LETHA DANIELLE MITCHELL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued August 12, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01479-CR
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LETHA DANIELLE MITCHELL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law
Grayson County, Texas
Trial Court Cause No. 2003-1-1334
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OPINION
Before Justices Whittington, Bridges, and Francis
Opinion By Justice Bridges
        Letha Danielle Mitchell appeals her driving while intoxicated (DWI) conviction. Pursuant to a plea bargain agreement, appellant pled guilty and received a sentence of 365 days' confinement, probated for twenty-four months, and a $1000 fine. In two issues, appellant argues the trial court erred in denying her motion for speedy trial and motion to suppress her medical records. We affirm the trial court's judgment.
        On May 9, 2003, at approximately 2 a.m., Pottsboro police officer Janet Van Patten saw appellant run a stop sign and initiated a traffic stop. Van Patten administered field sobriety tests which led her to conclude appellant was intoxicated. Van Patten arrested appellant, who refused to submit to a breath test. While Van Patten waited for a tow truck to tow appellant's vehicle, appellant passed out in the back of Van Patten's patrol car. Van Patten drove appellant to the county jail where jail nurse Tracy Webb would not accept appellant until she had confirmation that she was “fit for confinement” because she had passed out. Van Patten then took appellant to the emergency room where a blood sample was drawn. Appellant's blood-alcohol level was 0.313   See Footnote 1 , and the doctor on call, Wesley Nahm, would not give appellant a “fit for confinement” because of her blood-alcohol level.
        Appellant was charged with DWI by information on September 30, 2003 and was released on bond. On March 29, 2004, appellant refused counsel, and two different attorneys entered appearances as appellant's counsel on April 29 and May 24, 2004. On May 24, 2004, a pretrial conference was scheduled for August 16, 2004. At the pretrial conference on August 16, 2004, appellant's attorney reset the case for another pretrial conference on October 25, 2004. At the October 25, 2004 conference, appellant's attorney reset the case for a hearing on appellant's motion to suppress. On December 22, 2004, appellant and her counsel attended a pretrial conference. The trial judge reset the case for a plea conference on February 14, 2005. At that conference, the trial judge set a hearing on appellant's motion to suppress for March 18, 2005. At the hearing, among other things, the trial judge requested appellant's medical records and set briefing deadlines in April 2005. Due to what the State characterizes as a “lapse in communication,” the parties waited nearly a year for the trial court's ruling on appellant's motion to suppress, which was denied on April 5, 2006. At a pretrial hearing on June 5, 2006, appellant failed to appear. Not until a pretrial hearing on August 7, 2006 did appellant file a motion to set aside the information for failure to afford a speedy trial. On September 8, 2006, the trial court conducted a hearing on appellant's motion for speedy trial, which it denied on September 11, 2006. On September 26, 2006, appellant accepted a plea bargain offer and pled guilty to DWI. This appeal followed.
        In her first issue, appellant complains the trial court erred in denying her motion for speedy trial. In determining whether an accused has been denied his right to a speedy trial, a court must use a balancing test “in which the conduct of both the prosecution and the defendant are weighed.” Barker v. Wingo, 407 U.S. 514, 530 (1972); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and the prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530; Dragoo, 96 S.W.3d at 313. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Barker, 407 U.S. at 530; Dragoo, 96 S.W.3d at 313.
        The first Barker factor, 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, 313 (1971); Dragoo, 96 S.W.3d at 313. The length of the delay is, to some extent, a triggering mechanism, so that a speedy trial claim will not even be heard until passage of a period of time that is, on its face, unreasonable in the circumstances. Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker, 407 U.S. at 530. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Doggett, 505 U.S. at 652; Dragoo, 96 S.W.3d at 314. In general, courts deem delay approaching one year to be unreasonable enough to trigger the Barker inquiry. Doggett, 505 U.S. at 652 n.1; Dragoo, 96 S.W.3d at 314. Here, appellant was arrested on May 9, 2003 but was not brought to trial until September 26, 2006, an interval of approximately forty months. This delay was sufficient to trigger the Barker inquiry. See Dragoo, 96 S.W.3d at 314. As to the reason for the delay, the record indicates that appellant initially refused counsel, subsequently changed counsel twice, and failed to appear at hearings. Thus, the record shows that some of the delay was attributable to appellant. Based on the foregoing, we conclude this factor weighs slightly against finding a violation of the speedy trial right.
        As to whether appellant ever asserted her right to a speedy trial, the record shows appellant did not assert her right until August 7, 2006, nearly twenty-three months after her arrest. During that time, appellant appeared at various hearings but did not assert her right to a speedy trial. Appellant complains in her brief that she was “unable to request a speedy trial.” However, nothing in the record shows why appellant was “unable” to assert her right, and she concedes she “spent eighteen months waiting” for the trial court to rule on her motion to suppress. We conclude this factor weighs against finding a violation of the speedy trial right.
        As to the prejudice appellant may have suffered as a result of the delay, when we assess this factor we must do so in light of the interests of defendants which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and (3) to limit the possibility that the accused's defense will be impaired. See Dragoo, 96 S.W.3d at 315. Of these forms of prejudice, the most serious is the last because the inability of the defendant adequately to prepare his case skews the fairness of the entire system. Id. 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 identify. Id. Here, appellant was not incarcerated during the time following her initial arrest. Thus, appellant did not suffer oppressive pretrial incarceration. As to the anxiety and concern appellant may have suffered, she contends she had to miss work and drive seventy miles to attend hearings. As to whether appellant's defense was impaired by the delay, appellant argues that witnesses' memories have faded, though appellant cites no evidence as to whose memory may have faded. Further, the record shows appellant in large part acquiesced to the delay. Under these circumstances, we conclude appellant failed to demonstrate prejudice. This factor weighs against finding a violation of her speedy trial right.
        Finally, having reviewed the four Barker factors, the fact that trial was delayed for approximately forty months weighs in favor of finding a violation of appellant's speedy trial right. However, weighing against finding a violation is evidence that appellant failed to demonstrate prejudice, caused the delay, in part, by failing to appear at multiple hearings, and acquiesced to the delay. We conclude that the weight of the four factors, balanced together, is against finding a violation of appellant's speedy trial right. See Barker, 407 U.S. at 534; Dragoo, 96 S.W.3d at 316. We overrule appellant's first issue.
        In her second issue, appellant argues the trial court erred in denying her motion to suppress her medical records. Specifically, appellant complains the State, in obtaining her medical records and evidence of her blood alcohol concentration, did not comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Appellant asserts the evidence was obtained in violation of HIPAA's privacy rule because the subpoena duces tecum by which the evidence was obtained was not a grand jury subpoena.
        There is no Fourth Amendment reasonable expectation of privacy protecting blood alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident. State v. Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App. 1997). The Hardy rule applies in instances where the accused challenges the State's use of his or her medical records at trial due to an alleged HIPAA violation. See Murray v. State, 245 S.W.3d 37, 42 (Tex. App.-Austin 2007, pet. ref'd); Tapp v. State, 108 S.W.3d 459, 461-62 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). Because appellant has no constitutional or statutory reasonable expectation of privacy with respect to blood alcohol test results obtained solely for medical purposes following an accident, she has no standing to complain that the State obtained her medical records in violation of HIPPA. See Ramos v. State, 124 S.W.3d 326, 338-39 (Tex. App.-Fort Worth 2003, pet. ref'd).
        Moreover, appellant's medical information was also properly disclosed pursuant to the subpoena duces tecum. Under HIPAA section 164.512(f)(1)(i), a covered entity may disclose protected health information for law enforcement purposes to a law enforcement official if the disclosure is “[p]ursuant to process.” A subpoena is considered lawful process under HIPAA. 45 C.F.R. § 164.512(e)(1)(ii). Here, the subpoena duces tecum was issued at the request of the criminal district attorney for law enforcement purposes. The subpoena required the custodian of medical records to appear in the County Court at Law with the requested medical records. Accordingly, because the trial court committed no error in admitting appellant's medical records, we overrule appellant's second issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061479F.U05
 
Footnote 1 Under the penal code, a person is legally intoxicated if she has an alcohol concentration of 0.08 or more. Tex. Penal Code Ann. § 49.01(2)(B) (Vernon 2003).