The State of Texas v. Kevin Brown, Jr.--Appeal from County Court at Law No 2 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00341-CR

The State of Texas,

Appellant

v.

Malcolm Delshaun Manley,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 02-00669-CRM-CCL2

No. 10-05-00342-CR

The State of Texas,

Appellant

v.

ERIC DESHUN LEWIS,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 03-00965-CRM-CCL2

No. 10-05-00343-CR

The State of Texas,

Appellant

v.

KEVIN DALE BROWN, JR.,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 02-00670-CRM-CCL2

No. 10-05-00344-CR

The State of Texas,

Appellant

v.

BRANDON RATCLIFF,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 04-00241-CRM-CCL2

DISSENTING OPINION

For the reasons stated below, I dissent. I sometimes believe, based upon the case law, that a majority of the Court gives too little deference to the trial court s discretion. E.g., Gonzales v. State, Nos. 10-03-00309-CR & 10-03-00312-CR, 2005 Tex. App. LEXIS 1501, at *9-*12 (Tex. App. Waco Feb. 23, 2005, no pet.) (Gray, C.J., dissenting) (not designated for publication). Here, again based upon the case law, I believe that the majority gives too much.

I disavow, first, of course, as I often do, the majority opinion s extravagantly unnecessary dicta. E.g., Villanueva v. State, No. 10-05-00288-CR, 2006 Tex. App. LEXIS 9402, at *30-*32 (Tex. App. Waco Oct. 18, 2006, no pet.) (Gray, C.J., dissenting). It does not require twenty-three pages to dispose of these cases, even though they are four, related cases. The majority s discussion of the several states speedy-trial acts, (see slip op. at 4-8 (majority op.)), is particularly egregious: Texas does not have a speedy trial act.

Next, the majority correctly states, then disregards, the standard of review. [W]e apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components. (Slip op. at 2 (majority op.) (quoting Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)).) For instance, the majority holds that [t]he court did not abuse its discretion by holding the State responsible for the mistrial, and that the record supports the trial court s ruling on matters of law so we must uphold it. (Id. at 16, 17, 21, 22 (quoting Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003)).) Here, the facts are largely undisputed. We must uphold the trial court s legal ruling on a speedy-trial motion only if the ruling is correct under the applicable law. Shaw, 117 S.W.3d at 889 (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)). Among the factors to which, as a matter of law, we must hold strongly against the appellants, especially Manley, Brown, and Ratcliff, is the untimely assertion of the right to a speedy trial. See Kelly v. State, 163 S.W.3d 722, 727-29 (Tex. Crim. App. 2005); see also Barker v. Wingo, 407 U.S. 514, 532 (1972). [F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Barker at 532.

The majority similarly fails to consider the weight that each factor in the analysis carries. The majority states the standard of review: Different weights are assigned to the various reasons for the delay asserted by the State. (Slip op. at 8 (majority op.) (citing Shaw, 117 S.W.3d at 889)); see Barker, 407 U.S. at 531. A period of time may weigh very heavily, more heavily, heavily, less heavily, moderately, or only lightly either for or against a party. E.g., Barker at 531; Kelly, 163 S.W.3d at 729, 730; Shaw at 890; Dragoo v. State, 96 S.W.3d 308, 312, 314 (Tex. Crim. App. 2003); Zamorano, 84 S.W.3d at 649, 651; Munoz, 991 S.W.2d at 822; Deeb v. State, 815 S.W.2d 692, 706 (Tex. Crim. App. 1991); Chapman v. Evans, 744 S.W.2d 133, 136 (Tex. Crim. App. 1988) (orig. proceeding). The majority, however, considers all periods of time as carrying equal weight. For example, the majority holds that twenty-one of the twenty-nine months can be attributed to the State as to Lewis, thirty-three of the thirty-four months can be attributed to the State as to Brown, and thirty-one of the thirty-four months can be attributed to the State as to Manley. (Slip op. at 17, 22 (majority op.).) Again, particularly as to the assertion of the right to a speedy trial, and particularly as to Manley, Brown, and Ratcliff, the majority fails to give due weight to the failure to assert the right timely.

For the reasons above, I dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed February 7, 2007

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