Ray Dean Graf v. State ( 1998 )

Ray Dean Graf v State

  IN THE

TENTH COURT OF APPEALS

No. 10-97-342-CR

     RAY DEAN GRAF,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 372nd District Court

Tarrant County, Texas

Trial Court # 0596816D

O P I N I O N

      Appellant Graf appeals his conviction for aggravated assault with a deadly weapon (enhanced by two prior felony convictions), for which he was sentenced to 35 years in the Texas Department of Criminal Justice–Institutional Division.

      On October 1, 1995, Appellant, a drug user and dealer, was living with Janice Prince and her children. Appellant and a friend, Keith Clegg, had been up all night doing methamphetamine and speed. They went to Prince's apartment about 8:30 a.m. Appellant and Prince began to argue and Prince told Appellant to get his stuff and leave. Appellant then put his arm around her, turned her around, and then put an open-knife blade to her throat and told her he would kill her if she ever left him. Prince was afraid and went a short distance to a store and called the police. Officer Tabor responded to the call and found Prince upset, crying and shaky. She told the officer that Appellant held a knife to her throat and said she was afraid he was going to kill her.

      Appellant was arrested on October 1, 1995, and charges were filed on October 3. Appellant bonded out but was re-arrested on October 27, indicted on November 21, and remained in jail until the time of his trial on June 9, 1997, some 20 months after his first arrest.

      On June 10, Appellant filed a motion to dismiss the prosecution alleging his right to a speedy trial had been violated. The trial court overruled the motion and the trial proceeded. He was found guilty by a jury, pled "true" to the two alleged prior felony convictions, and elected to have the judge assess his punishment. The judge then sentenced him to 35 years in prison.

      Appellant appeals on one point of error: "The trial court erred by refusing to dismiss the indictment for violation of Appellant's right to a speedy trial."

      An accused is guaranteed the right to a speedy trial by the Sixth Amendment to the U.S. Constitution. Speedy trial claims are evaluated by the Courts of Appeal according to a balancing test containing four factors: (1) length of delay, (2) 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). Appellate review of a speedy trial claim is de novo and the balancing test is purely a legal question. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997); Parkerson v. State, 942 S.W.2d 789, 790 (Tex. App.—Fort Worth 1997, no pet.).

Length of Delay

      The first factor to consider is the length of the delay. The length of the delay is measured from the time defendant is arrested or formally accused. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Appellant was arrested on October 1, 1995, and trial commenced on June 9, 1997, a delay of 20 months. Courts generally hold that any delay of eight months or more is presumptively unreasonable and triggers a further speedy trial analysis. Harris, at 956. This factor weighs against the State.

Reason for Delay

      The second factor to consider is the reason for the delay. The State has the burden to establish an excuse for the delay. Parkerson, at 791. In assessing the reason for the delay this court should assign different weights to different reasons; that is, a deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State, while a more neutral reason, such as negligence or overcrowded courts, should be weighed less heavily. Barker v. Wingo, at 532. The record here does not demonstrate that the delay was a deliberate attempt to hamper the defense. The State announced “ready” on November 21, 1995, 51 days after Appellant’s initial arrest. The docket sheet reflects that the case was called for trial five times (January 22, 1996, May 6, 1996, September 9, 1996, December 9, 1996, and March 27, 1997). Appellant did not file any pretrial motions until May 8, 1997, and did not request the appointment of an investigator until June 2, 1997. Thus this record does not indicate that the delay was a deliberate attempt to gain some tactical advantage over Appellant. While this record does not exonerate the State, it does not weigh heavily against the State. Melendez v. State, 929 S.W.2d 595, 598 (Tex. App.—Corpus Christi 1996, no pet.). This factor weighs slightly against the State.

Assertion of Speedy Trial Rights

      The third factor we consider is whether and when Appellant asserted his right to a speedy trial. Appellant did not assert his right to a speedy trial until trial had commenced. Appellant concedes that this fact militates against his claim of a speedy trial violation. Barker v. Wingo, at 528, 532. A lengthy delay in asserting the right makes it more difficult to prove denial of a speedy trial and tends to diminish the importance of the State’s inability to excuse the delay. Clarke v. State, 928 S.W.2d 709, 714 (Tex. App.—Fort Worth 1996).

      Appellant’s assertion of his right to a speedy trial does not favor his speedy trial claim. He filed his motion after trial commenced. While his failure to invoke the right earlier did not amount to a waiver, it does make it more difficult for an accused to prove that he was denied a speedy trial. Barker v. Wingo, at 528-29. Appellant’s lack of an earlier demand for a speedy trial indicates that he did not really want a speedy trial. Harris, at 957. Appellant, rather than move for a speedy trial, asked the court to dismiss his indictment. A request for a dismissal instead of a speedy trial weakens a defendant’s claim because it shows a desire to have no trial instead of a speedy trial. Parkerson, at 791.

      Appellant’s “day of trial” request for a dismissal of his indictment weakens his assertion and this factor weighs against him.

Prejudice Caused by the Delay

      The fourth factor to consider is whether the delay of trial was prejudicial to the defendant. This factor is to be considered in the light of the following consequences that the right to a speedy trial is designed to prevent: (1) oppressive pretrial incarceration, (2) excessive anxiety over the pending charges, and (3) impairment of an accused’s ability to present a defense. Barber v. Wingo, at 532. The accused has the burden of making an initial showing that the delay was prejudicial. Once that showing is made, the burden shifts to the State to refute the prejudice. Parkerson, at 792. Appellant’s primary claim of prejudice is based on the unavailability at time of trial of Michael Ortega, a potential witness. When the unavailability of a witness is the basis of the claim of prejudice, the accused must show: (1) the witness was unavailable at time of trial, (2) the testimony that would have been offered was relevant and material to the defense, and (3) due diligence was exercised in an attempt to locate the witness for trial. Parkerson, at 792.

      Appellant did not meet this burden. While defense counsel stated he had been unable to find Ortega, he did not state what measures were taken to find him. Moreover, Appellant’s speedy trial motion makes no reference at all to Michael Ortega. Appellant has not made a prima facie showing of prejudice. Clarke, at 716. The factor of prejudice caused to Appellant by the delay weighs against Appellant.

      With two of the requisite factors weighing against the State and two of the factors weighing against Appellant, the trial court did not err in denying Appellant’s motion to dismiss the charged offense for lack of a speedy trial. Clarke, at 718.

      Appellant’s point is overruled. The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Cummings, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 24, 1998

Do not publish