Vijay K. Jain v. First American Bank, SSB ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00399-CV

Vijay K. Jain,

                                                                      Appellant

 v.

First American Bank, SSB,

                                                                      Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 03-000636-CV

MEMORANDUM Opinion

The Clerk of this Court notified the parties that the appellant’s brief was overdue in this cause and that the appeal would be dismissed if the brief was not filed within fourteen days.  The Court has received no response.  Accordingly, the appeal is dismissed for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed December 8, 2004

[CV06]

States Supreme Court in Barker v. Wingo. The factors to be considered are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant resulting from the delay. We will consider each of these factors as applied to the record before us.

Length of Delay

      The length of the delay is measured from the time the defendant is formally accused or arrested until the time of trial. No specific length of delay automatically constitutes a violation of the right to a speedy trial. In the present case, Rosier was arrested on August 22, 1987, and the complaint was filed on September 2, 1987. His trial began on April 3, 1991, resulting in a delay of approximately three years, seven months.

Reason for Delay

      In considering the reason for the delay, different weight should be assigned to different reasons. Deliberate attempts to hamper the defense weigh heavily against the State, and circumstances such as missing witnesses will justify a delay, but in most instances the delay will be caused by more neutral reasons such as overcrowded court dockets, which are weighed less heavily against the State.

      There is no evidence of any deliberate or intentional acts by the State or the trial court in an effort to delay Rosier's trial. Furthermore, although he filed a "Waiver of Arraignment, Plea of Not Guilty And Request For Jury/Bench Trial" on September 16, 1987, there is no indication in the record that he requested a speedy trial until he filed his motion to dismiss on July 31, 1990.

      The docket sheet indicates that Rosier first appeared before the county judge on September 4, 1987. At the hearing on Rosier's motion to dismiss, Jimmie McCullough, the county attorney, testified that the case was originally set for a pretrial hearing on September 15, which was reset for October 20, November 13, and December 4, 1987. He also testified that, at the time of the hearing Rosier's motion to dismiss (August 8, 1990), the case had never been set for trial. However, according to McCullough, the State announced ready for trial on September 1, 1987, and the arresting officer had been available to testify at all times since the case was filed. McCullough argued that the delay resulted from a vacancy in the office of county judge from September 1987 until a new county judge was appointed in 1988. In addition, Robertson County lacked an assistant prosecutor until October 1989. The court, citing the unusual vacancy in the office of county judge of approximately one year, denied the motion to dismiss and set the case for trial on August 22, 1990. However, the trial was apparently again reset for November 19, 1990. On that day the court granted Rosier's motion for continuance, and the case was finally called for trial on April 3, 1991. We find that the State has rebutted the presumption that no valid reason for the delay existed.

Rosier's Assertion of His Rights

      A defendant's assertion of his speedy-trial right is entitled to strong evidentiary weight in determining whether he is being deprived of the right. Failure to assert the right, however, will make it difficult to prove that he was denied a speedy trial. Although the record reflects that several pre-trial hearings were set, there is no evidence in the record that Rosier asserted a speedy-trial claim at any time before he filed his motion to dismiss on July 31, 1990. Based on our review of the record before us, it is clear that Rosier's prime objective was not to gain a speedy trial, but was instead to have the charge against him dismissed. Although a motion to dismiss can notify the State and the court of a speedy-trial claim, a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant and may sometimes attenuate the strength of his claim.

The Prejudice to Rosier

      Three interests must be considered when determining prejudice to the defendant: (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. Proof of actual prejudice is not required. The defendant must only make "some showing" that the delay has been prejudicial. Rosier has failed to meet this burden. At the hearing on Rosier's motion to dismiss, he did not testify or offer any evidence that the delay had been prejudicial. Furthermore, he has failed to point out in his appellate brief any prejudicial effect of the delay.

Balancing Test

      We must now engage in a difficult and sensitive balancing process in which none of the four factors alone are either necessary or sufficient to a finding of deprivation of the right to a speedy trial. In this case we find a delay of three years and seven months between the complaint and the trial. Rather than actively and persistently asserting his right to a speedy trial, however, Rosier sought a dismissal of the charges against him. Finally, Rosier has failed to make some showing of prejudice resulting from the delay. Under the circumstances of the case, we hold that Rosier was not denied his right to a speedy trial. We overrule point of error one.

Motion for Mistrial

      In point two, Rosier contends that the court erred in denying his motion for mistrial based on the unavailability of the original handwritten offense report. Rosier cites White v. State in support of his argument that error per se resulted from the court's failure to require production of the original handwritten offense report. Michael Smith, a trooper with the Texas Department of Public Safety, testified that he completed the original offense report by hand at the time of the arrest on August 22, 1987. According to Smith, the original handwritten offense report was destroyed when either he or a secretary typed the report on August 24, 1987. Smith also testified that only the typewritten report, which he used to refresh his memory, was available at the time of trial. The court in White held that, if an accused brings himself within the "Gaskin Rule," it is error to fail to require production of a prior and available report or statement of the witness. Because Smith testified that the original handwritten offense report was not available, the trial court did not err in failing to require its production. Point of error two is overruled.

Motion to Recuse

      In point three, Rosier contends that the trial court erred in failing to recuse himself. According to Rosier's brief, the trial court was "observed in ex parté communication with the County Attorney." However, Rosier's brief makes no reference to the page of the record where the matter complained of is to be found. Nor has he called our attention to any evidence in the record supporting his allegation that such a contact actually occurred. Because nothing is presented for review, we overrule point of error three.

Admission of Public Records

      In point four, Rosier contends that the trial court erred in admitting, over his hearsay objection, a certified copy of his driving record and a certified copy of a judgment of prior conviction in Matagorda County. During the punishment phase of the trial, the State argued that the records were admissible under Rules 803(6) and 803(8) of the Texas Rules of Criminal Evidence, and the court admitted the records over Rosier's objection.

      According to Rule 74(f) of the Texas Rules of Appellate Procedure, "If complaint is made of the improper admission or rejection of evidence, the substance of such evidence so admitted or rejected shall be set out with references to the pages of the record where the same may be found." Because neither exhibit is contained in the appellate record, nothing is preserved for review. As a result, we overrule point of error four.

Sentence

      In point five, Rosier contends that the trial court erred in failing to correct the judgment prepared by the State to conform to the sentence announced by the court at the punishment hearing. At the conclusion of the punishment hearing, the court announced the following punishment:

So your sentence here will be 104 weekends in jail, with 52 of them suspended, a $1750 fine, and 280 hours of community service.

[Prosecutor]: How many hours Judge?

            THE COURT: 280.

[Prosecutor]: Okay. On the 104 weekends, Judge, are you talking about going in on Friday and coming out on Sunday?

THE COURT: 6:00 o'clock Friday evening, get out 6:00 o'clock Sunday evening. And this is not going to be a hit-and-miss affair. It's going to be every weekend. If you have something special come up, you call me, and I'll either let you stay out that weekend or tell you you can't. But it's no hit-and-miss affair. It's an every-weekend affair.

However, the judgment and sentence signed by the court states that the court pronounced the sentence as follows:

It is the ORDER of this Court that the said defendant, who has been adjudged guilty of the offense set out above, be, and is hereby sentenced to confinement in the Robertson County Jail for 312 DAYS and to pay a fine set out above in the amount of $1,750.00 to be paid to the County Clerk of Robertson County, Texas and court costs set out above in the amount of $90.50 to be paid to the County Clerk of Robertson County, Texas. The sentence is to begin on October 4, 1991 at 6 P.M.

      According to article 42.01 of the Texas Code of Criminal Procedure, the judgment should reflect:

. . .

7.The verdict or verdicts of the jury or the finding or findings of the court;

8.In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury's verdict or the court's finding as to the proper punishment;

. . .

10.In the event of conviction where any probated punishment is assessed that the imposition of sentence is suspended and the defendant is placed on probation, setting forth the punishment assessed, the length of probation, and the probationary terms and conditions.

      Because the judgment fails to reflect the findings of the court on punishment, that the defendant be punished in accordance to the court's finding as to the proper punishment, or that the imposition of 52 weeks of the sentence is suspended as announced by the court, we sustain point of error five.

      The State argues on appeal that the sentence announced by the court at the punishment hearing did not comply with article 42.12, section 12, of the Texas Code of Criminal Procedure, which provides:

When the court having jurisdiction of a misdemeanor case grants probation to the defendant, the court may require as a condition of probation that the defendant submit to a period of detention in a county jail or community corrections facility to serve a term of imprisonment not to exceed 30 days and serve up to 100 hours of community service.

      As a result, we are unable to reform the judgment to conform to the sentence announced by the court at the punishment hearing. Therefore, in the interest of justice, we affirm the conviction, reverse the judgment on punishment, and remand the cause for a new punishment hearing.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed in part and reversed and remanded in part

Opinion delivered and filed August 19, 1992

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