Stephen Clayton v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

No. 04-02-00707-CR

Stephen CLAYTON,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 4, Bexar County, Texas

Trial Court No. 815,347

Honorable Sarah Garrahan-Moulder, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 24, 2003

AFFIRMED

This is an appeal from the trial court's denial of appellant Stephen Clayton's motion to dismiss for violation of his right to a speedy trial. We conclude Clayton's right to a speedy trial was not violated; therefore, we affirm.

On September 19, 2001, Clayton was arrested for driving while intoxicated after he was involved in an accident with another vehicle. A sample of his blood was submitted to the Bexar County Medical Examiner's Office on September 21, 2001, and a report of the blood analysis was forwarded to the San Antonio Police Department and Bexar County District Attorney's Office on October 15, 2001. Seven months after the offense, on April 19, 2002, the State filed the information. Clayton was again arrested on April 24, 2002, but released after posting bond. On May 31, 2002, Clayton was arraigned and he filed his demand for a speedy trial. Also on May 31st, the court set the case for trial on September 27, 2002. On September 13, 2002, Clayton filed his motion to dismiss for failure to provide a speedy trial. Clayton's motion was heard on October 4, 2002, at which time the motion was denied. On October 9, 2002, Clayton pled nolo contendere to the charges against him. In a single issue on appeal, Clayton asserts the trial court erred in denying his motion to dismiss.

DISCUSSION

We apply a bifurcated standard of review when reviewing a trial court's decision on a speedy trial claim. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). We review the trial court's determination of the historical facts under an abuse of discretion standard, while we review the trial court's application of the law to the facts de novo. Id. When, as here, the defendant does not prevail on a speedy trial claim, we presume the trial court resolved any disputed fact issues in favor of the State, and we defer to these implied findings of fact that the record supports. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).

Clayton asserts his right to a speedy trial was violated because all of the so-called Barker factors weigh heavily in his favor. In determining whether a defendant's right to a speedy trial has been violated, we balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); Munoz, 991 S.W.2d at 821. The conduct of both the prosecutor and the defendant must be weighed in balancing the four factors, and no single factor is a necessary or sufficient condition to the finding of a speedy trial violation. Barker, 407 U.S. at 530, 533, 92 S. Ct. at 2192-93; Munoz, 991 S.W.2d at 821.

1. Length of the Delay

The length of the delay is the triggering mechanism for analysis of the other Barker factors. Munoz, 991 S.W.2d at 821. The length of the delay is measured from the time the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). Here, the State concedes and we agree that the thirteen-month delay between the date of his first arrest and the trial setting triggers consideration of the remaining three Barker factors. See id. at 814 (noting delay approaching one year unreasonable enough to trigger Barker analysis).

2. Reasons for the Delay

The State has the burden of justifying a lengthy delay. State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.--San Antonio 1998, no pet.). Different weights are assigned to different reasons for a delay. Munoz, 991 S.W.2d at 822. A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are weighed less heavily. Id. If the record is silent regarding the reason for the delay, we presume neither a deliberate attempt by the State to prejudice the defense nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314.

Here, nothing in the record indicates the reason for the delay. The State contends the trial court attempted to provide Clayton with a trial setting in June 2002, but he refused the setting. The State relies on the trial court's opening comment during the speedy trial hearing, at which time the court stated as follows: "We're just making a record of what happened. Okay. And the first arraignment setting was May 31st, the year 2002 at which time Mr. Sullivan on behalf of Mr. Clayton filed a Motion for Speedy Trial. The Court said that I am going to give you a speedy trial like right now, this week. And he said no." The State contends this indicates Clayton declined a trial setting in June 2002; therefore, he is responsible for the delay from June 2002 to September 2002. However, nothing in the record, including the trial court's docket, indicates a trial setting in June. A docket entry dated May 31, 2002 states: "Set for Jury [illegible] 9-27-02," and a case setting form, also dated May 31, 2002, sets the case for jury trial on September 27, 2002.

The State also argues that this case is more complicated than the typical driving while intoxicated case because the driver of the second vehicle may have been injured. The State did not raise this argument before the trial court; therefore, we do not consider it on appeal. See Dragoo, 96 S.W.3d at 313 (court of appeals erred in considering speedy trial argument made for first time on appeal); see also Guevara v. State, 985 S.W.2d 590, 593 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (noting that second, third, and fourth Barker factors cannot be developed for the record or properly evaluated on appeal without a hearing in the trial court).

Clayton argues the State's delay was either deliberate or the result of gross negligence. He contends the State had no reason not to file an information when it obtained the results of the blood analysis in October 2001. Clayton also relies on a November 26, 2001 letter written by his attorney to the Bexar County District Attorney, which states as follows: "This will confirm our understanding that if the above case is prosecuted you will issue a summons to appear rather than arrest. Please feel free to call if you need any information or if you decide not to prosecute the case." According to Clayton, this letter evidences the State's attempt to harass him because the State later violated the agreement when it arrested him on April 24, 2002. We disagree with Clayton's interpretation of the events. The letter, at most, evidences an understanding between defense counsel and the prosecutor. However, neither the letter nor the State's subsequent arrest of Clayton support a finding that the State intended to harass Clayton or deliberately delay his prosecution.

The record contains no evidence of resets or continuances by either the State or Clayton. The delay between obtaining the blood analysis results and Clayton's arrest does not indicate a deliberate attempt by the State to delay its prosecution. Nor does the six-month delay between Clayton's arrest on April 24, 2002 and the September 27, 2002 trial setting indicate any deliberateness on the State's part. These delays show nothing more than inaction by the State and amount, at most, only to negligence. A neutral reason, such as negligence by the State, is weighed against the State because the State, not the defendant, bears ultimate responsibility for these circumstances. See Zamorano, 84 S.W.3d at 649. Because no evidence exists that the State deliberately attempted to delay the trial, this factor is weighed less heavily against the State.

3. Assertion of the Right

The third factor that a trial court must consider is the defendant's assertion of his right to a speedy trial. Munoz, 991 S.W.2d at 825. A defendant is responsible for asserting or demanding his right to a speedy trial. Barker, 407 U.S. at 528-29, 92 S. Ct. at 2191. A lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Russell v. State, 90 S.W.3d 865, 873 (Tex. App.--San Antonio 2002, pet. ref'd). However, a defendant's failure to assert his right to a speedy trial is not necessarily dispositive of his speedy trial claim. Munoz, 991 S.W.2d at 825. Instead, a defendant's failure to do so is weighed and balanced with the other Barker factors. Id. A defendant's failure to assert his right simply makes it more difficult for him to prove he was denied a speedy trial. Id.

The State asserts Clayton did not want a speedy trial because the trial court offered him a "speedy trial like right now, this week. And he said no." As discussed above, the record contradicts this contention. Clayton requested a speedy trial at his arraignment and he filed his motion to dismiss less than four months later.

4. Prejudice Caused by the Delay

The prejudice to the defendant is assessed in light of the interests the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. Of these subfactors, the most serious is the last, because a defendant's inability to adequately prepare his case skews the fairness of the entire system. See id. at 828. The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. at 826.

In his motion to dismiss, Clayton did not assert he was prejudiced by the delay. At the speedy trial hearing, he did not introduce any evidence regarding whether or how he was prejudiced, nor did he argue prejudice. On appeal, for the first time, Clayton contends the delay caused him concern and anxiety and resulted in "oppressive pretrial incarceration." Clayton relies on the November 26, 2001 letter written by his attorney and the prosecutor's statement during the hearing that this "letter itself per the agreement with the D.A.'s office would relieve any anxiety that [Clayton] would feel on his behalf." Clayton contends the letter is evidence of his concern and anxiety, otherwise there would be no anxiety to "relieve."

Although a defendant need not show actual prejudice, he must make a prima facie showing of prejudice. Munoz, 991 S.W.2d at 826. The burden then shifts to the State to show that the prejudice did not exceed that which occurs from the ordinary and inevitable delay. Id. Here, Clayton did not make a prima facie showing of prejudice before the trial court; therefore, we do not consider this argument in weighing the Barker factors. See Dragoo, 96 S.W.3d at 313. Clayton's failure to make a prima facie showing of prejudice weighs heavily against him.

5. Balancing

Balancing the Barker factors, we conclude the weight of the factors is against finding a violation of Clayton's right to a speedy trial. Although the State provided no explanation for the delay and Clayton readily asserted his right to a speedy trial, he failed to demonstrate that he was prejudiced by the delay. See Barker, 407 U.S. at 534, 92 S. Ct. at 2194 (where defendant was not seriously prejudiced by five-year delay between arrest and trial and defendant did not want speedy trial, defendant's right to speedy trial not violated).

CONCLUSION

We overrule Clayton's issue on appeal, and affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH