Pedro Esquivel v. The State of Texas--Appeal from 12th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00179-CR

Pedro Esquivel,

Appellant

v.

The State of Texas,

Appellee

From the 12th District Court

Madison County, Texas

Trial Court No. 10,868

MEMORANDUM Opinion

Esquivel appeals his conviction for harassment by a person in a secure correctional facility. See Act of May 16, 2003, 78th Leg., R.S., ch. 878, 1, 2003 Tex. Gen. Laws 2688, 2688 (amended 2005) (current version at Tex. Penal Code Ann. 22.11(a) (Vernon Supp. 2007)); Tex. Penal Code Ann. 22.11 (d) (Vernon Supp. 2007). We reverse.

In Esquivel s first issue, he contends that the trial court erred in denying Esquivel s motion to dismiss, which motion was premised on speedy-trial grounds.

In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . . U.S. Const. amend. VI; see Tex. Const. art. I, 10. In reviewing the trial court s ruling on [an] appellant s . . . constitutional speedy trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)); accord Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). Where the appellant lost in the trial court on his speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State s favor, and we must also defer to the implied findings of fact that the record supports. Zamorano, 84 S.W.3dat 648 (citing Munoz at 821); see Kelly at 726-27. An appellate court reviewing a trial court s ruling on a motion to dismiss for want of a speedy trial must do so in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); accord Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).

In determining whether a criminal defendant has been denied his federal or state constitutional right to a speedy trial, a court must use a balancing test in which the conduct of both the State and the defendant are weighed. Shaw, 117 S.W.3d at 888; see Barker v. Wingo, 407 U.S. 514, 530 (1972); Kelly, 163 S.W.3d at 724, 726. [S]ome of the factors which courts should assess in determining whether a particular defendant has been deprived of his right to a speedy trial are: Length of delay, the reason for the delay, the defendant s assertion of his right, and prejudice to the defendant. Barker at 530; see Shaw at 889.

The first factor, the length of the delay, is measured from the time the defendant is arrested or formally accused. Shaw, 117 S.W.3d at 889 (citing United States v. Marion, 404 U.S. 307, 313 (1971)). The length of the delay is to some extent a triggering mechanism. Barker, 407 U.S. at 530. [A] speedy trial claim will not be heard until the passage of a period of time that is prima facie unreasonable under the circumstances. Shaw at 889 (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992)). In general, delay approaching one year is sufficient to trigger a speedy trial inquiry. Id. (citing Doggett at 652 n.1). 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 at 652; Shaw at 889.

As to the reason for the delay, different weights should be assigned to different reasons. Barker, 407 U.S. at 531; accord Dragoo, 96 S.W.3d at 314. [I]t is improper for the prosecution intentionally to delay to gain some tactical advantage over [defendants] or to harass them. Barker at 531 n.32 (quoting Marion, 404 U.S. at 325) (alteration in Barker). A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the State. Barker at 531; accord Whitfield v. State, 137 S.W.3d 687, 690 (Tex. App. Waco 2004, no pet.). The reason for the delay weigh[s] against the State [where] the record is silent regarding the reasons for the delay, but not heavily where no evidence exists that the State deliberately attempted to delay the trial. Zamorano, 84 S.W.3d at 649-50 (quoting Zamorano v. State, 21 S.W.3d 664, 666-67 (Tex. App. San Antonio 2000), aff d, Zamorano, 84 S.W.3d 643) (alterations added).

As to the defendant s assertion of the right, the defendant s assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Barker, 407 U.S. at 531-32; see Zamorano, 84 S.W.3d at 651. On the other hand, a defendant s failure to make a timely demand for a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not having one. Shaw, 117 S.W.3d at 890; accord Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). Furthermore, the 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. Shaw at 890; accord Dragoo, 96 S.W.3d at 314. In general, moving for a dismissal instead of a speedy trial weakens [a speedy-trial] claim because it shows a desire to have no trial instead of a speedy trial. Zamorano, 84 S.W.3d at 651 n.40 (quoting Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App. Fort Worth 1997, no pet.)) (alteration in Zamorano). But persistence in urging a motion to dismiss can weigh in the movant s favor. See Zamorano, 84 S.W.3d at 651-52; see United States v. Mauro, 436 U.S. 340, 364-65 (1978); cf. Barker, 407 U.S. at 535 n.39.

As to the fourth factor, the prejudice to the defendant resulting from the delay, such prejudice should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. Barker, 407 U.S. at 532. The Supreme Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Id.; accord Shaw, 117 S.W.3d at 890. Of those interests, 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 at 532; accord Shaw at 890. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Barker at 532; accord State v. Smith, 66 S.W.3d 483, 492 (Tex. App. Tyler 2001, no pet.); see State v. Manley, 220 S.W.3d 116, 129-30 (Tex. App. Waco 2007, no pet.). [E]xcessive 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; Dragoo, 96 S.W.3d at 315. [T]he presumption of prejudice may, however, be extenuated . . . by the defendant s acquiescence in the delay. Doggett at 658; accord Dragoo at 315 .

[D]ismissal of the indictment with prejudice is the only possible remedy for a speedy-trial violation. Barker, 407 U.S. at 522; accord Strunk v. United States, 412 U.S. 434, 440 (1973); Shaw, 117 S.W.3d at 888; Dragoo, 96 S.W.3d at 313; Hull v. State, 699 S.W.2d 220, 224 (Tex. Crim. App. 1985).

As to the length of the delay, Esquivel points to the period from his indictment on June 30, 2004, until his trial on March 27-28, 2007. The State apparently concedes that, that length of delay is sufficient to trigger the speedy-trial analysis. The delay extended at least a year and three quarters beyond that necessary to trigger the analysis. This factor weighs against the State.

As to the reasons for the delay, Esquivel points to his two motions for continuance, one of which resulted in ten days delay and the other eight days . One of the motions was in response to the State s amendment of the indictment. See Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 2006). The other resulted from counsel s being unavailable due to a scheduling conflict. The State, besides those reasons, points to Esquivel s counsel s filing a motion to withdraw; but correctly notes that the record does not show any delay resulting from that motion. Otherwise, the State does not point to, and we do not see, any reason in the record for the delay. Assuming without deciding that the delays resulting from Esquivel s continuances weigh against him, this factor nonetheless weighs against the State.

As to the assertion of the speedy-trial right, Esquivel points to his Motion for Speedy Trial filed on July 7, 2006, and his Motion to Dismiss Indictment Denial of a Speedy Trial filed on November 3, 2006. (See 1 C.R. at 26, 28.) The trial court heard and denied Esquivel s motion to dismiss in January, 2007, and Esquivel re-urged the motion before trial in March, 2007. Even after Esquivel s first motion, almost another nine months passed before trial. At least after July, 2006, Esquivel persistently urged his speedy-trial claim. The State argues that Esquivel s claim is weakened by his motion for dismissal. In Esquivel s first motion, he moved for trial on or before October 31, 2006 or, if trial is not set on or before said date, that the indictment . . . be dismissed on the ground that [Esquivel] has been denied his constitutional right to a speedy trial. (Id. at 26.) Only after the trial court took no action on the motion by the latter date did Esquivel file his motion to dismiss. As evidence of his readiness for trial, Esquivel points to his boilerplate pretrial motions filed as early as September, 2004. On that record, we do not perceive that Esquivel sought dismissal rather than trial. This factor weighs against the State.

As to prejudice, Esquivel points to the testimony of the two eyewitnesses to the effect that they could not remember details of the offense. As the State points out, that testimony was not before the trial court at the time that the court ruled on Esquivel s motions. Moreover, those weaknesses in the State s evidence, if they had any effect, would have accrued to Esquivel s benefit. Further, the presumed prejudice from the lengthy delay is somewhat extenuated by Esquivel s two years acquiescence. This factor does not weigh against the State.

Balancing the four Barker factors, we hold that they weigh against the State. The trial court erred in overruling Esquivel s speedy-trial motions. We sustain Esquivel s first issue.

Having sustained Esquivel s first issue, we need not reach his other issues. We reverse the judgment and dismiss the indictment with prejudice.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and indictment dismissed

Opinion delivered and filed April 30, 2008

Do not publish

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