The State of Texas v. Erica Denise Alderete--Appeal from County Court at Law No 1 of Bexar County

MEMORANDUM OPINION
No. 04-03-00657-CR
The STATE of Texas,
Appellant
v.
Erica ALDERETE,
Appellee
From the County Court at Law No. 1, Bexar County, Texas
Trial Court No. 801792
Honorable Al Alonso, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 10, 2004

AFFIRMED

The State appeals the trial court's order granting Erica Alderete's Motion To Set Aside For Failure To Afford Constitutional Right To Speedy Trial. On Appeal, the State contends that the trial court improperly granted Alderete's motion to dismiss on speedy trial grounds. We affirm the order of the trial court.

Standard of Review

We apply a bifurcated standard of review when reviewing a trial court's decision on a speedy trial claim. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002); State v. Guerrero, 110 S.W.3d 155, 157 (Tex. App.--San Antonio 2003, no pet. h.). The trial court's determination of the historical facts is reviewed under an abuse of discretion standard, while its application of the law to the facts is reviewed de novo. Zamorano, 84 S.W.3d at 648.

Speedy Trial

The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution, as extended to the states through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). In addition, Article I, Section 10 of the Texas Constitution guarantees the criminally accused the right to a speedy trial. Tex. Const. art. I, 10; Chapman v. Evans, 744 S.W.2d 133, 135 (Tex. Crim. App. 1988). In Texas, the inquiry as to whether an accused's right to a speedy trial has been violated is the same under both the United States and 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, the conduct of both the prosecutor and the defendant must be considered in balancing the following four factors: (1) the length of the delay; (2) the 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). No single factor is a necessary or sufficient condition to establish a speedy trial violation. Barker, 407 U.S. at 530, 533; State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.--San Antonio 1988, no pet.).

1. The Length of the Delay

The length of the delay is the mechanism that triggers analysis of the other Barker factors. Barker, 407 U.S. at 530. If the length of delay is eight months or longer, it is considered "presumptively prejudicial," and warrants speedy trial analysis. Rangel, 980 S.W.2d at 843. Generally, the length of delay is measured from the date the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).

Here, Alderete is charged with the misdemeanor offense of driving while intoxicated, not a complicated, conspiratorial crime. The length of delay that can be tolerated for an ordinary street crime is considerably less than for a serious or complex case. Zamorano v. State, 84 S.W.3d at 649. Alderete was arrested on November 17, 2001. On August 11, 2003, she filed a Motion for a Speedy Trial. The motion was formally argued on August 20, 2003, at which time the State advised the court that it was not ready for trial. This 21-month delay is sufficient to trigger a full Barker inquiry and weighs heavily in Alderete's favor.

2. Reasons for the Delay

The State has the burden of justifying a lengthy delay. Rangel, 980 S.W.2d at 843. Different weights are assigned to different reasons for a delay. Munoz, 991 S.W.2d at 818, 822 (Tex. Crim. App. 1999). Neutral reasons, such as negligence or overcrowded dockets, are weighed less heavily than intentional reasons, such as a deliberate attempt to delay a trial, which would weigh more heavily against the State. 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.

The State argued that it had never asked for a reset, and that defendant had previously announced not ready. The mere fact that the case has been continued at the urging of the defense is not dispositive. E.g., State v. Martinez, No. 04-01-00323-CR, 2002 WL 112544, at *2 (Tex. App.--San Antonio 2002, pet. ref'd) (not designated for publication). Alderete appeared in court on four different occasions. Although the State asserts in its brief that the only reset attributable to the State was the reset in August of 2003, the record does not support this assertion. Furthermore, the State was on notice since at least August 11, 2003 that Alderete sought to have her case heard before September 1, 2003; however, the State made no attempt to explain why it was not ready for trial on August 20, 2003, other than to assert that this case involved an accident. The State has failed to carry its burden of justifying a lengthy delay. In the alternative, even if this factor does not weigh heavily against the State, it is insufficient to outweigh the other Barker factors, each of which weigh heavily in Alderete's favor.

3. Assertion of the Right

The third factor that a trial court must consider is the defendant's assertion of her right to a speedy trial. Barker, 407 U.S. at 528-529. The defendant has the duty to demand her right to a speedy trial. Id. Lack of persistence or a lengthy delay in asserting the right may weaken a speedy trial claim, but a defendant's failure to assert her right is not conclusively dispositive. Russel v. State, 90 S.W.3d 865, 873 (Tex. App.--San Antonio 2002, pet. ref'd); Munoz, 991 S.W.2d at 825. Instead, a defendant's failure to do so is weighed and balanced with the other Barker factors. Munoz, 991 S.W.2d at 825.

Here, Alderete never waived her right to a speedy trial. On the contrary, she affirmatively sought a speedy trial by written motion filed on August 11, 2003. The State was formally served with a copy of this speedy trial demand on the same day, and was advised by the trial court on August 14, 2003, that it would be argued on August 20, 2003. When Alderete's motion for a speedy trial was argued on August 20, 2003, the defense articulated why it was seeking a speedy trial - so that the case could be disposed of before the DWI surcharge went into effect on September 1, 2003, (1) and to avoid further oppressive pretrial anxiety. The fact that Alderete filed a demand for a speedy trial, prior to seeking a dismissal for want of a speedy trial, weighs in her favor. Cf. Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983).

4. Prejudice Caused by the Delay

The final factor a court must consider in assessing a speedy trial claim is whether or not the defendant has suffered any prejudice as a result of the delay. The prejudice is assessed in light of the interests of defendants which the speedy trial right was designed to protect. Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). 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. "A showing of actual prejudice to these interests is not required; rather, the defendant need only make some showing that he has been prejudiced by the delay." Rangel, 980 S.W.2d at 844. Once the defendant makes a prima facie showing of prejudice, the burden shifts to the state to prove that the prejudice did not exceed that which occurs from the ordinary and inevitable delay. Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973); State v. Martinez, No. 04-01-00323-CR, 2002 WL 112544, at *2 (Tex. App.--San Antonio 2002, pet. ref'd) (not designated for publication).

Alderete showed adequate prejudice in this case. First, the trial court found that Alderete was prejudiced by the inconvenience of having to take off work on numerous occasions to drive to court from her home in Floresville, Texas. Second, the trial court found that Alderete suffered embarrassment at work by having to inform her supervisors and students that she had to leave work in order to attend court on four different occasions. Third, the trial court found that Alderete suffered more than ordinary anxiety as a result of fear of her numerous court appearances and that she had nightmares and could not sleep in anticipation of court. Fourth, because trial did not commence on or before September 1, 2003, the trial court found that Alderete would be subject to a $3,000.00 DWI surcharge if convicted, which would be a heavy financial burden on someone with her income. Fifth, because trial did not commence on or before September1, 2003, the trial court found that Alderete would be prejudiced by having to take time off from college. See Zamorano v. State, 84 S.W.3d 643, 653 (Tex. Crim. App. 2002) (prejudice shown when defendant testified he missed work, suffered from anxiety and was worried every time he came to court, and that coming to court cost him $1,320.00 in wages). Because Alderete made a prima facie showing of prejudice, the burden shifted to the State to show the prejudice did not exceed that which occurs from ordinary and inevitable delay. Because the State did not meet its burden, this factor weighs in Alderete's favor.

5. Balancing

In balancing the four Barker factors here, we conclude that the factors weigh in Alderete's favor, and that the trial court did not abuse its discretion. Alderete met her burden by successfully demonstrating that the length of delay was presumptively prejudicial; that she adequately asserted her right to a speedy trial; and that she suffered prejudice as a result of the delay. Other than to assert that this case involved an accident, the State failed to provide any neutral reasons as to why it was not ready for trial on August 20, 2003, knowing that further delay would subject Alderete to the DWI surcharge. Accordingly, the trial court properly granted the Motion To Set Aside Information For Failure To Afford Constitutional Right To Speedy Trial.

Conclusion

We affirm the trial court's order.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. Alderete was referring to the addition of Chapter 708 of the Texas Transportation Code that requires persons convicted of DWI after September 1, 2003, to pay an additional surcharge to obtain a driver's license.