PRESTON ADAIR GUFFEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 2, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00235-CR
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PRESTON ADAIR GUFFEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Grayson County, Texas
Trial Court Cause No. 2006-2-1682
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OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Mazzant
        Preston Adair Guffey appeals his conviction for the misdemeanor offense of filing a false report to a peace officer. In his sole issue, he claims the trial court abused its discretion by denying his motion to dismiss because his constitutional right to a speedy trial was violated. We affirm the trial court's judgment.
Background
        On December 14, 2006, appellant was charged by information with the class B misdemeanor offense of filing a false report to a peace officer. The information charged that, on or about April 28, 2006, appellant “did then and there, with intent to deceive, knowingly make to Officer Carver and Officer Cox, a peace officer conducting a criminal investigation, a false statement, to wit: that he had been the victim of a kidnapping, and the statement was material to the investigation in that the statement was false and fictitious.”
        On January 15, 2007, appellant filed a pretrial motion to dismiss the prosecution based on the alleged denial of his right to a speedy trial. In his motion, appellant alleged he was arrested on May 4, 2006, and charged with the offenses of (1) false report to a peace officer or law enforcement employee   See Footnote 1  and (2) duty on striking fixture or highway landscaping greater than $200.   See Footnote 2  According to the motion, appellant was charged regarding the latter offense on August 23, 2006, and the State dismissed this case on September 26, 2006. According again to appellant's motion, the charge of false report to a peace officer was filed on October 27, 2006. A jury was selected on November 28, 2006, but the State dismissed the case.
        The trial court held the hearing on appellant's motion to dismiss on January 22, 2007. During the hearing, appellant's trial counsel told the court that appellant had been arrested for an “on view” offense in May 2006 and that a hold from parole was then placed on appellant.   See Footnote 3  Appellant's trial counsel also told the court that the charge of false report to a peace officer was previously filed in October 2006. Trial counsel added that in November 2006 the case was called for trial and a jury was selected, but the State dismissed the case before the jury was sworn. In response, the prosecutor explained that the State had already dismissed the “striking fixture” charge and it was his belief the two cases were so “interrelated” that the charge of false report to a peace officer should not proceed to trial on its own. After talking to police officers, however, the prosecutor concluded the State had additional evidence to support both charges, so the cases were re-filed. The State did not file a written response to appellant's motion and made no other attempt at the hearing to justify the delay in bringing appellant to trial   See Footnote 4 . Neither side presented any evidence.   See Footnote 5  A few days after the hearing, the trial court signed an order denying appellant's motion.         On January 24, 2007, the case was called for trial. After the close of the evidence and the arguments of counsel, the jury returned a verdict of guilty. Appellant elected to proceed to a punishment hearing before the court, and the trial court assessed appellant's punishment at 180 days' confinement in the Grayson County Jail, with credit for all jail time previously served.
        Taking the limited information available in the Clerk's record and the reporter's record into account, it is clear that appellant was held in pretrial custody from at least May 4, 2006, until his conviction for false report to a peace officer on January 26, 2007.
Discussion
        In his sole issue, appellant claims the trial court erred in denying his motion to dismiss the prosecution with prejudice because his constitutional right to a speedy trial was violated.
        We apply a bifurcated standard of review to a trial court's decision on a speedy trial motion: an “abuse of discretion” standard to the trial court's factual findings and a de novo standard of review to the trial court's legal conclusions. See State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999); Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.-Dallas 2005 pet. ref'd). Our review must be done in light of the arguments, information, and evidence available to the trial court at the time it ruled. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). We will uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. See Munoz, 991 S.W.2d at 821.
        The Texas Court of Criminal Appeals has traditionally analyzed state constitutional claims of the denial of a speedy trial under the factors established in Barker v. Wingo, 407 U.S. 514 (1972). See Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). If an accused's speedy trial right is violated, the proper remedy is dismissal of the prosecution with prejudice. Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003). In determining whether a defendant has been denied his federal or state right to a speedy trial, a court must use a balancing test to weigh the conduct of both the State and the defendant. See id. at 887 (citing Barker, 407 U.S. at 530). The relevant factors to be weighed include, but are not necessarily limited to, (1) the length of the delay, (2) the reason for the delay, (2) the defendant's assertion of his speedy trial right, and (4) any prejudice to the defendant resulting from the delay. Id. at 888-89.
        The first of the Barker factors, the length of the delay, is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 321 n.12 (1971); Shaw, 117 S.W.3d at 889. No further inquiry is necessary unless the length of delay was long enough to be “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker, 407 U.S. at 530-31. Texas courts generally consider a delay of eight months or longer as “presumptively prejudicial,” which triggers an analysis of the remaining three Barker factors. See Zamorano, 84 S.W.3d at 649 n.26; Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992); Marquez v. State, 165 S.W.3d 741, 748 (Tex. App.-San Antonio 2005, pet ref'd). “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531.
        After the accused makes this showing, “the reviewing court must consider the extent to which the delay stretches beyond the bare minimum needed to trigger examination of the claim.” Jones, 168 S.W.3d at 347. “This latter inquiry is significant because 'the presumption that pretrial delay has prejudiced the accused intensifies over time.'” Id. (quoting Doggett, 505 U.S. at 652).
        The State agrees appellant was incarcerated from May 4, 2006, until his conviction on January 26, 2007, but insists he was held in pretrial custody regarding the charge of false report to a peace officer only from “sometime in October 2006 until sometime in November 2006 and from no earlier than December 14, 2006 until January 26, 2007--approximately two months.” The record is far from clear regarding the length of appellant's pretrial incarceration on the instant charge. Assuming, without deciding, that appellant was arrested for false report to a peace officer on May 4, 2006, the time from arrest to the start of trial on January 24, 2007, was eight months and twenty days. In the realm of speedy trial jurisprudence, this is at the low end of the scale of violations. Other cases have found, after analyzing all the Barker factors, that much longer delays did not violate the speedy trial requirement. See, e.g., Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003) (three and one-half years); State v. Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999) (seventeen months); Shaw, 117 S.W.3d 883 (thirty-eight months); Kelly v. State, 163 S.W.3d 722, 722 (Tex. Crim. App. 2005) (seventeen months). Although the alleged delay may not in itself be considered unreasonable, because it occurred in a misdemeanor case involving what might be called “ordinary street crime,” we will, in an abundance of caution, review the remaining Barker factors.
        The second factor is the reason or reasons the State assigns to justify the delay. The State has the burden of justifying the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). Sometimes the State's justification under this second prong should be given greater or lesser weight, depending on the merit of the reason. Barker, 407 U.S. at 531. “A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government.” Id. A “neutral” justification, such as an overcrowded docket or mere negligence, “should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. “Finally, a valid reason, such as a missing witness, would serve to justify appropriate delay.” Id.
        In this case, the State made no argument at the hearing to justify the delay in getting to trial. In the absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on part of the State to prejudice the defendant nor a valid reason for the delay. See Dragoo, 96 S.W.3d at 314. Although we must weigh this factor in favor of finding a violation of the speedy trial right, we do not weigh it heavily in favor of such a finding. See id.
        The third factor is the assertion of the right to a speedy trial. Assertion of this right is a weighty factor in the Barker balancing test. See Barker , 407 U.S. at 531-32. Although a defendant's failure to assert his speedy trial right does not amount to a waiver of that right, “failure to assert the right . . . make[s] it difficult for a defendant to prove that he was denied a speedy trial.” Barker , 407 U.S. at 532. This is so because a defendant's lack of a timely demand for a speedy trial indicates strongly that he or she did not really want a speedy trial and that the defendant was not prejudiced by lack of one. Dragoo , 96 S.W.3d at 314. In this case, appellant filed his motion to dismiss on January 15, 2007, eight months and eleven days after his arrest. We conclude he made a timely demand for a speedy trial.
        The final Barker factor to consider is prejudice to the accused. We make this assessment in light of the interests that the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the defendant; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532; Shaw, 117 S.W.3d at 890. “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U.S. at 532 Furthermore, with respect to the third interest, affirmative proof of particularized prejudice is not essential to every speedy trial claim because “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Doggett , 505 U.S. at 655. On the other hand, this “presumption of prejudice” is “extenuated . . . by the defendant's acquiescence” in the delay. Id. at 658.
        The delay in this case was less than nine months. Appellant timely asserted his right to a speedy trial but he presented no evidence at the hearing that his defense was impaired in any manner by the delay. Appellant's only allegation regarding prejudice is an assertion in his appellate brief that he could not post bail because of the parole hold placed on him as a result of the charge. But this does not show appellant suffered any greater hardship than what other similarly-situated criminal defendants awaiting trial would have suffered. The record in this case does not show appellant was prejudiced by the delay. Furthermore, when balancing the delay in this case with the absence of assigned reasons for the delay and the lack of prejudice to appellant, we conclude appellant's right to a speedy trial was not violated. We therefore overrule his sole issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070235F.U05
 
Footnote 1 See Tex. Penal Code Ann. § 37.08 (Vernon 2003).
Footnote 2 See Tex. Transp. Code Ann. § 550.025(b)(2) (Vernon 1999).
Footnote 3 There is no indication in the record whether this “on view” arrest was for false report to a peace officer or the other charge.
Footnote 4 The prosecutor explained that he did not have a copy of appellant's motion and had not reviewed the relevant law prior to the hearing.
Footnote 5 See, e.g., Rodriguez v. State, 903 S.W.2d 405, 412 (Tex. App.-Texarkana 1995, no pet.) (statements by counsel that are not made under oath do not constitute evidence) (citing Delgado v. State, 544 S.W.2d 929 (Tex. Crim. App. 1977)).