THE STATE OF TEXAS v. ARNOLD SAAVEDRA--Appeal from 117th District Court of Nueces County

NUMBER 13-04-400-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,

v.

ARNOLD SAAVEDRA, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

  MEMORANDUM OPINION[1]

    Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

 

The trial court granted appellant Arnold Henry Saavedra's motion to dismiss for pre-indictment delay. By one issue, the State asserts that the trial court abused its discretion in dismissing the indictment because Saavedra did not prove that the eight-and-one-half month delay between the arrest and indictment was prejudicial. We reverse and remand.

I. COMPLAINT OF PRE-INDICTMENT DELAY

Saavedra and Eric Sanchez were arrested on March 31, 2003, for possession of cocaine. Saavedra was released on bond. Approximately four months later, Sanchez was indicted on July 24, 2003.[2] Approximately five months after that date, Saavedra was indicted on December 17, 2003.[3] On January 7, 2004, Saavedra was arraigned. The trial court set the case for trial on February 17, 2004. On Saavedra's motion, the trial setting was continued. On March 25, 2004, Saavedra filed a motion to dismiss the indictment for lack of speedy trial. The trial court convened a hearing on July 12, 2004, on Saavedra's motion to dismiss. The ground asserted at the hearing for purposes of dismissal of the indictment was that the delay between the time of the arrest and the indictment, approximately eight and one-half months, violated his right to a speedy trial.[4]

 

At the hearing, the trial court took judicial notice of the trial court record. The parties stipulated that Diego Rivera, a crime scene technician, examined the contraband in this case and could find no usable prints. The State called the court manager, who testified that she contacted defense counsel's office about a setting for trial, apparently for a hearing on the speedy trial motion. She received notice that defense counsel was in a federal court jury trial.

Eric Sanchez testified for the defense that the vehicle Saavedra and he were in when arrested was his, but registration was in his mother's name. He also testified that the vehicle was impounded on the day of the arrest and sold before Saavedra was indicted. The State's exhibit 1 established that, as of April 7, 2004, the registered owner was Saavedra. Sanchez testified he would be available as a witness to testify in the jury trial of the case but was having difficulty remembering exactly what happened because of the time that had passed.[5] The drugs seized at the time of the arrest were introduced in his trial, but could be withdrawn for Saavedra's trial. On October 28, 2003, Sanchez entered an open plea of guilty in another district court and was placed on felony probation. In his court proceedings, Sanchez had testified and admitted the drugs were his and that Saavedra had no knowledge that Sanchez had the drugs.

 

Defense counsel testified that, some time after Sanchez was indicted, Saavedra inquired as to why he had not been indicted. Saavedra could not understand why the State would indict only one of them. Defense counsel told Saavedra that the cocaine belonged to Sanchez and counsel assumed "the reason he had not been indicted was because the evidence was insufficient" as to Saavedra. Because that assumption was made, no motion for speedy trial was filed. On cross-examination, defense counsel testified that the State had no excuse for the length of time taken to "return the indictment."

 

The trial court took judicial notice that (1) the trial court excused Saavedra to report to jury duty pursuant to a jury summons, and (2) Saavedra was constitutionally disqualified from doing his civic duty because of the pending indictment.[6] The trial court made the following findings: (1) Saavedra has a constitutional duty [sic] [right] to a speedy trial; (2) the court's ruling rests solely on the delay between the date of arrest, March 31, 2003, and the date of the indictment, December 17, 2003; (3) the State failed to provide a reasonable excuse for the cause of delay; (4) the trial court was aware that DPS takes time to test drugs but the drugs were the "same drugs" relied upon in Sanchez's case and had already been tested; (5) the State indicted Sanchez in July 2003 and tried his case in December of 2003; (6) filing a pre-indictment motion was not possible because the reasonable assumption was that no indictment would be forthcoming; and (7) Saavedra was prejudiced because (a) of the anxiety and discomfort in facing a charge over a length of time, (b) he had to retain counsel, and (c) he was constitutionally disqualified from jury service because of the pending charge.

II. STANDARD OF REVIEW

When reviewing a trial court's decision to grant or deny a speedy trial claim, we defer to the court's findings of fact, applying an abuse of discretion standard, but review de novo its application of the law to those facts. See Williams v. State, 90 S.W.3d 913, 919 (Tex. App.BCorpus Christi 2002, no pet.).[7]

The Court of Criminal Appeals has recently expanded on what it means to give deference to the resolution of factual issues in this context. Under this standard, deference must be given not only to a trial court's resolution of disputed facts, but also to the drawing of reasonable inferences from the facts in evidence. Kelly v. State, No. PD-0023-04, 2005 Tex. Crim. App. LEXIS 569, at *11 (Tex. Crim. App. April 13, 2005).

III. ENTITLEMENT TO SPEEDY TRIAL

 

Texas Code of Criminal Procedure article 32.01, as amended in 1997, requires the State to indict a defendant detained in custody or held to bail, unless good cause is shown supported by affidavit, no later than the last day of the next term of the court which is held after his commitment or admission to bail, or on or before the 180th day after the date of commitment or admission to bail, whichever date is later. Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon Supp. 2004-05). If a motion to set aside an indictment for failure to provide a speedy trial is sustained, the court shall discharge the defendant. Id. art. 28.061 (Vernon Supp. 2004-05).

Saavedra was arrested March 31, 2003, and posted a $3,000.00 bond on April 1, 2003. The indictment issued December 17, 2003, more than 180 days after the arrest. Therefore, the provisions of the speedy trial act are triggered. Id. art. 32.01 (Vernon Supp. 2004-05).

Analysis

 

In his motion for speedy trial and in argument at the hearing, Saavedra claimed a violation of his constitutional right to a speedy trial. The Sixth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, guarantees the fundamental right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). The Texas Constitution also guarantees this right. Tex. Const. art. I, ' 10. The test under both the federal and state constitutions is the same. Floyd v. State, 959 S.W.2d 706, 709 (Tex. App.BFort Worth 1998, no pet.) (citing Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985)). The United States Supreme Court has adopted a four-part balancing test which reviews (1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972). Texas applies a Barker-like totality-of-circumstances test for determination of good cause under article 32.01, considering, "among other things, the length of the delay, the State's reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused." Ex Parte Martin, 6 S.W.3d 524, 528 (Tex. Crim. App. 1999) (en banc).

A. Length of Delay

There is no dispute as to when the arrest occurred or the indictment issued. The interim period was eight and one-half months, in excess of 180 days, raising the presumption of a violation of the speedy trial act and triggering our analysis.

B. Reason for Delay

Under Barker, different weight is assigned to different reasons for the delay. State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (en banc); State v. McCoy, 94 S.W.3d 296, 302 (Tex. App.BCorpus Christi 2002, no pet.). A deliberate attempt to delay the trial is weighed heavily against the government, whereas a "more neutral reason such as negligence or overcrowded courts should be weighed [against the government] less heavily." Munoz, 991 S.W.2d at 822; McCoy, 94 S.W.3d at 302. A valid reason for delay should not be weighed against the government at all, and delay attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim. McCoy, 94 S.W.3d at 303.

 

Here, the State did not clearly articulate good cause or other rationale for the pre-indictment delay, other than to assert crowded court dockets and the absence of fingerprints on the contraband. "Good cause" has been recognized to mean "a substantial reason amounting in law to a legal excuse for failing to perform an act required by law." Ex Parte Martin, 6 S.W.3d at 526 (rejecting the "exceptional circumstances" test). With regard to the "reasons for delay" factor, we must defer to the trial court's ability to draw inference from undisputed facts. Kelley, 2005 Tex. Crim. App. LEXIS 569, at *11. Here, undisputed facts established that Sanchez, the other individual in the vehicle who was arrested at the time Saavedra was arrested, was indicted and fully prosecuted prior to the date the indictment issued for Saavedra. Saavedra therefore contends there was no reason for delay in indicting him based upon failure to secure laboratory test results or other analysis on the evidence seized at the time of the arrest. However, no evidence confirms that the contraband seized and relied upon in the prosecution of Sanchez is the same contraband relied upon to prosecute Saavedra, and therefore we do not find support in the record for the trial court's conclusion that the matter involved the "same drugs relied upon in Sanchez's case . . . [and] had already been tested."[8]

There was no reason for delay based upon on-going plea negotiations. In fact, testimony was that the defense assumed no indictment would be forthcoming at all. There is also no suggestion of any deliberate attempt to hamper the defense.

 

With respect to reason for the delay, the argument that court dockets are crowded can, in some circumstances, justify pre-indictment delay. See, e.g., Williams, 90 S.W.3d at 919-20. However, in Williams, that delay was coupled with evidence of the need to conduct a thorough investigation. No testimony below directly confirmed that delay resulted from an on-going investigation, but such rationale could reasonably have been inferred from two factors. First, the docket sheet admitted into evidence from Sanchez' case reflects that Sanchez was first indicted July 28, 2003, but was then reindicted two more times, the latest occurring on August 4, 2003. Secondly, the State tendered evidence that the bag containing the drugs forming the basis of the charge against Saavedra contained no useable prints, thereby hampering the investigation.

Despite the fact that other inferences were possible, the trial court could reasonably infer from the facts presented that the delay may have been due to lack of diligence on the part of the State (the finding of the trial court reflects only that the State failed to provide a reasonable excuse for the delay). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts." Kelly, 2005 Tex. Crim. App. LEXIS 569, at *11 (emphasis in original). Therefore, we conclude that this factor weighs against the state, but not heavily. Munoz, 991 S.W.2d at 822 (in instances of such "more neutral reasons," the balancing should be weighed less heavily against the government).

 

C. Assertion of the Right

 

The third factor evaluates a defendant's assertion of or failure to assert the right to a speedy trial. There is case law holding that a speedy-trial motion based upon article 32.01 has no effect if it is presented after indictment. Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon Supp. 2004-05); Williams, 90 S.W.3d at 918; see also McCoy, 94 S.W.2d at 300-01 (a speedy-trial motion based upon article 32.01 has no effect if it is presented after indictment); Beltran v. State, 99 S.W.3d 807, 810 (Tex. App.BHouston [14th Dist.] 2003, pet. ref'd) (arising in the context of a second indictment). Saavedra's claim is not limited to a violation of article 32.01, but also references violation of his Fifth and Sixth Amendment Constitutional rights. The Due Process Clause will not invalidate criminal prosecutions simply because a reviewing court believes a prosecutor should have sought indictment earlier.[9] McCoy, 94 S.W.3d at 301 (noting particularly the situation where delay is caused by investigation). Further, a defendant's assertion of his speedy-trial right is entitled to strong evidentiary weight in determining deprivation of that right. Id. at 303 (citing Floyd, 959 S.W2d at 710). The defendant's motivation in requesting a dismissal rather than a prompt trial is relevant, and may sometimes attenuate the strength of his claim. Williams, 90 S.W.3d at 919 (citing Phillips v State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983)). In Floyd, 959 S.W.2d at 711, the court determined that the appellant's failure to assert his right to a speedy trial until six months after he was indicted and ten months after he was arrested constituted a failure to timely assert his right.

However, under Barker, a defendant's failure to assert his right to speedy trial is not "forever" waived. Munoz, 991 S.W.2d at 825 (citing Barker, 407 U.S. at 528-29) (noting that Barker rejected the "demand-waiver" rule which previously held that a defendant "forever" waived his right to a speedy trial by not demanding one, and finding a defendant is still responsible for asserting that right). Here, Saavedra was arraigned on January 7, 2004, and his motion was filed, after he secured counsel, on March 25, 2004; the motion to dismiss the indictment was not filed at the "eleventh hour" just before trial. Moreover, the trial court made an express factual finding justifying Saavedra's failure to earlier assert his right:

I will make an additional finding that based on the evidence in this case and the circumstances surrounding this case that no oneBit is apparent to the Court that Defense counsel and Defendant was [sic] not aware that this was even going to be indicted. Since so much delay had occurred it would have been impossible to file a motion for a pre-indictment discussion of this matter before the Court when everybody was under the assumption and the facts, in effect, would have substantiated the assumption that there was no indictment coming forward.

Because "each case must turn on its own facts, and the particular relief an accused seeks is but one fact to consider," Williams, 90 S.W.3d at 920, we conclude this factor weighs in favor of the trial court's ruling.[10]

 

D. Prejudice or Harm to Saavedra

Prejudice or harm to Saavedra is to be evaluated in light of the interests which the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826 (citing Barker, 407 U.S. at 532). These interests are (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Munoz, 991 S.W.2d at 826; McCoy, 94 S.W.3d at 303. Of these subfactors, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. Munoz, 991 S.W.2d at 826 (citing Barker, 407 U.S. at 532).

A defendant has a burden to show "prejudice," although a showing of "actual prejudice" is not required. Munoz, 991 S.W.2d at 826. Further, when a defendant makes a "prima facie showing of prejudice," the State carries the obligation to prove "that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Id. (citing Ex Parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)).

 

There is no evidence of oppressive pre-trial incarceration; to the contrary, Saavedra was out on bond pending the indictment. Saavedra tendered evidence that Sanchez's memory of events had diminished with the passage of time, and that the vehicle involved in the incident had been sold at auction. He also asserted confusion over why he had not been earlier indicted, he had to continue to report to the bondsman during the interim time, and he had gone on with his life when suddenly the indictment issued.[11]

The State countered with evidence that title to the vehicle had actually transferred to Saavedra as of April 4, 2003. Sanchez testified he would be available to testify at trial, he knew of no other witnesses, and presumably all evidence used in his case would be available to the court in this matter. The trial court nevertheless concluded, in express findings, that Saavedra was prejudiced because (a) of the anxiety and discomfort in facing a charge over a length of time, (b) he had to retain counsel, and (3) he was constitutionally disqualified from jury service because of the pending charge.

 

We concede the trial court is in the best position to judge the credibility of the witnesses and their demeanor, and we give deference to the trial court's conclusions. Kelly, 2005 Tex. Crim. App. LEXIS 569 at *11, *15 (noting that deference is especially appropriate when credibility is involved, and the factfinder is empowered, on the basis of credibility and demeanor evaluations, to completely disregard a witness's testimony, even if that testimony is uncontroverted). However, here there was no testimony such as that presented in Munoz, where the defendant testified he was "scared and anxious, forgot many things that happened at the time of the incident that led to this arrest, lost his job, his family life was disrupted, he was forced into idleness, and he was uncertain as to the whereabouts of particular witnesses." Munoz, 991 S.W.2d at 827. In fact, there is absolutely no testimony as to anxiety or concern of Saavedra. While a trial court may certainly make reasonable inferences from testimony and other facts presented, to go so far as to infer anxiety and concern simply from the fact of a delay would be to obviate the requirement to show prejudice. Further, a certain amount of anxiety while awaiting trial is to be expected, but, as noted in Williams, 90 S.W.3d at 921, anxiety could not have begun prior to the date of the indictment. Here, the complaint lies solely with pre-indictment delay, and testimony reflects Saavedra believed no indictment would be forthcoming.

 

Evidence as to prejudice to the defendant based upon unavailability of evidence, such that the defense is impaired, is certainly to be taken seriously. However, here the record reflects that evidence was not dissipated or lost. To the contrary, there was only one key witness who himself testified he would be available to testify at trial, and that all evidence used against him could be available for use in the trial involving Saavedra. The vehicle involved in the incident was not lost; its title was transferred to Saavedra. The only suggestion of prejudice to Saavedra, therefore, derives from the comment by Sanchez that his memory was not as sharp as it had once been. However, Sanchez did not testify that he could not remember the events, and he conceded that a review of documents would refresh his memory. We conclude that such general allegations of failure of memory are insufficient to establish prejudice. Flores v. State, 625 S.W.2d 44, 47 (Tex. App.BSan Antonio 1981, no writ) (citing United States v. Avalos, 541 F.2d 1100, 1115-16 (5th Cir. 1976); United States v. Shepherd, 511 F.2d 119, 124 (5th Cir. 1975); United States v. McGough, 510 F.2d 598, 604 (5th Cir. 1975)). We therefore conclude that the factor of prejudice or harm to Saavedra does not weigh in favor of Saavedra.

We note that while we are required to defer to the trial court when it draws reasonable inferences from the facts presented, Kelly, 2005 Tex. Crim. App. LEXIS, 569, at *11, here we find that the trial court drew "inferences" from facts not in evidence. There was no evidence of anxiety or concern, and no evidence that the defense would be impaired. Further, we reject the trial court's sua sponte finding, from the simple basis that Saavedra was called to jury duty, that the inability to serve on a jury is necessarily prejudicial to his constitutional rights in light of the interests which the speedy trial right is designed to protect. See Munoz, 991 S.W.2d at 826; McCoy, 94 S.W.3d at 303. With respect to the finding that prejudice was suffered because Saavedra had to retain an attorney, nothing indicates that proceeding more expeditiously in this matter would have obviated any need for Saavedra to retain an attorney. We do not find that Saavedra suffered prejudice because he retained an attorney.

E. Balancing the Four Factors

 

Although the length of time between arrest and indictment raises a presumption of prejudice and triggered our analysis in this case, the length of time of delay was not in itself so long as to be excessive. See Munoz, 991 S.W.2d at 822 (finding that seventeen and one-half month delay did not violate the right to a speedy trial). Reason for the delay could have been attributable to an on-going investigation, but the trial court could also reasonably have found that delay was due to negligence or inattention by the State, or crowded court dockets. In instances of these "more neutral reasons," the balancing should be "weighed less heavily [against the government]." Munoz, 991 S.W.2d at 822. We conclude that this factor weighs against the State, but not heavily. The third factor involves assertion of the right to a speedy trial. The right was raised tardily; nevertheless, the trial court expressly found that delay in raising entitlement to the right was justified in the circumstances. Therefore, this factor will not weigh against Saavedra, as it might in other circumstances; however, it similarly does not weigh against the State but instead takes a more neutral position. The last factor, prejudice to Saavedra, does not weigh in favor of Saavedra, and we find that Saavedra failed to satisfy his burden on that prong. See Barker, 407 U.S. at 534.

We conclude that, after giving due deference to the findings of the trial court, the balancing of the various factors as called for in Barker weighs against a finding that Saavedra's right to a speedy trial was impaired. Accordingly, we reverse and remand.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 21st day of July, 2005.

 

[1] See Tex. R. App. P. 47.2 and 47.4.

[2] The trial court admitted in evidence the district clerk's criminal record history for Eric Sanchez's case. The history shows Sanchez was re-indicted on July 31, 2003, and again on August 4, 2003. On October 29, 2003, pursuant to his plea of guilty, Sanchez was sentenced to ten years' confinement in the Texas Department of Criminal JusticeBInstitutional Division, probated for ten years.

[3] The indictment alleged that, on or about March 31, 2003, Saavedra knowingly and intentionally possessed, by aggregate weight, four grams or more but less than 200 grams of cocaine, a controlled substance in Penalty Group 1 of the Texas Controlled Substances Act. See Tex. Health & Safety Code Ann. _ 481.115(a)(c) (Vernon 2003).

[4] The written motion to dismiss for lack of speedy trial complains of delay between the date of indictment and the trial. Grounds asserted in the motion include that Saavedra was denied his constitutional right to a speedy trial because (1) he was "not tried within six months of his indictment;" and (2) he suffered prejudice because "witnesses' memories have diminished, evidence has been destroyed and cannot be re examined by the defense, and the vehicle has been forfeited." However, at the hearing Saavedra abandoned argument related to delay between indictment and trial because he had earlier requested and been granted a motion for continuance. Saavedra therefore focused instead on the delay between date of arrest and date of indictment.

[5] Sanchez admitted that the documents used in his proceeding would refresh his memory.

[6] Defense counsel stated that Saavedra was required to report back to jury duty in the afternoon.

[7] In Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997) (en banc), the Court of Criminal Appeals expressly overruled Dubose v. State, 915 S.W.2d 493, 495-96 (Tex. Crim. App. 1996), holding that an abuse of discretion review of trial court decisions is not necessarily appropriate in the context of the application of law to facts when the decision does not turn on the credibility or demeanor of witnesses. Guzman, 955 S.W.2d at 90. When "the trial judge is not in an appreciably better position than the reviewing court to make that determination," a de novo review by the appellate court is appropriate." Id. at 87; see Ex Parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999) (en banc).

[8] We base this finding primarily on the State's unexplained re-indictment of Sanchez. We note, nevertheless, the State has not raised any point of error with respect to this finding.

[9] It is the due process clause, rather than the speedy trial clause, which provides protection for any delay before arrest or indictment; the speedy trial clause provides protection for delay between arrest and indictment and between indictment and trial. United States v. MacDonald, 456 U.S. 1, 7-9 (1982).

[10] We note that, although Saavedra's motion was not heard until the scheduled trial date, Saavedra and his counsel believed the motion and not trial was set for that date. The hearing took place August 4, 2004.

[11] The only testimony presented by the defense was given by Sanchez, and Saavedra's attorney. Saavedra did not testify.