Thomas Ellis Simmons v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-295-CR

THOMAS ELLIS SIMMONS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 20,384-361

O P I N I O N

A jury convicted Simmons of delivery of a controlled substance and assessed punishment, enhanced by two prior convictions, at ninety-nine years imprisonment. See Tex. Health & Safety Code Ann. 481.112(a) (Vernon 1992). Although Simmons raises twelve points of error, we will only address his first point, a claim that his right to a speedy trial was violated. See U.S. Const. amend. VI. We will reverse and order an acquittal.

Simmons was the target of an investigation by the Texas Department of Public Safety. DPS used a confidential informant, Robert Hern, who had befriended Simmons during a stint in the Texas Department of Corrections. The investigation began in early 1991 and covered areas from Bryan to San Antonio. On April 9, 1991, Simmons drove to Bryan to visit Hern on a social visit apparently unrelated to the ongoing investigation. When Simmons arrived at Hern's residence, Hern contacted DPS Officer Mike Roberts, as he had been instructed to do whenever Simmons came to Bryan. Because Roberts would be unavailable, Hern was instructed to contact Bryan Police Officer Randy Glidewell, with whom Hern had worked extensively in the Bryan area on other cases. Glidewell instructed Hern to attempt to involve Simmons in a drug transaction during his stay in Bryan.

Carrying out these instructions, Hern arranged for the delivery of an eighth of an ounce of cocaine and persuaded Simmons to go pick it up. The effort that Hern employed in convincing Simmons to become involved in the transaction was disputed at trial. Simmons testified Hern claimed that he was in desperate need of money and that he could not complete the transaction himself due to a prior dispute between the buyer and seller of the drugs. Hern testified that he invented the ill-will story and may have told Simmons that he needed $60 to pay for damages he had caused to a trailer home. Glidewell came to Hern's house, gave money to Hern, who gave it to Simmons, and waited with Hern for Simmons to return with the drugs. After Simmons picked up the drugs, he returned to Hern's house, gave the drugs to Hern, and Hern gave the drugs to Glidewell. Simmons was not arrested at that time.

In May 1991, Simmons was arrested in Williamson County for another drug offense involving Hern. The case officer on this charge was Mike Roberts. Simmons pled guilty on February 26, 1992, to the Williamson County charge, and was sentenced to ten years in prison.

On May 2, 1991, prior to Simmons arrest in Williamson County, a Brazos County grand jury indicted him for the April 9, 1991, offense. He was reindicted by Brazos County on June 13, 1991, after his arrest in Williamson County. However, the Brazos County District Attorney's Office took no action on the pending Brazos County indictment until Simmons was to be paroled from the Williamson County offense. On July 7, 1992, the day that Simmons was released on parole, he was bench warranted to Brazos County to stand trial on the June 1991 indictment. Simmons had no knowledge of the pending indictment until he was bench warranted back to stand trial. Ultimately, the trial was held on September 21, 1992.

Several facts must be highlighted. The delay between the return of the original indictment and notice to Simmons is at least fourteen months, and the delay between the indictment and the trial totals sixteen months and nineteen days. The delivery offense Simmons pleaded guilty to in Williamson County involved the same confidential informant as the Brazos County offense. Simmons has been continuously incarcerated since his arrest in Williamson County on May 17, 1991. Finally, there is no dispute that the State knew that Simmons was incarcerated in Williamson County at the time of his reindictment.

To determine whether an accused has been denied a speedy trial, we must "balance" four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant resulting from the delay. See Deeb v. State, 815 S.W.2d 692, 704 (Tex. Crim. App. 1991). None of these factors are sufficient, standing alone, to demonstrate a violation of the right to a speedy trial. See County v. State, 812 S.W.2d 303, 309 (Tex. Crim. App. 1989).

The State essentially concedes that Simmons has met the requirements of the first three prongs of the test. We agree. The length of the delay in this case, more than sixteen months, is sufficient to make out a speedy-trial claim. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 113 S. Ct. 381, 121 L. Ed. 2d 292 (1992); Deeb, 815 S.W.2d at 705. The State failed to present a valid reason excusing this delay. See Phillips v. State, 650 S.W.2d 396, 400 (Tex. Crim. App. [Panel Op.] 1983). Finally, the State concedes that Simmons asserted his right to a speedy trial. See id. Thus, the issue is joined by the parties on the fourth prong, prejudice to Simmons caused by the delay.

The United States Supreme Court has identified three interests that the speedy-trial right is designed to protect: (1) preventing oppressive pre-trial incarceration; (2) minimizing anxiety and concern of the accused due to outstanding, unresolved charges; and (3) limiting the possibility that the defense will be impaired by the passage of time. Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101 (1972). Only the last of these interests is relevant in this case because Simmons was incarcerated on other charges and did not know of the outstanding charge against him until he was bench-warranted to Brazos County. Simmons is not required to demonstrate actual prejudice resulting from the delay; he need only show "some" prejudice. See Phillips, 650 S.W.2d at 401-02.

Simmons claims that he was prejudiced because several material witnesses became unavailable during the delay. To establish prejudice resulting from the absence of a witness, Simmons must show that the witness was unavailable at the time of his trial, that he exercised diligence in attempting to procure the witness' attendance, and that the witness was material and relevant to his case. See McCarty v. State, 498 S.W.2d 212, 218 (Tex. Crim. App. 1973); Hardesty v. State, 738 S.W.2d 9, 11 (Tex. App. Dallas 1987, pet. ref'd).

Simmons filed a pre-trial motion to dismiss the indictment. Prior to voir dire, Simmons' attorney urged the court to reconsider the motion. In response to the court's inquiry, the attorney stated that all but one of the witnesses were still missing. We conclude that the statement is sufficient to show that the witnesses were unavailable at trial.

The original hearing on Simmons' motion to dismiss was held on August 20, 1991. Simmons testified that he intended to mount entrapment and "outrageous government involvement" defenses and had a list of six witness who would support these defenses. He testified that he had contacted some personal friends who were attempting to locate the individuals. However, at the time of the first hearing, none of the witnesses had been found. The court approved $500 for a private investigator to attempt to locate the witnesses and "carried" the motion for a second hearing. At the second hearing, on September 10, the private investigator testified that he had travelled to San Antonio in search of the witnesses but had been unsuccessful in locating them. He stated that he had carried subpoenas when he went to San Antonio and would have served them on the witnesses if he had located them. He also testified that he had exhausted the funds allocated to pay his fees. An investigator for the Brazos County District Attorney's Office testified concerning his attempts to locate these individuals, which were also unsuccessful. Thus, Simmons exercised diligence in his attempt to secure the presence of the witnesses. See McCarty, 498 S.W.2d at 218.

We must examine the asserted defenses to determine if the missing witnesses were relevant and material. If we find that these witnesses were relevant and material, then Simmons has established at least some prejudice flowing from the delay. Because the "outrageous government involvement" defense is questionable, at best, we will confine our discussion to Simmons' entrapment claim. See U.S. v. Santana, 6 F.3d 1 (1st Cir. 1993).

Entrapment is a statutory defense to criminal liability in Texas. Tex. Penal Code Ann. 8.06 (Vernon 1974). It is available when the criminal design originates in the mind of a government agent, and the agent induces a defendant to commit a crime that he would not otherwise commit. Richardson v. State, 622 S.W.2d 852, 854 (Tex. Crim. App. [Panel Op.] 1981). The issue is whether the defendant was induced to engage in the conduct through persuasion or other means likely to cause persons to commit an offense, or was merely afforded the opportunity to commit the crime. Rodriguez v. State, 662 S.W.2d 352, 355 (Tex. Crim. App. 1984). The Texas legislature adopted an objective test for determining if a defendant was entrapped. Id. Thus, the trier of fact must first determine if there was an inducement by the state agents and, second, what effect the conduct constituting the inducement would have on a person. See Scott v. State, No. 10-93-080-CR, slip op. at 2 (Tex. App. Waco January 5, 1994, pet. filed). Inducement includes appeals to the defendant by a government agent based primarily on sympathy, pity, or close personal friendship, which are likely to cause an otherwise unwilling person, rather than the ready, willing, and anxious person, to commit an offense. Campbell v. State, 832 S.W.2d 128, 130 (Tex. App. Corpus Christi 1992, pet. ref'd).

Simmons testified that he became friends with Hern during a ten-month period when they were in administrative segregation at the Michael's Unit of the Texas Department of Corrections. Each was confined alone in a nine-by-five foot cell. Simmons testified they could speak with each other via an air duct that connected their cells, but could not see one another. According to Simmons, "for ten months [Hern] was the only reasonably intelligent human being that [he] had to carry on any type of conversation with." As a result of this experience, Hern and Simmons became "good friends." Their friendship continued past each man's release from prison.

Simmons testified concerning events that occurred in San Antonio in the months preceding the offense in Brazos County. Simmons stated that Hern exhibited "desperation" over his financial and marital difficulties. He stated that Hern "kept begging me" to help him. Simmons testified that the witnesses would verify Hern's extreme "financial desperation" and that Hern was selling drugs and guns "to acquire money to satisfy his financial needs before his wife kicked him out of the house." Simmons argued that Hern's actions in the months preceding the offense in this case produced the appearance of desperation, thus creating a situation where Simmons would be inclined to assist when Hern requested his help.

We conclude that Simmons has established that these witness were relevant and material to his entrapment defense. Appeals to sympathy, pity and personal friendship have been recognized as constituting inducements. See id. The facts these witnesses could have testified to were relevant to the degree of friendship between Hern and Simmons and the extent that Hern attempted to appeal to Simmons' loyalty to that friendship. The pattern that Hern established in the months preceding this offense is relevant to Simmons' reaction to the continued entreaties by Hern on the day of the offense. The witnesses could have testified to facts that would have enabled the jury to determine if these appeals were of a degree which would have induced a person to commit an offense out of a sense of loyalty to a personal friend.

The three types of prejudice articulated in Barker are not the only prejudice that a defendant may suffer from a delay in bringing him to trial. See Chapman v. Evans, 744 S.W.2d 133, 137 (Tex. Crim. App. 1988). Thus, the loss of the possibility of a concurrent sentence with the Williamson County conviction is an additional form of prejudice suffered by Simmons. Id. Finally, Simmons would have been entitled to a credit against his sentence for time served on the Williamson County conviction after a "hold" had been placed on him by Brazos County. See Ex parte Bynum, 772 S.W.2d 113 (Tex. Crim. App. 1989).

We must now "balance" the factors to determine if Simmons' right to a speedy trial has been violated. A delay of sixteen months between the indictment and the trial is considerable, made worse because Simmons had no knowledge of the pending charges for fourteen months. See Phillips, 650 S.W.2d at 400. No tenable reason for this delay has been advanced by the State. Furthermore, there is no evidence that Simmons attempted to delay his trial in any way for a tactical reason, and, indeed, there could have been no attempt to do so by Simmons during the fourteen-month period when he was unaware of the charges. Finally, Simmons has shown some prejudice flowing from the delay by the lost testimony of several defense witnesses and the lost opportunity for concurrent and back-time credit on the sentence on this offense. On balance, the State's actions here deprived Simmons of his Sixth Amendment right to a speedy trial. See id.

Point one is sustained. The judgment is reversed and this cause is remanded back to the trial court for the entry on an order of acquittal. Due to our disposition of point one, we do not reach the remaining points.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and acquittal ordered

Opinion delivered and filed February 16, 1994

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