State of Texas v. Blanca Barriga--Appeal from County Court at Law No. 2 of Ector County

Opinion filed May 24, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00210-CR

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STATE OF TEXAS, Appellant

V.

BLANCA BARRIGA, Appellee

On Appeal from the County Court at Law No. 2

Ector County, Texas

Trial Court Cause No. 05-2238

O P I N I O N

After the trial court found that Blanca Barriga was not afforded her constitutionally guaranteed right to a speedy trial, it dismissed this case with prejudice under the provisions of the Sixth Amendment to the Constitution of the United States.[1] We vacate the order of the trial court and render judgment dismissing this case without prejudice.[2]

On May 12, 2005, the State charged appellee with the offense of criminal mischief. The case was called for trial on March 2, 2006, but a jury could not be seated and the trial court declared a mistrial.

Subsequently, on July 31, 2006, the State and appellee announced ready for trial. This time, the case was to begin before a jury on August 1, 2006. Just prior to the start of the jury voir dire process, the State filed a motion for continuance. The State informed the trial court that there were two witnesses whom they could not locate. The witnesses had been present on the earlier trial date, but the State represented that they could not locate them this time. The prosecutor also informed the court that some of the State=s other witnesses had just told him Alike, ten minutes ago@ where the witnesses worked.

Appellee=s attorney responded with a motion to dismiss Afor [w]ant of [p]rosecution.@ The trial court said that it preferred not to hear any testimony on the matter of the continuance, but it did hear arguments from the lawyers. The trial court denied the State=s motion for continuance. There was no express ruling on appellee=s motion to dismiss, but the trial proceeded with the voir dire examination of the jury panel.

When appellee=s counsel was conducting the defense portion of voir dire, he told the members of the jury panel the name of the victim of the alleged offense, and then he spelled the last name for them as it was spelled in the complaint and in the information. When the voir dire process had been completed, the trial court recessed so that the parties could exercise their challenges to individual jurors. During this recess, the State filed a motion to dismiss. The motion to dismiss was based upon the misspelling of the victim=s last name in the complaint and in the information.

Appellee=s lawyer told the trial court that he understood that the State Ais entitled to dismiss the case@ but that appellee was asking that the dismissal be based upon the holding in Barker v. Wingo, 407 U.S. 514 (1972). Barker deals with issues of an accused=s right to a speedy trial under the Sixth Amendment to the United States Constitution. States are subject to the Sixth Amendment by virtue of the due process clause of the Fourteenth Amendment to the United States Constitution. Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003).

In a single issue on appeal, the State argues that the trial court erred when it dismissed the case with prejudice because A[t]here is no general authority, written or unwritten, inherent or implied, which would permit a trial court to dismiss a case without the prosecutor=s consent.@ The State further argues that the judgment dismissing the case with prejudice is void and a Anullity from the beginning.@

When it is shown that there has been a violation of an accused=s right to a speedy trial, the proper remedy is dismissal with prejudice. Strunk v. United States, 412 U.S. 434, 440 (1973); Shaw, 117 S.W.3d at 888; State v. Johnson, 821 S.W.2d 609, 612 n.2 (Tex. Crim. App. 1991); Hull v. State, 699 S.W.2d 220, 224 (Tex. Crim. App. 1985). Actions of the State and of an accused are placed in the balance when we determine whether there has been a denial of the constitutional right to a speedy trial. Barker, 407 U.S. at 530; Shaw, 117 S.W.3d at 888. While not a conclusive lists of factors, some of the factors to be considered and balanced in this inquiry are the length of the delay, the reason behind the delay, the circumstances surrounding the assertion of the right to speedy trial by an accused, and the prejudice to an accused brought about by the delay. Barker, 407 U.S. at 530. No single one of those factors is necessary to establish the violation, and neither is any of them, alone, sufficient to establish a violation of an accused=s constitutionally guaranteed right to speedy trial. Id.at 533; Shaw, 117 S.W.3d at 889. We must uphold the ruling of the trial court if that ruling is supported by the record, and if it is correct under the applicable law. Shaw, 117 S.W.3d at 889.

On August 1, 2006, during the post-voir dire recess, the trial court conducted a hearing on the dismissal issue. During the hearing, appellee asked the prosecutor if he would stipulate that the offense occurred in March 2005. The State=s response was A[n]o,@ and appellee called the prosecutor as a witness. Under questioning by appellee=s lawyer, the prosecutor testified that he was an assistant county attorney on March 21, 2005, and that a criminal complaint was filed against appellee on May 12, 2005, in which the State alleged that appellee committed the offense on March 21, 2005.

The date on which a defendant is arrested or formally accused is the beginning date to be used when measuring any delay in affording an accused a trial. Id. Appellee appears to be using the date of the filing of the information, May 12, 2005, as the beginning date of the delay. Appellee presented testimony, through the prosecutor, that the prosecutor had noticed that the victim=s name was spelled various ways in the police report but that he had never, from at least May 12, 2005, until August 1, 2006 (the date of the trial), noticed that the victim=s name was spelled incorrectly in the information. The State offered no additional testimony on this issue.

Generally, delays Aapproaching one year@ are sufficient to Atrigger a speedy trial inquiry.@ Id. We do not believe that the delay brought about by the failure to obtain a jury at the first trial is chargeable against the State. However, on the sparse record before us, we can find no evidence that there were any other settings of the case for trial until the one that began on August 1, 2006. And, the State moved to continue that setting because it could not find some of its witnesses. It is evident from the record that some of its other witnesses knew where they were. Additionally, after completion of voir dire at this second setting, the State moved to dismiss the case against appellee because it had spelled the last name of the victim incorrectly in the complaint and in the information. The spelling error had been there since at least May 12, 2005, the date on which the State filed the charging instruments. In balancing the Barker factors, we find that the length of the delay and the lack of reasons for the delay provide some support for the trial court=s ruling.

The second factor which we will consider relates to the assertion by appellee of her speedy trial rights. The longer an accused waits to seek dismissal upon speedy trial grounds, the more that wait militates against the accused. Id. Here, appellee did not assert her rights to a speedy trial until the State moved to dismiss the case on August 1, 2006. Her acquiescence in the delay until that point in time could be taken as evidence that she did not want a trial, speedy or otherwise. It is of some import, although alone not conclusive on the issue, that appellee never asked for a trial. The court in Shaw said, Athe longer the delay becomes, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one.@ Id. at 890. A review of this factor in this case weighs in favor of the State.

Next, we will consider any prejudice that might have resulted to appellee because of the delay. The right to a speedy trial was intended to prevent oppressive incarceration prior to trial, to minimize an accused=s anxiety and concern, and to limit the possibility that the delay would cause the defense to be impaired. Barker, 407 U.S. at 532.

Appellee was out on bond during the pendency of the case. The matter of possible prejudice from pretrial incarceration is not an issue.

Any anxiety or concern must be such that it passes the normal concern associated with being charged with a criminal offense. Shaw, 117 S.W.3d at 890. Appellee offered no evidence that the delay brought on anything other than the inconvenience and expense attendant upon any situation such as this. Although her attorney tried to rehabilitate her testimony on this issue, appellee testified that, although she was not happy about being in court, she was not worried about the case and was not anxious about it.

Did the delay cause any impairment to the presentation of the defense? To the contrary, eyewitnesses whom the State intended to call to testify against appellee were not available at the time of the second trial setting. They had been present for the first trial.

The record does not show that appellee=s defense was prejudiced by the delay. This factor weighs heavily in favor of the State.

The only factor that weighs in favor of the appellee when we perform the required balancing test is the lack of any reason offered by the State for the delay. If the length of the delay has any positive effect on appellee=s position, it is very slight because the delay chargeable to the State was fairly short. All of the other factors weigh in favor of the State. We have balanced all of the factors, and we hold that the weight is against any finding that appellee=s right to a speedy trial was violated.

When the trial court announced its ruling, it said, AThe court will grant the Motion to Dismiss, but will make it with prejudice in this particular case.@ The trial court had two motions to dismiss pending before it. When it entered its written order dismissing this case, the trial court granted the motion to dismiss that appellee had made in open court. Consequently, we may assume that the trial court did not expressly overrule the State=s motion to dismiss but that it impliedly did so when it granted the competing motion filed by appellee.

We understand and empathize with trial courts in the frustrations attendant upon docket control in the face of circumstances beyond anyone=s control. We further understand and empathize with trial courts in the frustrations attendant upon docket control in the face of problems arising from circumstances which could have been controlled but were not. However, generally, a trial court may not dismiss a criminal case unless the prosecutor requests it. Ex parte Seidel, 39 S.W.3d 221, 223 (Tex. Crim. App. 2001). A trial court does have the power to dismiss a case with prejudice in the absence of a request from a prosecutor if it is shown that the accused was deprived of her constitutional right to a speedy trial. Shaw, 117 S.W.3d at 888. We have held that appellee was not deprived of her right to a speedy trial. Therefore, the trial court did not have the authority to enter the order of dismissal without the prosecutor=s request. Johnson, 821 S.W.2d at 613. Because the order was entered without authority, it is void. Ex parte Seidel, 39 S.W.3d at 224. The State=s sole issue on appeal is sustained.

Regarding the State=s motion to dismiss, the State is entitled to dismiss its cases. Johnson, 821 S.W.2d at 612-13. In the absence of mitigating factors such as a denial of the right to a speedy trial, among others, that dismissal is without prejudice.

We vacate the order of the trial court granting appellee=s motion to dismiss with prejudice. Because the trial court should have entered an order granting the State=s motion to dismiss without prejudice, we render the judgment that the trial court should have entered. We render judgment granting the State=s motion to dismiss without prejudice.

JIM R. WRIGHT

CHIEF JUSTICE

May 24, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]U.S. Const. amend. VI.

[2]Appellee did not make a claim under Tex. Const. art. I, ' 10.