Eddie Castillo v. The State of Texas--Appeal from County Court at Law No 6 of Bexar County

MEMORANDUM OPINION
No. 04-03-00376-CR
Eddie CASTILLO,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 6, Bexar County, Texas
Trial Court No. 733748
Honorable Phil Meyer, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 3, 2004

AFFIRMED

Eddie Castillo was charged with driving while intoxicated. He pled nolo contendere and was sentenced to one year in jail. In his sole issue on appeal, Castillo argues that he was denied his constitutional right to a speedy trial. We affirm the judgment of the trial court.

Standard of Review

When reviewing a trial court's decision on a speedy trial claim, we apply a bifurcated standard of review. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). We review the trial court's determination of the historical facts under an abuse of discretion standard, while we review the trial court's application of law to the facts de novo. Id. When, as here, the defendant does not prevail on a speedy trial claim, we presume the trial court resolved any disputed fact issues in favor of the State, and we defer to these implied findings of fact that the record supports. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).

Speedy Trial

The Sixth Amendment to the United States Constitution, as extended to the states through the Fourteenth Amendment, guarantees the criminally accused the right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). Similarly, the Texas Constitution guarantees the right to a speedy trial. Tex. Const. art. I, 10; Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985). The inquiry as to whether the accused's right to a speedy trial has been violated is the same under both the United States and the Texas constitutions. Floyd v. State, 959 S.W.2d 706, 709 (Tex. App.--Fort Worth 1998, no pet.).

In determining whether a defendant's right to a speedy trial has been violated, we balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Munoz, 991 S.W.2d at 821. The conduct of both the prosecutor and the defendant must be weighed in balancing the four factors, and no single factor is a necessary or sufficient condition to the finding of a speedy trial violation. Barker, 407 U.S. at 530, 533; Munoz, 991 S.W.2d at 821.

1. Length of the Delay

The length of delay is a triggering mechanism for analysis of the other Barker factors. Munoz, 991 S.W.2d at 821. Further analysis is required if the length of the delay is "presumptively prejudicial." State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.--San Antonio 1998, no pet.). The length of the delay is measured from the time the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). Generally, a delay of eight months or longer is considered "presumptively prejudicial" and triggers speedy trial analysis. Rangel, 980 S.W.2d at 843. Here, Castillo was arrested on February 15, 1999. The date of his trial setting was February 10, 2003. We hold that this delay of almost four years triggers consideration of the remaining three Barker factors.

2. Reasons for the Delay

The State has the burden of justifying a lengthy delay. Id. Different weights are assigned to different reasons for a delay. Munoz, 991 S.W.2d at 822. A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are weighed less heavily. Id. If the record is silent regarding the reason for the delay, we presume neither a deliberate attempt by the State to prejudice the defense nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314.

At the hearing on the motion to dismiss, the State failed to offer any justification for the lengthy delay. The trial court's docket sheet, however, shows that eight resets are attributable to the defendant. In fact, Castillo failed to appear for his trial setting four times. (1) This fact weighs heavily against Castillo, as it indicates he did not want a speedy trial. (2)

Barker, 407 U.S. at 536 ("[B]arring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates . . . that the defendant did not want a speedy trial.").

On the other hand, eight of the resets are unexplained. These resets must be weighed against the State. See Dragoo, 96 S.W.3d at 314 (holding that where the record is silent, we must presume that no valid reason for delay exists). Additionally, the docket sheet shows that the State requested one reset. This reset also must be weighed against the State. Because, however, there is no evidence showing that the State deliberately attempted to delay the trial, these resets do not weigh heavily against the State. Munoz, 991 S.W.2d at 822.

The evidence shows that Castillo himself was responsible for a significant portion of the delay. Because this indicates he did not want a speedy trial, this factor weighs heavily against him.

3. Assertion of the Right

The third factor that a trial court must consider is the defendant's assertion of his right to a speedy trial. Munoz, 991 S.W.2d at 825. A defendant is responsible for asserting or demanding his right to a speedy trial. Barker, 407 U.S. at 528-29. A lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Russell v. State, 90 S.W.3d 865, 873 (Tex. App.--San Antonio 2002, pet. ref'd). However, a defendant's failure to assert his right to a speedy trial is not necessarily dispositive of his speedy trial claim. Munoz, 991 S.W.2d at 825. Instead, a defendant's failure to do so is weighed and balanced with the other Barker factors. Id. A defendant's failure to assert his right simply makes it more difficult for him to prove he was denied a speedy trial. Id.

Here, Castillo waited until January 15, 2003, almost four years after he was arrested, to assert his right to a speedy trial. This lengthy delay weighs against him. Additionally, instead of requesting a speedy trial, he requested that the charges against him be dismissed. See Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983) ("Although a motion to dismiss notifies the State and the court of a speedy trial claim, a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim."); McCarty v. State, 498 S.W.2d 212, 215-16 (Tex. Crim. App. 1973) (holding that a defendant's speedy trial claim is weakened where his prime object is not to gain a speedy trial but to have the charges against him dismissed). For these reasons, we hold that this factor weighs heavily against Castillo.

4. Prejudice Caused by the Delay

The prejudice to the defendant is assessed in light of the interests the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. Of these subfactors, the most serious is the last, because a defendant's inability to adequately prepare his case skews the fairness of the entire system. See id. at 828. The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. at 826. When a defendant makes a prima facie showing of prejudice, the State carries the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Cr. App. 1973).

At the hearing on the motion to dismiss, Castillo did not argue that he was subject to oppressive pretrial incarceration or anxiety and concern. Rather, he argued that he was prejudiced by the loss of a material witness:

His witness in [this case] was a young lady named Diane Vargas. Ms. Vargas has been able and been willing to come into court and testify on his behalf. In December of this past year, two months ago, she accepted a job in Akron, Ohio. She is no longer available as a witness. She has been available and ready five and a half years. He has lost his sole witness for both of these offenses. (3) That's his injury to this. . . .He lost his only witness who was in the car, [who could] testify what was done that day.

. . . [O]ne of the offenses [occurred on] Valentine's of '99, Valentine's dinner, they had together on the river. Whether or not he was weaving or not. All the factors he has to testify [to], she is no longer available to testify [to].

. . . .

He no longer has a witness available to him. She has 30 years with SBC. She retired about six months, could not stand sitting at home, took the first job offer across her desk. She now lives and is working in Akron, Ohio, outside the jurisdiction of the court for subpoena purposes. She was a witness to both of these offenses.

Because the State did not rebut this argument, it is at least some evidence that Castillo lost a material witness as a result of the delay. Santallan v. State, 922 S.W.2d 306, 308 (Tex. App.--Fort Worth 1996, pet. ref'd); see also Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (holding that opponent's failure to object to unsworn statement of attorney constituted waiver of objection, causing statement to be considered some evidence of agreement in question). But cf. Neuenschwander v. State, 784 S.W.2d 418, 420 (Tex. Crim. App. 1990) (implying that prosecutor's opening remarks did not constitute evidence of disputed fact). Thus, we hold that Castillo met his burden to show some prejudice. Munoz, 991 S.W.2d at 826. Additionally, because the State failed to rebut this evidence, we weigh this factor against the State. (4)

5. Balancing

Balancing the Barker factors, we conclude that the weight of the factors is against finding a violation of Castillo's right to a speedy trial. While Castillo met his burden to show some prejudice, he caused a significant portion of the delay. Moreover, he failed to assert his right for almost four years. These facts weigh heavily against him. Accordingly, we hold that Castillo's right to a speedy trial was not violated. We overrule this issue on appeal.

Conclusion

Having considered and overruled Castillo's sole issue, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. On two other occasions, the trial date was reset with the notation, "defendant lives out of state." On two additional occasions, the trial date was reset to allow Castillo to watch the video of himself performing field sobriety tests.

2. The trial court noted this fact to defense counsel at the hearing on the motion to dismiss: "[A]t the moment it looks as though I've seen at least eight or nine resets telling me that the defendant lives out of state. . . . Now I'm not ruling on your motion, but I want to ask if you've got a response to that situation that I see here as the defendant postponing this case himself." Defense counsel responded by saying, "My belief is that was possibly a trial tactic on [prior defense counsel's] part." Thus, defense counsel did not dispute the fact that Castillo himself caused much of the delay.

3. At the time of the hearing on the motion to dismiss, Castillo had two driving while intoxicated cases pending.

4. At the hearing on the motion to dismiss, the State argued:

As far as prejudice goes, the defendant [knew] where he was arrested and knew when he was arrested. He had the time to take pictures, gather his witnesses, and evaluate the case. Anyone arrested [must show] prejudice, the case law says you must show more than what anyone under arrest and awaiting trial would suffer. He must show serious prejudice, quote, beyond that which ensues from the inevitable delay of trial. . . . In every case where the motion to dismiss is granted, it usually involved witnesses, alibi witnesses that have died.

This argument fails to refute the argument presented by Castillo's attorney that a material witness is now unavailable.