David Jay Houston v. The State of Texas--Appeal from 292nd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-99-309-CR

DAVID JAY HOUSTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 292nd District Court

Dallas County, Texas

Trial Court # F97-02839

O P I N I O N

Appellant David Houston appeals his conviction for aggravated sexual assault of a child younger than 14 years of age, for which he was sentenced to 75 years in the Institutional Division of the Texas Department of Criminal Justice.

Crystal McGee was born October 26, 1983. Her mother was dating Jerry Houston. Jerry Houston, Darlon Houston, and Appellant are brothers. During the summer of 1995, when Crystal was twelve, she spent the night in Darlon Houston s house in Dallas. Crystal slept on the couch in the living room. Crystal testified Appellant was there that night and slept on another couch in the same room. Crystal testified that between 1 and 3 o clock in the morning, Appellant came to her couch, woke her up, and told her to take off her clothing, which she did. She testified Appellant touched her with his hand and his penis touched the inside of her vagina. Crystal waited 15 months, until December 6, 1996, to make outcry and to tell her mother what happened.

Appellant testified he was 25 years old in 1996. He vigorously denied committing the offense.

At trial on August 31, 1999, a jury found appellant guilty and assessed his punishment at 75 years in prison.

Appellant appeals on three issues.

Issue 1: The indictment is lost, therefore the record fails to reflect the trial court s jurisdiction.

Appellant was indicted in Cause No. F97-75186 for aggravated sexual assault of a child. At trial, the judge stated that the State has reindicted in Cause No. F97-02839, and that we will proceed in Cause No. F97-02839.

The indictment in Cause No. F97-02839 was read to Appellant in open court and Appellant pled not guilty.

Only the indictment in Cause No. F97-75186 is contained in the Clerk s Record on appeal. Appellant asserts the reindictment in Cause No. F97-02839 is lost, and therefore the record fails to reflect the trial court s jurisdiction. Specifically, Appellant asserts that jurisdiction of the trial court vests only upon the filing of a valid indictment in the trial court, citing Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995).

This Court abated this appeal and ordered the trial court to make a factual determination as to whether the reindictment in Cause No. F97-02839 was or was not filed in the 292nd District Court by the District Clerk.

The trial court conducted an evidentiary hearing and thereafter found:

1. No original indictment or copy of the indictment is contained in the court s file in this case.

2. State s Exhibits 1, 2 and 3 which are records of the District Clerk s office consisting of certified copies of the Grand Jury Report for the Grand Jury of the 292nd District Court, the Manner and Time of Presentment to the 292nd District Court, and the Ordering of Receiving for the 292nd District Court, reflect that a Reindictment in Cause No. F97-02839-V was true billed by the Grand Jury, presented to the 292nd District Court, and received by the 292nd District Court.

3. The defendant was served with a certified copy of the indictment in this case on September 26, 1997, as evidenced by the Sheriff s return contained in the court s file in this case.

4. The indictment was read in open court at the time the defendant was arraigned.

5. At the time of trial, the court s file in Cause No. F97-02839-V contained the indictment in Cause No. F97-02839-V.

6. At the beginning of the trial in this cause, the court, as is the court s practice in all jury trials, handed the court s file jacket containing the indictment to the prosecutor to read the indictment to the jury. Pages 11 and 12 of the Reporter s Record contain the wording of the indictment as it was read by the prosecutor to the jury from the court s file.

7. The indictment in Cause No. F97-02839-V, a reindictment of Cause No. F97-75186, was properly filed in the 292nd District Court by the District Clerk.

We have reviewed the Reporter s Record of the hearing conducted by the trial court, as well as the Exhibits admitted into evidence and conclude that the court s findings are supported by the evidence, and that the reindictment in Cause No. F97-02839-V was filed in the 292nd District Court, and that such court did have jurisdiction of this case.

Issue 1 and the contentions made thereunder are overruled.

Issue 2: The trial court denied appellant his right to a speedy trial.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and applied to the States through the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514 (1972). Additionally, Article I, Section 10 of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure guarantee a speedy trial to the accused in criminal cases.

In determining whether an accused was denied his right to a speedy trial, we use the balancing test used in Barker v. Wingo, supra. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). The factors are: 1) length of the delay; 2) reason for the delay; 3) defendant s assertion of the right; and 4) prejudice to the defendant resulting from the delay. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). The balancing that requires weighing case by case the conduct of both the prosecution and the defendant. Barker, supra, p. 530. No single Barker factor is a necessary or sufficient condition to the finding of a speedy trial violation. Barker, supra, p. 533. We must independently weigh and balance the four Barker factors. Munoz, supra, p. 821.

Length of the Delay

The length of the delay is a triggering mechanism for analysis of the other Barker factors. Munoz, supra, p. 821.

In this case, the delay was 31 months between the indictment and the Appellant s trial. This delay is sufficient to trigger review of the remaining Barker factors. Munoz, supra, p. 822. This factor weighs against the State.

Reason for the Delay

In determining whether a speedy trial violation occurred, a deliberate attempt to delay the trial should be weighed heavily against the State; a more neutral reason such as negligence or a crowded court docket should be weighed against the State less heavily; and a valid reason should not be weighed against the State at all. Delay which is attributable in whole or in part to the defendant may contribute to a waiver of the right to a speedy trial claim. Munoz, supra, p. 822. And an agreed reset waives the right to a speedy trial claim for the period of time involved. State v. Kori, 846 S.W.2d 459, 464 (Tex. App. Houston [14th Dist.] 1993, writ ref d.).

Appellant was indicted January 30, 1997. His trial commenced August 31, 1999. This is a total of 31 months delay, (approximately 930 days). During this time, Appellant agreed to five resets for a total of 506 days of the delay. This period of time was waived. Thus, we have 424 days (approximately 14 months) trial delay not attributable to or waived by Appellant.

The record reflects that the State offered a plea bargain to Appellant for five years deferred adjudication community supervision in exchange for a plea of guilty, but that Appellant rejected same. The record further reflects that Appellant spent approximately 19 months of the 31 months between indictment and trial, in jail.

The 14 months in trial delay not agreed to by Appellant weighs against the State.

Appellant s Assertion of His Right to a Speedy Trial

The third factor we must consider is whether Appellant asserted his right to a speedy trial. A defendant must assert this right. Barker, supra, p. 528. It was not until May 3, 1999, that appellant filed a pro se motion not asking for a speedy trial, but for a dismissal of his case. A motion for a dismissal should not be considered a request for a speedy trial. Kuri, supra, p. 465. Moreover, Appellant was represented by counsel when he filed his pro se request to dismiss the proceedings. In such case, the trial court was not required to consider his pro se motion. Floyd v. State, 959 S.W.2d 706, 710 (Tex. App. Ft. Worth, no pet.). Appellant s attorney asserts his right in a motion filed the day after the case was called for trial. The right to a speedy trial was not properly asserted before the commencement of trial.

Appellant s failure to timely assert his right to a speedy trial weighs against Appellant.

Prejudice to the Appellant

Appellant must make a prima facie showing of prejudice. Munoz, supra, p. 826. In determining whether Appellant suffered prejudice, we look to whether the interests for which the speedy trial was designed, were affected. Barker, supra, p. 532. These interests are: 1) preventions of oppressive incarceration; 2) minimization of the accused s anxiety and concern; and 3) limitation of the possibility that the accused s defense will be impaired. Munoz, supra, p. 826.

Appellant spent 19 months of the 31 months of trial delay in jail. At a trial setting, the State was not ready and the trial judge materially lowered Appellant s bail and released him from jail. Given that the State offered Appellant deferred adjudication community supervision in exchange for a plea of guilty, Appellant s anxiety and concern at 19 months incarceration and no trial or resolution in his case, must have caused Appellant great anxiety and concern. Moreover, a number of witnesses at trial could not remember critical facts concerning the case. For example, the offense allegedly occurred in 1995. Crystal s mother said the offense occurred in the same year she reported it to the police which was December 7, 1996. And Appellant, although denying the offense, could not remember where he was on August 31, 1995. Due to the lapse of time, it was very difficult for witnesses to remember events that occurred four years earlier. This factor weighs against the State. Our balancing of the Barker factors convinces us that the denial of a speedy trial contributed to both Appellant s conviction and punishment.

Issue 2 is sustained.

Sustaining of Issue 2 requires a reversal of the judgment and a dismissal of the indictment and renders unnecessary consideration of Issue 3.

Reversed and indictment dismissed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Vance,

Justice Gray, and

Chief Justice McDonald (Retired)

(Justice Gray dissenting)

Reversed and indictment dismissed

Opinion delivered and filed January 17, 2001

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