Robert E. Massey v. State

Opinion issued October 14, 2004

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-02-01329-CR

---

ROBERT E. MASSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 20,501

---

MEMORANDUM OPINION

          Appellant, Robert E. Massey, pleaded guilty to the offense of aggravated robbery and true to an allegation in an enhancement paragraph that he had a prior felony conviction for possession of a controlled substance. The trial court sentenced him to thirty years’ confinement. In his sole point of error, Massey contends he was denied a speedy trial. We conclude that the State did not violate Massey’s right to a speedy trial and therefore affirm.

Facts

          A trial court convicted Massey in April 1994 of felony possession of a controlled substance, and sentenced him to nine years’ confinement. Authorities released him on parole in December 1998. Massey subsequently was arrested for aggravated robbery in May 1999, and indicted on October 26, 1999. The Texas Department of Criminal Justice (“TDCJ”) revoked Massey’s parole for his 1994 conviction because of the pending charges. In July 1999, authorities then returned Massey to the custody of the TDCJ. The State served Massey with the indictment for the aggravated robbery and escape offenses in November 1999, and Massey received notice that same month that the State placed a detainer on him. TDCJ discharged Massey in December 2001, and released him pursuant to the detainer into the physical custody of Walker County officials, who transported him to the county jail to prosecute him for the pending charges. In March 2002, Massey filed a motion to dismiss the indictment, contending that the State had failed to afford him a speedy trial.

Right to a Speedy Trial

          The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and applies to the states through the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184 (1972). An accused is also guaranteed the right to a speedy trial by the Texas Constitution. Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon Supp. 2004) (providing that an accused is guaranteed a speedy trial). Texas courts look to the federal courts to determine constitutional rights and apply the test articulated in Barker for a speedy-trial analysis. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). The Barker test requires a reviewing court to balance four factors to determine whether one’s right to a speedy trial has been violated: (1) the length of delay; (2) the reason for the delay; (3) defendant’s timely assertion of his speedy-trial right; and (4) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. As the reviewing court, in evaluating a speedy trial claim, we review factual issues for abuse of discretion, and legal issues de novo. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

Length of Delay

          The length of the delay is considered a “triggering mechanism”—absent a presumptively prejudicial delay, a reviewing court need not consider the other Barker factors. Barker, 407 U.S. at 530, 92 S. Ct. at 2192. Relying on Turner v. State, 545 S.W.2d 133, 137 (Tex. Crim. App. 1977), Massey contends that the twenty-eight month delay between the date he was indicted and his trial is presumptively unreasonable. The Court of Criminal Appeals has recognized that courts generally hold delays of eight months or longer presumptively unreasonable, thereby triggering speedy-trial analysis. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Likewise, this Court recently held that a delay substantially shorter than twenty-eight months is presumptively unreasonable, thus triggering speedy-trial analysis. Ervin v. State, 125 S.W.3d 542, 546 (Tex. App.—Houston [1st Dist.] 2002, no pet.). We therefore evaluate Massey’s claim under Barker.

Reason for Delay

          The State bears the burden to justify a presumptively unreasonable delay. Phillips v. State, 650 S.W.2d 396, 400 (Tex. Crim. App. 1983). A deliberate attempt to delay the trial to hamper the defense weighs heavily against the government. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. A negligent delay weighs less heavily, but nevertheless we consider it, because the ultimate responsibility for such circumstances rests with the State rather than with the defendant. Id.

          Massey does not dispute that the State announced it was ready for trial in November 1999, only weeks after he was indicted, and that the State requested that the trial court’s coordinator set the case for trial. Massey nonetheless contends that, other than by blaming the trial court’s scheduling system, the State offered no reason to justify the reason for the delay he experienced. Massey also alleged, in a letter to the trial court just before the trial took place, that the State passed four trial settings, and that he announced “ready” at each; but nothing else in the appellate record indicates that such settings existed, or that Massey ever announced ready.   

          Massey called Leslie Hardy, an employee of the District Attorney’s Office, who testified that Carroll Standley was the trial court’s coordinator. Hardy attributed the delay in this case to a backlog of cases in the trial court, and explained that “in order to try to keep up with [the] backlog,” a large amount of trial work is currently handled by visiting judges. The Walker County District Attorney receives dockets from the trial court coordinator, and its office prepares the cases set on the court’s docket. Hardy testified that the district attorney’s office did nothing to delay bringing Massey’s case to trial, and the trial court admitted into evidence a written announcement of ready and request for trial setting filed by the State on November 22, 1999.

          We find that this factor weighs against the State, but not heavily. In Barker, although the Supreme Court considered overcrowded courts to be a neutral reason for delay, it did state that it should be considered as “responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, 407 U.S. at 531, 92 S. Ct. at 2192; see also Ramirez v. State, 897 S.W.2d 428, 433 (Tex. App.—El Paso 1995, no pet.) (because record supported State’s contention that delay caused by overcrowded docket, “this factor does not weigh heavily against the State”).

Assertion of Speedy Trial Right

          A defendant’s assertion of his right to a speedy trial is entitled to strong evidentiary weight. Barker, 407 U.S. at 531-32, 92 S. Ct. at 2193. Likewise, a defendant’s failure to assert the right to a speedy trial makes it difficult to prove that he was denied a speedy trial. Id. at 532, 92 S. Ct. at 2193; Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

          Without providing authority to support this proposition, Massey contends that, by filing “a few [pretrial] motions,” he repeatedly, albeit impliedly, asserted his right to a speedy trial. Massey testified that he did not recall what relief his pretrial motions requested, nor how many motions he filed, and admitted that he never requested a hearing on those motions. The record indicates that Massey filed two pretrial motions on November 30, 1999. Massey explained that, although he had access to free stamps to send “legal mail,” he sent only the motions contained in the court’s file, explaining, “I was just waiting for them to respond.” Massey testified that he wrote the district attorney, but was not surprised to know that the letter was not in the district attorney’s file. When asked why he was not surprised, Massey reluctantly responded, “I’d rather not answer that question.”

          Existing caselaw contradicts Massey’s proposition that the filing of pretrial motions implies a request for a speedy trial. See State v. Munoz, 991 S.W.2d 818, 825-26 (Tex. Crim. App. 1999) (waiver of arraignment form containing a pro forma request for trial date and motion to sever not assertion of right to speedy trial when nothing filed before motion to dismiss expressly reflected assertion of right to speedy trial); In re J.W.G., 988 S.W.2d 318, 323 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (neither motion to dismiss for purported speedy trial violations nor announcement of ready constitutes assertion of right to speedy trial); Harlan v. State 975 S.W.2d 387, 391 (Tex. App.—Tyler 1998, pet. ref’d) (distinguishing between pursuing pretrial motions and asserting right to a speedy trial).

          The Court appointed trial counsel for Massey on December 14, 2001. On December 31, 2002, Massey waived arraignment, and stated that he “ agrees that the cause be set for pre-trial at the next available setting in the courtroom of the 12th Judicial District Court of Walker County, Texas.” Massey, however, never expressly asserted his right to a speedy trial until March 2, 2002, and did so at that time by seeking dismissal of the indictment.   

          Massey’s reliance on Turner v. State, 545 S.W.2d 133 (Tex. Crim. App. 1976) is misplaced. Unlike Massey, Turner persistently asserted his right to a speedy trial. Turner filed numerous motions for a speedy trial and requested that the trial court quash the indictment. Id. at 135-36. He sent letters requesting a speedy trial, and even successfully persuaded the Texas Attorney General and an administrative assistant employed at the federal penitentiary at which he was housed to send letters requesting that he receive a speedy trial. Id. Even before obtaining counsel, Turner requested a speedy trial on two occasions, moved once to quash the indictment, and enlisted the services of the attorney general in requesting that he receive a speedy trial. Id. Unlike Turner’s diligent assertion of his right to a speedy trial, Massey waited over two years from the date he was indicted before he asserted his right to a speedy trial.

          Massey also relies upon Zamorano v. State, 84 S.W.3d 643, 651-52 (Tex. Crim. App. 2002), in support of his contention that he was denied the right to a speedy trial. Like Massey, Zamorano’s first assertion of his right to a speedy trial was “tardy.” Id. at 651. Unlike Massey, however, Zamorano persistently asserted his right to a speedy trial. Zamorano filed a second motion for speedy trial less than two months after the trial court denied his first motion. Id. at 651-52. The Court of Criminal Appeals noted that, if it were not for Zamorano’s persistence as evidenced by his second assertion of his right to a speedy trial, his initial “late assertion, had no subsequent motion been filed, might well have undercut his Sixth Amendment claim.” Id. at 652. Here, Massey first asserted his right to a speedy trial by filing his motion to set aside the indictment on March 7, 2002. The trial court conducted a hearing on the motion on March 22, 2002, and the trial court did not rule on his motion until October 24, 2002. More than seven months elapsed between the date of the hearing and the date that the trial court ruled on his motion, and, unlike Zamorano, Massey did not again assert his right to a speedy trial, but instead plead guilty to the criminal offense of aggravated robbery pursuant to a plea bargain on November 4, 2002.

          We determine that this factor weighs heavily against Massey. Massey was indicted in October 1999, and never filed a motion or request for speedy trial. In March 2002, twenty-eight months after he was indicted, Massey first asserted his right to a speedy trial by filing a motion to set aside the indictment. The absence of a timely demand for a speedy trial, even after being represented by counsel, indicates strongly that Massey really did not want a speedy trial. See Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 314(concluding appellant’s quiet acquiescence for three and a half years indicated he really did not want a speedy trial); see also Zamorano, 84 S.W.3d at 651 n.40 (noting motion framed as motion to dismiss potentially weakens speedy trial claim, because “it shows a desire to have no trial instead of a speedy trial”); Harris, 827 S.W.2d at 957. While Massey had no duty to bring himself to trial, he was not without responsibility to assert his right to a speedy trial. Zamorano, 84 S.W.3d at 651.

Prejudice Caused by the Delay

          The defendant bears the burden to make a prima facie showing of prejudice. State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999). If shown, the State must prove that “the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.” Id. We assess prejudice “in the light of the interests of defendants which the speedy trial right was designed to protect” in determining prejudice caused by the delay. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. The right to a speedy trial is designed to protect the following three interests of a defendant: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limiting the possibility of impairment of the accused’s defense. Id. The last type of prejudice is the most serious, although a defendant’s claim that his right to a speedy trial was violated does not absolutely require that he demonstrate prejudice to his ability to present a defense. Zamorano v. State, 84 S.W.3d 643, 652.

          Delay does not per se prejudice a defendant. See Barker, 407 U.S. at 519; 92 S. Ct. at 2186. For example, if a trial court experiences a backlog of cases on its docket, a defendant is able to more effectively negotiate for a plea bargain and otherwise manipulate the system. Id. Witnesses also become unavailable and memories fade as time passes. Id. 407 U.S. at 521; 92 S. Ct. at 2187. Considering that the State bears the burden of proof at trial, delay can be either employed or acquiesced to as a defense tactic. Id. 407 U.S. at 522; 92 S. Ct. at 2187.

           Massey contends that he was prejudiced by the delay because: (1) “he, his counsel and investigator are now unable to locate numerous witnesses to the events that transpired the day of the alleged incident”; (2) he “cannot recall with accuracy, after a period of almost four years, the specific times and places he was at during the day of the alleged offense”; (3) “he was caused to suffer mental anguish and concern as a result of the pending case”; and (4) “he could have run any time received for the current offense concurrent with the time he was serving in TDCJ for the past three years.” The State does not address Massey’s specific contentions, but instead contends that “Massey caused his own delay in not asserting his right to a speedy trial” and, because he acquiesced to the delay, he suffered no prejudice. We address each of Massey’s contentions.

Witness Unavailability and Evidence Pertaining to the Offense

          Where the basis for prejudice is witness unavailability, a defendant must demonstrate that: (1) the witness was unavailable at time of trial; (2) the witness’ testimony would have been relevant and material; and (3) the defendant exercised due diligence in an attempt to locate the witnesses. Clarke v. State, 928 S.W.2d 709, 716 (Tex. App.—Fort Worth 1996, pet. ref’d). Massey testified that, while incarcerated, he unsuccessfully attempted to contact witnesses that he thought would be favorable to his defense by sending them letters. Massey explained, “there was this girl that I was talking to. I wrote her, and my letter came back - - everybody I write [sic] - - most of the people I wrote, they - - I never heard anything else from them.” Massey testified that he knew how to address an envelope, and that he provided correct addresses on the envelopes, but that all of his letters were returned, stamped “insufficient address.” Massey also testified that he did not have “the opportunity to discuss his case with any investigators,” and insinuated that had he that opportunity, he may have been able to locate the unavailable witnesses.

          On cross-examination, the prosecutor questioned Massey regarding the existence of the unavailable witnesses. Massey testified that “[t]here was a Barbara,” but was unable to recall her last name. The prosecutor then referenced the letters that Massey contended he sent, and the following colloquy occurred:

[Massey]:I didn’t never say that I wrote no girl for no help.  

[State]:Yes, [you] did; you said you wrote a letter to a potential witness and some - - and it was a girl and you got it back insufficient address.

[Massey]:No, no. Maybe you misunderstood me.

[State]:Maybe you can correct me. To whom did you send all these letters to [sic]?

[Massey]:What do you want?

[State]:I want to know - -   

[Massey]:I’m not understanding - -

[State]:The names of the witnesses you say you cannot find.   

Massey then explained that, in addition to attempting to locate Barbara, Massey also attempted to locate a witness named Meosha Laymon. Massey did not, however, offer any evidence demonstrating the subject matter of their testimony, or that it would have been relevant and material to his defense. See Clarke, 928 S.W.2d at 716 (requiring defendant show witness testimony would have been relevant and material). Massey offered no evidence suggesting that he was unable to hire an investigator, and the prosecutor elicited testimony from Massey suggesting that he was unaware whether his attorney requested that the court appoint an investigator. On redirect examination, Massey’s attorney did not attempt to controvert that testimony. We conclude that Massey failed to demonstrate that the testimony of the unavailable witnesses would have been relevant and material, and that he exercised due diligence in an attempt to locate the potential witnesses.

          Closely related to Massey’s contention that he was prejudiced by the delay— because of his inability to locate witnesses to the events that transpired the day of the robbery—is his contention that he is unable to recall with accuracy his whereabouts during the day of the robbery. In order to demonstrate prejudice caused by fading memories, Barker requires that a defendant show that “lapses of memory” are in some way “significant to the outcome” of the case. See Barker, 407 U.S. at 534, 92 S. Ct. At 2194; see also State v. Munoz, 991 S.W.2d 818, 829 (Tex. Crim. App. 1999). Massey’s general contention on appeal that he “cannot recall with accuracy, after a period of almost four years, the specific times and places he was at [sic] during the day of the alleged offense” is insufficient to demonstrate that his defense was prejudiced by his allegedly fading memories. See Munoz, 991 S.W.2d at 829. Moreover, Massey has not cited to any evidence in the record to support this proposition; he merely raises the contention on appeal and has therefore waived this argument. See Tex. R. App. P. 33.1. We have reviewed Massey’s testimony, and note that Massey did not aver that the delay he experienced resulted in an inability to recall his whereabouts on the day of the robbery.

          Massey experienced several minor lapses of memory while testifying, but those memory lapses did not pertain to the specific times and places where he was on the date of the robbery. Instead, Massey was unable to recall the “exact date” or “time frame” that the court appointed his attorney, the name of the individual who served him with the aggravated robbery and escape indictment, the exact date he received treatment at TDCJ’s mental health facility, and the last name of “Barbara,” an unavailable witness. Because Massey presented no evidence at the hearing in support of his appellate contention that his memory lapses prohibited him from recalling with accuracy his whereabouts during the day of the robbery, we hold that he has failed to show that his “lapses of memory” were in some way “significant to the outcome” of his case. Munoz, 991 S.W.2d at 829.

Mental Anguish

          Relying upon his testimony, which he asserts is corroborated by medical evidence, Massey contends that the delay he experienced caused him to suffer mental anguish and concern. Massey testified that he was “concerned” about the pending escape and aggravated robbery charges. Massey explained,

[W]hen I caught the chain . . . I was trying to get back and I couldn’t get in touch with nobody. I was stressing - - when I say ‘stressing,’ I mean . . . I wasn’t hardly eating. I was having problems, because I know I had this pending charge and I couldn’t get - - it was like I was stuck down there. And no one was trying to get me back into court. They wouldn’t hear me. I was doing what I was supposed to do. They just wasn’t hearing me.

Massey testified that his anxiety required that he receive treatment at Skyview, TDCJ’s unit for psychiatric care. Massey testified that he informed his treating physicians and counselors at Skyview that the pending charges were the source of his anxiety and stress, that he was given Zoloft to treat his symptoms, and that he continued to suffer mental anguish while in TDCJ’s custody.

          On cross-examination, however, Massey admitted that he was treated at Skyview before he was indicted for aggravated robbery and escape, and only one month after returning to TDCJ’s custody. Massey’s only explanation for why he no longer takes Zoloft was because he was transferred to another unit “where they don’t give that.”

          The medical evidence reflects that, on August 3, 1999, Massey complained of stress, of hearing voices, and of seeing things such as birds, the gates of hell, fire, and skeletons. The attending nurses’ notes reflect, however, that, on August 3, 1999, Massey stated, “I haven’t told the psych doctor the truth.” Massey’s records indicate that he desired to “talk to him again so I can tell him the truth.” The treating physician’s notes reflect that Massey was interviewed on August 5, 1999. During that interview, he stated “that he has been having some depressive [sic] mood and for that reason wishes to continue on medication as an outpatient.” According to his medical records, Massey was initially placed on Prozac at seventeen or eighteen years of age, and used Prozac in conjunction with various street drugs. Massey’s medical records address TDCJ’s basis for proscribing antidepressant drugs to treat his depression:

He recently was placed in Walker County Jail where his Prozac was continued because it had been restarted in the free world. He was transferred to Skyview because at his unit of assignment he was complaining of depressed mood and requesting that he be restarted on medication. There are notes about him wanting to be on medication so that he will not have to work in the field, but because of his prior psych history and his presentation today, it appears that he does benefit from being on antidepressant.

          Although Massey testified that the delay he experienced caused him to suffer mental anguish and concern over the pending charges, the medical evidence he presents does not support this specific contention. Moreover, Massey ignores the controverting evidence that he sought treatment for stress prior to being indicted for escape and aggravated robbery, and that his medical records reflect that he was untruthful to the healthcare providers at Skyview. His medical records also suggest that he may have requested medical treatment in order to avoid working in the field, and they disclose that Massey previously had experienced symptoms of depression, and requested drugs to treat it. In such circumstances, we view the evidence in a light favorable to the trial court’s ruling, and conclude that this evidence does not support Massey’s speedy trial claim.

Possibility of Concurrent Time

          Massey also contends that he was prejudiced because he was denied the “chance” to serve portions of his aggravated robbery sentence concurrently with the remainder of another sentence he served in TDCJ after he violated his parole. The State does not directly respond to this argument, but instead contends that Massey’s failure to assert his right to a speedy trial, combined with the fact that he entered a plea of guilty pursuant to a plea bargain demonstrates that he suffered no prejudice.

          The State arrested Massey in May 1999, and returned him to TDCJ in July 1999 for a parole violation on a previous felony conviction, where he served the remainder of that sentence. Massey was indicted in this case on October 26, 1999. Massey received notice that Walker County placed a detainer on him in November 1999. TDCJ discharged Massey in December 2001, and Walker County officials took him into their custody to answer for the current charges pursuant to the detainer. Massey testified that he understood that if he were convicted and sentenced for the charged offenses, he would receive credit for time served from the date the detainer was launched. The trial court sentenced Massey to thirty years’ confinement pursuant to a plea bargain, and Massey received 327 days of credit on that sentence. On appeal, he has not challenged the amount of time the trial court credited towards the satisfaction of his sentence.

          In Bailey v. State, 885 S.W.2d 193, 202 (Tex. App.—Dallas 1994, pet. ref’d), the Court of Appeals considered and rejected Massey’s very argument under circumstances almost identical to this case. Bailey was indicted in Dallas County in July 1988. Id. at 201. In November 1991, Bailey was arrested in Harris County on an unrelated charge, and Dallas County placed a detainer on Bailey the day after his arrest. Id. Bailey was convicted and sentenced in Harris County in November 1991, and completed the sentence in May 1992, whereupon the State transferred him to Dallas County pursuant to the detainer. Id. On appeal, Bailey, like Massey, contended that he was prejudiced by the loss of the opportunity to serve concurrent sentences. The Court of Appeals rejected Bailey’s argument, concluding that he was not prejudiced by the loss of concurrent sentences in the Dallas County conviction. Id. at 202. Here, Massey successfully negotiated for a plea bargain, and thus we cannot assume that Massey was prejudiced by the loss of the “chance” to serve concurrent sentences. See Barker, 407 U.S. at 519; 92 S. Ct. at 2186 (noting that defendants in courts with overcrowded dockets may more effectively negotiate plea bargains). Massey has not shown that had he been given a speedier trial, it would have allowed him to serve sentences concurrently in any way that would have benefitted him.

          We conclude that Massey has not demonstrated that he was prejudiced by the delay he experienced. He did not demonstrate that the testimony of the unavailable witnesses was relevant and material, that he exercised due diligence in his attempt to locate the missing witnesses, nor that his lapses in memory were significant to the outcome of his case. Although Massey testified that the delay caused him to suffer mental anguish, the trial court observed Massey and was able to evaluate the credibility of his interested and controverted testimony concerning this contention. See Munoz, 991 S.W.2d at 821(reviewing court reviews factual issues in speedy trial claim for abuse of discretion). Moreover, the medical evidence that Massey offered controverts his own testimony, calls into question his credibility, and demonstrates that he has previously received medication for the symptoms he contends evidences his mental anguish. Finally, Massey agreed to the terms of his plea bargain, does not contend that his plea was involuntary, and the trial court assessed punishment as recommended.

Conclusion

          We conclude, based upon the factors established in Barker, that the State did not violate Massey’s right to a speedy trial. Although the explanation for the delay weighs slightly against the State, Massey failed to assert his right to a speedy trial, and did not demonstrate that he was prejudiced by the delay. We therefore conclude that the trial court properly denied Massey’s motion to dismiss the indictment, and affirm the judgment of the trial court. 

                                                             Jane Bland

                                                             Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).