Burton John Neesvig v. The State of Texas--Appeal from County Court at Law No. 7 of Bexar County (memorandum opinion by chief justice stone)
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Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00021-CR
Burton John NEESVIG,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 355176
Honorable Genie Wright, Judge Presiding
Opinion by:
Catherine Stone, Chief Justice
Sitting:
Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: March 6, 2013
AFFIRMED
The sole issue raised by Burton John Neesvig on appeal is that the trial court erred in
denying his motion to dismiss for lack of a speedy trial. We overrule this issue and affirm the
trial court’s judgment.
BARKER V. WINGO FACTORS
Courts must balance four factors when analyzing a speedy trial claim. Barker v. Wingo,
407 U.S. 514, 530 (1972); Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). These
factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion
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of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530; Cantu, 253 S.W.3d at
280. No single factor is necessary or sufficient to establish a violation of the right to a speedy
trial; “[r]ather, they are related factors and must be considered together.” Barker, 407 U.S. at
533. In conducting this balancing test, we weigh “the conduct of both the prosecution and the
defendant.” Id. at 530.
“While the State has the burden of justifying the length of delay, the defendant has the
burden of proving the assertion of the right and showing prejudice.” Cantu, 253 S.W.3d at 280.
“The defendant’s burden of proof on the latter two factors ‘varies inversely’ with the State’s
degree of culpability for the delay.” Id. “Thus, the greater the State’s bad faith or official
negligence and the longer its actions delay a trial, the less a defendant must show actual
prejudice or prove diligence in asserting his right to a speedy trial.” Id. at 280–81.
STANDARD OF REVIEW
In an appeal of a trial court’s ruling on a speedy trial claim, we apply an abuse of
discretion standard in reviewing the trial court’s resolution of factual issues; however, we apply a
de novo standard in reviewing legal conclusions. Cantu, 253 S.W.3d at 282. A review of the
four Barker v. Wingo factors necessarily involves factual determinations and legal conclusions,
but the balancing of the four factors as a whole is a purely legal question. Id.
Under the abuse of discretion standard applicable to factual issues, we defer not only to a
trial court’s resolution of disputed facts, but also to the trial court’s right to draw reasonable
inferences from those facts. Id. “In assessing the evidence at a speedy-trial hearing, the trial
judge may completely disregard a witness’s testimony, based on credibility and demeanor
evaluations, even if that testimony is uncontroverted.” Id. “The trial judge may disbelieve any
evidence so long as there is a reasonable and articulable basis for doing so[,] [a]nd all of the
evidence must be viewed in the light most favorable to the [trial court’s] ultimate ruling.” Id.
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Because Neesvig lost in the trial court on his speedy-trial claim, “we presume that the trial judge
resolved any disputed fact issues in the State’s favor, and we defer to the implied findings of fact
that the record supports.” Id.
APPLICATION AND BALANCING OF BARKER V. WINGO FACTORS
A.
Length of Delay
The length of delay is the “triggering mechanism” for an analysis of the remaining three
factors and is measured from the date the defendant is arrested or formally accused. Cantu, 253
S.W.3d at 281. The balancing test is “triggered by a delay that is unreasonable enough to be
‘presumptively prejudicial.’” Id. “There is no set time element that triggers the analysis, but . . .
a delay of four months is not sufficient while a seventeen-month delay is.” Id.
Neesvig was initially arrested on September 27, 2008, and his trial commenced on
November 7, 2011. This over three year delay is sufficient to trigger a speedy trial analysis. See
Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).
B.
Reason for the Delay
Once it is determined that a presumptively prejudicial delay has occurred, the State bears
the burden of justifying the delay. Cantu, 253 S.W.3d at 280. Intentional prosecutorial delay is
weighed heavily against the State, while more “neutral” reasons, such as negligence or
overcrowded dockets, are weighed less heavily against it. Zamorano v. State, 84 S.W.3d 643,
649 (Tex. Crim. App. 2002) (quoting Barker, 407 U.S. at 531). “In the absence of an assigned
reason for the delay, a court may presume neither a deliberate attempt on the part of the State to
prejudice the defense nor a valid reason for the delay.” Dragoo v. State, 96 S.W.3d 308, 314
(Tex. Crim. App. 2003).
Because Neesvig was charged with six other offenses, including two felony offenses, he
delayed requesting a trial setting. At the hearing on Neesvig’s motion, defense counsel testified
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that they were working on the other cases, and the instant case was the last one. Defense counsel
testified that an agreement was reached on one of the other offenses, a DWI, in March of 2010.
The instant case was first set on the jury call docket on July 31, 2010, which was almost two
years after Neesvig was initially arrested on September 27, 2008.
Although delay caused by good faith plea negotiations is a valid reason for the delay and
is not weighed against the prosecution, delay caused by extended plea negotiations can be
attributed to the defendant. See State v. Munoz, 991 S.W.2d 818, 824–25 & n.6 (Tex. Crim.
App. 1999). In this case, the negotiations were extended not due to the facts of the instant case,
but due to the negotiations relating to the other six offenses. From the testimony, the trial court
could infer that defense counsel did not focus on the negotiations involving the instant case until
after the DWI offense was resolved in March of 2010. Therefore, the almost two-year delay
from the date of Neesvig’s arrest and the first trial setting weighs against him. See id.
The State announced not ready for two trial settings in July and August of 2010. The
State then dismissed the case in November of 2010 because of a missing witness. 1 A missing
witness is considered a valid reason that justifies an appropriate delay. Baker, 407 U.S. at 531.
The State then waited three months to re-file the case. From the testimony presented, it
appears that the State was made aware of the witness’s availability in December; accordingly, we
weigh the State’s delay in refiling the case against the State.
After the case was re-filed in February of 2011, an arraignment hearing was set on March
30, 2011. The record contains no evidence to explain the delay from the March setting to the
next setting in May of 2011; however, in May of 2011, a motion to withdraw filed by Neesvig’s
1
Although Neesvig speculates in his brief that the State’s dismissal and re-filing of the charges could have been in
bad faith, nothing in the record supports this speculation. Moreover, the State is generally free to reindict a
defendant after a dismissal so long as jeopardy did not attach prior to the dismissal. See Proctor v. State, 841
S.W.2d 1, 3-4 (Tex. Crim. App. 1992).
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retained counsel was granted, and he was appointed counsel to represent him. The case was then
set for trial on November 7, 2011. Accordingly, it would appear that a portion of the nine-month
delay between the date the case was re-filed and the date of trial is attributable to Neesvig;
however, the record does not reflect a reason for the entire nine-month delay before the case
proceeded to trial on November 7, 2011. Since the reason for this nine-month delay does not
appear on the record, the delay from at least May of 2011 to November of 2011 weighs against
the State; however, it is not weighed heavily against it. See Dragoo, 96 S.W.3d 314.
In summary, of the approximate three-year delay, approximately two years of the delay
weighs against Neesvig, and approximately one year weighs against the State, but the majority of
the one-year delay does not weigh heavily against the State. Therefore, this factor weighs
against Neesvig.
C.
Assertion of the Right
Although it is the State’s duty to bring the defendant to trial, “a defendant does have the
responsibility to assert his right to a speedy trial.” Cantu, 253 S.W.3d at 282. “Whether and
how a defendant asserts this right is closely related to the other three factors because the strength
of his efforts will be shaped by them.” Id. at 282–83. “The more serious the deprivation, the
more likely a defendant is to complain.” Id. at 283. “Therefore, the defendant’s assertion of his
speedy-trial right (or his failure to assert it) is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.” Id. “Filing for a dismissal
instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to
have no trial instead of a speedy one.” Id. “If a defendant fails to first seek a speedy trial before
seeking dismissal of the charges, he should provide cogent reasons for this failure.”
Id.
“Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the failure to
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make such requests supports an inference that the defendant does not really want a trial, he wants
only a dismissal.” Id.
Neesvig argues that his request for a trial setting before the charge was dismissed was an
assertion of his right to a speedy trial. Given the on-going negotiations regarding the other
charges that were pending against Neesvig, however, the trial court could have found that the
request for a trial setting was simply an indication that Neesvig was finally prepared to proceed
to trial on the charge. The record does not contain any motion filed by Neesvig seeking a speedy
trial. Instead, almost three years after his initial arrest, he filed a motion to dismiss four days
before the trial was to commence and nine months after the charge was re-filed. This factor
weighs heavily against Neesvig. See Prihoda v. State, 352 S.W.3d 796, 805 (Tex. App.—San
Antonio 2011, pet. ref’d) (filing of motion to dismiss three years after arrest and on the day trial
was to commence weighed heavily against defendant); Dokter v. State, 281 S.W.3d 152, 159
(Tex. App.—Texarkana 2009, no pet.) (plea negotiations do not excuse defendant’s failure to
timely assert his right to a speedy trial).
D.
Prejudice
The fourth factor in the balancing test examines “whether and to what extent the delay
has prejudiced the defendant.” Cantu, 253 S.W.3d at 285. “When a court analyzes the prejudice
to the defendant, it must do so in light of the defendant’s interests that the speedy-trial right was
designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize the
accused’s anxiety and concern, and (3) to limit the possibility that the accused’s defense will be
impaired.” Id. The last type of prejudice is the most serious because a defendant’s inability to
adequately prepare his case “skews the fairness” of the system. Id.
Neesvig argues that he was prejudiced because he was financially unable to retain the
same attorney after the State dismissed the charge. The record establishes, however, that part of
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Neesvig’s financial difficulty resulted from posting bond for the other charges he was facing
when the attorney was originally retained. See Gonzalez v. State, 117 S.W.3d 831, 837 (Tex.
Crim. App. 2003) (noting right to counsel of choice is not absolute because defendant has no
right to an attorney he cannot afford). Moreover, Neesvig’s desire to have a retained attorney of
his choosing does not demonstrate that he was prejudiced by having an appointed attorney, and
no evidence was presented to show Neesvig’s defense was impaired by the delay.
At the hearing, Neesvig’s attorney alluded to Neesvig’s onerous pretrial incarceration;
however, that incarceration stemmed from seven pending offenses, including two felonies, not
just the present offense. When the charges were re-filed and Neesvig was re-arrested, the record
shows that Neesvig immediately posted bond. Neesvig also contends that he suffered anxiety
and concern when the charges were re-filed.
“[E]vidence of generalized anxiety, though
relevant, is not sufficient proof of prejudice under the Barker test, especially when it is no greater
anxiety or concern beyond the level normally associated with a criminal charge or investigation.”
Cantu, 253 S.W.3d at 286. Finally, the presumption of prejudice based on excessive delay was
extenuated by Neesvig’s longtime acquiescence in the delay.
Dragoo, 96 S.W.3d at 315.
Accordingly, this factor weighs against Neesvig.
E.
Balancing the Four Factors
Although the approximate three-year delay in this case triggered a speedy trial analysis,
two years of the delay is attributable to Neesvig. Moreover, Neesvig did not assert his right to a
speedy trial until four days before the trial commenced and then sought a dismissal. Finally, the
presumption of prejudice was extenuated by Neesvig’s longtime acquiescence in the delay, and
the record contains no other evidence Neesvig’s defense was prejudiced by the delay. Having
reviewed the four factors, we conclude the trial court did not err in denying Neesvig’s motion to
dismiss.
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CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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