The State of Texas v. Diane Respondek--Appeal from County Court at Law No 1 of Bexar County

MEMORANDUM OPINION

No. 04-04-00053-CR

The STATE of Texas,

Appellant

v.

Diane Marie RESPONDEK,

Appellee

From the County Court at Law No. 1, Bexar County, Texas

Trial Court No. 790179

Honorable Al Alonso, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 13, 2004

AFFIRMED

The State appeals from the trial court's dismissal of the information against appellee, Diane Marie Respondek, on the grounds that the State violated Respondek's right to a speedy trial. Because we conclude that Respondek's right to a speedy trial was violated, we affirm.

STANDARD OF REVIEW

In reviewing a trial court's decision on a speedy trial motion, the appellate court uses 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 the law to the facts de novo. Id.

ANALYSIS

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, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (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 determinative of a speedy trial violation. Barker, 407 U.S. at 530, 533, 92 S. Ct. at 2192-93; Munoz, 991 S.W.2d at 821.

1. Length of the Delay

The length of the delay is the 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. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Generally, a delay of eight months or longer is considered "presumptively prejudicial" and triggers speedy trial analysis. Rangel, 980 S.W.2d at 843.

Respondek was charged by information with the offense of driving while intoxicated on June 29, 2001. A complaint and information was filed charging her with the same offense on July 18, 2001. Respondek filed her motion to dismiss on January 8, 2004 and the cause was dismissed on January 9, 2004. In its findings of fact, the trial court found that the case had been pending on the court's docket for in excess of 934 days. On appeal, the State contends we should calculate the delay as: 210 days attributed to the defense plus 351 days attributed to the State, or as many as 450 days attributed to the defense and 531 days attributed to the State. The State cites to no authority for such a "calculation." Nevertheless, the State concedes, and we agree, that the delay is sufficient to trigger an analysis of the remaining Barker factors.

2. Reasons for the Delay

The State has the burden of justifying a lengthy delay. Rangel, 980 S.W.2d at 843. Different reasons for the delay are assigned different weights--an intentional delay for tactical reasons is weighed heavily against the State; a neutral reason, such as negligence or overcrowded courts, is weighed less heavily against the State; a valid reason is not weighed against the State at all; and delay attributable to the defendant may constitute a waiver of the speedy trial claim. Munoz, 991 S.W.2d at 822. If the record is silent regarding the reason for the delay, we presume that no valid reason for the delay existed. Turner v. State, 545 S.W.2d 133, 137-38 (Tex. Crim. App. 1976); Rangel, 980 S.W.2d at 844.

Here, various settings were continued, some at the urging of the State and defense, while others were initiated by the trial court. However, in its Findings of Facts and Conclusions of Law the court found that the State failed to provide any justification for or present any testimony justifying the delay and that the delay resulted in a tactical advantage to the State. Therefore, the reasons for delay will weigh against the State, although not heavily.

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. Munoz, 991 S.W.2d at 825; Haney v. State, 977 S.W.2d 638, 642 (Tex. App.--Fort Worth 1998, pet. ref'd). A defendant is responsible for asserting or demanding her right to a speedy trial. Barker, 407 U.S. at 528-29, 92 S. Ct. at 2191. A lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Haney, 977 S.W.2d at 642. However, a defendant's failure to assert her right to a speedy trial is not necessarily dispositive of her speedy trial claim with this being weighed and balanced with the other Barker factors. Munoz, 991 S.W.2d at 825. A defendant's failure to assert her right simply makes it more difficult for her to prove she was denied a speedy trial. Id.

Respondek requested a jury trial and setting at her first appearance on August 6, 2001. Over the course of time, she filed numerous motions challenging probable cause and seeking to suppress or exclude evidence. The trial court found that Respondek appeared with her attorney and announced ready at each trial setting. She filed her motion to dismiss on January 8, 2004. We conclude that, under these facts, Respondek asserted her right to a speedy trial, and, therefore, factor three weighs in her favor, albeit slightly.

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 her case skews the fairness of the entire system. Id. The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. Once the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show the prejudice did not exceed that which occurs from the ordinary and inevitable delay. Id.

At the hearing on the motion to dismiss, Respondek's counsel asserted the motion was filed because the memory of the main witness for the defense had faded. Because Respondek made a prima facie showing of prejudice, the burden shifted to the State to show the prejudice did not exceed that which occurs from the ordinary and inevitable delay. The State merely argued it was unaware of this witness and offered no other evidence in support of its burden.

5. Balancing

Balancing the Barker factors, we conclude the trial court did not abuse its discretion in granting Respondek's motion to dismiss.

CONCLUSION

We overrule the State's issue on appeal and affirm the trial court's judgement.

Sandee Bryan Marion, Justice

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