John Alfred Christmas v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-08-004-CR
2-08-005-CR
JOHN ALFRED CHRISTMAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant John Alfred Christmas was convicted of possession of a
prohibited weapon and six counts of aggravated assault. In two points,
Appellant argues that the trial court erred by denying his motion to
1
… See Tex. R. App. P. 47.4.
dismiss—claiming violation of both his federal and state right to a speedy trial.2
We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
At the time of the events underlying this case, Jean Gregory lived on a
small parcel of land near Sunset, Texas. Appellant was her live-in boyfriend.
Gregory lived in a double-wide mobile home. She provided room and board to
a couple—Yale Clark II and Jennifer Welsh—and their two children in a single-
wide trailer in exchange for labor and assistance. On the day in question,
December 13, 2005, two other children were visiting—Clark’s children from a
prior marriage.
During the early evening of December 13, by all accounts, Appellant and
Clark got into a heated argument while unloading Appellant’s vehicle. Clark and
Welsh attribute the argument to Appellant’s having been intoxicated. Appellant
testified that the argument escalated from his having confronted Clark about
Clark’s having possibly struck one of the children in the face. At this point,
Clark and Welsh gathered the four children into their car and attempted to leave
the premises.
2
… See U.S. Const. amend. VI; Tex. Const. art. I, § 10.
2
There is no dispute that during their attempt to leave, Appellant fired a
handgun at the vehicle, successfully hitting it twice. Clark and Welsh testified
that Appellant had brandished his gun and fired at them before they reached the
gate to exit the property. Appellant testified that he fired several shots at the
vehicle in self-defense because he had been pinned under the gate during his
attempts to prevent Clark and Welsh from leaving with the children—concerned
Clark might harm them.
Shortly after the vehicle made it to the highway, it broke down. Welsh
ran to a nearby house, called the police, and reported what had occurred. The
next day, Montague County law enforcement executed a search warrant at
Appellant’s and Gregory’s residence. The officers seized a .380 handgun and
a sawed-off shotgun. Appellant was charged with possession of a prohibited
weapon—the shotgun—and with six counts of aggravated assault. Appellant
was arrested the same day the search warrant was executed, December 14,
2005.
Indictments for these offenses were not returned until June 12, 2006.
During the time between his arrest and indictment, and up until and after
Appellant’s jury trial, Appellant remained in jail. The trial court appointed
Appellant an attorney on June 27, 2006. Despite having court appointed
counsel, Appellant filed his own hand written motion to dismiss all charges on
3
July 10, 2006, claiming the State had failed to return indictments within 180
days. 3
Appellant waived arraignment and entered a written plea of not guilty to
each charge on July 24, 2006.4 On August 16, 2006, the trial court denied
Appellant’s motion to dismiss regarding whether the indictment was brought
timely. A pretrial hearing was set for September 25, 2006. Appellant,
announcing not ready on September 25, joined the State in agreeing to reset
the pretrial hearing for November 27, 2006. Without the aid of his court
appointed attorney, Appellant again filed several pro se motions on October 9,
2007, none of which raised the issue of his speedy trial right. Appellant’s trial
was ultimately set for and began on November 6, 2007. Appellant filed another
3
… Although Appellant’s motion does not cite a specific statute, at the
hearing addressing this motion, all parties refer to Texas Code of Criminal
Procedure 32.01. See Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon 2006)
(“When a defendant has been detained in custody . . . the [charges shall be
dismissed] . . . if indictment . . . [is] not presented against such defendant on
or before the last day of the next term of the court which is held after his
commitment or admission to bail or on or before the 180th day after the date
of commitment or admission to bail, whichever date is later.”). The trial court
determined that the indictment had been properly presented against Appellant
“before the last day of the next term of the court.” See id.
4
… Although the prohibited weapons charge and the six aggravated
assault charges were filed under separate cause numbers in the trial court, each
of the procedural dates are parallel for both cause numbers, and the trial court,
upon agreement between Appellant and the State, granted a motion of joinder
prior to trial so that both causes would be tried before the same jury.
4
pro se motion to dismiss on November 7, 2007, alleging a denial of his speedy
trial right. The trial court heard this motion on the same date.
Appellant was the only person to testify at the hearing. The following
colloquy took place between Appellant and his trial counsel:
[DEFENSE COUNSEL]: And you were arrested for these charges in
December of 2005?
[Appellant]: Yes.
Q. And have you been continuously in custody since that time up until
now?
A. Yes.
Q. And during that -- you have cause to be filed -- actually, it’s a
motion prepared by you, asking the Court to dismiss this cause or these
causes for denial of speedy trial;[5 ] is that correct?
A. Yes.
Q. During that period of time that this case has been pending, have
you or do you have any concerns or problems that you think would effect
[sic] your defense as far as the delay in the trial?
A. Yes, of course. Just like the first witness, the trained, paid
professional couldn’t recall because it was over two years ago. That was
his statement, Bohannon, that was sitting here before me yesterday.
5
… Appellant’s motion for dismissal filed on November 7, 2007, is the
only motion specifically mentioning his speedy trial right. The hearing was
conducted to address this motion. Both of the colloquies duplicated in this
opinion contain the entirety of Appellant’s testimony at this hearing.
5
Q. Well, the lapse of time certainly would effect [sic] memory, I would
suppose. Is that a concern?
A. Oh, very much so. And whatever --
Q. Let me ask another question. And as far as the delay is concerned,
memories do change as far as the facts or recollections are concerned?
A. Oh, yes. And people move. You can’t get ahold of anybody. After
two years, you don’t know the addresses, phone numbers.
Q. Okay. Is there any particular witness that you had wanted to be
present here in trial that you were unable to bring to the Court?
A. Mr. Rhodes, but I wouldn’t know -- have any idea where he lives
now.
Q. Okay. Can you think of any other difficulty that the delay has
caused you as far as your defense is concerned?
A. It’s been just so long that -- to get everything together. And, like
I say, memories and, of course, the district attorney has had two years
with a law library and all of the things he has access to where I have --
and haven’t been able to read a newspaper.
Q. Okay. Well, let me ask it this way: Is there anything else you
wanted to present to the Court in regard to this motion?
A. To -- just the fact that everywhere else in the United States, it is a
pretty legitimate right that we have for a speedy trial. Every other state
in the union would consider it a fundamental right.
Q. Okay. Is that all?
A. Yeah.
Shortly after, the following colloquy took place during the State’s cross-
examination:
6
[Prosecutor]: Mr. Christmas, as far as Mr. Rhodes goes, is this a
person who was a witness to the events that occurred that evening?
A. No. He was a friend of Mr. Clark’s and talking with Mr. Clark had
information that wasn't in the statement.
Q. Okay. Have you attempted to locate Mr. Rhodes through your
attorney or any other agency? In other words, have you made attempts
to subpoena him or locate his whereabouts?
A. Other than the name, I had no other way of -- I believe I gave my
attorney the name quite a while back in a letter that was, like, after -- I
mean, he wasn’t my lawyer until seven months after I was incarcerated
sometime back. It’s hard to recall. It’s been a long time in the cage.
Q. So as far as you know, that’s all you have done to try to locate him
since. Do you know when he moved?
A. I mean, you’ve got to understand, I’ve been two years right across
the street without a window or a phone or access to --
Q. That’s nonresponsive. Do you know when he moved?
A. I have no clue.
Q. That’s the question.
A. I have no way of knowing.
Q. Now, the statement you’ve mentioned or these statements that he
made would be related to you or to someone else?
A. He related to me. He was incarcerated across the street for a
couple of months.
After Appellant’s testimony, the trial court took judicial notice of the
clerk’s record for each cause of action. The trial court also took judicial notice
7
that Appellant had been appointed counsel on June 27, 2006, and that
Appellant had agreed to reset the September 25, 2006 pretrial date to
November 27, 2006. The trial court denied Appellant’s motion to dismiss and
the jury trial proceeded.
Two days later, the jury found Appellant guilty of all counts in both
indictments. The jury assessed punishment at two years’ incarceration for the
weapons charge and for each of counts one and two of the assault charges.
The jury recommenced that these sentences be suspended and that Appellant
be placed on community supervision. The jury assessed two years’
incarceration on each of the remaining four assault counts without
recommendation.
Based on the jury’s verdict, the trial court ordered that Appellant serve
two years’ confinement for counts three through six—the aggravated assault
charges—with the sentences to run concurrently. The trial court noted that the
judgment would reflect 695 days credit to Appellant’s sentence on each of
these counts.6 The trial court suspended the sentences for the weapons charge
and for counts one and two of the assault charge and placed Appellant on
community supervision for a total of five years. This appeal followed.
6
… The trial court noted that at the time of sentencing, Appellant still had
roughly 35 days remaining on each of his two-year sentences.
8
III. D ISCUSSION
In two points, Appellant argues that the trial court erred by denying his
motion to dismiss. Citing both the United States and Texas Constitutions,
Appellant specifically complains that his right to a speedy trial was violated.
A. The Right to a Speedy Trial
The Sixth Amendment to the United States Constitution and article 1,
section 10 of the Texas Constitution guarantee an accused the right to a
speedy trial. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also
Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v.
State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d). Texas
courts analyze claims of a denial of this right, both under the federal and state
constitutions, the same. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim.
App. 1992). The right attaches once a person becomes an “accused,” that is,
once one is arrested or charged. United States v. Marion, 404 U.S. 307, 321,
92 S. Ct. 455, 461 (1971) (“[I]t is either a formal indictment or information or
else the actual restraints imposed by arrest and holding to answer a criminal
charge that engage the particular protections of the speedy-trial provision of the
Sixth Amendment.”).
Supreme Court precedent requires state courts to analyze federal
constitutional speedy trial claims “on an ad hoc basis” by weighing and then
9
balancing the four Barker v. Wingo factors: 1) length of the delay, 2) reason for
the delay, 3) assertion of the right, and 4) prejudice to the accused. 407 U.S.
514, 530, 92 S. Ct. 2182, 2192 (1972); State v. Munoz, 991 S.W.2d 818,
821 (Tex. Crim. App. 1999); Orand, 254 S.W.3d at 565. While the State has
the burden of justifying the length of delay, the defendant has the burden of
proving the assertion of the right and showing prejudice. See Barker, 407 U.S.
at 531, 92 S. Ct. at 2193; see also Ex parte McKenzie, 491 S.W.2d 122, 123
(Tex. Crim. App. 1973) (stating that “if an accused made a prima facie showing
of prejudice, the State must carry the obligation of proving that the accused
suffered no serious prejudice beyond that which ensued from the ordinary and
inevitable delay”). The defendant’s burden of proof on the latter two factors
“varies inversely” with the State’s degree of culpability for the delay. Robinson
v. Whitley, 2 F.3d 562, 570 (5th Cir.1993) (citing Doggett v. United States,
505 U.S. 647, 657, 112 S. Ct. 2686, 2695 (1992)). 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 v. State, 253 S.W.3d 273, 280–81 (Tex.
Crim. App. 2008).
The Barker test is triggered by a delay that is unreasonable enough to be
“presumptively prejudicial.” Doggett, 505 U.S. at 652 n.1, 112 S. Ct. at 2693
10
n.1 (1992). There is no set time element that triggers the analysis, but the
court of criminal appeals has held that a delay of four months is not sufficient
while a seventeen-month delay is. Pete v. State, 501 S.W.2d 683, 687 (Tex.
Crim. App. 1973) (“Appellant herein was tried [for rape] approximately four
months after he was bench warranted from the Texas Department of
Corrections. It is our opinion that this short period of time could in no way be
construed as ‘presumptively prejudicial.’“); Phillips v. State, 650 S.W.2d 396,
399 (Tex. Crim. App. 1983) (“Although there is no precise length of delay
which irrefutably constitutes a violation of the right to a speedy trial in all
cases, . . . a seventeen month delay is sufficient to raise the issue.”); see also
Doggett, 505 U.S. at 651, 652 n. 1, 112 S. Ct. at 2693 n.1 (noting that courts
have generally found post-accusation delay “presumptively prejudicial at least
as it approaches one year”). Once the Barker test is triggered, courts must
analyze the speedy trial claim by first weighing the strength of each of the
Barker factors and then balancing their relative weights in light of “the conduct
of both the prosecution and the defendant.” Zamorano, 84 S.W.3d at 648
(quoting Barker, 407 U.S. at 530, 92 S. Ct. at 2192). No one factor is either
a necessary or sufficient condition to the finding of a deprivation of the speedy
trial right. Id. Instead, the four factors are related and must be considered
together along with any other relevant circumstances. Barker, 407 U.S. at
11
530, 92 S. Ct. at 2192. As no factor possesses “talismanic qualities,” courts
must engage “in a difficult and sensitive balancing process” in each individual
case. Zamorano, 84 S.W.3d at 648 (quoting Barker, 407 U.S. at 533, 92 S.
Ct. at 2192).
Dismissal of the charging instrument with prejudice is mandated only
upon a finding that an accused’s speedy trial right was actually violated. See
Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2271 (1973).
Because dismissal of the charges is a radical remedy, a wooden application of
the Barker factors would infringe upon the societal interest in trying people
accused of crime, rather than granting them immunization because of legal
error. Cantu, 253 S.W.3d at 281. Thus, courts 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 infringed. See Barker, 407 U.S. at
534–35, 92 S. Ct. at 2192 (rejecting defendant’s claim of a speedy trial
violation despite a five-year delay when the record strongly indicated that the
defendant did not actually want a speedy trial). The constitutional right is that
of a speedy trial, not dismissal of the charges. Cantu, 253 S.W.3d at 281.
The amorphous quality of the right also leads to the unsatisfactorily
severe remedy of dismissal of the indictment when the right has been deprived.
12
Id. This is indeed a serious consequence because it means that a defendant
who may be guilty of a serious crime will go free, without having been tried.
Id. Such a remedy is more serious than an exclusionary rule or a reversal for
a new trial, but it is the only possible remedy. Id.
B. Standard of Review
In reviewing the trial court’s ruling on an appellant’s speedy trial claim,
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.
Zamorano, 84 S.W.3d at 648. Review of the individual Barker factors
necessarily involves fact determinations and legal conclusions, but the balancing
test as a whole is a purely legal question. Cantu, 253 S.W.3d at 282.
Under this standard, we defer not only to a trial judge’s resolution of
disputed facts, but also to the trial judge’s right to draw reasonable inferences
from those facts. Id. at 281. In assessing the evidence at a speedy trial
hearing, the trial judge may completely disregard a witness’s testimony, based
on credibility and demeanor evaluations, even if that testimony is
uncontroverted. Id. The trial judge may disbelieve any evidence so long as
there is a reasonable and articulable basis for doing so. Id. And all of the
evidence must be viewed in the light most favorable to the trial judge’s ultimate
ruling. Id. Because Appellant lost in the trial court on his speedy trial claim, we
13
presume that the trial judge resolved any disputed fact issues in the State’s
favor, and we defer to the implied findings of fact that the record supports.
See id. at 282.
C. Analysis of the Barker Factors
1. Length of Delay
The length of delay is a “triggering mechanism” for analysis of the other
Barker factors. Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93; Orand,
254 S.W.3d at 566. “Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other [Barker] factors that
go into the balance.” Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93.
Presumptive prejudice does not necessarily indicate a statistical probability of
prejudice; it simply marks the point at which courts deem the delay
unreasonable enough to trigger the Barker inquiry. Doggett, 505 U.S. at 652
n.1, 112 S. Ct. at 2691 n.1; Munoz, 991 S.W.2d at 821–22. This Barker
factor “is actually a double [i]nquiry.” Doggett, 505 U.S. at 651, 112 S. Ct.
at 2690. The first inquiry is whether the delay triggers the Barker analysis. Id.
If the analysis is triggered, the second enquiry “consider[s], as one factor . . .
the extent to which the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim.” Id.
14
The State concedes that the almost twenty-three month delay between
Appellant’s arrest and his eventual trial is sufficient to trigger the Barker
analysis. We agree. We also conclude that the length in delay, even though
in small part attributable to Appellant when he agreed to a continuance, weighs
against the State.
2. Reasons for the Delay
Under Barker, “different weights should be assigned to different reasons”
for the delay. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. This factor seeks
to ensure that courts not simply concentrate on the sheer passage of time
without taking into account the reasons underlying the delay. See, e.g., Rashad
v. Walsh, 300 F.3d 27, 34 (1st Cir. 2002). The inquiry into causation involves
a sliding scale: deliberately dilatory tactics must be weighed more heavily
against the State than periods of delay resulting from negligence. Barker, 407
U.S. at 531, 92 S. Ct. at 2192. Furthermore, valid reasons for delay should
not be weighed against the State. See Munoz, 991 S.W.2d at 824. And delay
which is attributable in whole or in part to the defendant can weigh against the
defendant and may even constitute a waiver of a speedy trial claim. See
Barker, 407 U.S. at 529, 92 S. Ct. at 2191–92 (noting that delay attributable
solely to defendant “may be given effect under standard waiver doctrine”); see
also Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574 (1970)
15
(Brennan, J., concurring) (reasoning that a defendant may be “disentitled to the
speedy-trial safeguard in the case of a delay for which he has, or shares,
responsibility”); United States v. Anderson, 902 F.2d 1105, 1110 (2nd Cir.)
(holding that there was no speedy trial violation when, among other things,
defense counsel agreed to delays and continuances for purposes of plea
negotiations), cert. denied, 498 U.S. 867 (1990).
Like the first factor, the State also concedes that the record does not
provide any valid reason for the delay of Appellant’s trial. While we agree that
this factor weighs against the State, the record does demonstrate that
Appellant agreed to at least one continuance. Further, there is a lack of any
evidence that the State deliberately used dilatory tactics. Even though we
conclude that this factor weighs against the State, it does not weigh heavily
against the State.
3. Assertion of the Right
We next consider the extent to which Appellant affirmatively sought a
speedy trial. Barker, 407 U.S. at 531–32, 92 S. Ct. at 2192. 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.” Id.
at 527, 92 S. Ct. at 2193. But even though it is the State’s duty to bring the
16
defendant to trial, it is the defendant’s duty to assert the right to a speedy trial.
Id. at 527–28, 92 S. Ct. at 2193 (“We think 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.”).
Whether and how a defendant asserts this right is closely related to the
other three factors because the strength of the defendant’s efforts will be
shaped by them. Id. at 531, 92 S. Ct. at 2196. “The more serious the
deprivation, the more likely a defendant is to complain.” Id. Thus, the
defendant’s assertion of the right to a speedy trial—or the failure to assert it—is
entitled to strong evidentiary weight in determining whether the defendant is
being deprived of the right. Id. at 531–32, 92 S. Ct. at 2196. Filing for a
dismissal instead of a speedy trial generally weakens a speedy trial claim
because it shows a desire to have no trial instead of a speedy one. Cantu, 253
S.W.3d at 283. If a defendant fails to first seek a speedy trial before seeking
dismissal of the charges, the defendant should provide cogent reasons for this
failure. Id.; see also Parkerson v. State, 942 S.W.2d 789, 791 (Tex.
App.—Fort Worth 1997, no pet.).
Repeated requests for a speedy trial weigh heavily in favor of the
defendant, while the failure to make such requests supports an inference that
the defendant does not really want a trial, only a dismissal. Barker, 407 U.S.
17
at 534–36, 92 S. Ct. at 2192–95 (“[B]arring extraordinary circumstances, we
would be reluctant indeed to rule that a defendant was denied this
constitutional right on a record that strongly indicates . . . that the defendant
did not want a speedy trial.”); see also United States v. Palmer, 537 F.2d
1287, 1288 (5th Cir. 1976) (“[T]he point at which the defendant asserts his
right is important because it may reflect the seriousness of the personal
prejudice he is experiencing.”); Harris, 827 S.W.2d at 957 (“[A]ppellant’s lack
of a timely demand for a speedy trial indicates strongly that he did not really
want a speedy trial.”).
In Palmer, the Fifth Circuit held that because the defendant ”first asserted
his right thirty months after his arrest, which was one month after he first
received notification of his indictment, and he complained at that time only of
the 22-month pre-indictment delay,” his “silence during the entire
pre-indictment period work[ed] against him because it suggest[ed] that any
hardships he suffered were either minimal or caused by other factors.” Palmer,
537 F.2d at 1288.
Likewise, in this case, Appellant did not assert his speedy trial right until
after trial had begun. And when Appellant did assert his right, it was in the
form of a motion to dismiss. In fact, Appellant filed multiple pro se motions to
dismiss during his pretrial incarceration, despite having a court-appointed
18
attorney. The trial court could have reasonably inferred that Appellant was not
interested in a speedy trial, but rather that he was interested only in a dismissal
of the charges against him. We conclude, as the trial court must have, that this
factor weighs against Appellant’s claim that his speedy trial right was violated.
4. Prejudice
Because “pretrial delay is often both inevitable and wholly justifiable,” the
fourth Barker factor examines whether and to what extent the delay has
prejudiced the defendant. Barker, 407 U.S. at 532, 92 S. Ct. at 2193;
Doggett, 505 U.S. at 656, 112 S. Ct. at 2692. When a court analyzes the
prejudice to the defendant, it must do so in light of the defendant’s interests
that the speedy trial right was designed to protect: (1) to prevent oppressive
pretrial incarceration, (2) to minimize the accused’s anxiety and concern, and
(3) to limit the possibility that the accused’s defense will be impaired. See
Dragoo v. State, 96 S.W.3d 308, 315 (Tex. Crim. App. 2003) (citing Barker,
407 U.S. at 532, 92 S. Ct. at 2193). Of these interests, the third is the most
important because the inability of a defendant to adequately prepare his case
skews the fairness of the entire system. Barker, 407 U.S. at 532, 92 S. Ct. at
2193; Doggett, 505 U.S. at 654, 112 S. Ct. at 2692; Dragoo, 96 S.W.3d at
315.
19
Appellant argues that this factor should weigh in favor of finding that his
speedy trial right was violated because his pretrial incarceration was oppressive,
he suffered “anxiety and concern” about the preparation of his defense, and he
was unable to locate a witness in preparing for his defense due to his
incarceration. We disagree.
Appellant’s incarceration may have been oppressive if he had not received
credit on his sentence for time served or if he had ultimately been found
innocent of the charges, but Appellant received credit on his sentence for his
pre-trial incarceration. See Starks v. State, 266 S.W.3d 605, 612 (Tex.
App.—El Paso 2008, no pet.) (holding that appellant’s twenty-five-month
pretrial incarceration was not oppressive when appellant received credit on his
sentence for time served and appellant ultimately pleaded guilty to charges);
see also United States v. Casas, 425 F.3d 23, 34–35 (1st Cir. 2005) (holding
defendants’ allegations of anxiety and concern during forty-one month period
of pretrial incarceration insufficient to show violation of speedy trial right when
time served was credited against sentences they received upon conviction);
Gray v. King, 724 F.2d 1199, 1204 (5th Cir. 1984) (holding that ten-month
incarceration was not oppressive pretrial incarceration when defendant received
credit for pretrial incarceration).
20
As to Appellant’s claim of having suffered from anxiety, any criminal
charge is certain to bring a level of anxiety with it; however, Appellant failed to
introduce any evidence that the anxiety he suffered either was abnormal or
caused his case prejudice. See Goodrum v. Quarterman, 547 F.3d 249, 263
(5th Cir. 2008) (“[G]eneralized expressions of anxiety and concern amount to
little more than a nominal showing of prejudice.”).
Finally, although Appellant mentions a witness he was unable to locate
due to his incarceration, Appellant did not testify how that witness’s testimony
would be relevant to his case. Appellant admitted that the witness was not a
witness to the events and said only that the witness had “information” about
another witness’s statement, but did not elaborate on what the information was
or what specific statement he was referring to. When asked whether he had
attempted to locate this alleged missing witness, Appellant ultimately replied,
“[I]t’s hard to recall. It’s been a long time in the cage.”
The trial court was entitled to disbelieve all or part of Appellant’s
testimony concerning his attempts to locate this witness. See Cantu, 253
S.W.3d at 281. The trial court was also entitled to draw the reasonable
inference that Appellant’s lack of specificity concerning this alleged witness’s
relevance to Appellant’s defense undermined the importance of the witness’s
testimony. The trial court could have reasonably concluded that Appellant had
21
failed to demonstrate that any witnesses forgot any details or otherwise
became unavailable as a result of the delay or that Appellant himself could not
recall the events because of the length of the delay. See Starks, 266 S.W.3d
at 613. In short, Appellant has not demonstrated any personal or defense
prejudice. The fourth factor favors a finding that Appellant’s right to a speedy
trial was not violated.
5. Balancing the Factors
Having addressed the Barker factors, we must now balance them. In
balancing these factors, we find the case of Meyer v. State from our sister
court in Waco instructive. See Meyer v. State, 27 S.W.3d 644, 651 (Tex.
App.—Waco 2000, pet. ref’d), abrogated on other grounds by Robinson v.
State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). Meyer was incarcerated
during a twenty-three month delay between his arrest and trial, the State gave
no valid reason for the delay, and Meyer timely and consistently asserted his
right to a speedy trial. Id. at 649–51. The court held that although Meyer had
suffered some oppressive pretrial incarceration and undue anxiety, he did not
make even a prima facie showing that his defense had been impaired by the
passage of time resulting from the delay in his trial. Balancing the Barker
22
factors, the Waco court of appeals concluded that Meyer was not denied his
speedy trial right. Id. at 651.7
In this case, like in Meyer, Appellant was incarcerated during a twenty-
three month delay between his arrest and trial and the State has given no valid
reason for the delay. Also, like in Meyer, Appellant has not even made a prima
facie showing that his defense was impaired by the passage of time resulting
from the delay in his trial. But unlike in Meyer, Appellant in this case did not
timely and consistently assert his right to a speedy trial, rather he only asserted
the right after trial had begun and then in the form of a motion to dismiss. He
had also previously filed his own motions to dismiss despite having court-
appointed counsel—indicating that he was not interested in a speedy trial, but
rather interested in not having a trial at all.
In conclusion, weighing in favor of finding that Appellant’s speedy trial
right was violated are the facts that there was a twenty-three month delay
between his arrest and trial and the State has given no valid reason for the
7
… It it is worth noting that Meyer sought a habeas claim in federal court.
Meyer v. Dretke, 291 F. Supp. 2d 471, 472 (N.D. Tex 2003), aff’d 104 Fed.
Appx. 956 (5th Cir. 2004), cert. denied 544 U.S. 923 (2005). The federal
district court for the Northern District of Texas denied habeas relief, holding
that the W aco court of appeals’s holding was neither “contrary to, [nor] an
unreasonable application of, clearly established federal law as determined by the
Supreme Court.” Id. at 479.
23
delay. Weighing against finding a violation of Appellant’s speedy trial right is
the fact that he failed to assert his right until more than twenty-three months
after his arrest, and then, he asserted that right in the form of a motion to
dismiss and after his trial had begun. Further, there is a lack of any substantial
personal or defense prejudice resulting from the delay and Appellant received
credit on his sentence for time served. We hold that the weight of these
factors, balanced together, supports the trial judge’s ruling to deny Appellant’s
motion to dismiss and that there was no violation of his right to a speedy trial.
We overrule Appellant’s two points.
IV. C ONCLUSION
Having overruled Appellant’s two points, we affirm the trial court’s
judgment.
DIXON W. HOLMAN
JUSTICE
PANEL: GARDNER and WALKER, JJ.; DIXON W. HOLMAN, J. (Senior Justice,
Retired, Sitting by Assignment).
WALKER, J. filed a concurring opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 5, 2009
24
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-004-CR
NO. 2-08-005-CR
JOHN ALFRED CHRISTMAS APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
------------
CONCURRING MEMORANDUM OPINION 1
------------
I respectfully concur with the majority’s disposition of this appeal. I write
separately to express some disagreement with the majority’s analysis of the
second two Barker2 speedy trial factors. Ultimately, however, existing case law
mandates the result reached by the majority.
1
… See Tex. R. App. P. 47.4.
2
… Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972).
The facts of the case are correctly and adequately set forth by the
majority, except the mostly additional facts that are set forth below as
pertinent. As the majority points out, the State’s attorney candidly conceded
during oral argument that the first and second Barker factors—the length of the
delay and the reasons for the delay—weigh in favor of Appellant. See Barker,
407 U.S. at 530, 92 S. Ct. at 2192.
Regarding the third Barker factor—the extent to which Appellant asserted
his right to a speedy trial—I cannot agree with the majority’s determination that
Appellant did not assert his speedy trial right until after trial had begun.
Majority Op. at 19. A review of the record shows that Appellant repeatedly
attempted to cause his case to come to a head—whether by dismissal or
disposition at trial. See id. Appellant sat in jail for six months before an
indictment was returned against him or an attorney was appointed for him. On
the day that the trial court appointed his attorney, the court said it would “see
about appointing an attorney for you if you want to have one,” to which
Appellant replied, “Well, I’ve got to do something. I can’t even get copies
made. I have no access to the law library or anything. . . . So I’m kind of
crippled here.” Later in the same hearing, Appellant noted that an appointed
attorney “would be better than I am doing.”
2
The record shows that even after an attorney was appointed, Appellant
was the one, rather than his attorney, to file a motion to dismiss,3 claiming that
the State failed to return an indictment within 180 days. See Tex. Code Crim.
Proc. Ann. art. 32.01 (Vernon 2006) (providing for dismissal of charges when
defendant has been detained in custody without presentment of an indictment
on or before the later of either the last day of the next term of court which is
held after defendant’s commitment or on or before the 180th day after the date
of commitment). Although Appellant’s motion to dismiss failed to use the
magic words requesting a speedy trial, it is clear that Appellant was attempting
to do something to force his case out of its stalemate.
3
… The same day that he filed his motion to dismiss, Appellant also filed
a motion requesting that the court instruct the Montague County Sheriff’s
Department and jail staff to provide him access to confidential documents, legal
tablets, ink pens, and the Montague County law library. Appellant explained in
his motion that the jail administrator “repeatedly denied me access to the law
library” and told Appellant “that copies and access to the law library are not
requirements of the state jail commission.” In his motion, Appellant noted that
his court-appointed attorney was acting as co-counsel to Appellant. The record
is silent regarding whether the court approved of this hybrid representation, but
both of Appellant’s handwritten motions to dismiss were relied upon by counsel
at hearings on these motions and the trial court ruled on these motions. See
Robinson v. State, 240 S.W.3d 919, 923 (Tex. Crim. App. 2007) (holding that
trial court is free to disregard pro se motions of a defendant represented by
counsel, but once a court chooses to rule on such motions, that those decisions
are reviewable); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976)
(holding that although a criminal defendant does not have the right to hybrid
representation, a patient trial judge may permit it).
3
Appellant’s efforts to move his case off dead center are further evidenced
by the fact that two months after the hearing on Appellant’s first motion to
dismiss, he filed several handwritten motions for discovery—motions attempting
to move the case forward. And on the day of trial, Appellant filed a second
handwritten motion to dismiss, this time alleging a denial of his right to a
speedy trial. When his attorney presented the motion to the court, he explained
that Appellant brought it with him to court that day and that the State had not
had a chance to review it. Appellant explained, “I just got – I have no access
– until I got that copy of the constitution and stuff, I didn’t know what to put
in it.”
Appellant does not bear the burden to bring himself to trial; that is the
State’s duty. See Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App.
2008) (citing Barker, 407 U.S. at 527–28, 92 S. Ct. at 2190–91). Although
Appellant does have the responsibility to assert his right to a speedy trial in
some fashion, the right to a speedy trial is constitutionally guaranteed not only
to the vigilant and the knowledgeable. Id.; Orand v. State, 254 S.W.3d 560,
568 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing Barker, 407 U.S. at 527
n.27, 92 S. Ct. at 2190 n.27). The record demonstrates that Appellant was
not simply acquiescing to the delay while he was jailed for twenty-three
months; Appellant sought access to the law library and to items necessary to
4
prepare a defense, and ultimately asserted, albeit in a motion to dismiss, his
right to a speedy trial. See Barker, 407 U.S. at 527, 92 S. Ct. at 2190 (noting
that it is impossible to pinpoint a precise time in the process when the
defendant must assert his right to a speedy trial). These efforts by Appellant
make analysis of the third Barker factor a much closer call than recognized by
the majority. Nevertheless, existing case law simply precludes a determination
that this factor weighs in Appellant’s favor. See, e.g., id. at 517–19, 533–35,
92 S. Ct. at 2185–87, 2193–94 (holding that filing of motion to dismiss
indictment in response to “another motion for continuance” by government
after over three-year delay was not assertion of speedy trial right); United
States v. Palmer, 537 F.2d 1287, 1288 (5th Cir. 1976) (holding that
defendant’s silence during twenty-two month pre-indictment period weighed
against him when he asserted his right thirty months after arrest and one month
after notified of his indictment); Cantu, 253 S.W.3d at 277, 286 (noting that
appellant’s tardiness in asserting his right weighed against him when he filed
motion to dismiss less than two months after he was charged but over sixteen
months after his arrest); Dragoo v. State, 96 S.W.3d 308, 315 (Tex. Crim.
App. 2003) (holding that defendant’s failure to assert speedy-trial violation for
three and a half years, until just before trial began, although represented by
counsel and absent any assertion that counsel was ineffective, caused third
5
Barker factor to weigh against him); Phillips v. State, 650 S.W.2d 396, 401
(Tex. Crim. App. 1983) (“[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.”); Parkerson v. State, 942 S.W.2d 789, 791 (Tex.
App.—Fort Worth 1997, no pet.) (holding that appellant’s request for dismissal,
rather than speedy trial, weakened his speedy-trial claim).
Regarding the fourth Barker factor, “prejudice,” Appellant suffered pretrial
incarceration in an uncomplicated case for twenty-three months; six months
passed before Appellant was indicted and before counsel was appointed for
him. See Barker, 407 U.S. at 531–32, 92 S. Ct. at 2192–93. The majority
summarily concludes that this pretrial incarceration was not oppressive because
Appellant received credit for time served. Maj. Op. at 20. Receiving credit
retroactively for time served, however, cannot completely undo or cure
oppressive pretrial incarceration. See State v. Munoz, 991 S.W.2d 818, 828
(Tex. Crim. App. 1999) (recognizing that “[w]hat is dispositive of ‘this
[oppressive pretrial incarceration] consideration’ is that [Appellant] was
incarcerated during the entire [twenty-three]-month delay”); see also Barker,
407 U.S. at 532–33, 92 S. Ct. at 2193 (“The time spent in jail awaiting trial
has a detrimental impact on the individual. It often means loss of a job; it
disrupts family life; and it enforces idleness. Most jails offer little or no
6
recreational or rehabilitative programs. The time spent in jail is simply dead
time. Moreover, if a defendant is locked up, he is hindered in his ability to
gather evidence, contact witnesses, or otherwise prepare his defense.”).
The prejudice to Appellant is also somewhat self-evident from the nature
of the charges against him; individuals engaged in and witnesses to domestic
disputes escalating to assaults sometimes live more transient lifestyles. After
twenty-three months of pretrial incarceration, Appellant testified that “people
move. You can’t get ahold [sic] of anybody. After two years, you don’t know
the addresses, phone numbers.” Appellant also testified that he would have
called a Mr. Rhodes to testify to “information that wasn’t in the statement” if
he knew how to contact him. Ultimately, Appellant called only two witnesses
at trial—himself and his girlfriend at the time of the incident. Under the fourth
Barker factor, affirmative evidence of prejudice is not necessary and the
presumption of prejudice grows and intensifies over time. See Orand, 254
S.W.3d at 569 (noting that “time’s erosion of exculpatory evidence and
testimony can rarely be shown”).
Existing case law, however, mandates that after a two-year delay
Appellant must establish more than speculative prejudice to his defense. See,
e.g., Cantu, 253 S.W.3d at 277 (noting in its prejudice analysis that “there was
no evidence that appellant lost his job or had his work schedule disrupted”);
7
Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (“[A]ppellant
offered no evidence to the trial court that the delay had caused him any unusual
anxiety or concern, i.e., any anxiety or concern beyond the level normally
associated with being charged with [the] crime.”); Burgett v. State, No. 02-05-
00377-CR, 2006 WL 3525434, at *4 (Tex. App.—Fort Worth Apr. 25, 2007,
pet. ref’d) (mem. op., not designated for publication) (finding no connection
between appellant’s lack of access to the law library with his claim of
prejudice); State v. Wray, No. 05-01-01799-CR, 2002 WL 1763567, at *4
(Tex. App.—Dallas July 31, 2002, pet. dism’d) (not designated for publication)
(holding delay of two and one-half years was not presumptively prejudicial);
Meyer v. State, 27 S.W.3d 644, 650 (Tex. App.—Waco 2000, pet. ref’d)
(holding that defendant’s claim of prejudice based on missing witnesses did not
support prejudice finding because defendant, who was incarcerated during the
entire twenty-three month delay, failed to address both materiality and
relevance of the missing witnesses and his efforts to find them), abrogated on
other grounds by Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App.
2007) . Here Appellant did not do so.
For the reasons stated above, I respectfully concur in the majority’s
opinion.
SUE WALKER
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 5, 2009
8