. Reviewing courts should weigh neutral reasons, such as negligence or overcrowded dockets, less heavily but nevertheless ultimate responsibility for such circumstances rests with the State rather than with the defendant. Id. In light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason existed. Lott, 951 S.W.2d at 493. However, we review the entire record to determine whether the State has rebutted this presumption. While the State presented no explanation of their delay as there was no hearing, a direct explanation is not always required although it may be the better practice to do so. Johnson, 975 S.W.2d at 650.

In this instance, the only evidence before us is that Appellant failed to appear for court and was then absent from the court system for thirteen years. There is nothing to indicate what efforts the State undertook to apprehend Appellant or if he was actively avoiding apprehension.[1] We weigh this factor against the State.

Regarding the assertion of the right to a speedy trial, failure of the accused to assert his right to a speedy trial or his acquiescence to the delay may diminish the significance of the State's failure to adequately explain the delay. Thompson v. State, 983 S.W.2d 780 (Tex. App.--El Paso 1998, pet. ref=d); Parkersonv. State, 942 S.W.2d 789, 791 (Tex. App. Fort Worth 1997, no pet.). An accused=s lack of a timely trial demand for a speedy trial strongly indicates that he did not really want a speedy trial. Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). Further, Appellant's request for a dismissal instead of a speedy trial attenuates his claim because it shows a desire to have no trial instead of a speedy trial. Id. Appellant=s first assertion of his right to a speedy trial was filed as a request for dismissal the day before trial commenced. As there is nothing before us to indicate any mitigating factor in Appellant=s failure to assert his right to a speedy trial, we weigh this factor heavily against Appellant.

In determining whether Appellant suffered prejudice, the reviewing court looks to whether the interests for which the speedy trial was designed were affected: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Id. at 957. The defendant has the initial burden to make a showing of prejudice. Emery, 881 S.W.2d at 708.

Regarding excessive pretrial incarceration the sole evidence before us indicates an approximate period of five (5) months= incarceration. Even though the record reflects that period of incarceration, we cannot determine from the evidence in the record when or how long Appellant was actually incarcerated. It is not possible for us to say whether he was prejudiced by any such incarceration. See Floyd v. State, 959 S.W.2d 706, 711 (Tex. App.--Fort Worth 1998, no pet.). The sole evidence of anxiety and concern is the mere statement in his motion that he suffered, Asubstantial anxiety and concern.@ However, there is no indication in the record how this anxiety and concern effected him to his prejudice. Id. Regarding the possibility that his defense was impaired, the record is totally devoid of any such evidence. However, excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or identify. Thompson, 983 S.W.2d at 786. We note that, in this case, Appellant was caught openly delivering a large amount of cocaine to an undercover officer and we do not attach great weight to the presumption.

Considering all the factors and applying the appropriate balancing test, we find no denial of Appellant's right to a speedy trial. Issue No. Two is overruled.

Having overruled each of Appellant=s issues, we affirm the judgment of the trial court.

October 17, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] At arguments during the punishment stage of trial, State=s counsel argued to the jury that Appellant Aby his own actions@ ably Aavoided@prosecution. In response, Appellant=s counsel argued that Appellant had made a choice not to go to trial and that he had not been arrested until he was found. Counsel went on to say that he assumed Appellant had been in Dallas. We do not find that these arguments add much weight to either sides position.