Lance Taylor v. The State of Texas Appeal from 28th District Court of Nueces County (memorandum opinion)

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NUMBER 13-18-00384-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG LANCE TAYLOR, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 28th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Tijerina Appellant Lance Taylor challenges his convictions of one count of murder and one count of tampering with evidence, both first-degree felonies. See TEX. PENAL CODE ANN. §§ 19.02, 37.09. Taylor was sentenced to life in confinement for both offenses.1 By one 1 Taylor was charged as a repeat felony offender. issue, Taylor contends that his right to a speedy trial was violated. See U.S. CONST. amend. VI. We affirm. I. PERTINENT FACTS Taylor was arrested on June 20, 2016, for the offenses of murder and tampering with evidence. During the pendency of Taylor’s trial court cause, the trial court held several status hearings, and Taylor remained in jail for the entirety of the proceedings. At one of these status hearings held on February 2, 2017, Taylor stated that a previous trial date had been continued and that he had “invoked” his “speedy trial rights.” Taylor’s trial counsel explained, “I believe [it was] the first setting in the case and we both needed more time. The [S]tate needed more time and defense needed more time and it was by agreement.” (emphasis added). The trial court informed Taylor that there was now a trial setting for March 27, 2017. On February 27, 2017, Taylor filed a pro se motion for a speedy trial, stating that he had been in jail since June 20, 2016, that he had informed his trial counsel that he desired a speedy trial, and that he had “invoked his desire” for a speedy trial on September 15, 2016, when he was formally indicted. Taylor requested that the trial court accept his pro se motion for a speedy trial despite being represented by trial counsel. Taylor did not request a hearing on his motion for a speedy trial. There is no ruling on this motion in the record. On March 16, 2017, the State filed a motion for continuance on the basis that it was not ready for trial “because the DNA evidence that is crucial to this case is not ready.” The State asked for a continuance of the scheduled March 27 trial date and requested a 2 ninety-day reset of the trial. On March 29, 2017, Taylor’s trial counsel filed a motion for speedy trial requesting that “trial in this case be scheduled as soon as possible.” The motion states that Taylor had been arrested on June 17, 2016, and a trial had not yet been set. Taylor asserted without any supporting facts that he would be “prejudiced” if his motion was not granted. No hearing was requested or held, and there is no ruling on this motion in the record. The trial court held a status hearing on May 1, 2017, where Taylor’s trial counsel stated that it was “fine” to set the cause for a status hearing in another thirty days. Taylor’s trial counsel said, “I did file some motions and I don’t need a hearing on them right now except for two maybe. I filed a motion to appoint a co[-]counsel, and I filed a motion for an investigator. I don’t think the State would oppose that.” The State replied that it did not oppose.2 Taylor then asked if he could be heard stating, “Just please. I need to say to speak for the record. It’s overwhelming. Where’s my speedy trial? My Constitutional rights are being violated freely.” Taylor’s trial counsel said, “[Taylor, y]ou got a parole hold either way. All right. So just stop.”3 The trial court did not set a trial date at this hearing. On June 1, 2017, at a “status hearing,” Taylor’s trial counsel requested a trial “setting sometime in mid-August” due to needing to review a voluminous record that he received from the State. Taylor’s trial counsel said “[i]t’s a lot of paper and I haven’t gone through all of it, Judge.” The trial court set the trial for August 14, 2017, with both sides 2 The record supports a conclusion that the State did not oppose either motion. Neither party clarified the meaning of a “parole hold.” Nonetheless, in its brief, the State explains that this statement by defense counsel “indicates that Taylor was being held in jail not only for the present murder, but also on a parole warrant.” 3 3 agreeing that they were available. The trial court set the docket call for August 10, 2017, at 1:30 p.m. The trial court held a status hearing on August 3, 2017, where Taylor’s trial counsel informed the trial court that Taylor was ready for trial. The State stated that it intended to announce ready for trial. On August 8, 2017, the State filed a motion for continuance because an “essential witness,” Ray Fernandez, M.D., would be out of town the week of the trial. The motion stated the following: “The undersigned has conferred with the attorney for [Taylor] and said attorney does not oppose this continuance.” On Thursday, August 10, 2017, at a status hearing, the State announced that it was not ready for trial and informed the judge that it had filed a motion for continuance but that another judge was considering the motion. Taylor’s trial counsel stated that he preferred that a ruling be made on this date. However, the judge stated that she would not “overrule” the judge who was considering the motion and that she had indicated that “[s]he wanted to hear [the motion] on Monday.” The State informed the judge that the parties were “trying to work” with the judge considering its motion in an attempt to “set up a conference call where maybe [they could] get a decision today.” The parties did not receive a decision on that date. Subsequently, on August 14, 2017, the judge who was considering the State’s motion for continuance held a hearing on the State’s motion for continuance. Taylor’s trial counsel stated that although the motion for continuance was not “initially” a joint motion, “then we started working on an expert on cell phone data, and the next available date our 4 expert would not be ready. So I suppose at this point it is a joint motion.” The trial court said that the trial was “tentatively” set for October 23, 2017. The trial court informed Taylor that he would have to “wait in jail a little bit longer” and asked, “Do you understand that?” Taylor replied, “Yes, ma’am.” The trial court then signed an order granting the State’s motion for continuance and resetting the trial for October 23, 2017. On October 19, 2017, the trial court called the case, and the State informed the trial court that it had filed a motion for continuance because a vital witness had “disappeared.” Taylor’s trial counsel said, “Your Honor, we would oppose any reset. We are ready. The State has asked for a continuance on every setting since this case has started, and this is just another request for a continuance. . . . We would ask the court to deny their motion.” The State claimed that it had requested only one reset due to Dr. Fernandez’s unavailability. The trial court pointed out that Taylor had been in jail for 486 days and that “we have 100 jurors coming next week and we have the [fifth] floor already reserved for next week.” The trial court doubted that they would be able to “pull 100 jurors or have the fifth floor available” for Taylor’s case “because it takes time. And we are reaching very close to 500 days.” The trial court denied the State’s motion for continuance. On October 23, 2017, the State filed a verified motion for continuance stating that although the trial had been set that day, “[t]he State is unable to be ready for trial . . . because an essential witness . . . cannot be located and served with a subpoena.” Taylor’s defense counsel argued that “the appropriate thing to be done right now is for the [S]tate to dismiss. Mr. Taylor has been in custody quite a long time. I don’t 5 know how long they want to keep Mr. Taylor in custody when they don’t have their witnesses.” Taylor’s defense counsel opined that the State would not be prejudiced by dismissal and that it would be able to refile the case when it located its witness. The trial court granted the continuance and signed an order resetting the trial for December 4, 2017. On November 17, 2017, at a hearing, the State informed the trial court that it had located its missing witness, Kevin Miller, that Miller had been deliberately avoiding the State, that the deputies had served him with a subpoena, and that he was now willing to cooperate with the State. The trial court granted a writ of attachment and set a hearing for the following Monday, October 20, 2017, to determine its next step to ensure Miller’s appearance at Taylor’s trial. The record shows that the trial court ordered Miller to wear a GPS monitor until his appearance at the trial. At a November 30, 2017 status hearing, the State and defense announced ready for trial. However, Taylor’s trial counsel notified the trial court that Taylor had just had nasal surgery, was bleeding from his nose, and would be taken to the hospital for treatment. Subsequently, the trial court reset the trial for January 8, 2018. On December 4, 2017, the trial court held a status hearing wherein Taylor asked that his appointed counsel be replaced and requested to proceed pro se. Taylor complained that he had yet to “see” discovery, had “been coerced to take time,” his trial “[c]ounsel refuse[d] to cooperate,” and his trial counsel did not “respond” to Taylor’s letters or to his mother. Taylor stated that he was comfortable representing himself. The State 6 objected to Taylor’s motion to proceed pro se. Both of Taylor’s trial attorneys informed the trial court that they had prepared for the case and were ready for trial. One of the attorneys informed the trial court that Taylor was not prepared to represent himself stating, “He needs some help. He needs somebody to help him along, or just start all over again and he has been in jail a year and a half.” Taylor replied that he would be prepared to move forward pro se. The trial court warned Taylor that if he replaced the currently appointed trial counsel, there would have to be another postponement of the trial. The following exchange then occurred: [Taylor]: I understand that. There has been six postponements since my speedy trial motion in January. I understand that. [Trial Court]: And because it is your request to postpone this trial, your speedy trial is moot. [Taylor]: I’m not asking for any other continuance, Judge. I’m just asking for justice. I don’t want a miscarriage of justice. [Trial Court]: Well, you cannot have a new attorney be ready for January on a murder case. [Taylor]: Well then I will do it myself, Judge; that is unfortunate. I’m innocent. [Trial Court]: You just said that you are not even mentally or physically ready. [Taylor]: So where does that leave me, Your Honor? [Trial Court]: So, I don’t understand you— [Taylor]: I know it is a very hard dilemma. I made an executive decision, Judge. I have no other options. I have no other options. 7 After discussing the possibility of allowing Taylor access to police reports, the trial court took the matter under advisement. At a status hearing on December 6, 2017, Taylor asked the trial court to allow him to represent himself at trial because he had a conflict with his appointed attorneys. Taylor clarified that he would like appointment of new counsel, but if no new counsel could be appointed, he would then proceed pro se. The trial court asked, “Well, do you understand that if I do grant your request, then your trial more than likely will be postponed again?” Taylor responded, “Yes, ma’am. I am aware of that fact. It has been postponed several times.” The trial court asked Taylor’s trial counsel how long he believed newly appointed counsel would need to prepare. Taylor’s trial counsel said, “Well, Judge, it was delayed because we were waiting for DNA evidence and different delays that don’t exist now. But I would think the fastest this case would be ready to go to trial, if someone new starts is four months, three to four months.” The following conversation occurred: [Trial Court]: Do you understand that? [Taylor]: Yes ma’am, I do. [Trial Court]: So that means an additional three or four months in jail. [Taylor]: Unfortunately, yes. Added to the 18 months, yes ma’am. [Trial Court]: So that is what you want? [Taylor]: That is what I need at this point, Judge, to avail myself. [Trial Court]: All right. Then the Court will appoint new counsel. [Taylor]: Thank you. 8 Taylor’s original trial counsel filed a motion to withdraw, which the trial court granted. The trial court appointed new trial counsel, and pretrial matters were heard on February 16, 2018, wherein Taylor’s new appointed trial counsel stated that he needed a new trial date because he was “not prepared to go forward,” as he had “just been handed the full [autopsy] report.” Taylor’s new trial counsel informed the trial court that he was also “just trying to clear up a Brady issue that whether they had an additional report that would assist us in preparing that motion to exclude his testimony.” Taylor’s trial counsel said, “So at this point I’m going to rest this point until we have further hearing on the issues with the doctor.” New counsel then asked for recess of the matter and “maybe having a resetting for additional evidentiary matters.” The State agreed to the request and informed the trial court that the agenda for the day called for setting a trial date. The trial court proceeded to calendar a new trial setting. Taylor’s trial counsel informed the trial court that he told Taylor that they could “potentially do something in May.” The State agreed. Miller’s counsel had scheduling issues, and the trial court accommodated his schedule by setting the trial for May 7, 2018. Taylor’s trial counsel said, “We can shoot for that, Your Honor.”4 Trial on the merits commenced on May 22, 2018, after which the jury convicted Taylor of the charged offenses. This appeal followed. II. APPLICABLE LAW AND STANDARD OF REVIEW A defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the 4 The trial was not held on May 7, 2018. The parties do not identify any location within this voluminous record establishing the exact reason for this final rescheduling of the trial, and we are unable to locate any hearing or order resetting the trial in the record. 9 United States Constitution and Article 1, § 10 of the Texas Constitution. U.S. CONST. amend. 6; TEX. CONT. art. 1, § 10; see State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim. App. 2021). We determine whether a speedy trial violation occurred on an “ad hoc basis” by considering the following four “Barker factors”: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); Lopez, 631 S.W.3d at 113. To that effect, we must conduct “a difficult and sensitive balancing process,” wherein the conduct of both the prosecutor and the defendant must be weighed. Barker, 407 U.S. at 533; see State v. Reyes, 162 S.W.3d 267, 268 (Tex. App.—San Antonio 2005, no pet.). “The defendant’s burden of proof on the latter two [Barker] factors ‘varies inversely’ with the State’s degree of culpability for the delay.” Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). “Thus, the greater the State’s bad faith or official negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial.” Cantu, 253 S.W.3d at 280–81. The State prevails by justifying the length of delay, while a defendant prevails by proving the assertion of the right and showing prejudice. Id. at 280. We must not apply a “wooden application” of the Barker factors because “dismissal of the charges is a radical remedy” and such an application “would infringe upon ‘the societal interest in trying people accused of crime, rather than granting them immunization because of legal error.’” Id. at 281. Accordingly, we “must apply the Barker balancing test with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant’s actual and asserted interest in a speedy trial has been 10 infringed.” Id. (emphasis added). “The constitutional right is that of a speedy trial, not dismissal of the charges.” Id. The standard of review we apply to a trial court’s decision on a motion for speedy trial is bifurcated. Lopez, 631 S.W.3d at 113. Factual findings are reviewed for an abuse of discretion, and legal conclusions are reviewed de novo. Id. at 113–14. III. DISCUSSION By his sole issue, Taylor contends that the “undue delay” of his trial “warrants dismissal of the indictment on speedy trial grounds.” The State responds that Taylor failed to preserve his appellant complaint “by neglecting to file a motion to dismiss or otherwise ask the trial court to dismiss for a speedy trial violation.” The parties dispute whether a defendant waives his right to a speedy trial by failing to request a speedy trial hearing.5 We need not find waiver here, however, because we agree with the State that the trial court’s proceedings which were non-evidentiary are insufficient to support a dismissal ruling in this case.6 In State v. De Leon, this Court held that the trial court “erred to the extent that it 5 Nonetheless, the Texas Court of Criminal Appeals noted the importance of preservation of a speedy trial claim in Henson v. State, stating: Without a requirement of preservation, a defendant would have great incentive not to insist upon a speedy trial and then to argue for the first time on appeal that the prosecution should be dismissed because of delay. The requirement of preservation forces the defendant to pick one strategy. He can either fail to insist upon a speedy trial and possibly reap benefits caused by delay, or he can insist on a prompt trial, and if it is not granted, argue for a dismissal. He may not do both. 407 S.W.3d 764, 769 (Tex. Crim. App. 2013). In Henson, the appellant made no demands for a speedy trial in the trial court as he “did not file a speedy-trial motion, did not request a hearing on the delays, and explicitly agreed to each and every reset.” Id. at 769. 6 We will assume that it was implicitly denied for purposes of our discussion. 11 dismissed” the cause on speedy trial grounds because “the issue of [the] defendant’s speedy trial right was never raised during the hearing or anytime before,” the trial court did not “receive evidence from either the defense or the prosecution on any of the Barker factors aside from taking notice of the record on the length of delay, and there was no “meaningful hearing on lack of a ‘speedy trial.’” 975 S.W.2d 722, 724 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.) (en banc). In State v. Reyes, the San Antonio Court of Appeals held that the trial court erred by dismissing a case on speedy trial grounds without conducting a meaningful hearing on the issue because “[t]he nature of the applicable balancing test of the Barker factors requires a full development of the facts.” Reyes, 162 S.W.3d at 269 (citing Newcomb v. State, 547 S.W.2d 37, 38 (Tex. Crim. App. 1977)). In Reyes, the defendant filed his speedy-trial motion on the morning that trial was set to commence. Id. The trial court held a speedy trial hearing the same day without providing the State prior notice that the speedy trial motion would be considered. Id. A reporter’s record of the proceeding was not taken. Id. The San Antonio court concluded that, “[b]ecause it appears the trial court failed to conduct a hearing on whether defendant’s right to a speedy trial was violated, we cannot render a considered decision on the issue of whether defendant was denied a speedy trial.” Id. (citing Newcomb, 547 S.W.2d at 38); see also State v. Bryan, No. 0214-00208-CR, 2015 WL 1284969, at *3 (Tex. App.—Fort Worth Mar. 19, 2015, no pet.) (mem. op., not designated for publication) (citations omitted) (explaining that it is a “tenet” that “a speedy-trial violation may not be found in the absence of a meaningful hearing”). 12 Here, as in Reyes, the record reveals that the trial court did not conduct a meaningful hearing on Taylor’s speedy-trial motion. While we have a reporter’s record of all the proceedings, this record merely shows that this cause had been languishing in the trial court for approximately twenty-four months, and the trial date had been reset on several occasions—sometimes by agreement, sometimes due to the State’s request, and sometimes due to Taylor’s request. The hearings wherein the case was reset were nonevidentiary and there was no discussion concerning prejudice to Taylor from the delay. See Barker, 407 U.S. at 530; State v. Lampkin, 630 S.W.3d 559, 563 (Tex. App.—San Antonio 2021, no pet.) (providing that the burden to prove assertion of the right to a speedy trial and to show prejudice is on the defendant). As to the reason for the delay, it is apparent from the record that some of the delay is attributable to the State’s unavailability of witnesses, but there is no indication whether this delay was justified and how it should be weighed. See Barker, 407 U.S. at 531 (“[D]ifferent weights should be assigned to different reasons [for delay]. A deliberate attempt to delay the trial should be weighted heavily against the government. A more neutral reason . . . should be weighted less heavily . . . . A valid reason . . . should serve to justify appropriate delay.”). In short, the applicable balancing test “requires a full development of the facts,” which did not occur here. Thus, the trial court would have had no authority to dismiss the case without conducting a meaningful hearing on the issue of whether the State denied Taylor his right to a speedy trial. See Reyes, 162 S.W.3d at 269; cf. Newcomb, 547 S.W.2d at 38 (“If we were to consider this issue [of violation of a defendant’s right to a speedy trial], which by nature of the applicable balancing test requires a full development 13 of the facts, on our own motion, it would be necessary to abate the case for a full hearing on the matter.”); see also State v. Mungia, 119 S.W.3d 814, 817 (Tex. Crim. App. 2003) (“[T]he dismissal of an indictment is a drastic measure only to be used in the most extraordinary circumstances.”). In other words, although Taylor “raised the speedy trial issue below, there is no meaningful evidentiary record from which we can apply, analyze, or balance the Barker factors.” Grimaldo v. State, 130 S.W.3d 450, 454 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.). In Grimaldo v. State, we declined to apply the Barker factors because the record contained no speedy trial hearing. Id. Likewise, here we are unable to apply the Barker factors as the trial court did not conduct a meaningful hearing on the speedy trial motion. See id. Therefore, we decline to reverse the trial court’s implicit denial of Taylor’s speedy trial motion. See id.; Reyes, 162 S.W.3d at 269; DeLeon, 975 S.W.2d at 724; see also Hansen, 407 S.W.3d at 760. We overrule Taylor’s sole issue. IV. CONCLUSION We affirm the trial court’s judgment. JAIME TIJERINA Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 6th day of October, 2022. 14

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