DARYL LEE v. THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

NUMBER 13-04-239-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

  DARYL LEE, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 156th District Court

of Bee County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Daryl Lee, was indicted for and charged with aggravated assault on a public servant causing serious bodily injury. See Tex. Pen. Code Ann. _ 22.02(b)(2) (Vernon Supp. 2004-05). In 2004, six years after the incident, the jury found appellant guilty of the lesser included charge of assault on a public servant. See id. '22.01(b)(1). The trial court sentenced appellant to twenty years in prison and a fine of $5,000. The trial court has certified that this case is not a plea bargain case and that the defendant has the right to appeal. See Tex. R. App. P. 25.2(a)(2). By two points of error, appellant contends that (1) the State denied him the right to a speedy trial, and (2) the punishment assessed was disproportionate to the seriousness of the alleged offense. We affirm.

I. Background

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis

A. Denial of Appellant's Right to a Speedy Trial

By his first point of error, appellant contends that the State denied him the right to a speedy trial because over six years passed from the time of his arrest to trial. Under both the Sixth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution, a criminal defendant possesses the right to a speedy trial. U. S. Const. amend. ' 1; Tex. Const. art. 1, ' 10; Barker v. Wingo, 407 U.S. 514, 515 (1972). When ascertaining whether the State has denied appellant his right to a speedy trial, a court must balance the State's actions and appellant's actions. Barker, 407 U.S. at 530. Courts must examine (1) the length of the delay, (2) the reasons for the delay, (3) the appellant's effort to obtain a speedy trial, and (4) the prejudice to the appellant. See Phillips, 650 S.W.2d at 401; Zamorano v. State, 84 S.W.3d 643, 647-48 (Tex. Crim. App. 2002). No factor alone is determinative; rather, courts balance the factors together. Barker, 407 U.S. at 533.

When reviewing a trial court's holding on a speedy trial assertion, appellate courts generally apply an abuse-of-discretion standard of review for the factual components of the claim and a de novo standard of review for the legal aspects of the claim. Zamorano, 84 S.W.3d at 648. Because appellant lost on his speedy trial claim, we must assume that all fact issues were resolved in the State's favor. See id. Consequently, the only issue in dispute, whether the four factors weigh in appellant's favor, is a legal issue. See id.; Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). We must therefore apply a de novo standard of review. See Zamorano, 84 S.W.3d at 648.

1. Length of Delay

The length of the delay between appellant's indictment and the trial dictates whether the Court must examine the other three factors when deciding whether the State denied appellant his right to a speedy trial. Barker, 407 U.S. at 530. If the delay is more than the State would ordinarily require to prosecute appellant, then the Court must engage in a full speedy trial analysis, examining the other three factors. Doggett v. U.S., 505 U.S. 647, 652 (1992). Generally, courts consider any delay between the accusation and the trial that is longer than eight months to be presumptively unreasonable, thus necessitating a full examination of whether appellant was denied his right to a speedy trial. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992).

In this case, appellant was indicted on June 23, 1998. His jury trial did not begin until May 5, 2004, a difference of almost six years. This long delay weighs in appellant's favor, and we must continue our examination of whether appellant was denied his right to a speedy trial. See id.

2. Reasons for the Delay

The weight assigned to the State's reasons for the delay varies. Barker, 407 U.S. at 531. The State acknowledges responsibility for a four-month delay between the date of the alleged offense on February 2, 1998, and the indictment on June 23, 1998. Between May 29, 2000 and March 7, 2002, appellant's appeal of the trial court's order denying appellant=s motion to dismiss for lack of a speedy trial was pending in this Court. There was also one agreed continuance on March 19, 1999, and one oral motion for continuance granted on February 26, 1999, without any indication as to which party requested it. Appellant, however, requested, and the trial court granted, three continuances on April 19, 1999, November 7, 2002, and March 9, 2004, respectively. Furthermore, appellant delayed trial on October 19, 1998, and again on January 12, 2004, because he wanted new counsel. Moreover, on May 17, 1999, and November 15, 1999, trial was again delayed while the court waited for results from appellant's requested psychiatric evaluation. Finally, appellant failed to appear for trial on February 3, 2003, resulting in the court issuing a capias order, delaying the trial for several months. Thus, since the record indicates that appellant caused a disproportional amount of the delay, the reasons for the delay weigh heavily in the State's favor.

3. Assertion of Appellant's Right to a Speedy Trial

Though not determinative by itself, courts heavily weigh a defendant's failure to assert his right to a speedy trial in the State's favor. See Barker, 407 U.S. at 531-32; Phillips v. State, 650 S.W.2d 396, 400-01 (Tex. Crim. App. 1983). Furthermore, an appellant's request for a dismissal for lack of a speedy trial rather than a request for a speedy trial weakens appellant's claim that the trial court denied him a speedy trial. See Phillips, 650 S.W.2d at 401; Zamorano, 84 S.W.3d at 651; Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.BFort Worth 1997, no pet.).

Appellant contends that he twice attempted to dismiss his case by filing motions to dismiss for lack of a speedy trial, yet he never filed a motion seeking to obtain a speedy trial. The trial court granted appellant's first motion to dismiss due to the court's failure to provide a speedy trial on May 2, 2000. However, this Court overturned that ruling on appeal because the trial court neither gave the State notice of the hearing nor allowed them to present evidence. See State v. Lee, No. 13-00-338-CR, 2002 Tex. App. LEXIS 1782, at *5-*6 (Tex. App.BCorpus Christi March 7, 2002, no pet.) (not designated for publication). Appellant also claims that on January 6, 2004, he reasserted his motion to dismiss for lack of a speedy trial. Appellant never filed a motion seeking to obtain a speedy trial; he only filed motions to dismiss his case due to lack of a speedy trial. See Zamorano, 84 S.W.3d at 651; Phillips, 650 S.W.2d at 400-01. Because appellant framed his assertions of, and his arguments for, his right to a speedy trial as motions to dismiss the State's entire case against him rather than as motions to obtain a speedy trial, this factor also weighs in the State's favor.

4. Prejudice to Appellant Caused by the Delay

The State also asserts that the trial's delay did not prejudice appellant. Courts have recognized that a trial's delay may be so excessive that it is presumptively prejudicial to the defendant. Doggett, 505 U.S. at 655-56. Even when a delay is presumptively prejudicial, however, the appellant must present some evidence proving the delay prejudiced his case. See id. at 656. Accordingly, the State's burden to rebut any prejudice against the appellant shifts when appellant offers evidence that the delay prejudiced his case. Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973).

In this case, appellant has neither presented any evidence that he was prejudiced by the delay nor alleged that he was prejudiced. Therefore, since appellant has failed to offer any evidence that he was prejudiced by the delay, the State does not need to offer evidence to rebut any presumptive prejudice against appellant. Accordingly, this factor weighs in the State's favor.

5. Balancing the Four Factors

Together, the four factors weigh against appellant. Although the trial did not occur until nearly six years after appellant's indictment, appellant caused much of this delay due to his continuances, his requests for new counsel, his psychiatric evaluation, and his failure to appear for trial. Furthermore, while appellant attempted to dismiss his case for lack of a speedy trial, he never filed a motion to obtain a speedy trial. Finally, appellant never alleged any prejudice caused by the delay in the record or in his brief. Thus, we conclude the factors dictate that the trial court did not deny appellant's right to a speedy trial. Appellant's first point of error is therefore overruled.

B. Disproportionate Sentence

By his second point of error, appellant asserts the punishment assessed was disporportionate to the seriousness of the offense. To preserve error for appeal, the appellant must make a timely, specific objection. Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). Failure to object to a constitutional error at trial also waives that error. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding that failure to object at trial regarding cruel and unusual punishment waives error). Because appellant failed to object to his sentence in the trial court, error has not been preserved for appeal. Therefore, appellant's second point of error is also overruled.

III. Conclusion

Accordingly, we affirm the judgment and sentence of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this 4th day of August, 2005.