Daniel Pike Orand, Jr. A/K/A Danny Tyrail Bondurant v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-394-CR
DANIEL PIKE ORAND, JR. A/K/A APPELLANT
DANNY TYRAIL BONDURANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
The sole issue that we address in this appeal is whether the trial court
erred by ruling that the almost twelve-year delay between the indictment and
the arrest of Appellant Daniel Pike Orand, Jr. a/k/a Danny Tyrail Bondurant did
not violate Bondurant’s federal constitutional right to a speedy trial. For the
reasons set forth below, we hold that the trial court erred by concluding that
Bondurant was not prejudiced by the delay and that, consequently, the delay
did not violate Bondurant’s speedy trial rights. Accordingly, we reverse the trial
court’s judgment and render a judgment of acquittal.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
The grand jury returned an indictment on June 9, 1994, charging
Bondurant1 with indecency with a child. The offense report indicates that the
incident occurred in June 1992 in the City of Lake Dallas in Denton County. 2
Bondurant was eighteen or nineteen years old at the time of the offense and is
the uncle of the victim. Although a warrant issued in 1994 for Bondurant’s
arrest, he did not learn of the indictment or warrant for almost twelve years.
In February 2006, Bondurant learned of the warrant and immediately turned
himself in to authorities. In August 2006, over fourteen years after the date of
the offense, Bondurant—who was by this time thirty-two years old—was tried
and convicted. Bondurant had filed a probation application, swearing that he
had never before been convicted of a felony in the State of Texas or in any
other state; however, the jury assessed his punishment at six-and-a-half years’
confinement, and the trial court sentenced him accordingly. After his trial,
1
… Bondurant was formerly known as Daniel Pike O’Rand II.
2
… No one reported the incident to police for approximately eleven
months after it occurred, which explains almost one year of the two-year delay
between the offense and the indictment.
2
Bondurant obtained appellate counsel who timely filed a motion in arrest of
judgment and motion to dismiss the indictment, raising a violation of
Bondurant’s federal constitutional speedy trial rights.
The trial court conducted a hearing on Bondurant’s motion. Lake Dallas
Police Officer Ronald Newby, who was a criminal investigator assigned to
Bondurant’s case in 1993, testified at the hearing that the offense report in the
present case indicates the victim’s mother advised police on November 9,
1993, “that [Bondurant] was living with his mother in Springer, Oklahoma at
an unknown house number on Main Street.” Officer Newby confirmed that,
prior to Bondurant’s indictment, he had successfully telephoned Bondurant’s
mother’s residence in Springer, Oklahoma, and had tried to make arrangements
for Bondurant to “come down and give a statement.” Officer Newby agreed
that he knew Bondurant lived at home and that he had the telephone number
to Bondurant’s mother’s residence.
Concerning the level of difficulty one would encounter in attempting to
locate Bondurant, Officer Newby testified as follows:
[Defense Appellate Counsel]: Can you explain to me how it would
be possible for someone not to be able to find the defendant if
he—if you already knew that he lived with his mother and you had
the phone number? Would it be that difficult to go up there or to
know where he lived on Main Street in Springer, Oklahoma?”
3
[Officer Newby]: Okay, based on enough information here, the
defendant could have been tracked down.
[Defense Appellate Counsel]: How quickly if somebody was
diligently trying to find him?
[Officer Newby]: Probably not very long at all.
Bondurant testified at the hearing that he was thirty-two years old and
that since 1984 he has lived continuously with his mother in her home located
at the corner of Main and Northwest streets in Springer, Oklahoma. He
testified that he has a social security card and number in the name of Daniel
Pike O’Rand. A copy of the card was offered into evidence. Bondurant
testified that he has had the same social security number his entire life. He has
maintained an Oklahoma driver’s license, and when he received his license, his
driver’s license number matched his social security number. Bondurant was
employed by VE Enterprise from 1994 to 1996; he was employed by Dollar
General from 1996 to 2001; and the W-2 forms he received from his employers
contained his social security number. While working at Dollar General,
Bondurant fell down a flight of stairs at a Dollar General warehouse and became
disabled; he currently receives social security disability benefits.
When Bondurant was old enough, he hired a lawyer and, in 1994, legally
changed his name. Bondurant testified that he changed his name because his
brothers and sisters told him that Daniel Pike O’Rand I was not really his father.
4
He said that he had been thinking about changing his name for a long time,
several years, but he had to wait until he was an adult. Bondurant explained
that he kept his first name and changed his last name to his mother’s maiden
name, Bondurant. Bondurant testified, and indeed the court order granting him
a name change states, that he did “not seek to have his name changed for any
illegal or fraudulent purpose or to delay or hinder creditors.” Bondurant said
that he did not know of the charge against him when he changed his name.
Bondurant agreed that most people, if not everyone, that he knew in Springer,
Oklahoma, including people in the sheriff’s department who were friends of the
family, knew that he had changed his name.
Finally, Bondurant’s trial attorney testified at the hearing as follows, in
part:
[Defense Appellate Counsel]: Did you ever consider - - in light of
the lag of time between the date the indictment had been issued or
returned by the grand jury and the time that the defendant was
apprehended in February 2006, did it ever occur to you to file a
motion to dismiss for denial of a speedy trial?
[Defense Trial Counsel]: No.
[Defense Appellate Counsel]: Under the Federal Constitution or
otherwise?
[Defense Trial Counsel]: No.
[Defense Appellate Counsel]: Was your failure to do that or to
consider that in any way part of any kind of guided or misguided
5
trial strategy where the defendant would somehow gain any
tactical advantage by going ahead and being tried if you didn’t?
[Defense Trial Counsel]: No. The issue never came up.
....
[Defense Appellate Counsel]: What I am saying is did you ever tell
the defendant or explain to him or inform him adequately or
otherwise that he might have a speedy trial claim under the Sixth
Amendment of the Federal Constitution?
[Defense Trial Counsel]: The subject was never discussed in any
fashion at all. No.
[Defense Appellate Counsel]: Not at all?
[Defense Trial Counsel]: No.
At the conclusion of the hearing and after considering supplemental briefs filed
by Bondurant and the State, the trial court signed an order denying Bondurant’s
speedy trial claim. The order states that the trial court made the following
findings:
(a) The law enforcement agencies involved in the case on behalf of
the State of Texas failed to exercise due diligence in the
apprehension of the Defendant post-indictment.
(b) Despite the period of delay between the charging of the
Defendant by indictment and his ultimate apprehension, there was
no harm to the Defendant.
Bondurant timely perfected this appeal.
6
III. R IGHT TO S PEEDY T RIAL
The Sixth Amendment to the United States Constitution guarantees the
accused’s right to a speedy trial. Zamorano v. State, 84 S.W.3d 643, 647
(Tex. Crim. App. 2002). The United States Supreme Court has stated, “On its
face, the Speedy Trial Clause is written with such breadth that, taken literally,
it would forbid the government to delay the trial of an ‘accused’ for any reason
at all.” Id. (quoting Doggett v. U.S., 505 U.S. 647, 651, 112 S. Ct. 2686,
2690 (1992)). Thus, in Barker v. Wingo, the United States Supreme Court
qualified the literal sweep of the provision by analyzing the constitutional
question in terms of four specific factors:
1) whether the delay before trial was uncommonly long;
2) whether the government or the criminal defendant is more to
blame for the delay;
3) whether in due course, the defendant asserted his right to a
speedy trial; and
4) whether the defendant suffered prejudice as the delay’s
result.
407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). Under Barker, courts must
analyze federal constitutional speedy trial claims by first weighing the strength
of each of the above factors and then balancing their relative weights in light
7
of the conduct of both the prosecution and the defendant. Zamorano, 84
S.W.3d at 648. None of the four factors is either a necessary or sufficient
condition to the finding of a deprivation of the right to a speedy trial; instead,
all must be considered together along with any other relevant circumstances.
Id. No one factor possesses “talismanic qualities”; thus, courts must “engage
in a difficult and sensitive balancing process in each individual case.” Id.
(quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2182).
IV. S TANDARD OF R EVIEW
In reviewing the trial court’s ruling on Bondurant’s federal constitutional
speedy trial claims, 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. Id.
V. A NALYSIS OF THE B ARKER F ACTORS
A. Length of Delay
The length of delay between the initial charge and the trial acts as a
triggering mechanism, and unless the length of this delay is presumptively
prejudicial, courts need not inquire into or examine the other three speedy trial
factors. Id. Depending on the nature of the charges, a postaccusation delay
of about one year is “presumptively prejudicial.” Doggett, 505 U.S. at 652 n.1,
112 S. Ct. at 2691. If the accused shows that the interval between accusation
8
and trial has crossed the threshold dividing “ordinary” from “presumptively
prejudicial” delay, under the length-of-delay factor the court must then consider
the extent to which that delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim. Zamorano, 84 S.W.3d at 649 (quoting
Doggett, 505 U.S. at 652, 112 S. Ct. at 2690-91). This second inquiry is
significant to the speedy trial analysis because the “presumption that pretrial
delay has prejudiced the accused intensifies over time.” Id.
The State here concedes that the eleven-year, eight-month delay between
the indictment and the apprehension of Bondurant “was amply sufficient to
trigger a speedy-trial inquiry.” The State also concedes that “since the delay
stretched far beyond the minimum needed to trigger the inquiry,” “this factor
weighs heavily in favor of Appellant.” We agree. We have located no case in
Texas or United States Supreme Court jurisprudence dealing with a delay as
long or longer than the eleven-year, eight-month delay presented here. See,
e.g., Doggett, 505 U.S. at 657-58, 112 S. Ct. at 2693-94 (granting relief
based on an eight-and-a-half-year delay between Doggett’s indictment and
arrest); Zamorano, 84 S.W.3d at 649 (reversing trial and appellate courts’
failure to grant relief based on a two-year, ten-month delay between appellant’s
arrest and the hearing on his speedy trial motion); State v. Perkins, 911 S.W.2d
548, 551 (Tex. App.—Fort Worth 1995, no pet.) (affirming relief granted based
9
on two-year, nine-month delay between indictment and the speedy trial
hearing); see also State v. Smith, 66 S.W.3d 483, 489-90 (Tex. App.—Tyler
2001, no pet.) (affirming relief granted based on five-year delay between date
of charging instrument and resolution of the case); State v. Rangel, 980 S.W.2d
840, 843-45 (Tex. App.—San Antonio 1998, no pet.) (affirming relief granted
based on twenty-month delay between defendant’s arrest and the speedy trial
hearing).
The eleven-year, eight-month delay here is not only presumptively
prejudicial, it stretches far, far beyond (approximately twelve times beyond) the
approximately twelve-month minimum delay necessary to trigger judicial
examination of a speedy trial claim. Consequently, the length of the delay here
weighs extremely heavily against the State and in favor of Bondurant.
B. Reasons for the Delay
Here, the trial court made a fact finding concerning the second Barker
factor. The trial court found that the State failed to exercise due diligence 3 in
Bondurant’s apprehension. We review the trial court’s factual determination of
negligence by the government with considerable deference. See Doggett, 505
3
… We perceive no distinction, and indeed the State does not argue that
one exists, between a “failed to exercise due diligence” finding and a
“negligence” finding.
10
U.S. at 652, 112 S. Ct. at 2691 (explaining that as for the second Barker
criterion, “we review the trial court’s determinations of [governmental]
negligence with considerable deference”); Zamorano, 84 S.W.3d at 648-49
(explaining that we apply an abuse of discretion standard to the trial court’s
resolution of factual issues in a speedy trial challenge).
The record before us amply supports the trial court’s finding. The
evidence in the record before us shows that the State did nothing to attempt
to apprehend Bondurant after an indictment was returned and a warrant issued
for his arrest. 4 The State knew where Bondurant was living, had his phone
number, and had confirmed, prior to Bondurant’s indictment, his location at this
residence and his telephone number. Officer Newby conceded that Bondurant
could have been located in a very short period of time; he said, however, that
once a warrant was issued, the Denton County Sheriff’s office was supposed
to serve the warrant. Thus, the State offered virtually no explanation for its
failure for eleven years and eight months to make any attempt to apprehend
4
… The trial court stated on the record at the conclusion of the hearing:
I don’t recall any reason whatsoever being given that they didn’t go
and arrest the guy that would make sense to any half-ass
reasonable person. They just didn’t try to go get him. He lived in
Springer, Oklahoma for ten years. Springer, Oklahoma ain’t got dip
people in it. They called his mother up there before he was
indicted. He lived with his mother.
11
Bondurant. The trial court’s finding of negligence stands. See Doggett, 505
U.S. at 653, 112 S. Ct. at 2691 (noting on facts less compelling than the facts
presented here that the trial court’s finding of negligence by the government
stood).
In determining the weight to be assigned this factor in this case, we note
that different weights are given to different reasons for delay espoused by the
government. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. A deliberate attempt
to delay the trial in order to hamper the defense should be weighted heavily
against the government. Id., 92 S. Ct. at 2192. A more neutral reason such
as negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered because the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.
Id., 92 S. Ct. at 2192. Finally, a valid reason, such as a missing witness,
should serve to justify delay. Id., 92 S. Ct. at 2192.
Here, the State provided no explanation at all for its failure to make even
a single effort to apprehend Bondurant. In the absence of any explanation, the
delay weighs against the State. And the weight we assign to governmental
negligence compounds over time as the presumption of evidentiary prejudice
grows. Doggett, 505 U.S. at 657, 112 S. Ct. at 2693. Here, there was much
12
compounding over the eleven-year, eight-month delay. This factor weighs very,
very heavily against the State and in favor of Bondurant.
C. Assertion of the Right
Bondurant did not assert his speedy trial right until after a judgment was
entered against him. He raised it in a motion in arrest of judgment and to
dismiss the indictment as violative of his federal constitutional speedy trial
rights. See T EX. R. A PP. P. 22.
The nature of the speedy trial right makes it impossible to pinpoint a
precise time in the process when the right must be asserted or waived, but that
fact does not argue for placing the burden of protecting the right solely on
defendants. Barker, 407 U.S. at 527, 92 S. Ct. at 2190. The right to a speedy
trial is constitutionally guaranteed and, as such, is not to be honored only for
the vigilant and the knowledgeable. Id. at n.27, 92 S. Ct. at 2190 (quoting
Hodges v. United States, 408 F.2d 543, 551 (8th Cir. 1969)). Consequently,
the United States Supreme Court has expressly rejected the proposition that a
defendant who fails to demand a speedy trial has forever waived his right. Id.
at 528, 92 S. Ct. at 2191 (saying, “We reject, therefore, the rule that a
defendant who fails to demand a speedy trial forever waives his right.”). This
does not mean, however, that a defendant has no responsibility to assert his
13
right. Id., 92 S. Ct. at 2191. The better rule is that the defendant’s assertion
of or failure to assert his right to a speedy trial is one of the factors to be
considered in an inquiry into the deprivation of the right. Id.
Here, Bondurant testified that he was unaware of the indictment against
him or of the warrant out for his arrest until he learned of them in February
2006 and immediately turned himself in to authorities in Springer, Oklahoma.
This testimony was unchallenged. The State offered no testimony or evidence
that Bondurant had been informed by anyone of the indictment or of the
warrant prior to February 2006. Thus, Bondurant is not to be taxed for
invoking his speedy trial right only after his arrest. See Doggett, 505 U.S. at
653-54, 112 S. Ct. at 2691 (explaining that when the defendant did not know
of the indictment or warrant he could not be taxed for invoking his speedy trial
right only after his arrest).
The State nonetheless contends that Bondurant failed to timely assert his
speedy trial rights because he did not raise them for six months, until after
judgment was entered against him.5 But the crux of Bondurant’s speedy trial
5
… We have not included the six-month time period between Bondurant’s
apprehension and his trial in the computation of the eleven-year, eight-month
delay. An eleven-year, eight-month delay existed between the indictment and
Bondurant’s apprehension, and an additional six-month delay existed between
Bondurant’s apprehension and his trial.
14
complaint is not the six-month delay between his arrest and his trial; it is the
eleven-year, eight-month delay between when he was indicted and when he
learned of the charge and turned himself in to authorities. Bondurant raised this
speedy trial issue in a timely filed postjudgment motion, and the issue was
presented to the trial court for a ruling. See T EX. R. A PP. P. 22. Thus,
Bondurant asserted and properly preserved any error in the trial court’s ruling
on this speedy trial issue. See, e.g., T EX. R. A PP. P. 33.1(a).
Moreover, Bondurant’s trial counsel testified that he never informed
Bondurant of the possibility that a claim existed for the violation of Bondurant’s
speedy trial rights. Thus, the record before us will not support an inference that
Bondurant somehow knowingly, retroactively, waived his speedy trial rights
concerning the eleven-year, eight-month delay. See, e.g., Barker, 407 U.S. at
528, 92 S. Ct. at 2191 (rejecting the demand-waiver rule). Although Bondurant
could have asserted his speedy trial rights possibly six months earlier, the
failure to assert them at the earliest opportunity does not trigger a waiver of the
right in the absence of evidence that a waiver was intended. See Doggett, 505
U.S. at 654, 112 S. Ct. at 2691.
Nor does the record show that Bondurant acquiesced to the eleven-year,
eight-month delay between his indictment and his arrest; Bondurant testified
that he did not know of the charge against him. See Smith, 66 S.W.3d at 491
15
(affirming speedy trial relief granted by trial court even though “[i]n the present
case, Appellee never specifically requested a speedy trial,” only a dismissal of
the charges); accord Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App.
2003) (presuming prejudice from length of delay but holding that presumed
prejudice was extenuated by defendant’s long-time acquiescence to the delay);
Dragoo v. State, 96 S.W.3d 308, 315 (Tex. Crim. App. 2003) (holding that
when the appellant knew of charges against him and failed to assert a speedy
trial right for three-and-a-half years, was represented by counsel at all relevant
times, and no question was raised as to the competency of such counsel, the
assertion-of-the-right Barker factor weighed against him). We hold that
Bondurant timely asserted his speedy trial issue via his motion in arrest of
judgment and motion to dismiss the indictment which he filed in the trial court.
See T EX. R. A PP. P. 22.
This factor weighs at least slightly against the State and in favor of
Bondurant.
D. Prejudice Caused by the Delay
The final factor of “prejudice” must be assessed in light of the interests
the speedy trial right was intended to protect. See Barker, 407 U.S. at 532,
92 S. Ct. at 2193. Those interests are (1) to prevent oppressive pretrial
incarceration, (2) to minimize the accused’s anxiety and concern, and (3) to
16
limit the possibility the defense will be impaired. Id., 92 S. Ct. at 2193.
Because Bondurant was not confined and was unaware of the charges against
him or of the warrant that had issued for his arrest, the first two interests are
not at issue here. Consequently, we focus on the third interest, the possibility
that Bondurant’s defense was impaired.
Impairment of one’s defense is the most difficult form of speedy trial
prejudice to prove because time’s erosion of exculpatory evidence and
testimony can rarely be shown. Id., 92 S. Ct. at 2193. The possibility that the
accused’s defense will be impaired by dimming memories and loss of
exculpatory evidence is the most serious interest that the right to speedy trial
protects because the inability of a defendant to adequately prepare his case
skews the fairness of the entire system. Doggett, 505 U.S. at 654, 112 S. Ct
at 2692. Affirmative evidence of particularized prejudice is not essential to
every speedy trial claim because excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or even identify. Id.
at 655, 112 S. Ct. at 2693. And the presumption of prejudice grows and
intensifies over time. Id. at 656, 112 S. Ct. at 2693. However, the
presumption of prejudice to a defendant’s ability to defend himself can be
“extenuated . . . by the defendant’s acquiescence” in the delay. Id. at 658,
112 S. Ct. 2694.
17
A brief review of the Doggett case reveals that it is controlling here. In
Doggett, eight-and-a-half years elapsed between Doggett’s indictment and his
arrest. Id. at 648, 112 S. Ct. at 2689. Doggett did not know of the charges
against him, left the country for two years, then returned to the United States
and passed unhindered through customs, settled in Virgina, married, earned a
college degree, found a steady job, lived openly under his name, and stayed
within the law. Id. at 649, 112 S. Ct. at 2689. Six years after Doggett
returned to the United States, he was arrested. Id. at 650, 112 S. Ct. at 2690.
After his arrest, Doggett raised a speedy trial claim. Id., 112 S. Ct. at 2690.
The trial court found that the government was negligent in its efforts to
apprehend Doggett during the six years after he returned to the United States
but denied his speedy trial claim because it found that Doggett had not been
prejudiced. Id. at 650, 112 S. Ct. at 2690. A split panel of the court of
appeals affirmed. United States v. Doggett, 906 F.2d 573, 582 (11th Cir.
1990).
The United States Supreme Court reversed the judgment of the trial court
and of the court of appeals and found that Doggett’s speedy trial rights had
been violated by the six-year delay in his arrest after he returned to the United
States. Doggett, 505 U.S. at 658, 112 S. Ct. at 2694. Concerning the
18
prejudice prong of the Barker analysis, the Doggett Court explained that
Doggett was not required to show prejudice:
When the government’s negligence thus causes delay six times as
long as that generally sufficient to trigger judicial review, . . . and
when the presumption of prejudice, albeit unspecified, is neither
extenuated, as by the defendant’s acquiescence, nor persuasively
rebutted, the defendant is entitled to relief.
Id., 112 S. Ct. at 2694.
The State here argued in the trial court that Bondurant’s claim of
prejudice was “laughable” because he claimed that he was not at the house
when the incident with his niece occurred. Thus, according to the State, it was
a typical he-said, she-said case, and the length of the delay did not impact
either side’s strategy. But the State overlooks the fact that had Bondurant
been brought to trial sooner, perhaps he would have had some memory of
exactly where he was on the day of the incident and could have identified
witnesses to support his claim that he was not present at the time of the
incident. Bondurant cannot remember where he was or whom he was with on
the date of the incident, which occurred fourteen years and two months before
his trial.6 Thus, he cannot identify potential witnesses, nor make any showing
6
… To reiterate, the offense occured in June 1992; Bondurant was
indicted in June 1994, learned of the charge in February 2006, turned himself
in to authorities in February 2006, and was tried in August 2006.
19
of specific prejudice; time’s erosion of such exculpatory evidence and testimony
can rarely be shown. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193.
Additionally, due to the lapse of time, Bondurant was deprived of the ability to
effectively cross-examine the State’s witnesses; any word uttered or any fact
or detail provided by the State’s witness was simply unimpeachable. The
passage of time rendered the credibility of the State’s witnesses concrete,
exempt from the testing fire of a cross-examination planned after detailed
witness interviews and extensive defense investigation. Although Bondurant
points to no specific affirmative evidence of particularized prejudice, the
extreme and excessive length of the delay here presumptively compromised the
reliability of his trial in ways that neither party can prove or even identify. See
Doggett, 505 U.S. at 655, 112 S. Ct. at 2693. And the presumption of
prejudice intensified and grew with each passing year of delay. See id. at 656,
112 S. Ct. at 2693. The State’s argument that the case boiled down to a he-
said, she-said scenario may be correct, but it does not persuasively rebut the
mushrooming presumption of prejudice because it is undeniable that the
excessive delay between Bondurant’s indictment and his arrest forever
precluded Bondurant from proving that what he said was true and what she
said was not.
20
Just as the trial court in Doggett erroneously found that Doggett had not
been prejudiced by the delay between his indictment and arrest, the trial court
here likewise erred. The delay in Doggett was merely six times as long as that
generally sufficient to trigger judicial review. Id. at 658, 112 S. Ct. at 2693.
The delay here was twice as long as the delay in Doggett and was twelve times
as long as that generally sufficient to trigger judicial review. See id., 112 S. Ct.
at 2693. And like the delay in Doggett, the delay here was neither extenuated
(Bondurant did not acquiesce to the delay) nor rebutted (the State offered no
explanation for the delay). See Doggett, 505 U.S. at 658, 112 S. Ct. at 2694.
Thus, in summary, the fourth Barker prejudice factor weighs against the
State and in favor of Bondurant.
E. Balancing
Having analyzed the four Barker factors, we now balance them. Accord
Zamorano, 84 S.W.3d at 654-55. The eleven-year, eight-month delay between
Bondurant’s indictment and his apprehension weighs extremely heavily against
the State and in favor of Bondurant. Added to the weight of the first factor is
the compounding weight given to the second factor, the reason for the delay.
No reason whatsoever for the delay was offered by the State. Instead,
Bondurant put on evidence that even prior to his indictment—so for the duration
of the entire eleven-year, eight-month delay—the authorities possessed
21
knowledge of his location and a phone number where he could be reached.
Additionally, the trial court specifically found that the State failed to exercise
due diligence by making no efforts to apprehend Bondurant for eleven years and
eight months. The weight given to the second factor, compounding each year
during the eleven-year, eight-month delay, renders the weight given to this
factor extremely, almost insurmountably, heavy. The onerous weight given to
the second factor added together with the weight given to the first factor, tips
the scales so far in favor of Bondurant and against the State that it is doubtful
the weight of these two factors in Bondurant’s favor could be offset by the
remaining two factors even if they weighed in favor of the State, which they
do not.
But, nonetheless, we add the remaining two factors to the balance too.
The third factor likewise weighs at least slightly against the State. As
recognized by the United States Supreme Court, the defendant has no
obligation to bring himself to trial; the burden rests upon the government, and
here the State failed to discharge its obligation for almost twelve years.
Bondurant did assert his speedy trial rights in the trial court, and this assertion
sufficiently preserved the issue. Thus, adding the slight weight of this factor
to Bondurant’s side of the scales, the immense weight of the now three factors
stacked on Bondurant’s side is so heavy that, no matter what weight is given
22
to the remaining fourth prejudice factor weighing against the State, it cannot
cause the scales to tip any further in Bondurant’s favor.
Nonetheless, we add the fourth prejudice factor to the balancing analysis.
Although Bondurant did not show any specific prejudice, we have held that here
the length of the delay itself is sufficient to establish strongly presumed
prejudice. Because of the delay, fourteen years and two months elapsed
between the date of the offense and the date of Bondurant’s trial. The eleven-
year, eight-month delay attributable to the negligence of the State
presumptively prejudiced Bondurant, and as discussed above, the presumption
of prejudice grew with each passing year. The State has not persuasively
rebutted the by now very weighty presumption that Bondurant was prejudiced
by the delay. Thus, the fourth and final factor weighs against the State and in
favor of Bondurant. Adding it to the other three factors weighing against the
State and in favor of Bondurant, the scales are fully weighted in Bondurant’s
favor.
Having weighed each of the Barker factors and balanced their respective
weights in light of the conduct of both the State and Bondurant, we hold that
Bondurant was denied his right to a speedy trial under the Sixth Amendment to
the United States Constitution. We therefore sustain Bondurant’s sole issue.
VI. C ONCLUSION
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Having sustained Bondurant’s sole issue, we reverse the trial court’s
judgment and render a judgment of acquittal.
SUE WALKER
JUSTICE
PANEL B: LIVINGSTON, WALKER, and MCCOY, JJ.
PUBLISH
DELIVERED: April 10, 2008
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