JERRY FRANK HAAS IVY v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-01-165-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

JERRY FRANK HAAS IVY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Dorsey

Appellant, Jerry Frank Haas Ivy, appeals his conviction for burglary of a habitation. The sole issue for review is whether appellant was denied his right to a speedy trial. We affirm.

I. Factual And Procedural Background

Maricela Aranda, a resident of Mexico, was living in the home of Jack Cavitt. She awoke during the night and saw appellant and two men enter her bedroom. After the two men tied her up appellant raped her. Appellant was arrested, two days later, on July 3, 1999, and was released on bond that same day. After the case was set for trial the State requested a continuance on the grounds that (1) Aranda was residing in Mexico and needed more time to make travel arrangements to return to Texas, and (2) the State was trying to find a material witness. The trial court granted the motion and reset the case for trial. Three days before the reset date the State requested a second continuance, claiming that Aranda Amoved back to her native country of Mexico after the assault, . . . . She has petitioned the Country of Mexico to allow her to renew her travel visa in order to return to the United States and testify. The visa will not be completed until at least 30 days from the date of this motion.@ The trial court granted the continuance and again reset the case for trial. Afterwards on June 12, 2000, appellant filed his demand for speedy trial.

The case was set for trial on October 16, 2000. On that date appellant filed a motion to dismiss for violation of the right to a speedy trial, claiming that he had suffered prejudice. The trial court held a hearing on the motion. Appellant testified that he was not in jail, but had suffered a nervous breakdown because he was worried about spending the rest of his life in prison. He had seen a doctor for his anxiety and was taking Prozac to help him deal with the stress. Because of the allegations, he experienced loss of friends, public humiliation, and had problems finding a job. He was fired from one job after someone called him a rapist.

The State=s attorney, Marcelino Rodriguez, testified that Aranda lived in Mexico and was scheduled to arrive Ain this jurisdiction sometime this morning.@ He said that she had not been served with a subpoena and that the trial could not proceed without her. The trial court denied the motion to dismiss, and the parties began voir dire examination. However the trial court declared a mistrial due to a lack of qualified panel members.

At a pre-trial hearing on December 11, 2000, appellant re-urged his motion to dismiss for violation of the right to speedy trial, claiming that the delay in bringing this case to trial prejudiced him. The trial court overruled the motion, and trial began the next day. During cross-examination at the guilt/innocence phase Aranda testified that from 1998 to 2008 she had a visa to enter the United States from Mexico and that this visa allowed her to come to this country when she chose to do so. After the State rested its case appellant re-urged his motion to dismiss, requesting that the trial court dismiss the case because the evidence showed that Aranda had a travel visa since 1998 and that she had legal authority to enter the United States at will. The trial court denied the motion.

II. Right To A Speedy Trial

When analyzing a trial court's decision to grant or deny a speedy-trial claim a reviewing court must balance four factors: (1) the length of the delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530 (1972).[1] Review of these individual factors necessarily involves fact determinations and legal conclusions. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). The balancing test as a whole, however, is a purely legal question. Id. Legal questions are reviewed de novo. Id.

1. Length of Delay

First we consider the length of the delay between the accused's arrest and trial, and we must find this delay presumptively prejudicial before we inquire into the remaining Barker factors. Barker, 407 U.S. at 530. There is, however, no per se length of delay that automatically constitutes a violation of the right to a speedy trial. Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985). We measure the delay from the time the defendant is formally accused or arrested until the time of trial. United States v. Marion, 404 U.S. 307, 313 (1971). Most delays of eight months or more are considered presumptively unreasonable and prejudicial. Marion, 404 U.S. at 313.

Presumptive prejudice does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992); State v. Munoz, 991 S.W.2d 818, 821-22 (Tex. Crim. App. 1999).

Here appellant was arrested on July 3, 1999, and the trial leading to conviction began on December 12, 2000. A delay of seventeen months and one week is sufficient to trigger our consideration of the remaining Barker factors. See Munoz, 991 S.W.2d at 822 (seventeen and one-half month delay presumptively unreasonable); Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (delay of more than eight months presumptively unreasonable). Because we conclude the delay in the trial is presumptively prejudicial, we now address each of the remaining Barker factors.

2. Reason for Delay

The State has the burden to prove a reason for the delay. State v. Flores, 951 S.W.2d 134, 137 (Tex. App. Corpus Christi 1997, no pet.). Under Barker "different weights should be assigned to different reasons" for the delay. Barker, 407 U.S. at 531. A Adeliberate attempt to delay the trial@ weighs heavily against the State. Id.[2] We consider whether the delay was due to deliberate attempts to hamper the defense, justified circumstances, such as missing witnesses, or more neutral reasons, such as overcrowded court dockets. Webb v. State, 36 S.W.3d 164, 173 (Tex. App.BHouston [14th Dist.] 2000, pet. ref'd); Crowder v. State, 812 S.W.2d 63, 66 (Tex. App. Houston [14th Dist.] 1991, pet. ref'd).

Here the delay resulted from the State=s request for two continuances and the granting of mistrial. The State first sought a continuance because (1) Aranda was residing in Mexico and needed more time to make travel arrangements to return to Texas, and (2) the State was trying to find a material witness, Billy Cavitt. The State asked for a second continuance because Aranda was in the process of renewing her travel visa. These representations about Aranda=s travel visa conflicted with her trial testimony that she had a visa since 1998 and could enter this country whenever she chose. However the record does not show that the State knew that its representations about Aranda=s visa were false, that she told the State that she was not having problems with her travel visa, or that the State deliberately tried to hamper the defense or delay the trial. There is no evidence that the State's intent was to prejudice appellant. A valid reason for the delay should not be weighed against the government at all. Barker, 407 U.S. at 531 (valid reason for delay "should serve to justify appropriate delay"); Munoz, 991 S.W.2d at 822. We conclude that the delay was justified and should not be weighed against the State. See Barker, 407 U.S. at 530 32 (valid reason for delay not weighed against government).

Concerning the grant of the mistrial the State struck several venire members from the panel. The trial court granted a mistrial due to a lack of qualified venire members. The record does not show that by striking these persons from the panel the State deliberately tried to hamper the defense or delay the trial.

3. Assertion Of The Right

Under Barker a defendant is responsible for asserting or demanding his right to a speedy trial. Barker, 407 U.S. at 528 29. Therefore a defendant's assertion of his right to a speedy trial is entitled to strong evidentiary weight. Id. at 531. Here appellant did not file his demand for speedy trial until June 12, 2000, over eleven months after his arrest. A lengthy delay in asserting the right attenuates a speedy-trial claim. Haney v. State, 977 S.W.2d 638, 642 (Tex. App.BFort Worth 1998, pet. ref=d). See Emery v. State, 881 S.W.2d 702, 709 (Tex. Crim. App. 1994). Further at a pre-trial hearing on October 2, 2000, defense counsel told the trial court that she wanted to meet with the victim before trial and that she wanted the court to appoint an investigator to help find people who have information about the case. Appellant did not assert the speedy-trial right at this hearing. A lack of persistence in asserting the right attenuates a speedy-trial claim. Haney, 977 S.W.2d at 642. See Emery, 881 S.W.2d at 709. We conclude that, under these facts, appellant asserted his right to a speedy trial, and, therefore, factor three weighs in his favor, albeit slightly.

4. Prejudice To The Accused

We assess prejudice "in the light of the interests" which "the speedy trial right [is] designed to protect." Munoz, 991 S.W.2d at 826 (quoting Barker, 407 U.S. at 532-33). These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532-33; Munoz, 991 S.W.2d at 826. Of these subfactors "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Munoz, 991 S.W.2d at 826 (quoting Barker, 407 U.S. at 532-33).

A defendant has the burden to make some showing of "prejudice" although a showing of "'actual prejudice'" is not required. Munoz, 991 S.W.2d at 826 (quoting Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973)). When a defendant makes a "prima facie showing of prejudice," the State carries "'the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.'" Munoz, 991 S.W.2d at 826 (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)).

Appellant did not suffer oppressive pretrial incarceration because he was released on bond the day of his arrest. See Harlan v. State, 975 S.W.2d 387, 390 (Tex. App.BTyler 1998, pet. ref=d). He claimed that he had suffered a nervous breakdown because he was worried about spending the rest of his life in prison. Because of the allegations, he experienced loss of friends, public humiliation, and had problems finding a job. The United States Supreme Court has recognized that even if not detained prior to trial, one awaiting trial on criminal charges suffers restraints on his liberty and lives "under a cloud of anxiety, suspicion, and often hostility." Barker, 407 U.S. at 533. Considering the severity of the charge against him, a certain amount of anxiety while awaiting trial is to be expected. See Thompson v. State, 983 S.W.2d 780, 785 (Tex. App.BEl Paso 1998, pet. ref=d). The delay also gave him time to receive the appointment of an investigator.

Consequently appellant's claim of prejudice must rest primarily on the possibility that the delay impaired his defense. Nothing in the record shows that the delay impaired appellant=s defense. However in some instances "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify." Doggett v. United States, 505 U.S. 647, 655 (1992). In Doggett the accused failed to make any affirmative showing that a six year delay weakened his ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence. Id. The government argued that the absence of such evidence defeated the accused's speedy-trial claim. Id. Disagreeing with the government the Court noted that consideration of prejudice is not limited to the specifically demonstrable, and affirmative proof of particularized prejudice is not essential to every speedy-trial claim. Id. As recognized in Barker v. Wingo impairment of one's defense is the most difficult form of prejudice to prove. Doggett, 505 U.S. at 655. Thus the Court concluded that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or identify. Doggett, 505 U.S. at 655. While such presumptive prejudice is, standing alone, insufficient to carry a speedy-trial claim, courts must consider it along with the other relevant criteria,

keeping in mind that its importance increases with the length of delay. Doggett, 505 U.S. at 655 56.

Here the delay of seventeen months and one week is far less than the six year delay in Doggett and is comparable to the seventeen and one-half month delay in Munoz v. State, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). Thus the delay in this case was not excessive, and therefore, did not presumptively compromise the reliability of the trial in ways that neither party can prove or identify. See Id. at 829 (seventeen and one-half month delay not Aexcessive@). Accordingly we may not hold that the length of the delay alone amounted to prejudice. Harlan, 975 S.W.2d at 391. We conclude that appellant=s showing of prejudice was minimal. See Barker, 407 U.S. at 534 (prejudice was "minimal" where defendant lived "for over four years under a cloud of suspicion and anxiety" and spent "ten months in jail before trial," and the record indicated "only two very minor lapses of memory" which "were in no way significant to the outcome"); Schenekl v. State, 996 S.W.2d 305, 314 (Tex. App.BFort Worth 1999), aff=d on other grounds, 30 S.W.3d 412 (Tex. Crim. App. 2000) (unrebutted anxiety element insufficient to cause prejudice prong to weigh in appellant's favor).

Balancing The Barker Factors

Appellant did assert his right to a speedy trial. The delay was presumptively prejudicial, but not excessive. Appellant was not oppressed by pretrial incarceration and has not shown that the delay has impaired his defense. Though appellant has established, and the State has failed to rebut, the anxiety element, this is not enough to cause the prejudice prong to weigh in appellant's favor. The State's main reason for delayBthat Maricela Aranda was having problems with her visaBconflicted with her testimony that she had a visa since 1998. However nothing in the record shows that the State deliberately misled the trial court about Aranda=s purported difficulties in getting her visa, or that the State deliberately tried to hamper the defense or delay the trial. Further the prejudice suffered by appellant was minimal, and he suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. We hold that the State did not violate appellant's right to a speedy trial. We overrule the point of error.

We AFFIRM the trial court=s judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not Publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 6th day of June, 2002.

[1]In Johnson v. State, 954 S.W.2d 770 (Tex. Crim. App. 1997) the court said that the Barker test contemplates that every case is different and that appellate courts will have to conduct the balancing test according to the unique facts of each case. Id. at 773. Further the Supreme Court has structured a test that is fluid enough to take into account many factors depending on the combination of facts that unfolds. Id. At least two of the factors reason for delay and prejudice are particularly susceptible to fact rich scenarios. In any event appellate courts may consider factors other than those enumerated depending on the circumstances of a case. Id.

[2]"Deliberate attempt to delay the trial" has been stated a number of ways. United States v. Doggett, 505 U.S. 647, 657 (1992) ("deliberate intent [to delay trial] to harm the accused's defense"); Barker v. Wingo, 407 U.S. 514, 531 (1972) ("deliberate attempt to delay the trial in order to hamper the defense"); United States v. Marion, 404 U.S. 307, 325 27 (1971) (intentional delay "to gain some tactical advantage over [defendants] or to harass them").