Christopher Copeland v. State ( 1998 )

Christopher Copeland v. The State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-97-193-CR

     CHRISTOPHER COPELAND,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court # 3474-94

O P I N I O N

      The appellant, Christopher Copeland, was convicted by a jury of driving while intoxicated, and the trial court assessed punishment at 180 days’ imprisonment in the Brazos County Jail, probated for 18 months. See Tex. Pen. Code Ann. § 12.22 (Vernon 1994), § 49.04 (Vernon 1994 & Supp. 1998). By one point of error, Copeland contends he was denied his federal constitutional right to a speedy trial. See U.S. Const. amend. VI, XIV.

      On July 7, 1994, Copeland was arrested on the misdemeanor charge of driving while intoxicated in Bryan, Texas. Copeland’s trial commenced thirty-two months later, on March 24, 1997. Copeland first raised his speedy trial claim in his application for writ of habeas corpus, filed on the first day of trial. The record of the habeas hearing indicates that Copeland failed to introduce any evidence relating to the denial of his right to a speedy trial and that the State did not assert any reasons for the delay in setting the case for trial. 

WAS COPELAND DENIED HIS

CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL?

      The framework for Sixth Amendment speedy trial analysis was set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). No definite period of time has been held to be a per se violation of a defendant’s right to a speedy trial; alleged violations are considered on a case by case basis. Id. at 529-31, 92 S. Ct. at 2191-92; Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). Four factors must be considered by the reviewing court: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) any resulting prejudice to the defendant. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. On appeal, we must review the trial court’s decision de novo. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997).

Length of Delay

      The length of the delay has been described as a “triggering mechanism.” Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Emery, 881 S.W.2d at 708. There must be enough of a delay to be presumptively prejudicial to the defendant before it becomes necessary to consider the other three factors. Id. The clock begins to run for purposes of speedy trial analysis when the defendant is either arrested or charged. United States v. Marion, 404 U.S. 307, 314, 92 S. Ct. 455, 459 (1971); Emery, 881 S.W.2d at 708. No specific length of time triggers a speedy trial analysis but the Court of Criminal Appeals has noted that many courts have found that a delay of eight months or longer is prejudicial. Harris v. State, 827 S.W.2d 949, 956-57 (Tex. Crim. App. 1992).

      Approximately thirty-two months passed between Copeland’s arrest on July 7, 1994 and his trial on March 24, 1997. The State concedes that this time period is of sufficient length that the other factors set forth in Barker must be considered. Once it is determined that the length of the delay triggers a speedy trial analysis, the burden shifts to the State to excuse the delay. Emery, 881 S.W.2d at 708.   

Reason for Delay

      The record reveals many reasons for the repeated delays in Copeland’s trial. Copeland’s arrest occurred on July 7, 1994. Although arraignment was initially set for February 20, 1995, the criminal docket sheet indicates that it was reset for March 13, 1995. Defense counsel was appointed on March 15, 1995. The case was set for trial on July 19, 1995. Both parties announced ready for trial. On July 19, the docket sheet indicates that another case went to trial. The trial was set for February 6, 1996. Both parties announced ready for trial. On February 6, the docket sheet again indicates that another case went to trial. The trial court set Copeland for trial on June 3, 1996, but reset the date to June 10. However, the court granted Copeland’s motion for continuance, requested as a result of his attorney’s claim of a lumbar sprain, and reset the trial date to July 29, 1996. The court denied Copeland’s second motion for continuance on July 23. The docket sheet indicates that on July 29 another case went to trial. The court reset Copeland’s trial date to September 3, but the State filed a motion for continuance alleging that the State’s witness, Officer Dedeker, had a vacation which would render him unavailable for trial. The court granted the State’s motion and reset trial for November 18. The court then granted Copeland’s third motion for continuance, requested as a result of his attorney’s conflict with an out-of-state trip and non-refundable airline tickets. Trial was reset for December 2. The court’s next setting was for January 27, 1997, but trial was reset for March 3 due to a civil trial extension. Copeland’s jury trial commenced on March 24, 1997.

      In considering the reasons for the delay, different weights should be assigned to different reasons. See Orosco v. State, 827 S.W.2d 575, 576 (Tex. App.—Fort Worth 1992, pet. ref’d). While some delays are attributable to the State as attempts to hamper the defense, other justifiable delays arise because of missing witnesses or from neutral events, such as overcrowded dockets, a situation which weighs less heavily against the State. Floyd v. State, 959 S.W.2d 706, 710 (Tex. App.—Fort Worth 1998, no pet.).

      The record indicates that Copeland filed three motions for continuance, two of which were granted. The State filed and was granted one motion for continuance. The record further indicates that Copeland’s trial date was reset eleven times before he finally received a jury trial— thirty-two months after he was arrested. There is nothing in the record to indicate that the State intentionally caused any delays other than making one request for a continuance.

      Balancing Copeland’s continuances against the State’s continuance and delays arising from neutral events such as a crowded court docket, we conclude that the delay in Copeland’s trial was attributable to events that neither party could control. See id.

Assertion of Right

      Copeland maintains that his application for writ of habeas corpus filed on the first day of trial constituted a request for a speedy trial. The relevant language in his application asserted:

The [S]tate could not possibly have been ready for trial until after the charge had been filed. Texas Code of Criminal Procedure Art[s]. 32.01, 32A.02 and Art. 28.061 provide the defendant with the right to a fair and speedy trial. Further the defendant is entitled to a fair and speedy trial under the Constitution of the United States of America.

Assuming this language constituted a request for a speedy trial, Copeland first complained of a deprivation of his right to a speedy trial in a pretrial hearing on the first day of his trial. Further, Copeland only claimed that his arrest on July 7, 1994, with an information filed on November 18, 1994, exceeded the statutory period in which the State is required to present an information against an accused. Copeland did not argue at the habeas hearing that the thirty-two months which transpired between his arrest and trial deprived him of a speedy trial.

      Copeland did not assert his right to a speedy trial until the day of trial and failed to urge it before the court. Only on appeal does Copeland argue that the thirty-two months amounted to a deprivation of his right to a speedy trial. Although a defendant’s failure to assert a speedy trial claim earlier in the process does not waive his right to a speedy trial, the failure to assert that right in a more timely manner suggests that the defendant did not actually want a speedy trial. Holmes v. State, 938 S.W.2d 488, 491 (Tex. App.—Texarkana 1996, no pet.). We hold that this factor weighs against Copeland.  

Prejudice Resulting from the Delay

      The final factor, prejudice, must be assessed in the light of the interests which the speedy trial right was designed to protect: (1) to prevent oppressive pre-trial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 533, 92 S. Ct. at 2193; Emery, 881 S.W.2d at 709. It is the defendant’s burden to make a prima facie showing of prejudice. Once the defendant does so, the State is then obligated to prove that the accused suffered no serious prejudice other than that which ensues from the ordinary and inevitable delay. See Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973).

      Copeland raises the contention that his defense was prejudiced by delay for the first time on appeal. Because Copeland failed to timely present his complaint to the trial court at the habeas hearing, he has failed to preserve anything for our review. See Tex. R. App. P. 33.1. As a consequence, we have no choice but to consider this factor as weighing against Copeland.CONCLUSION

      Even though the State concedes that a thirty-two month delay between Copeland’s arrest and his trial is sufficient to trigger a speedy trial analysis under the Barker factors, balancing the remaining three factors, we hold that Copeland was not denied his right to a speedy trial.

      The judgment is affirmed.

                                                                         BOBBY L. CUMMINGS

                                                                         Justice

Before Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Affirmed

Opinion delivered and filed May 20, 1998

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