Michaiah Sample v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00817-CR
Michaiah Sample, Appellant
v.
The State of Texas, Appellee
FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY,
NO. D-1-DC-15-600084, THE HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING
OPINION
The jury found Appellant Michaiah Sample guilty of indecency with a child by
contact. Tex. Pen. Code § 21.11(a)(1). The jury assessed sentence at seven years in prison and
recommended that the court suspend the sentence and place Sample on community supervision.
The trial court imposed but suspended the seven-year sentence and imposed a seven-year term of
community supervision. Sample asserts that the trial court erred in denying his motion to
dismiss the prosecution on speedy-trial grounds. We will affirm.
BACKGROUND
According to the parties’ stipulated timeline, Appellant was arrested on
July 15, 2015. He was accused of digitally penetrating his friend’s fifteen-year-old daughter
while she slept. The girl awoke during the act, and Appellant fled and was apprehended. The
girl’s examination, Appellant’s buccal swab, and other physical evidence was submitted to the
Department of Public Safety laboratory. Appellant was released from jail on August 12, 2015,
and hired counsel. Appellant was indicted for indecency with a child on September 1, 2015. On
November 11, 2016, the Department of Public Safety laboratory produced a DNA report that was
negative for Appellant’s DNA. Appellant’s counsel also requested the background information
on the testing; the report was provided to the defense on February 8, 2017. Appellant hired DNA
experts who provided a ten-page report on the DNA testing on August 17, 2017.
On August 20, 2015, Appellant was arrested for a June 2015 sexual assault of an
adult; he was released from jail on August 28, 2015. He was not indicted for that offense until
June 19, 2017. An assistant district attorney testified that the delay in the indictment in that case
was due in part to a delay in obtaining DNA results in that case. 1 The DNA report in the adult
case was also exculpatory.
Appellant was arraigned in both cases on October 22, 2018. Appellant was
represented by one attorney (original counsel) 2 from 2015 through October when new counsel
moved to substitute on October 26, 2018, and replaced original counsel when the court granted
the motion on October 31, 2018.
New counsel filed a motion to dismiss both cases on speedy-trial grounds on
November 13, 2018, and filed an amended motion to dismiss on December 14, 2018. Appellant
did not request a speedy trial but requested dismissal for the denial of one. The court heard
testimony on the motions on January 10, 2019, and February 11, 2019. On the record in the
second hearing, the trial court observed that the delay could be sufficient to support dismissal of
1 Witnesses testified that DNA laboratories paused testing while changing analysis
methods, and delays were exacerbated by the Austin Police Department lab closing permanently
in 2016.
2 Appellant may have been briefly represented by another attorney before original
counsel, but that attorney’s acts or omissions are not relevant to the claims here.
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the adult charge, and the State asserts without contradiction that it was thereafter dismissed. The
trial court stated that there was evidence to support the finding that Appellant suffered anxiety,
depression, loss of income, and other prejudice as a result of the delay. The court also assumed
that the passage of time caused Appellant harm in the difficulty in finding witnesses. The trial
court nevertheless denied the motion to dismiss this case in part because Appellant did not first
request a trial; the trial court found that Appellant’s original counsel sought a favorable plea
bargain, not a trial. He concluded that Appellant acquiesced in and sought delay in this case as a
strategic matter. The trial court signed an order denying the motion to dismiss this indecency
with a child charge without specific findings on March 20, 2019.
The guilt/innocence phase of the trial in this cause began September 30, 2019, and
concluded October 3, 2019. The punishment phase followed on October 7, 2019, and sentencing
occurred on November 8, 2019.
APPLICABLE LAW
The Sixth Amendment to the United States Constitution guarantees an accused
the right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The
right attaches once a person is either arrested or formally charged. Id. The speedy-trial right is
amorphous, slippery, and necessarily relative, and no set amount of time is too long. State
v. Davis, 549 S.W.3d 688, 697 (Tex. App.—Austin 2017, no pet.) (citing Hopper v. State,
520 S.W.3d 915, 923-24 (Tex. Crim. App. 2017) ); see also Henson v. State, 407 S.W.3d 764,
767 (Tex. Crim. App. 2013). In assessing speedy-trial claims, courts balance factors including,
but not necessarily limited to: (1) length of the delay, (2) reason for the delay, (3) assertion of the
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right, and (4) prejudice to the accused. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App.
2003); Davis, 549 S.W.3d at 697; (both citing test in Barker v. Wingo 407 U.S. 514, 530 (1972)).
No single factor is necessary or sufficient to establish a violation of the right to
speedy trial. Dragoo, 96 S.W.3d at 314 (citing Barker, 407 U.S. at 533). Instead, the four
factors are related and must be considered together along with other relevant circumstances.
Cantu, 253 S.W.3d at 281. We must apply the 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. Id. The length of the delay is in part a
triggering mechanism and, if sufficiently unreasonable on its face, becomes one factor among
several. Dragoo, 96 S.W.3d at 313 (citing Doggett v. U.S., 505 U.S. 647, 652 (1992)). More
serious and complex crimes can sustain a longer wait for a trial. Davis, 549 S.W.3d at 697.
The State has the burden of justifying the length of the delay, and defendants must
prove that they asserted the right and suffered prejudice as a result of the delay. Id. In some
cases, filing for a dismissal, instead of asking for a speedy trial, will weaken a speedy trial claim
because it shows a desire to not go to trial at all. Cantu, 253 S.W.3d at 283. If a defendant fails
to first seek a speedy trial before seeking dismissal of the charges, he should provide cogent
reasons for this failure. Id. However, “the defendant has no duty to bring himself to trial; that is
the State’s duty.” Zamorano v. State, 84 S.W.3d 643, 651 (Tex. Crim. App. 2002) (citing
Barker, 407 U.S. at 527).
A lengthy delay reduces defendants’ burden to show prejudice but increases their
burden to show that they timely asserted the right. See Dragoo, 96 S.W.3d at 314 (inaction
weighs more heavily against violation as delay lengthens); Zamorano, 84 S.W.3d at 649(presumption that pretrial delay prejudiced accused intensifies over time). A party who fails to
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demand a speedy trial does not waive the right, and courts can weigh a defendant’s knowing
choice not to object to the failure to set a trial date differently from defendants whose attorneys
acquiesce in long delays without adequately informing the defendant. Barker, 407 U.S. at
528-29. Reviewing courts must assess prejudice in light of the interests the speedy-trial right
was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety
and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Id.
at 532. Evidence of generalized anxiety, though relevant, is not sufficient proof of prejudice
under the Barker test, especially when it is no greater anxiety or concern beyond the level
normally associated with a criminal charge or investigation. Cantu, 253 S.W.3d at 286.
We review a trial court’s ruling on a speedy-trial claim with a two-phase standard:
we review factual components for an abuse of discretion and legal components de novo. Id.
at 282. Review of the four factors necessarily involves fact determinations and legal
conclusions, but the balancing test as a whole is a purely legal question. Id. An appellate court
reviewing a trial court’s ruling on a motion to dismiss for want of a speedy trial must do so in
light of the arguments, information, and evidence that was available to the trial court when it
ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (citing Dragoo, 96 S.W.3d at
313). We defer to a trial court’s resolution of disputed facts and reasonable inferences from
those facts. Cantu, 253 S.W.3d at 282. We view the evidence in the light most favorable to the
trial court’s ultimate ruling. Id.DISCUSSION
Appellant contends that the trial court erred in denying his motion to dismiss the
prosecution on speedy-trial grounds. He contends that the delay was substantial, unjustified, and
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prejudicial. He argues that his original counsel’s strategic decision not to assert his speedy-trial
right should not be held against him because the attorney did not inform Appellant of that right.
The State focuses on the Appellant’s strategic acquiescence in the delay to obtain information
and avoid trial and his failure to request a trial date even with new counsel. The State also
argues that Appellant did not show prejudice through an impaired ability to defend himself.
The trial court did not make written findings of fact to accompany its order
denying the motion to dismiss but stated at the hearing that, although Appellant suffered some
harm from the delay, the crux of the issue in this case was the lack of assertion of the right to
speedy trial and acquiescence in the delay. To forestall the need to call an investigator, the trial
court said it presumed some harm in the difficulty in locating a witness. The court stated that
Appellant never asserted his right as a strategy to obtain a more favorable plea bargain rather
than a trial. The trial court denied Appellant’s motion to dismiss this cause.
1. Length of Delay
The delay is measured from the date of arrest or the filing of the information,
whichever occurs first, to the date of trial. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App.
2003); Hunt v. State, 237 S.W.3d 434, 436 (Tex. App.—Waco 2007, pet. ref’d). In general,
delay approaching one year is sufficient to trigger a speedy trial inquiry. Doggett, 505 U.S. at652 n.1. Here, Appellant was arrested on July 15, 2015, indicted on September 1, 2015,
arraigned October 23, 2018, and filed his motion to dismiss on November 13, 2018. The trial
court denied the motion on March 20, 2019. The actual trial date was not a factor in the trial
court’s decision because it occurred after the decision on this motion to dismiss. When
Appellant filed his motion to dismiss, almost forty months had passed since he was arrested—
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well more than the one year that triggers a speedy-trial inquiry. The trial court concluded, and
we agree, that this factor weighs in Appellant’s favor.
2. Reason for Delay
The reasons given for the delay were chiefly the delays caused by the challenges
in the DNA testing laboratories and the strategies of original counsel. These factors left original
counsel uncomfortable with pushing for a trial or plea bargain without full discovery, which left
the prosecutors not willing to set the case for arraignment without the defendant’s agreement.
Original counsel testified that DNA lab results usually came in about six months.
The Austin Police Department (APD) detective submitted the victim’s DNA sample and
questionnaire in July 2015 and Appellant’s buccal swab from this case in August 2015. An
assistant district attorney testified that DNA labs paused their testing in 2016 because a different
theory of assessing mixtures required recalibration and validation of equipment and software.
This delay was compounded by an audit and shutdown of the APD lab in June 2016 that caused
the Travis County district attorney to redirect its samples to the Department of Public Safety
(DPS) laboratory. In turn, the DPS laboratory soon discovered that it could not process all of the
Travis County samples and decided to simply store them until Travis County requested that they
be sent elsewhere for testing; the APD detective testified that he was told that DPS was testing
rape kits but not buccal swabs or garments. The assistant district attorney handling the adult
victim’s case testified that she did not learn of that shift in the DPS lab’s intention until January
2018, then had to request that the samples be moved to a private lab for testing. The adult DNA
test results came back in June 2018 and were uploaded into the DA’s system in August 2018; the
test background information arrived after the motion to dismiss was filed in November 2018.
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The effect of the backup in DNA testing was compounded in this case by original
defense counsel’s desire to postpone trial until he received not only the DNA test results but the
information about the methods of testing in this case and in the adult case. Counsel linked the
two cases because he believed that the adult case could be used as evidence in the punishment
phase of the child case. Counsel testified that he recognized that having a pending indictment
was stressful, but that his general philosophy was that “if you haven’t been to trial you haven’t
been convicted.” 3 More specifically, counsel said he did not want to go to trial without having
all of the discovery including the full DNA testing information in both the child and the adult
cases. He also testified that he had trouble communicating the urgency of his need for the DNA
testing information because new prosecutors kept coming onto the case.
Prosecutors made a few offers for a plea bargain, but original defense counsel
testified that he did not believe that he could seriously negotiate without the full DNA testing
information in both cases. Defense counsel did not make a counteroffer. His DNA experts
asked for additional information regarding testing that arrived a year after he requested it and
after he had been replaced as defense counsel and new counsel filed the motion to dismiss.
The main reason for the delay seems to have been problems in the DNA testing
system, which is the type of problem that weighs against the State but not heavily. See Fuller
v. State, 624 S.W.3d 855, 864 (Tex. App.—Fort Worth 2021, pet. ref’d) (op. on reh’g)
(three-year delay in DNA testing when requested by State in murder case more like negligence
than deliberate conduct; it weighs against State but not heavily).
3 The Court of Criminal Appeals said more pithily, “[T]he failure to diligently seek a
speedy trial supports the hoary lawyer’s adage, ‘Never tried, never convicted.’” Cantu v. State,
253 S.W.3d 273, 283 (Tex. Crim. App. 2008).
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3. Assertion of the right
Appellant did not request a trial date or demand a speedy trial; original counsel
did not assert the right, and substituted counsel filed a motion to dismiss rather than demand a
trial date. Appellant’s mother testified that original counsel did not discuss speedy-trial rights
except in the context of proposing to file a motion demanding evidence favorable to Appellant
on grounds that delay in providing that evidence could deprive Appellant of his right to a speedy
trial. She testified that Appellant just wanted the case to be over, but there is no testimony that
he told his original counsel that desire; when the State asked original counsel whether Appellant
told him of that desire, Appellant’s new counsel objected, asserting attorney-client privilege, and
the trial court sustained the objection. Appellant contends that he was justified in not demanding
a trial date because the State failed to provide full background information on the DNA tests.
The test results in the adult case did not arrive until June 2018, and the background information
arrived after that. Appellant sought a plea deal that would not require him to register as a
sex offender.
Appellant did not assert his right to a speedy trial. His original counsel did not
assert the right as a strategic move because he wanted full DNA testing information before
negotiating a plea deal, and his new counsel sought to dismiss the case rather than obtain a trial.
This factor weighs somewhat against Appellant.
4. Prejudice caused by the delay
The showing of prejudice under the Barker factors is mixed. See 407 U.S. at 532.
The delay in trial had not led to excessive incarceration when the motion was heard as Appellant
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spent twenty-eight days in jail before gaining release on bond in this case in August 2015; his
subsequent arrest for the adult case led to an eight-day jail stay.
Appellant showed that he experienced anxiety and other ills while waiting for
trial. His mother testified that he went from being a carefree individual to a depressed one who
drank heavily, stopped eating, lost weight, dropped out of school, and began to experience back
pain and urinary problems. He lost out on a job opportunity because of his pending felonies. He
was vilified as a rapist on social media, had bricks thrown at him outside of a barbershop, and
was told to leave a Goodwill store because of his status. His mother said he just wanted the case
over with. But, other than showing that Appellant wanted the case to be finished, the evidence
did not tie these harms to the delay rather than the nature of the charges against him. See Cantu,
253 S.W.3d at 286. Even if a speedier trial had shortened the time the indecency charge was
merely pending, it would not have avoided all of the negative effects to Appellant of being
charged with indecency with a child and sexual assault of an adult.
Perhaps most critically, Appellant did not show that his ability to defend himself
was hampered and does not argue on appeal that it was hampered. See Balderas v. State,
517 S.W.3d 756, 772 (Tex. Crim. App. 2016) (noting that of three considerations in prejudice
determination, “the most important” is “limiting the possibility that the defense will be
impaired”). At the hearing, there was testimony about witnesses who would be necessary but
might be hard to locate; however, the DA’s investigator had located one of the witnesses within a
day of being asked to find her.
Appellant did not show that the delay itself caused him significant prejudice.
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5. Conclusion
Having reviewed the record in the light most favorable to the trial court’s
findings, we cannot say that the trial court erred by balancing all of this evidence and denying the
motion to dismiss.
On this record, we conclude that the trial court did not err by denying the motion
to dismiss because Appellant was not denied his Sixth Amendment right to a speedy trial. We
resolve Appellant’s sole issue on appeal against him and affirm the judgment of conviction.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Smith
Affirmed
Filed: May 25, 2022
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