THE STATE OF TEXAS v. ROLANDO PENA--Appeal from 347th District Court of Nueces County

NUMBER 13-04-585-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,

 
v.

ROLANDO PE A, Appellee.

 
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Ya ez, and Garza
Memorandum Opinion by Justice Ya ez

This is an appeal by the State from the trial court's dismissal of its case (1) against appellee, Rolando Pe a, for felony driving while intoxicated ("DWI"), (2) based on a violation of his right to a speedy trial. In two issues, the State contends the trial court erred in (1) conducting a speedy-trial analysis because the length of delay should have been measured from Pe a's indictment for felony DWI (less than six months) instead of from his arrest for misdemeanor DWI, and (2) applying the four-factor balancing test set forth in Barker v. Wingo. (3) We affirm.

I. Background

On May 3, 2003, Pe a was arrested for misdemeanor DWI. (4) According to Pe a, he posted bond the same day he was arrested. (5) In mid-December 2003, the State received a certified copy of a judgment reflecting that Pe a had a prior DWI conviction in Nueces County. (6) The Nueces County conviction reflected that Pe a also had an earlier DWI conviction in San Patricio County. Shortly thereafter, the State requested a certified copy of Pe a's DWI conviction in San Patricio County. After receiving certified copies of Pe a's two prior DWI convictions, the State contends that it "informally dismissed" the misdemeanor DWI charge on January 30, 2004, and charged Pe a with felony DWI. A grand jury indicted Pe a for felony DWI on March 4, 2004. On June 30, 2004, Pe a waived arraignment on the felony DWI charge and on July 1, 2004, he was granted bond with certain pre-trial conditions. (7) Trial was set for August 30, 2004.

On April 2, 2004, Pe a's counsel filed a motion to dismiss on grounds that his right to a speedy trial had been violated. The trial court held hearings on the motion on August 20, 2004 and September 1, 2004. At the conclusion of the September 1, 2004 hearing, the trial court orally granted Pe a's motion to dismiss on speedy trial grounds. The order granting the dismissal was signed by the trial court on November 1, 2004.

II. Standard of Review and Applicable Law

In reviewing a trial court's ruling on a defendant's 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. (8) This means we independently weigh and balance the Barker factors, but we presume the trial court resolved any disputed fact issues in a manner that supports its ruling. (9) Stated differently, we review legal issues de novo but give deference to a trial court's resolution of factual issues, including deference to the trial court's drawing of reasonable inferences from the facts. (10)

The right to a speedy trial is guaranteed by the United States and Texas constitutions. (11) The test under both the federal and state constitutions is the same. (12) In reviewing a trial court's decision to grant or deny a speedy trial claim, we must balance four factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his/her right, and (4) any resulting prejudice to the defendant. (13) No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. (14) Thus, we must "engage in a difficult and sensitive balancing process" in each individual case. (15)

III. Analysis
A. Length of Delay

In its first issue, the State contends the trial court erred in measuring the length of delay from Pe a's arrest for misdemeanor DWI on May 3, 2003, instead of from his indictment for felony DWI on March 4, 2004. The State argues that because the offense for which Pe a was arrested (misdemeanor DWI) was informally dismissed, and he was later indicted on a different offense (felony DWI), the length of delay should be measured from his March 4, 2004 indictment on felony DWI. Pe a contends his right to a speedy trial attached on May 3, 2003, when he was arrested for misdemeanor DWI.

We agree with the State that felony DWI and misdemeanor DWI are separate offenses. (16) The clock begins to run for purposes of speedy trial analysis when the defendant has either been charged or arrested. (17) The State urges us to measure the delay from Pe a's March 4, 2004 indictment because the misdemeanor DWI was informally dismissed on January 30, 2004. We note that Pe a's counsel also told the court that Pe a had been arrested twice and was required to post bond twice on the case; presumably, the second arrest and bond pertained to his arrest for felony DWI, the charged offense.

However, the record does not confirm the State's assertion that the misdemeanor charge was informally dismissed. There is no documentation showing a separate subsequent arrest date for felony DWI. In fact, Pe a's indictment for felony DWI reflects a notation at the top of the page stating, "Date of arrest: 05-03-03." We also note that the trial court clearly measured the length of delay from Pe a's May 3, 2003 arrest. (18) As the appellant, the State had the burden of providing a record establishing that the trial court erred in measuring the delay from Pe a's May 3, 2003 arrest date. (19) We conclude that the State failed to establish that the length of delay should be measured from Pe a's indictment for felony DWI rather than from his arrest for misdemeanor DWI. We overrule the State's first issue.

The length of the delay is a "triggering mechanism" for analysis of the remaining Barker factors. (20) Further analysis is required if the length of the delay is "presumptively prejudicial." (21) Presumptive prejudice is determined from the circumstances of the case. (22)The length of the delay is measured from the time of arrest until the time of trial. (23) Most delays of eight months or longer are considered presumptively unreasonable and prejudicial. (24) "The delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." (25) The delay factor requires a two-prong inquiry. (26) First, any speedy trial analysis depends on whether the delay is more than "ordinary." (27) Second, the longer the delay extends beyond "ordinary," the more prejudicial that delay is to the accused. (28)

Here, the delay from Pe a's May 3, 2003 arrest on misdemeanor DWI to his trial date of August 30, 2004, was approximately sixteen months and is presumptively prejudicial. (29) We conclude that this factor weighs in favor of Pe a, and thus triggers further analysis of the remaining factors.

B. The Reason for the Delay

Once a delay has been found to be presumptively prejudicial, the State bears the burden of justifying the delay. (30) In examining the reasons for the delay, different weights should be assigned to different reasons. (31) A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. (32) However, valid reasons are not weighed against the State at all. (33) When the record is silent as to the reason for the delay, we may presume neither a valid reason nor a deliberate attempt to prejudice the defendant. (34) Therefore, when the record is silent, the second Barker factor weighs against the State, but not heavily. (35)

Here, the State argued that the reason for the delay was the need to investigate Pe a's prior DWI convictions and obtain certified copies of his prior convictions. According to the State, once it became aware of Pe a's two prior convictions, it dismissed the misdemeanor DWI charge against him. However, when the trial court questioned why it took from May 2003 to December 2003 to obtain Pe a's Nueces County conviction (which then triggered the request for records from San Patricio County), the State did not have an adequate response. (36) We conclude that the trial court could reasonably infer from the facts presented that the delay was due to lack of diligence on the part of the State. (37) "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts." (38) We conclude that this factor weighs against the State. (39)

C. Assertion of the Right

Pe a filed a motion to dismiss on speedy trial grounds on April 2, 2004, approximately one month after his indictment for felony DWI. Pe a's motion does not demand a speedy trial. Although a motion to dismiss may notify the State and the court of a speedy trial claim, a defendant's motivation in asking for dismissal rather than for a speedy trial is relevant and may attenuate the strength of the speedy trial claim. (40) The record reflects that at the hearings on Pe a's motion to dismiss, counsel did not request a speedy trial. However, the record also reflects that the trial court did not consider Pe a's request for a dismissal rather than a speedy trial as "dispositive," but rather, as "just one thing to consider" "in the overall balancing of the factors." We conclude that this factor weighs slightly against Pe a.

D. Prejudice Caused by the Delay

The final Barker factor takes into account any prejudice suffered by the defendant as a result of the delay. (41) The prejudice to the defendant is assessed in light of the interests which the speedy trial right is designed to protect. (42) Those 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. (43) Of the three interests, the most important is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. (44) A mere passage of time is not prejudicial and will not result in a denial of speedy trial. (45) When non-availability of witnesses is the basis of the alleged prejudice, an appellant must demonstrate that the witnesses were unavailable at the time he was tried, that their testimony may be relevant and material to his defense, and that due diligence was exercised in an attempt to locate such witnesses at the time he was tried. (46) The defendant has the initial burden of showing that he was prejudiced by trial delay. (47)

As to the first sub-factor, Pe a does not argue that he was oppressively incarcerated. He testified that he was released on bond the day he was arrested. Thus, this sub-factor weighs in favor of the State.

With regard to the undue anxiety sub-factor, appellant testified that (1) he was "worried about going to prison;" (2) that his pre-trial conditions required him to report to his pre-trial service officer once a month, which requires him to miss about three hours of work per month; (3) that he must pay a monthly service fee of around $62.75 for inspection of his ignition interlock device; and (4) that he must pay a $40.00 monthly fee to his pre-trial supervision officer. Pe a's pre-trial bond conditions were imposed on July 1, 2004. Thus, as of the August 20, 2004 hearing, Pe a had only been required to report to his pre-trial supervision officer once. We conclude Pe a presented no evidence that the delay caused him anxiety and concern beyond what would ordinarily result from being arrested and charged with a serious offense. (48) We weigh this second sub-factor in favor of the State.

We next consider the most important sub-factor, the possibility of a delay impairing the defense. Pe a did not develop a case with regard to impairment of his ability to present a defense. The State advised the trial court that a civil case was pending regarding the DWI incident and that all witnesses were available. The trial court noted that with regard to the third sub-factor, the "witnesses are available," and as to "any limit or impairment of the defense," the court did not "think we have evidence of that here." Considering all these matters, we cannot conclude that Pe a's defense was impaired. Accordingly, the final Barker factor weighs against Pe a.

IV. Conclusion

In balancing the Barker factors, we conclude that the first and second factors weigh against the State, and the last two factors weigh against Pe a. We note that we must remain mindful that a "trial judge's personal knowledge of the parties and the sequence of events do in fact place him in a better position to draw inferences than an appellate court without such familiarity." (49) We conclude that, after giving due deference to the findings of the trial court, the balancing of the various factors as called for in Barker weighs in favor of Pe a's claim that he was denied a speedy trial. Accordingly, we overrule the State's second issue and affirm the trial court's judgment.

 

LINDA REYNA YA EZ,

Justice

 

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed

this the 5th day of October, 2006.

1. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2006) (authorizing appeal by the State from the dismissal of an indictment).

2. See Tex. Pen. Code Ann. 49.09(b)(2) (Vernon Supp. 2006).

3. See Barker v. Wingo, 407 U.S. 514, 530 (1972).

4. See Tex. Pen. Code Ann. 49.04 (Vernon 2003).

5. At an August 20, 2004 hearing on his motion to dismiss for a speedy trial violation, Pe a testified that he was arrested and posted bond on May 5, 2003. The record before us contains no documents pertaining to Pe a's arrest for misdemeanor DWI.

6. The prosecutor explained the sequence of events to the trial court. Again, the record does not contain copies of Pe a's prior convictions or any requests from the State requesting such documentation.

7. Pe a's counsel told the court that the original bond posted by Pe a "got lost" and that he was required to post a second bond for the felony DWI.

8. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).

9. See id; State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

10. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005).

11. See U.S. Const. amends. VI, XIV; Tex. Const. art. I, 10.; Zamorano, 84 S.W.3d at 647.

12. Floyd v. State, 959 S.W.2d 706, 709 (Tex. App.-Fort Worth 1998, no pet.) (citing Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985)).

13. Zamorano, 84 S.W.3d at 648 (citing Barker, 407 U.S. at 530).

14. Id. (citing Barker, 407 U.S. at 533).

15. Id.

16. See Strickland v. State, 193 S.W.3d 662, 665 (Tex. App.-Fort Worth 2006, no pet.) (citing Luedke v.State, 711 S.W.2d 657, 659 (Tex. Crim. App. 1986) (recognizing that felony and misdemeanor DWI are separate offenses because "[a] prior conviction is an essential element of felony driving while intoxicated," but "it is not an element of the misdemeanor offense.")).

17. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994).

18. At one point, the trial court noted, "I have a problem with he was arrested in May and we did not indict until March is the period I am looking at."

19. See State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993).

20. Munoz, 991 S.W.2d at 821.

21. Id. at 821-22.

22. See Barker, 407 U.S. at 530-31; Schenekl v. State, 996 S.W.2d 305, 312 (Tex. App.-Fort Worth 1999), aff'd, 30 S.W.3d 412 (Tex. Crim. App. 2000).

23. Schenekl, 996 S.W.2d at 312 (citing Emery, 881 S.W.2d at 708).

24. Id. (citing Doggett v. United States, 505 U.S. 647, 651 (1992); Pierce v. State, 921 S.W.2d 291, 294 (Tex. App.-Corpus Christi 1996, no pet.).

25. Barker, 407 U.S. at 531.

26. Munoz, 991 S.W.2d at 822.

27. Zamorano, 84 S.W.3d at 649.

28. Id.

29. See Schenekl, 996 S.W.2d at 312.

30. Emery, 881 S.W.2d at 708.

31. Id.

32. Id.

33. Id.

34. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

35. Id.

36. The record of the August 20, 2004 hearing reflects the following:

 

[Trial court]: Okay. But why are we just getting a Nueces County deal in December when he has been arrested in May.

 

[State]: I'm sorry. I can't answer for the clerk.

37. In response to the State's argument that it was in Pe a's interest for it to investigate his two prior convictions because if either conviction was defective, Pe a could not have been charged with felony DWI, the trial court responded, "[y]eah, but the state waited from May to December to even send out any letters to other counties, adjacent counties, requesting information."

38. Kelly, 163 S.W.3d at 726 (emphasis in original).

39. See Munoz, 991 S.W.2d at 822 (noting that "more neutral reasons," such as negligence, should be weighed against the government, but less heavily).

40. See Zamorano, 84 S.W.3d at 651 n.40; Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983); Marquez v. State, 165 S.W.3d 741, 749 (Tex. App.-San Antonio 2005, pet. ref'd) (concluding that when appellant filed a motion to dismiss two months after indictment, rather than request for speedy trial, it weighed slightly against him).

41. See Dragoo, 96 S.W.3d at 316.

42. Id.

43. Id.

44. Id. (citing Barker, 407 U.S. at 532); Zamorano, 84 S.W.3d at 652.

45. Johnson v. State, 975 S.W.2d 644, 651 (Tex. App.-El Paso 1998, pet. ref'd).

46. See id. at 652.

47. Ramirez v. State, 897 S.W.2d 428, 433 (Tex. App.-El Paso 1995, no pet.).

48. See Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (noting no evidence that delay caused any unusual anxiety or concern, i.e., any anxiety or concern beyond the level normally associated with being charged with a felony).

49. Kelly, 163 S.W.3d at 726-27.